State v. Zweifelhofer

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAYMOND ZWIEFELHOFER, Appellant.

No. 1 CA-CR 24-0625
FILED 10-22-2025

Appeal from the Superior Court in Maricopa County
No. CR2022-133985-001
The Honorable Kristin Culbertson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

DM Cantor, Phoenix
By Jason David Karpel, Leah Dodd
Counsel for Appellant
 STATE v. ZWEIFELHOFER
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Andrew J. Becke joined.

B R O W N, Judge:

¶1 Raymond Zwiefelhofer appeals from his convictions and
sentences for ten counts of sexual exploitation of a minor. He argues the
trial court erred by (1) allowing the State to introduce statements he made
during custodial interrogation, (2) admitting two SD card photos allegedly
disclosed two days before trial, (3) permitting other-acts evidence and
giving the related jury instruction, (4) denying his request for a Willits
instruction, and (5) allowing the State to shift the burden of proof during
closing arguments. Because no reversible error occurred, we affirm.

BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all reasonable inferences against Zwiefelhofer.
State v. Fierro, 254 Ariz. 35, 38, ¶ 2 (2022). On November 30, 2021, police
received a cyber tip from the National Center for Missing and Exploited
Children (“NCMEC”) stating that Adobe Software Systems (“Adobe”)
flagged an account used to upload a file containing child sexual abuse
material (“CSAM”) titled “27.mp4” on November 9, 2021. The Adobe
account was registered under Zwiefelhofer’s name, date of birth, verified
email address, and phone number. The billing address associated with the
account was Zwiefelhofer’s home address.

¶3 The cyber tip provided information about IP addresses,
including Cox Communications (“Cox”), Leaseweb USA, and Verizon FIOS
(“Verizon”).1 One of the Cox login IP addresses “returned to” World

1 As explained by our supreme court in State v. Mixton, an internet
service provider (“ISP”) is

a company that provides individuals with access to the
internet. The ISP assigns a string of numbers, called an IP
address, to a customer’s modem to facilitate access to the

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Software Corporation’s (“World Software”) physical address, with the
“comment line” of Cox’s official return referencing “Ray Zwiefelhofer.” 2
He was the president and chief executive officer of World Software at the
time. The Adobe account was accessed several times on November 9, 2021
from the login IP address associated with World Software. Police also
discovered that Adobe had connected to the World Software IP address 15
minutes before the 27.mp4 file was uploaded. The Verizon login IP address
returned to a location in New Jersey—a business address for World
Software. The Leaseweb USA IP address was assigned to a Canadian
company that police discovered would “not respond to US-based search
warrants.”

¶4 After obtaining a warrant, in June 2022 police searched
Zwiefelhofer’s home for electronic devices containing CSAM. Officers
seized 21 electronic devices, including a laptop computer, iPad, iPhone, and
several SD cards. One of the SD cards was found connected to a USB
adapter in a backpack located in Zwiefelhofer’s home office. The police
later discovered the SD card from the backpack was encrypted using

internet. Consequently, a user does not control nor own an IP
address. IP addresses are always attached, “like a ‘return
address,’ to every ‘envelope’ of information exchanged back
and forth by computers that are actively communicating with
each other over the internet.” When a computer accesses a
website, the IP address tells the website where to transmit
data. Search engines, such as Google, also log IP addresses of
users and use these logs to improve the quality of search
results and advertisements for visitors.

An IP address alone does not reveal an internet user’s
identity. Rather, it generally reveals only a user’s
approximate geographic location, such as a neighborhood,
and the user’s ISP. The ISP, however, maintains records and
information, such as the name, address, and telephone
number associated with an IP address, known as “subscriber
information.”

250 Ariz. 282, 284, ¶ 2–3 (2021) (citations omitted).

2 As a detective explained, an IP address is “an identifier for where a
device potentially was at the time of an incident occurring. So you can have
IP addresses assigned to anything, to cell phones, tablets, computers, [and]
anything that can touch a network and receive connectivity. . . .”

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BitLocker, and the key to the BitLocker encryption was found on
Zwiefelhofer’s laptop. The SD card contained approximately 87 CSAM
files, including the 27.mp4 file. A nurse practitioner examined 10 of the 87
CSAM files to determine a sexual maturity rating.

¶5 At trial, the defense requested a Willits instruction, claiming
the State failed to obtain material evidence. The court denied the defense’s
request. The court also denied the defense’s motion to strike portions of the
State’s closing argument and curative jury instruction request, asserting the
requested instruction was already included in the final jury instruction.
Zwiefelhofer unsuccessfully motioned for a new trial. He timely appealed,
and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-
4033.

