NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RUBEN MANUEL BERMUDEZ, Appellant.

No. 1 CA-CR 13-0679

Appeal from the Superior Court in Maricopa County

No. CR2012-123155-001 DT

The Honorable Daniel J. Kiley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist, III

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Spencer D. Heffel

Counsel for Appellant
STATE v. BERMUDEZ

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 Ruben Manuel Bermudez appeals his robbery conviction. 

He contends the trial court erred by denying his request for a Willits

instruction.1 For the reasons that follow, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 B.P. was walking home one evening when Bermudez

approached and asked to use his cell phone. B.P. agreed, dialed a number 

provided by Bermudez, and handed his phone to Bermudez. Bermudez 

attempted several different calls, but none went through. After a final 

failed call attempt, Bermudez punched B.P. in the face and ran away with 

B.P.’s phone. 

¶3 B.P., whose lip was swollen and whose nose was bleeding 

profusely, flagged down a police car. He provided a description of his 

assailant and of his cell phone — a slim, black touchscreen phone made by 

Huewai with Cricket cellular service — which was broadcast to police 

units in the area. Shortly thereafter, an officer detained Bermudez roughly 

a half mile away. A cell phone was found in Bermudez’ pocket that 

matched B.P.’s description. Though Bermudez claimed he owned the 

phone, it rang when officers dialed a number that B.P. had provided. 

¶4 The officers took B.P. to Bermudez’ location, where B.P. 

identified Bermudez as his assailant. B.P. also identified the phone as his

and gave officers a four-digit PIN that they used to unlock the phone. The 

officers then returned the phone to B.P. and took Bermudez into custody. 

¶5 Bermudez was charged with one count of robbery, a class 4 

felony. The State alleged aggravating circumstances and prior 

convictions. At trial, Bermudez requested a Willits instruction. Bermudez 

argued that because he put ownership of the cell phone at issue by 

 

1 State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
STATE v. BERMUDEZ

Decision of the Court

3

claiming it belonged to him, the police erred by returning the phone to 

B.P. on the night of the incident. He further argued that the failure to 

preserve potentially exculpatory evidence caused him prejudice. The trial 

court declined to give a Willits instruction. 

¶6 The jury found Bermudez guilty of robbery and found one

aggravating factor. The trial court determined that Bermudez had three 

prior felony convictions and sentenced him to ten years in prison, with 

498 days of presentence incarceration credit; he was also ordered to pay 

$52.00 in restitution. 

¶7 Bermudez timely appealed. We have jurisdiction pursuant 

to Article 6, Section 9, of the Arizona Constitution and Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1). 

DISCUSSION

¶8 We review the trial court’s refusal to give a Willits

instruction for an abuse of discretion. State v. Fulminante, 193 Ariz. 485, 

503, ¶ 62, 975 P.2d 75, 93 (1999). A Willits instruction is appropriate if the 

defendant proves that “(1) the state failed to preserve material and 

reasonably accessible evidence that could have had a tendency to

exonerate the accused, and (2) there was resulting prejudice.” State v. 

Glissendorf, 235 Ariz. 147, 150, ¶ 8, 329 P.3d 1049, 1052 (2014). “A trial 

court does not abuse its discretion by denying a request for a Willits

instruction when a defendant fails to establish that the lost evidence 

would have had a tendency to exonerate him.” Fulminante, 193 Ariz. at

503, ¶ 62, 975 P.2d at 93. The defendant need not establish that the 

evidence would certainly exonerate him, but he must do more than 

“simply speculate about how the evidence might have been helpful.” See 

Glissendorf, 235 Ariz. at 150, ¶¶ 9-10, 329 P.3d at 1052. 

¶9 Neither in the trial court nor on appeal has Bermudez clearly 

articulated how the cell phone’s presence would have had a tendency to 

exonerate him or how its absence at trial prejudiced him. As the State 

correctly observes, the trial evidence established that the phone in 

Bermudez’ possession matched B.P.’s detailed description; the phone 

unlocked with a passcode B.P. provided; and the phone rang when a 

number B.P. gave police was dialed. Bermudez has never explained how

having the phone at trial would have assisted his defense or asserted that 

he could identify characteristics of the phone that only an owner would 

know. Under these circumstances, the trial court did not abuse its 

discretion by declining to give a Willits instruction. See, e.g., State v. Speer, 
STATE v. BERMUDEZ

Decision of the Court

4

221 Ariz. 449, 457, ¶ 41, 212 P.3d 787, 795 (2009) (observing that defendant 

did not demonstrate how missing evidence might have exonerated him or 

mitigated his participation in the crime); State v. Smith, 158 Ariz. 222, 227, 

762 P.2d 509, 514 (1988) (noting there was “nothing except speculation” to 

suggest that license plate number of get-away vehicle, written on missing 

piece of paper, was not the defendant’s); State v. Perez, 141 Ariz. 459, 464, 

687 P.2d 1214, 1219 (1984) (holding no abuse of discretion in denying 

Willits instruction where defendant “presented no evidence to support his 

assertion that had the [destroyed] videotape been presented to the jury, he 

would have been acquitted . . . because the tape would have proven his 

mistaken identity defense”). 

CONCLUSION

¶10 For the reasons stated, we affirm Bermudez’ conviction and 

sentence.