NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellant,

v.

JOSHUA RUIC KIMBALL, Appellee.

No. 1 CA-CR 23-0317

Appeal from the Superior Court in Coconino County

No. S0300CR202200544

The Honorable Joshua Steinlage, Judge

VACATED AND REMANDED

COUNSEL

Coconino County Attorney’s Office, Flagstaff

By Sasha Charls

Counsel for Appellant

Law Office of David G. Bednar, Flagstaff

By David G. Bednar

Counsel for Appellee

FILED 06-27-2024
STATE v. KIMBALL

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Jennifer B. Campbell joined.

B R O W N, Judge:

¶1 The State appeals the superior court’s order dismissing with 

prejudice criminal charges filed against defendant Joshua Ruic Kimball. 

The State argues the court abused its discretion by finding that a 911 call 

recording was destroyed in bad faith and that the destruction prejudiced

Kimball. Because we agree with the State’s argument, we vacate the order 

dismissing the case and remand for further proceedings.

BACKGROUND

¶2 On August 21, 2021, police dispatch informed Seargent

Lampsa that a man was reportedly driving a black Chevrolet truck on I-40,

using rude hand gestures, brake checking, and attempting to ram the 

alleged victims’ vehicle. The victims also told the dispatcher that the man

had brandished a black handgun at them and continued driving. 

Eventually Lampsa stopped the truck, driven by Kimball. Kimball, 

however, was not immediately arrested and no charges were filed at that 

time. On September 1, Kimball’s attorney made an online request to the 

Arizona Department of Public Safety (“DPS”) to provide by U.S. mail the 

offense report, the 911 dispatch audio files, and any video files. 

¶3 In January 2022, the State charged Kimball with two counts of 

aggravated assault with a deadly weapon, one count of misconduct 

involving weapons, and one count of disorderly conduct with a weapon.

He pled not guilty to all charges. A worksheet from a pretrial conference 

held on March 8, 2022, shows that defense counsel was “REQUESTING 

MEDIA” from the Coconino County Attorney’s Office (“CCAO”). On July 

21, DPS responded to the September 1 online request—more than

10-months-old at the time—by emailing defense counsel a link labeled

“Dispatch – 911.” The email warned that the link would “expire in 30

days.” According to defense counsel, the link was defective, but he did not

specify when he tried to open it.
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¶4 On November 7, 2022, defense counsel emailed the CCAO, 

noting that he had yet to receive the 911 recording and requesting that it be 

sent to him. A few weeks later, the CCAO informed defense counsel that 

the recording “no longer exists.” Apparently it had been deleted a few 

months earlier, on August 22, 2022, pursuant to DPS’s one-year retention 

policy for audio files. 

¶5 Kimball filed a motion to dismiss the charges with prejudice, 

asserting the State violated his due process rights by failing to preserve the 

911 recording. After an evidentiary hearing, where Lampsa and a DPS 

representative testified, the superior court granted Kimball’s motion. The 

court found that the loss of the 911 recording prejudiced Kimball by 

diminishing his ability to cross-examine or impeach the victims with prior 

inconsistent statements. It determined that the State acted in bad faith 

because DPS took more than 300 days to respond to Kimball’s request and 

did not honor his requested form of response—U.S. mail. The court further 

reasoned that after receiving the request in March 2022, the CCAO made no 

“efforts whatsoever” to preserve the 911 recording, which was “not just 

mere negligence,” it was “bad faith.” The State timely appealed, and we 

have jurisdiction under A.R.S. §§ 12–120.21(A)(1) and 13–4031.

DISCUSSION

¶6 The State argues the superior court abused its discretion by 

dismissing the case with prejudice because Kimball did not suffer actual 

prejudice, and the State did not act in bad faith. The State contends the 

appropriate remedy for the loss of the 911 recording is a Willits instruction, 

which permits a jury to infer the lost evidence would have proved facts 

against the State’s interest. See State v. Murray, 184 Ariz. 9, 33 (1995) (citing 

State v. Willits, 96 Ariz. 184 (1964)). Kimball counters that the court acted 

within its discretion to dismiss the case with prejudice. He argues he 

suffered actual prejudice because, without the 911 recording, he could not 

analyze the legality of the traffic stop or effectively cross-examine the 

victims. He also contends the State’s inaction in response to his two written 

requests for the 911 recording “went far beyond negligence, and [] equates 

to bad faith.”

¶7 “We review orders dismissing criminal charges for an abuse 

of discretion or application of an incorrect legal interpretation.” State v. 