DISCUSSION

A. Motion to Suppress

¶6 While the search of the home was ongoing, a detective
interviewed Zwiefelhofer in an unmarked police vehicle. Zwiefelhofer
claims he made requests for an attorney three times during this interview.
First, in response to the detective asking the question “What about the
passwords for the iPad?”, Zwiefelhofer stated, “Um, I’d rather not do that
until I talk to an attorney if I’m not sure what’s going on, so.” Second, in
response to the detective asking the question, “[I]s there any objection you
had to giving us your passwords at this time?”, Zwiefelhofer responded
“Well, should I talk to my attorney or not?” Third, in response to the
detective’s statement that he required a “six digit not a four digit”
password, Zwiefelhofer stated, “I don’t know, maybe I should talk to [an]
attorney, I feel really bad right now.” Throughout the interview,
Zwiefelhofer denied he had interacted with CSAM, and ultimately gave the
detective his iPhone, iPad, and laptop passwords.

¶7 Zwiefelhofer moved to suppress the statements he made
when disclosing his passwords to the detective. During a July 2024
evidentiary hearing, the parties stipulated Zwiefelhofer was advised of his
Miranda rights and subject to custodial interrogation. The trial court denied
the motion to suppress, finding he did not unequivocally invoke his right
to counsel and his statements were “freely and voluntarily made.”

¶8 Zwiefelhofer argues the statements in which he gave the
detective his passwords were involuntary because he was denied an
attorney, was coerced into providing a password, and had no experience
with the criminal justice system. We review the denial of a motion to

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suppress evidence for abuse of discretion. State v. Wilson, 237 Ariz. 296, 298,
¶ 7 (2015). We only consider evidence presented at the suppression
hearing, viewing those facts in the light most favorable to upholding the
trial court’s ruling. State v. Maciel, 240 Ariz. 46, 49, ¶ 9 (2016).

¶9 To be admissible at trial, a defendant’s confession must be
voluntary. State v. Ellison, 213 Ariz. 116, 127, ¶ 30 (2006). In Arizona,
confessions are presumed to be involuntary, id. at ¶ 31, and the State has
the burden of proving by preponderance of the evidence that the confession
was “freely and voluntarily made,” State v. Montes, 136 Ariz. 491, 496 (1983).
We determine whether a confession is voluntary by examining the totality
of the circumstances to decide “whether the will of the defendant [was]
overborne.” State v. Lopez, 174 Ariz. 131, 137 (1992). We consider several
factors in making this determination, including the interrogation
environment, whether Miranda warnings were given, the interrogation
duration, and whether impermissible police questioning occurred. State v.
Blakley, 204 Ariz. 429, 436, ¶ 27 (2003).

¶10 The Fifth Amendment of the United States Constitution
grants individuals the privilege against compulsory self-incrimination.
Maciel, 240 Ariz. at 49, ¶ 10. In accordance with this right, officers must
provide Miranda warnings before custodial interrogation begins. Id.
Miranda warnings include the right to presence of counsel, and if the
individual who is interrogated asserts this right, “all questioning must
cease until an attorney is present or the defendant reinitiates
communication.” State v. Newell, 212 Ariz. 389, 397, ¶ 24 (2006). However,
the defendant must clearly and unambiguously request counsel,
articulating the “desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand the
statement to be a request for an attorney.” Davis v. United States, 512 U.S.
452, 459 (1994); see also State v. Eastlack, 180 Ariz. 243, 250–51 (1994); State v.
Spears, 184 Ariz. 277, 286 (1996). If a defendant makes an ambiguous or
unclear comment requesting counsel, the officer may continue interviewing
the defendant if a reasonable officer “would have understood only that the
suspect might be invoking the right to counsel.” Davis, 512 U.S. at 459.

¶11 We agree with the trial court that Zwiefelhofer’s statements
were ambiguous. In none of the statements on which he relies did he
unequivocally ask to speak with an attorney (or have one present) before
continuing the interrogation. Because he did not unequivocally invoke the
right to counsel, the detective was “not constitutionally required either to
clarify the statement or to stop the[] questioning.” Ellison, 213 Ariz. at 127,
¶ 29 (“‘I think I might want an attorney,’” was an equivocal request for

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counsel.”); see also Davis, 512 U.S. at 462 (finding “maybe I should talk to a
lawyer” was not an unequivocal request for counsel); Eastlack, 180 Ariz. at
250–51 (holding “I think I better talk to a lawyer first” was not an
unequivocal request for counsel). The trial court also found no
circumstances showed Zwiefelhofer’s will was overborne, or that the
detective was coercive or overreaching. We defer to the court’s reasonable
evaluation of evidence and therefore conclude Zwiefelhofer has not shown
an abuse of discretion.

