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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 MICHAEL OWEN MCKENZIE, Appellant.

                             No. 1 CA-CR 15-0341
                               FILED 3-29-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201300309
               The Honorable Lee Frank Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                           STATE v. MCKENZIE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.


J O N E S, Judge:

¶1            Michael McKenzie appeals his convictions and sentences for
one count of fraudulent schemes and artifices, two counts of arson of an
occupied structure, and two counts of theft. He challenges the sufficiency
of evidence supporting his convictions and argues the trial court erred in
denying his motion in limine, effectively precluding impeachment evidence
against a State’s witness. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            McKenzie’s mobile home caught on fire in November 2011,
and again in February 2012. After each incident, McKenzie sought and
received insurance proceeds to pay for the resulting damages. Following
an investigation, the State charged McKenzie with one count of fraudulent
schemes and artifices, two counts of arson of an occupied structure, and
two counts of theft, alleging he, on two separate occasions, knowingly or
intentionally set his home on fire and filed false insurance claims to receive
insurance proceeds.

¶3           The jury found McKenzie guilty as charged, and the court
imposed aggravated concurrent prison terms, the longest of which is ten
years. McKenzie timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),2 13-4031, and
-4033(A)(1).



1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).

2     Absent material changes from the relevant date, we cite a statute’s
current version.



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                            STATE v. MCKENZIE
                            Decision of the Court

                                DISCUSSION

I.     Sufficiency of Evidence

¶4              McKenzie argues the evidence is insufficient to establish he
intentionally set his home on fire because the experts who investigated the
incidents could not opine as to his intent. We review challenges to the
sufficiency of evidence to sustain a conviction de novo. State v. Bible, 175
Ariz. 549, 595 (1993) (citing State v. Landrigan, 176 Ariz. 1, 4 (1993)). We do
not reweigh the evidence and will reverse only if “there is a complete
absence of probative facts to support the conviction.” State v. Scott, 113
Ariz. 423, 424-25 (1976) (citing State v. Riggins, 111 Ariz. 281, 284 (1974)); see
also State v. Cid, 181 Ariz. 496, 500 (App. 1995) (“The finder-of-fact, not the
appellate court, weighs the evidence and determines the credibility of
witnesses.”) (citing State v. Pike, 113 Ariz. 511, 514 (1976)).

¶5            As an initial matter, expert testimony is not only unnecessary
to prove a person’s mental state, it is expressly prohibited where a requisite
mental state constitutes an element of the charged offense. Arizona Rule of
Evidence 704(b) specifically states, “In a criminal case, an expert witness
must not state an opinion about whether the defendant did or did not have
a mental state or condition that constitutes an element of the crime charged
or of a defense. Those matters are for the trier of fact alone.” (Emphasis
added). Indeed, the trial court sustained McKenzie’s objection for this very
reason when the State asked one of the investigators, “So in your opinion,
if you have two fires in the same place in a very short period of time, what
does that basically show [about] the intent of the person who is involved in
these fires?”

¶6               Moreover, evidence of a person’s mental state “will rarely be
provable by direct evidence.” State v. Noriega, 187 Ariz. 282, 286 (App.
1996). Instead, “the jury will usually have to infer [a defendant’s mental
state] from his behaviors and other circumstances surrounding the event.”
Id.; see also In re William G., 192 Ariz. 208, 213 (App. 1997) (recognizing that,
“absent a person’s outright admission regarding his state of mind, his
mental state must necessarily be ascertained by inference from all relevant
surrounding circumstances”).

¶7           At trial, investigators testified the fires were suspicious, and
the only reasonable explanation for their cause was human intervention.
McKenzie’s neighbor, Sandy C., testified that on the morning of the
November 2011 fire, she observed McKenzie sitting on a rock outside his
home and returning a number of times to open the front door. At one point,



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                            STATE v. MCKENZIE
                            Decision of the Court

McKenzie opened the door, closed it, and told Sandy to “keep [her] kids
back because his house was on fire.” Sandy then noticed smoke coming
from the home. McKenzie returned to the rock and called 9-1-1.

¶8           Additionally, Sandy’s live-in boyfriend, Michael L., testified
that McKenzie admitted to him the first fire “was no accident, he wanted to
smoulder it for money.” McKenzie then offered to pay Michael $5,000 to
“smoulder” McKenzie’s home; Michael refused the offer. Another man,
Rocky B., also testified that McKenzie offered him money “to burn down
the house again.” Having failed to convince others to set a second fire,
McKenzie left for an overnight trip leaving three space heaters running next
to a flammable sofa and recliner, causing the February 2012 fire.

¶9          Based upon this evidence, the jury could reasonably conclude
McKenzie knowingly or intentionally set his house on fire in both
November 2011 and February 2012. McKenzie’s convictions are therefore
supported by the evidence.

II.   Denial of Motion in Limine

¶10           McKenzie also argues the trial court erred in denying his
motion in limine seeking to introduce impeachment evidence against
Michael pursuant to Arizona Rule of Evidence 608(b). We review a trial
court’s decision to preclude impeachment evidence of a witness’s character
for truthfulness under Rule 608(b) for an abuse of discretion. See State v.
Woods, 141 Ariz. 446, 450 (1984) (holding trial court has discretion under
Rule 608(b) to allow cross-examination of witness regarding specific acts of
misconduct if they are probative of truthfulness).

¶11          Rule 608(b)(1) provides:

      Except for a criminal conviction under Rule 609, extrinsic
      evidence is not admissible to prove specific instances of a
      witness’s conduct in order to attack or support the witness’s
      character for truthfulness. But the court may, on cross-
      examination, allow them to be inquired into if they are
      probative of the character for truthfulness or untruthfulness of . . .
      the witness.

(Emphasis added). Here, McKenzie sought introduction of statements
Michael made to a police officer during an investigation of a domestic
violence incident between Michael and Sandy. McKenzie alleges the police
report documenting the incident indicates Michael told the officer he
suspected Sandy was using methamphetamine and posed as Sandy in order


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                           STATE v. MCKENZIE
                           Decision of the Court

to confront her “drug addict friend” with his suspicions, gave an
inconsistent statement regarding the source of a lump on Sandy’s head, and
lied about taking Sandy’s food stamp card. The trial court denied
McKenzie’s motion, finding Michael’s statements were made in a “different
situation[]” and were “not probative enough . . . to be admissible in a trial
about statements that were made three years earlier.”

¶12           On appeal, McKenzie argues the trial court erred in
precluding Michael’s statements because “[f]alsely accusing someone of a
felony is highly relevant to a witness’[s] credibility.” The record does not
support this assertion. Rather, McKenzie’s offer of proof indicates only that
Michael believed Sandy used methamphetamine, and both Sandy and her
friend denied it — not that Michael intentionally made the accusation
knowing it was false.

¶13            Regardless, we find no abuse of discretion in the trial court’s
conclusion that Michael’s statements were not probative of his truthfulness
in this case. The statements Michael made in connection with the domestic
violence incident occurred during an emotionally charged dispute with his
live-in girlfriend. In contrast, his salient testimony at trial amounted to
recollections of incriminating statements made by McKenzie
approximately three years earlier. We agree with the court that the two
“situations [are] different,” and find no error in the denial of McKenzie’s
motion in limine.

                              CONCLUSION

¶14           For the foregoing reasons, we affirm.




                                  :ama




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