Penney, 229 Ariz. 32, 34, ¶ 8 (App. 2012). Trial judges have broad discretion 

in choosing sanctions for violations of discovery rules, which we will not 

reverse absent an abuse of discretion. See State v. Armstrong, 208 Ariz. 345, 

353–54, ¶ 40 (2004). “We view the facts and evidence in the light most 
STATE v. KIMBALL

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favorable to sustaining the trial court’s ruling, but we review questions of 

law de novo.” State v. Chavez, 208 Ariz. 606, 607, ¶ 2 (App. 2004). A case 

may be dismissed with prejudice due to the loss of material evidence if the 

State acted in bad faith or the defendant suffered actual prejudice. See State 

v. Youngblood, 173 Ariz. 502, 507 (1993) (noting that a Willits instruction is 

inadequate when “the [S]tate acts in bad faith or the defendant suffers 

prejudice-in-fact”). 

A. Prejudice

¶8 In deciding whether the State’s failure to preserve evidence 

violates due process, the “critical distinction . . . is ‘between material 

exculpatory evidence and potentially useful evidence.’” State v. Speer, 221 

Ariz. 449, 457, ¶ 37 (2009) (quotation omitted). Evidence is constitutionally 

material when it possesses “an exculpatory value that was apparent before 

[it] was destroyed, and [is] of such a nature that the defendant would be 

unable to obtain comparable evidence by other reasonably available 

means.” State v. Dunlap, 187 Ariz. 441, 452 (App. 1996) (quotation omitted).

¶9 On the other hand, when evidence is merely potentially 

useful in that “the nature of the evidence—exculpatory, inculpatory, or 

neutral—is unknown, . . . there can be no showing of prejudice in fact.” 

Youngblood, 173 Ariz. at 507. In that circumstance, “only a showing of bad 

faith implicates due process.” Id. “Absent bad faith, ‘the inference that the 

evidence may be exculpatory is not strong enough to dismiss the case. It is 

enough to let the jury decide whether to draw such an inference.’” State v. 

Lehr, 227 Ariz. 140, 150, ¶ 41 (2011) (quotation omitted).

¶10 The superior court found actual prejudice because the loss of 

the 911 recording “greatly diminish[ed]” Kimball’s ability to challenge the 

victims’ view of what occurred during their alleged interaction with 

Kimball. We recognize that the victims’ statements in the 911 recording

may differ from the CAD log and their later statements to law enforcement.

Thus, the 911 recording’s destruction may hinder Kimball’s ability to crossexamine and impeach the victims. However, as the superior court 

acknowledged, “[we] can’t ever know what was actually reported [in] the 

911 call.” Accordingly, any prejudice arising from the destruction of the 

recording is speculative and cannot support a finding of actual prejudice. 

See Youngblood, 173 Ariz. at 503–04 (explaining that without bad faith,

“failure to preserve potentially useful evidence does not constitute a denial of 

due process of law”) (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988))

(emphasis added).
STATE v. KIMBALL

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¶11 Kimball argues nonetheless that he suffered actual prejudice 

because, without the 911 recording, he cannot determine whether the 

officers had reasonable suspicion to perform a traffic stop. Kimball points 

to this court’s opinion in State v. Lopez, 156 Ariz. 573, 574–75 (App. 1987),

where we affirmed the dismissal of charges based on the destruction of 

police transmission tapes, which would have helped determine if there was 

reasonable suspicion for the traffic stop. But in Lopez, the court did not 

specify whether it was affirming based on a finding of prejudice or bad 

faith. Id. at 575.

¶12 Further, even if Lopez was affirmed based on prejudice, the 

court relied on a now outdated rule in doing so. See id. The Lopez court 

adopted the following rule from a Washington court: “When there is a 

‘reasonable possibility’ that the requested evidence would be favorable and 

material to the defense, dismissal is a proper sanction for destruction of the 

evidence.” Id. (quoting State v. Boyd, 629 P.2d 930, 933 (Wash. Ct. App. 

1981)). Subsequently, Youngblood and its progeny have clarified that 

dismissal of a case due to lost evidence (in the absence of bad faith) is 

justified only if the defendant shows there was actual prejudice. See 

Youngblood, 173 Ariz. at 507; Dunlap, 187 Ariz. at 452–53; State v. O’Dell, 202 

Ariz. 453, 458, ¶ 13 (App. 2002) (“The mere possibility that destroyed 

evidence could have exculpated a defendant is insufficient to establish a 

due process violation, as there has been no showing of prejudice to the 

defendant.”). Here, because the precise content of the 911 recording is 

unknown, its use in challenging the traffic stop is speculative, and thus

there has been no showing of actual prejudice under the test announced 

after Lopez. See Youngblood, 173 Ariz. at 507.

B. Bad Faith

¶13 Without actual prejudice, a finding of bad faith is required to 

dismiss the charges. Youngblood, 173 Ariz. at 507. If the State exercises bad 

faith in handling evidence, it “strengthens the inference that the evidence 

might be exculpatory to an unacceptable level.” Youngblood, 173 Ariz. at 

506–07 (“A conscious, intentional or malicious failure to preserve evidence 

which could be tested suggests ‘that the evidence could form a basis for 

exonerating the defendant.’”) (quoting Youngblood, 488 U.S. at 58). 