B. Disclosure Violation

¶12 Two business days before trial, the State disclosed two photos
from an unallocated space on the SD card. The photos depicted a portion
of the interior of Zwiefelhofer’s home. On the first day of trial, the defense
filed a motion in limine, asserting the State untimely disclosed the photos
under Arizona Rule of Criminal Procedure (“Criminal Rule”) 15. The State
argued it met disclosure obligations by allowing the defense to previously
view the SD card and the defense expert “had access to the whole SD card.”
The State added that the detectives would testify that the two photos fairly
and accurately represented what the detectives viewed on the SD card. The
trial court ultimately denied the motion in limine, subject to revisiting the
issue if the State could not “establish the pieces they . . . avowed to the
Court” they could establish. Zwiefelhofer argues the court erred in denying
the motion.

¶13 We review a decision to impose sanctions under Criminal
Rule 15 for an abuse of discretion. State v. Naranjo, 234 Ariz. 233, 242, ¶ 29
(2014). The “[d]enial of a [disclosure] sanction is generally not an abuse of
discretion if the trial court believes the defendant will not be prejudiced.”
State v. Towery, 186 Ariz. 168, 186 (1996).

¶14 Criminal Rule 15.1(b)(5) requires the State to make available
to the defendant, among other things, “a list of all documents, photographs,
other tangible objects, and electronically stored information the State
intends to use at trial or that were obtained from or purportedly belong to
the defendant.” Ariz. R. Crim. P. 15.1(b)(5). All disclosures must be made
at least seven days before trial. Ariz. R. Crim. P. 15.6(c). When a party
violates Criminal Rule 15.6, the court may impose any sanction it finds
appropriate unless the court determines that “the failure to comply was
harmless.” Ariz. R. Crim. P. 15.7(b)(1).

¶15 We agree with the trial court’s ruling. Zwiefelhofer was
informed at an evidentiary hearing held nearly two months before trial that

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a photo showing part of the interior of his home was found on the SD card.
Also, the photos were not critical evidence on which the State’s case relied.
Cf. Jimenez v. Chavez, 234 Ariz. 448, 451, 453 (App. 2014) (finding that
preclusion of critical DNA evidence was a proper sanction because the State
failed to disclose the evidence until the day before trial and the evidence
was “indispensable” to the [S]tate’s case). And Zwiefelhofer admits that
the “photos were not essential to the State’s case.”

¶16 Even assuming the trial court improperly admitted the
photographs, the admission is harmless because the evidence was
cumulative. See State v. Williams, 133 Ariz. 220, 226 (1982) (finding that the
admission of cumulative evidence constitutes harmless error). Cumulative
evidence is evidence that establishes or augments a point already proven
by other evidence. See Felipe v. Theme Tech Corp., 235 Ariz. 520, 526, ¶ 22
(App. 2014); see also State v. Kennedy, 122 Ariz. 22, 26 (App. 1979). The
photos were but one piece of evidence the State used to show that
Zwiefelhofer knowingly possessed the SD card. The State also relied on the
following to show knowing possession of the SD card: the location of the
SD card, the encryption key on his laptop under his profile, the CSAM file
name alterations, and the photo of the interior of Zwiefelhofer’s home that
was disclosed at the evidentiary hearing. Zwiefelhofer has not shown the
court abused its discretion by denying the motion in limine. Accordingly,
we need not address Zwiefelhofer’s argument that the late disclosure
violated his rights to due process and a fair trial, which he raises for the first
time on appeal.

C. Evidence of Other Acts

¶17 Zwiefelhofer argues the trial court erred by granting the
State’s motion to admit other-acts evidence under Arizona Rule of Evidence
(“Rule”) 404(b) and by admitting other-acts evidence at trial, contending
the State did not prove by clear and convincing evidence that Zwiefelhofer
knowingly possessed the images. We review the admission of other-acts
evidence for an abuse of discretion. State v. Lehr, 227 Ariz. 140, 147, ¶ 19
(2011).

¶18 Before trial, the State moved to admit evidence of the 77
CSAM files located on the SD card. Zwiefelhofer responded, asserting the
additional non-charged CSAM files and the file names on the SD card
should be precluded. The court conducted an evidentiary hearing and
ultimately granted the State’s motion, finding that Zwiefelhofer’s
commission of the other acts was supported by clear and convincing
evidence and could be admitted. In making this determination, the court

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considered evidence that all the materials were discovered on the same SD
card, the encryption key to the SD card was located on Zwiefelhofer’s
laptop, and the SD card was found in his backpack in his home office.

