Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County No. S0300CR201100753 The Honorable Jacqueline Hatch, Judge
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
Coconino County Public Defender's Office, Flagstaff By Brad Bransky, Counsel for Appellant
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined.
ANDREW W. GOULD PRESIDING JUDGE
¶1 Eric Edgar Abat appeals his convictions and sentences for one count of armed robbery, a class two dangerous felony, one count of theft, a class one misdemeanor, and seven counts of aggravated assault, class three dangerous felonies.
¶2 Abat admitted robbing a bank at gunpoint, and ordering the tellers and customers to the ground, but testified that the gun was not loaded, and he used it only as a prop, believing that it would not fire. A Department of Public Safety ("DPS") firearms expert testified that he was able to fire the gun in the second of two tests. The jury convicted Abat of the offenses, and the judge sentenced him to a mitigated term of ten years on the armed robbery, and lesser, concurrent sentences on the aggravated assaults and the theft. Abat filed a timely notice of appeal. Denial of Willits Instruction
¶3 Abat argues that the superior court abused its discretion in denying him a Willits instruction for the State's refusal to allow a defense expert to observe or record the firearms expert's second, successful test firing of the gun used in the bank robbery. The Willits instruction informs a jury it is allowed to draw an inference from the State's destruction of material evidence that the lost or destroyed evidence would be unfavorable to the State. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999). A defendant is entitled to a Willits instruction upon proving that (1) the State failed to preserve accessible, material evidence that "might tend to exonerate him" and (2) there was resulting prejudice. Id.
¶4 The superior court found in this case that the State had not lost, destroyed, or failed to preserve the gun; and that Abat had failed to show that he was prejudiced by his inability to observe or record the test. We review a superior court's decision to deny a Willits instruction for abuse of discretion. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984).
¶5 We find no such abuse of discretion. The State's refusal to allow a defense expert to observe or record the test pursuant to DPS policy did not result in loss or destruction of the gun, the material evidence. The expert testified that he did not alter the gun in conducting the second test; the only thing he changed during the second test was to use different ammunition. Moreover, he testified that he had been of the opinion after the first test, even though he had been unable to fire the gun, that the gun was not permanently inoperable. Defense counsel was able to, and did, cross-examine the expert at length on what steps the expert took that caused the gun to fire during the second test. Had a defense expert wanted to conduct his own independent test on the gun (in light of the denial of the request to observe or record the State's test), he could have done so. Nonetheless, even though the gun was available for independent testing, no defense expert conducted a test. Defendant was not entitled to a Willits instruction under these circumstances.
Expert Opinion on Ultimate Issue
¶6 Abat next argues that the superior court fundamentally erred in allowing the State's firearms expert to opine that the gun Abat used in the bank robbery was not permanently inoperable, a factor considered in determining whether the gun was a "deadly weapon." See Arizona Revised Statutes ("A.R.S.") § 13-105 (15), (19) (2013). Because Abat did not object at trial, he bears the burden of establishing that the court erred, that the error was fundamental, and that the error caused him prejudice. See State v. Henderson, 210 Ariz. 561, 568, ¶¶ 22, 23, 26, 115 P.3d 601, 608 (2005).
¶7 Abat has not met his burden. An expert may offer an opinion if his expertise "will help the trier of fact to understand the evidence or to determine a fact in issue." Ariz. R. Evid. 702. An opinion otherwise admissible "is not objectionable just because it embraces an ultimate issue." Ariz. R. Evid. 704; State v. Fornof, 218 Ariz. 74, 79-80, ¶ 21, 179 P.3d 954, 959-60 (App. 2008) (stating that detective experienced in narcotics transactions may give his opinion that defendant possessed the drugs "for sale, " even though his testimony embraced the ultimate issue). Abat misplaces his reliance on State v. Sosnowicz, 229 Ariz. 90, 270 P.3d 917 (App. 2012), in which we concluded that the medical examiner's classification of the death as a homicide was improper because he based this opinion on the circumstances described to him by police, and thus was in no better position to opine on this issue than was the jury. Id. at 95-98, ¶¶ 19-26, 270 P.3d at 922-25. The State expert's opinion that the firearm was not permanently inoperable was based on his training, experience, and testing of the gun (which revealed that it did ultimately fire ...