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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,
v.
JOE MCKENZIE, Appellant.
No. 1 CA-CR 20-0317
FILED 6-15-2021
Appeal from the Superior Court in Maricopa County
No. CR2017-141324-001
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
STATE v. MCKENZIE
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Joe McKenzie appeals his convictions and sentences for two
counts of aggravated harassment, one count of first-degree burglary, one
count of disorderly conduct, one count of sexual assault, and one count of
first-degree criminal trespass. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 McKenzie and C.M. were married in 1999 and had four
children together: S.M., A.M., B.M., and K.M. (“the children”). During the
marriage McKenzie was abusive towards C.M. In 2017, she decided to
separate from McKenzie. McKenzie moved out of the family’s home, and
in May 2017 C.M. obtained an order of protection against him.
¶3 In July 2017, despite the order of protection, McKenzie asked
to visit the children at C.M.’s home. C.M. told him not to come over but he
did anyway, and when C.M. returned from a trip to the grocery store she
found McKenzie in the kitchen. The children were at home. C.M. told
McKenzie to leave but he refused. The two began arguing, and McKenzie
grabbed C.M.’s backpack and walked out the front door. C.M. followed
him and they continued arguing in the front yard. McKenzie threw the
backpack at C.M. He called C.M. a “fucking bitch,” pulled a gun, racked it,
and pointed it at C.M. Eight-year-old K.M. tried to intervene, but McKenzie
“stiff armed” her away from him. K.M., ten-year-old B.M., and sixteen-
year-old A.M. saw McKenzie point the gun at their mother. A.M. put
herself between the gun and C.M. She asked her father to leave, and he
finally did so. C.M. called the police.
¶4 In August 2017, C.M. came home and found McKenzie in her
bedroom with a gun. He told her he was going to kill her and demanded
that she retract her July 2017 report to police. McKenzie told C.M. that if
she called the police he would kill himself and C.M. because it was a “great
day to die.” McKenzie demanded that C.M. have sex with him. Although
she refused and repeatedly told him to stop, McKenzie sexually assaulted
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STATE v. MCKENZIE
Decision of the Court
C.M. after pushing her down and pulling off her shorts. When C.M.
screamed, McKenzie threatened to hit her. After the sexual assault
McKenzie left through the bedroom sliding glass door. C.M. took a
photograph of McKenzie as he fled her home. C.M. called a friend and told
her McKenzie had sexually assaulted her at gunpoint. The friend called the
police. C.M. submitted to a forensic exam and McKenzie’s DNA was found
on the genital swabs taken from C.M.’s vagina.
¶5 Two days after the sexual assault Gilbert police officers went
to McKenzie’s mother’s home to serve a search warrant. They found
McKenzie hiding in a neighbor’s backyard with a gun to his head. After an
hours-long standoff, police took McKenzie into custody.
¶6 The State charged McKenzie with first-degree burglary (count
1), aggravated assault (count 2), disorderly conduct (count 3), and
aggravated harassment (count 4) for the July 2017 incident. The State
charged him with first-degree burglary (count 5), aggravated assault (count
6), aggravated harassment (count 7), and sexual assault (count 8) for the
August 29, 2017, incident. The State charged McKenzie with first-degree
criminal trespass (count 9) for the August 31, 2017, standoff with police.
¶7 A jury found McKenzie guilty as charged on counts 4, 5, 7, 8,
and 9 and found him guilty of a lesser-included offense of disorderly
conduct on count 6. The jury was unable to reach a unanimous verdict on
counts 1-3. The jury then found multiple aggravating factors. The superior
court sentenced McKenzie to 2 years in prison for counts 4 and 7, 17 years
in prison for counts 5 and 8, 2.25 years in prison for count 6, and 6 months
in jail for count 9.
¶8 McKenzie timely appealed. We have jurisdiction pursuant to
Arizona Revised Statues (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
-4033(A).
