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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 6-15-2021
STATE v. MCKENZIE

Decision of the Court

2

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 sixteenyear-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 
STATE v. MCKENZIE

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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. 
STATE v. MCKENZIE

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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 
STATE v. MCKENZIE

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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 
STATE v. MCKENZIE

Decision of the Court

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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.
STATE v. MCKENZIE

Decision of the Court

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CONCLUSION

¶18 For the foregoing reasons, we affirm McKenzie’s convictions 

and sentences.