¶19 At trial, the detective testified that a total of 87 CSAM files
were found. Before closing arguments, the defense claimed that the State
did not adequately describe the other 77 CSAM files. The defense therefore
contended the State could not move forward with the Rule 404(b)
allegations and it would be improper to instruct the jury on that issue. The
court ultimately allowed the Rule 404(b) instruction.

¶20 Rule 404(b)(1) prohibits the admission of other crimes,
wrongs, or acts into evidence to prove an individual acted in conformity
with their character. However, Rule 404(b)(2) permits the admission of this
evidence “as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” The State must
prove by clear and convincing evidence that the defendant committed the
other “crimes, wrongs, or acts.” See Ariz. R. Evid. 404(b)(1); State v. Terrazas, 189 Ariz. 580, 582 (1997).

¶21 Zwiefelhofer has not shown the court erred in finding at the
evidentiary hearing there was clear and convincing evidence he possessed
the images; nor has he shown the jury incorrectly weighed the evidence at
trial. The court did not abuse its discretion by admitting the images.

¶22 Zwiefelhofer also contends the trial court erred in instructing
the jury on other-acts evidence under Rule 404(b) because the State did not
show by clear and convincing evidence that he committed the other acts.
We review the court’s decision to give a jury instruction for abuse of
discretion. State v. Aragon, 252 Ariz. 525, 528, ¶ 6 (2022).

¶23 Zwiefelhofer asserts the detective’s testimony that the 77 non-
charged files were CSAM was insufficient to meet the required burden of
proof. Zwiefelhofer argues a description of each CSAM was necessary for
the court to issue a Rule 404(b) jury instruction. We disagree.

¶24 The detective testified at trial that 87 CSAM files were on the
SD card on which 27.mp4 was found. Given this information, a reasonable

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jury could find clear and convincing evidence to conclude the 77 CSAM
files, located on the same SD card, were possessed by Zwiefelhofer.3

D. Denial of Willits Instruction

¶25 Zwiefelhofer argues the trial court abused its discretion by
denying his Willits jury instruction request because law enforcement
officers failed to obtain material evidence that had a high likelihood of
being exculpatory. A Willits instruction informs jurors that they may draw
a negative inference from the State’s explanation for destroyed or
unobtained evidence. State v. Willits, 96 Ariz. 184, 191 (1964); see also State
v. Hernandez, 250 Ariz. 28, 30, ¶ 1 (2020). We review Willits instruction
rulings for abuse of discretion. State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7
(2014).

¶26 “Generally, a defendant is entitled to a Willits instruction if:
(1) the [S]tate failed to preserve obviously material and reasonably
accessible evidence that could have had a tendency to exonerate the
accused; and (2) there was resulting prejudice.” Hernandez, 250 Ariz. at 31,
¶ 10 (citing Glissendorf, 235 Ariz. at 152, ¶ 18). To prove the first prong, the
defendant “must do more than simply speculate about how the evidence
might have been helpful.” Glissendorf, 235 Ariz. at 150, ¶ 9; see, e.g., State v.
Murray, 184 Ariz. 9, 33 (1995) (“A Willits instruction is not given merely
because a more exhaustive investigation could have been made.”). Rather,
evidence is obviously material “when, at the time the [S]tate encounters the
evidence during its investigation, the [S]tate relies on the evidence or knows
the defendant will use the evidence for his or her defense.” Hernandez, 250
Ariz. at 33, ¶ 16.

¶27 Zwiefelhofer does not argue the State destroyed or lost
evidence. Instead, he asserts that the State failed to obtain numerous pieces
of evidence, including additional information from Adobe, electronic
devices from World Software, information from Microsoft regarding
BitLocker, and cell tower records from Verizon.

3 At the evidentiary hearing, the trial court explained that the Rule
404(b) evidence should “never be the actual pictures themselves, but only
testimony to the reference that the Defendant possessed those 77 other
pictures or that they were found on the same micro SD card that was seized
during this search.” The detective’s trial testimony complied with these
limitations.

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¶28 Zwiefelhofer’s assertion is unavailing because the evidence
he asserts the State failed to obtain was not “obviously material.” At the
time of investigation, the officers had no reason to believe additional
evidence was necessary to prove Zwiefelhofer’s possession of CSAM
material. See, e.g., Hernandez, 250 Ariz. at 33, ¶ 19 (finding that because an
officer had identified the suspect, the officer was not required to collect
fingerprint or DNA evidence to identify the suspect); State v. Perez, 141 Ariz.
459, 464 (1984) (concluding that destruction of a video did not prejudice the
defendant because an eyewitness identified the defendant and the
defendant offered no proof the video would have proven his mistaken
identity defense). The detectives had multiple pieces of evidence verifying
that Zwiefelhofer’s Adobe account was the account used to access 27.mp4.
The Adobe search warrant results identified Zwiefelhofer as the owner of
the Adobe account affiliated with 27.mp4, listing his date of birth, phone
number, two verified email addresses, and his home address.