DISCUSSION
I. Willits Instruction
¶9 McKenzie first argues the superior court erred by refusing his
request for a Willits instruction based on the State’s failure to retain one of
C.M.’s two iPhones, the iPhone 7. See State v. Willits, 96 Ariz. 184 (1964). A
Willits instruction permits jurors to draw an adverse inference from the
State’s loss, destruction, or failure to preserve evidence if the State’s
explanation for the lost evidence is inadequate and the evidence is
important to the issues in the case. Rev. Ariz. Jury Instr. (“RAJI”) Stand.
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STATE v. MCKENZIE
Decision of the Court
Crim. 42 (Lost, Destroyed, or Unpreserved Evidence) (4th ed. 2016); State v.
Glissendorf, 235 Ariz. 147, 151, ¶ 15 (2014).
¶10 We review a court’s refusal to give a Willits instruction for an
abuse of discretion. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62 (1999). “To
be entitled to a Willits instruction, a defendant must prove 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.” Glissendorf, 235 Ariz. at 150, ¶ 8 (citations omitted). Speculation
about how evidence might have been helpful to a defendant is not enough.
Id. at ¶ 9. A defendant must show there is “a real likelihood that the
evidence would have had evidentiary value.” Id. The evidence need not
have the potential to completely absolve the defendant, but it must be
“potentially helpful” to the defense. Id. at ¶ 10. The defendant need not
prove the State destroyed or lost evidence in bad faith. State v. Hernandez,
250 Ariz. 28, 32, ¶ 10 (2020).
¶11 McKenzie acknowledges that the State’s forensic analyst
downloaded the contents of C.M.’s iPhone 7 before returning the phone to
police detective Krzak, who then possibly returned the phone to C.M.
However, McKenzie asserts the police’s failure to keep the iPhone 7
prevented him from having the phone examined by an independent expert
who could have “attempt[ed] to recover the data missing from the iPhone
7 . . . evidence that could have supported his denial of the charges levied
against him by [C.M.], and the State. Evidence that could have supported
[McKenzie]’s belief that [C.M.] had set him up.”
¶12 In January 2020, C.M. testified that neither the iPhone 6 she
used until mid-August 2017 nor the iPhone 7, which she bought to replace
the iPhone 6, had been returned to her. In February 2020, when arguing for
a Willits instruction, defense counsel claimed the State had returned both of
C.M.’s cell phones to her. The State argued that the police still had C.M.’s
iPhone 6 and McKenzie had not requested to obtain data from the phone or
have it analyzed by his own expert. The State agreed that C.M.’s iPhone 7
had been returned to her but argued the iPhone 7 had been returned only
after “the analysis [of the iPhone 7] was completed and all of the
information . . . obtained ha[d] been disclosed.”
¶13 It is unclear from the record when C.M.’s iPhone 7 was
returned to her. Even if the State returned the phone to C.M. before
McKenzie had a chance to examine it, as he says he would have done,
McKenzie cannot show that the State failed to preserve “material and
reasonably accessible evidence” helpful to his defense. See Glissendorf, 235
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STATE v. MCKENZIE
Decision of the Court
Ariz. at 150, ¶ 8 (citation and internal quotation marks omitted). The State’s
forensic analyst Frank McCleary testified at length about the techniques he
used to extract the data from C.M.’s iPhone 7. Besides phone call log
entries, McCleary extracted 1777 text messages from C.M.’s iPhone 7.
McKenzie had access to the State’s extraction reports which, according to
the testimony, included all of that data. In addition, C.M.’s uncontroverted
testimony that she obtained the iPhone 7 during mid-August 2017 suggests
that any text messages for the time period between July 1st and August
15th, 2017, would not have been made from the iPhone 7, but rather from
the iPhone 6, which the police still had in its custody at the time of trial and
McKenzie had never requested for examination. And if C.M. had, in fact,
engaged in any text communication with McKenzie that supported his
account of events, McKenzie would have also had access to those
communications from his own mobile phone. Although McKenzie testified
on his own behalf, he never offered any such text communications into
evidence. McKenzie’s speculation that the iPhone 7 “could have” contained
additional evidence besides the evidence already extracted from the phone
is not enough. See Glissendorf, 235 Ariz. at 150, ¶ 9. Because McKenzie fails
to show a “real likelihood” that the iPhone 7 would have had evidentiary
value, we find no abuse of discretion in the superior court’s decision not to
give the jury a Willits instruction. See id.
