State v. Welfenberg

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

TERRY LEE WELFENBERG, Appellee.

No. 1 CA-CR 25-0177
FILED 12-30-2025

Appeal from the Superior Court in Yavapai County
No. S1300CR202300618
The Honorable Debra R. Phelan, Judge

AFFIRMED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Matthew Polk
Counsel for Appellant

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellee
 STATE v. WELFENBERG
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Samuel A. Thumma joined.

C A T T A N I, Judge:

¶1 The State appeals from the superior court’s order granting
Terry Lee Welfenberg’s motion for judgment of acquittal of his tampering
with physical evidence conviction. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Bruce (a pseudonym) lived on about 30 acres of land in rural
Yavapai County. Welfenberg lived in a trailer on Bruce’s property. A post
office employee noticed that Bruce’s mail had accumulated for several
months and reported it to law enforcement. In early April 2023, a sheriff’s
deputy went to Bruce’s property to check on him. There was no sign of
Bruce, but Welfenberg was there. Welfenberg admitted that he had broken
into Bruce’s house and had taken guns, but he stated that he had not seen
Bruce and did not know where he was.

¶3 Several officers searched Bruce’s property and found burn
pits with bone fragments that appeared to be human, as well as a burned
medical ID bracelet with Bruce’s name. A forensic pathologist inspected
the remains and reported that he could not determine a cause of death
because there were no organs or tissues and the bones were fragmented.

¶4 In late April 2023, Welfenberg was arrested for burglary.
During an interview with a detective, Welfenberg admitted to hitting Bruce
in the throat when they were together in a vehicle and that Bruce had died.
Welfenberg stated that, after they arrived home, he burned Bruce’s body.

¶5 The State charged Welfenberg with two counts of second-
degree murder, two counts of intentionally killing a domestic animal, one
count of abandonment or concealment of a dead body, one count of
tampering with physical evidence, one count of burglary in the first degree,
and one count of theft. The tampering with physical evidence charge was
based on burning Bruce’s body.

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Decision of the Court

¶6 After a four-day jury trial in February 2025, Welfenberg was
convicted of two counts of manslaughter (as lesser-included offenses of
second-degree murder), abandonment or concealment of a dead body, and
tampering with physical evidence.1

¶7 In March 2025, after the verdict but before sentencing,
Welfenberg moved for a judgment of acquittal on the tampering with
physical evidence conviction. The motion was based on State v. Larriba-
Tucker, 259 Ariz. 320 (App. 2025), a newly decided case that clarified the
elements of tampering with physical evidence.

¶8 In Larriba-Tucker, this court held that a person cannot be
convicted of tampering with physical evidence unless the person did so
with the intent that the evidence would not be available in an official
proceeding that was then pending or that the person knew was about to be
instituted. See id. at 323–25, ¶¶ 15–20. This court noted that, unlike
Arizona’s hindering prosecution statute, which contemplates an intent to
hinder the “apprehension, prosecution, conviction or punishment of
another”(emphasis added), the tampering with physical evidence statute
does not include an intent to prevent apprehension or investigation, even
though an earlier version of the statute referenced evidence that would be
unavailable for an “investigation” or for an “official proceeding.” Id. at 324–
25, ¶¶ 17–19. Clarifying that an “investigation” is not an official proceeding
as contemplated by the statute, Larriba-Tucker reversed the defendant’s
conviction because there was no evidence that an official proceeding was
about to be instituted when he destroyed evidence. Id. at 325, ¶ 20.

¶9 Based on Larriba-Tucker, the superior court granted
Welfenberg’s motion for acquittal of tampering with evidence, concluding
that there was no evidence showing Welfenberg knew that an official
proceeding was about to begin when he burned Bruce’s body.

¶10 After the superior court sentenced Welfenberg to 15.5 years in
prison for the other convictions, the State timely appealed.2 We have
jurisdiction under A.R.S. § 13-4032(7).

1 The court granted Welfenberg’s pre-verdict Rule 20 motion for
judgment of acquittal as to the charges of intentionally killing a domestic
animal, burglary, and theft. See Ariz. R. Crim. P. 20(a)(1).
2 Welfenberg also appealed, and his appeal is pending in cause
number 1 CA-CR 25-0141.

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DISCUSSION

¶11 We review the ruling on a motion for a judgment of acquittal
de novo, viewing the evidence in the light most favorable to the
prosecution. State v. West, 226 Ariz. 559, 562, ¶¶ 15–16 (2011). The superior
court must enter a judgment of acquittal after the verdict if “there is no
substantial evidence to support the verdict.” Ariz. R. Crim. P. 20(b)(2).
“Substantial evidence is that which reasonable persons could accept as
sufficient to support a guilty verdict beyond a reasonable doubt.” State v.
Davolt, 207 Ariz. 191, 212, ¶ 87 (2004). The relevant inquiry is whether any
rational factfinder “could have found the essential elements of the crime
beyond a reasonable doubt,” when viewing the evidence in the light most
favorable to the State. West, 226 Ariz. at 562, ¶ 16 (citation omitted).

¶12 Under A.R.S. § 13-2809(A)(1), a person commits tampering
with physical evidence by destroying, mutilating, altering, concealing, or
removing physical evidence with the intent to impair its verity or
availability and with the intent that it be “unavailable in an official
proceeding which is then pending or which such person knows is about to be
instituted.” (Emphasis added.) An official proceeding is defined as “a
proceeding heard before any legislative, judicial, administrative or other
governmental agency or official authorized to hear evidence under oath.”
A.R.S. § 13-2801(2).

¶13 Here, neither party disputes that no official proceeding was
then-pending because Welfenberg was not arrested until after Bruce’s
remains were discovered. So the only issue is whether the evidence shows
that Welfenberg knew an official proceeding was “about to be instituted”
when he burned Bruce’s body.

¶14 In closing argument, the prosecutor asserted that
“[Welfenberg] intended that [Bruce] be unavailable in any official
proceeding which he knew was about to be instituted, like a murder trial.
So he’s obviously guilty of [tampering with physical evidence].” The
prosecutor cited evidence of the burn pit with the wallet, the medical alert
bracelet with Bruce’s name, and the charred bones. The prosecutor noted
that Bruce was missing for a few months and that Welfenberg did not tell
law enforcement or make a missing person report.

¶15 None of the State’s evidence pointed to Welfenberg’s
knowledge that an official proceeding was about to be instituted. To the
contrary, the evidence suggested that Welfenberg burned the victim’s body
long before even an investigation, much less an official proceeding like a

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prosecution, ensued. Mail had accumulated for months before anyone
became concerned about Bruce’s safety, and officers searching Bruce’s
residence found calendars open to March 2022, more than a year before the
April 2023 investigation began. Although the prosecutor argued that
Welfenberg dragged Bruce’s body to the burn pit “to make sure it’s not
found” and that he intended the evidence be unavailable in an official
proceeding, there was no evidence that Welfenberg knew that any such
proceeding was imminent or “about to be instituted.” Accordingly, there
was no substantial evidence to support the jury’s tampering with physical
evidence verdict. The superior did not err by granting Welfenberg’s motion
for judgment of acquittal.

CONCLUSION

¶16 We affirm.

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

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