Generally, the determination of bad faith hinges on the State’s “knowledge 

of the exculpatory value of the evidence at the time it was lost or 

destroyed.” Dunlap, 187 Ariz. at 452 (quoting Youngblood, 488 U.S. at 56, 

n*); see also State v. Hulsey, 243 Ariz. 367, 378–79, ¶ 26 (2018) (“[B]ecause its 

exculpatory value was not readily apparent, [the defendant] cannot show 

bad faith on the State’s part in not preserving the evidence.”).
STATE v. KIMBALL

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¶14 The State asserts that neither the CCAO nor DPS knew about 

the “alleged exculpatory value of the 911 call” when it was destroyed, and 

thus a finding of bad faith is unwarranted. Kimball, however, made two 

written requests for the 911 recording, which the State was obligated to 

timely fulfill. Ariz. R. Crim. P. 15.1(e)(1)(B) (requiring the State to provide 

“911 calls” within “30 days [of] receiving a defendant’s written request”).

Given the written requests, the State is not absolved of bad faith solely

because it lacked knowledge of the 911 recording’s potential exculpatory 

value.

1 See Lopez, 156 Ariz. at 574 (“When the state receives a specific 

request for such evidence, failure to disclose is seldom, if ever, excusable.”). 

Therefore, we turn to the State’s other arguments explaining why its 

conduct did not constitute bad faith.

¶15 The State argues it did not act in bad faith because DPS 

emailed defense counsel a link to the 911 recording before it was destroyed. 

Kimball counters that even if the failure to preserve the 911 recording “was 

only negligent, dismissal is still appropriate because” State v. Hannah, 120 

Ariz. 1 (1978), “recognized a denial of due process rights when evidence is 

negligently destroyed.”

¶16 In finding bad faith, the superior court noted that the State 

made “no effort” in response to the written requests for the 911 recording,

which was “not just mere negligence,” it was “doing nothing whatsoever.” 

The court reasoned that Hannah supports a finding of bad faith under these

circumstances “where the destruction occurred negligently before any 

request to preserve” was made.

¶17 In Hannah, the defendant faced arson and insurance fraud

charges. Id. at 1. Shortly before trial he asked to examine certain items that 

the police had seized. Id. But the police had already destroyed these items

inadvertently and had “made no attempt” to test them for fingerprints. Id.

at 1–2. Our supreme court affirmed the dismissal of charges because the 

defendant had “been so seriously prejudiced by the loss of evidence that he 

has been denied due process and that the giving of a Willits instruction will 

not assure him a fair trial.” Id. at 2. It further held that “[b]ecause tests were 

not made which could have been made, and because it cannot now be 

determined whether exculpatory evidence would have been developed,” 

the defendant was “denied due process by the negligent destruction of the 

1 The State contends that the CCAO “had no knowledge that ‘MEDIA 

REQUESTED’ included a 911-call request” because it was an “overly 

broad” request. But the CCAO never attempted to clarify what that “overly 

broad” request included. Instead, it took no action.
STATE v. KIMBALL

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seized evidence.” Id. Because the Hannah court affirmed the dismissal 

based on prejudice, not by finding that the State acted in bad faith, it does 

not support the superior court’s conclusion here that the State acted in bad 

faith. See id.

¶18 Although the Lopez court noted that “[w]hen the state receives 

a specific request for such evidence, failure to disclose is seldom, if ever,

excusable,” 156 Ariz. at 574, Youngblood subsequently defined bad faith as

the State’s “conscious, intentional or malicious failure to preserve evidence 

which could be tested.” Youngblood, 173 Ariz. at 506. Here, DPS, an arm of 

the State, attempted to preserve the 911 recording by emailing defense 

counsel a link to retrieve the recording. Although the email was not the 

format defense counsel had requested and DPS sent it more than 300 days 

after the request, even assuming that the link was defective, see Chavez, 208 

Ariz. at 607, ¶ 2, the email still shows that the State attempted to fulfill the 

request and preserve the 911 recording before it was destroyed. There is no

indication the State was aware of issues with the link before the 911 

recording was destroyed, and thus no reasonable inference can be drawn 

that the State’s failure to preserve the recording was conscious, intentional, 

or malicious. See Youngblood, 173 Ariz. at 506. The record does not support 

the court’s finding that the State acted in bad faith.

¶19 In sum, because the precise contents of the 911 recording are 

unknown, the record only supports a finding that the loss of the 911 

recording may have prejudiced Kimball, not that he was actually 

prejudiced. And given that the State attempted to fulfill Kimball’s request 

for the 911 recording, the record only supports the finding that the State 

was negligent in allowing the 911 recording’s destruction, not that it acted 

in bad faith for purposes of due process. The superior court abused its 

discretion by dismissing the charges with prejudice.

CONCLUSION

¶20 We vacate the superior court’s order dismissing the case and 

remand for further proceedings.