II. Sufficiency of the Evidence – Aggravated Harassment
¶14 McKenzie next argues insufficient evidence supported his
conviction for aggravated harassment (count 4). Viewing the evidence in
the light most favorable to sustaining the convictions, we review de novo
whether substantial evidence supported them. State v. West, 226 Ariz. 559,
562, ¶¶ 14-16 (2011). The relevant question is whether “any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. at ¶ 16 (citation and internal quotation marks
omitted). In determining whether substantial evidence supports a
conviction we consider both direct and circumstantial evidence. Id. We
will not reweigh the evidence and we resolve all reasonable inferences
against the defendant. State v. Lee, 189 Ariz. 608, 615 (1997). “To set aside
a jury verdict for insufficient evidence it must clearly appear that upon no
hypothesis whatever is there sufficient evidence to support the conclusion
reached by the jury.” State v. Arredondo, 155 Ariz. 314, 316 (1987). Stated
differently, “[r]eversible error based on insufficiency of the evidence occurs
only whe[n] there is a complete absence of probative facts to support the
conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (citation omitted).
We will not assess the credibility of witnesses because it is “for the jury to
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STATE v. MCKENZIE
Decision of the Court
weigh the evidence and determine the credibility of the witnesses.” State v.
Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).
¶15 “A person commits harassment if, with intent to harass or
with knowledge that the person is harassing another person, the person
. . . contacts [or] communicates . . . with another person . . . in a manner that
harasses.” A.R.S. § 13-2921(A)(1). “A person commits aggravated
harassment if the person commits harassment as provided in § 13-2921 and
. . . [a] court has issued an order of protection . . . against harassment against
the person and in favor of the victim of harassment and the order . . . has
been served and is still valid.” A.R.S. § 13-2921.01(A)(1). “Harassment” is
“conduct that is directed at a specific person and that would cause a
reasonable person to be seriously alarmed, annoyed or harassed and the
conduct in fact seriously alarms, annoys or harasses the person.” A.R.S.
§ 13-2921(E). Here, the State charged in count 4 that on July 31, 2017,
McKenzie “with intent to harass or with knowledge that he was harassing”
C.M. communicated or caused a communication with her in a manner that
“harassed or threatened,” and C.M. had a valid, served order of protection
against him.
¶16 Sufficient evidence supported McKenzie’s conviction for
aggravated harassment. C.M. obtained an order of protection against
McKenzie and served it on him in May 2017. The order prohibited
McKenzie from contacting C.M. in person or going to her home. McKenzie
testified that he violated the order of protection when he went to C.M.’s
home on July 31, 2017. The record also shows that McKenzie went to C.M.’s
home while C.M. was at the store despite knowing C.M. did not want him
to come over, and then got into an argument with her. He grabbed her
backpack admittedly to be a “jerk” or an “asshole.” McKenzie continued
arguing with C.M. in the front yard in front of A.M., K.M., and B.M., and
threw the backpack at her. McKenzie then pointed a gun at C.M., racked it,
and called her a “fucking bitch.”
¶17 McKenzie argues the evidence was insufficient for count 4
because the jury did not agree on whether he had a gun on July 31, 2017,
and for that reason could not reach a verdict on counts 1-3. We disagree. A
rational trier of fact could find, based on the evidence, that McKenzie
pointed a gun at C.M. She and K.M., B.M., and A.M. all testified that they
saw the gun. Even if we were bound by a jury finding that McKenzie did
not possess a gun on July 31, neither McKenzie’s possession nor use of a
gun are elements of the offense of aggravated harassment and the evidence
cited supra paragraph 16 was sufficient to support the conviction.
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STATE v. MCKENZIE
Decision of the Court
CONCLUSION
¶18 For the foregoing reasons, we affirm McKenzie’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
7