¶29 Zwiefelhofer does not point to any evidence suggesting that
he would later claim another person uploaded CSAM using his work
laptop. See, e.g., Hernandez, 250 Ariz. at 33, ¶ 19 (ruling that because the
officers had no knowledge the defendant would claim the existence of an
alternate suspect, DNA and fingerprint evidence was not “obviously
material” at the time of the investigation). Given the information the
detectives had at the time of the investigation, Zwiefelhofer failed to show
the other evidence was obviously material.

¶30 Even if such evidence was obviously material, Zwiefelhofer
failed to show that the uncollected evidence tended to exonerate him. To
meet this burden, he had to show that there was “a real likelihood that the
evidence would have had evidentiary value.” Glissendorf, 235 Ariz. at 150,
¶ 9. But Zwiefelhofer’s belief that this evidence would exonerate him is
mere speculation. At most, the evidence might have suggested another
individual possessed the CSAM in addition to Zwiefelhofer. Because he
has failed to meet the first prong of the Willits test that the evidence was
“obviously material” and “had a tendency to exonerate” him, we need not
address the second prong. See Hernandez, 250 Ariz. at 31, ¶ 10. The trial
court did not abuse its discretion in denying Zwiefelhofer’s request for a
Willits instruction.

E. Closing Arguments

¶31 Zwiefelhofer contends the trial court erred in denying his two
motions to strike certain statements the State made during closing
arguments and by failing to administer a curative jury instruction. He

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argues that the statement, “Where is the evidence that all of these people at
the defendant’s company used this account? There is none. Defense wants
you to guess,” violated his constitutional rights to due process and a fair
trial and wrongfully shifted the burden of presenting evidence.

¶32 “When a prosecutor comments on a defendant’s failure to
present evidence to support his or her theory of the case, it is neither
improper nor shifts the burden of proof to the defendant so long as such
comments are not intended to direct the jury’s attention to the defendant’s
failure to testify.” State v. Sarullo, 219 Ariz. 431, 437, ¶ 24 (App. 2008). Here,
Zwiefelhofer testified, and the statement was not improper burden shifting
because the State was highlighting the defense’s failure to present evidence
supporting its theory. Thus, the court did not err by denying Zwiefelhofer’s
motion to strike and request for a curative jury instruction request. See State
v. Morris, 215 Ariz. 324, 337, ¶ 58 (2007) (“A prosecutor has wide latitude in
presenting arguments to the jury.”).

¶33 Zwiefelhofer further contends that the State’s argument, “the
facts are that this Adobe account was accessed from the defendant’s work
and his home,” was unsupported by any evidence and the court abused its
discretion by denying his motion to strike that comment.

¶34 Prosecutors are allowed to argue all reasonable inferences
supported by the evidence. State v. Hughes, 193 Ariz. 72, 85, ¶ 59 (1998). It
is reasonable to infer that the Cox login IP address that returned to
Zwiefelhofer’s home address meant that the Adobe account had been
accessed from his home. The statement was not improper and thus the
court did not err in denying his motion to strike.

¶35 Even assuming the statements were improper, the
preliminary and final jury instructions were sufficient to inform the jurors
what statements could be considered as evidence. See State v. Ramirez, 178
Ariz. 116, 127 (1994) (“[W]e presume that the jury read and followed the
relevant instruction.”). During preliminary instructions the jurors were
informed that “[s]tatements or arguments made by the lawyers in the case
are not evidence.” Additionally, the final jury instructions informed the
jurors that the lawyers “opening statements and closing arguments . . . [are]
not evidence.” When the jury is properly instructed, “the trial court is not
required to provide additional instructions that do nothing more than
reiterate . . . the instructions.” State v. Salazar, 173 Ariz. 399, 409 (1992). The

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court did not abuse its discretion by denying Zwiefelhofer’s motions to
strike and requested curative jury instruction. 4

CONCLUSION

¶36 We affirm Zwiefelhofer’s convictions and sentences.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

4 Zwiefelhofer also challenges the trial court’s denial of the motion for
new trial. Because he relies on the same arguments presented above, he has
not shown the court erred in denying the motion.

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