State v. Diakhate

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AMADOU YACOUB DIAKHATE, Appellant.

No. 1 CA-CR 25-0328
FILED 06-24-2026

Appeal from the Superior Court in Mohave County
No. CR-2024-00623
The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael J. Woodburn
Counsel for Appellee

Jill L. Evans, Attorney at Law, Flagstaff
By Jill L. Evans
Counsel for Appellant
STATE v. DIAKHATE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge D. Steven Williams and Judge Cynthia J. Bailey joined.

K I L E Y, Judge:

¶1 Amadou Yacoub Diakhate appeals his convictions and
sentences for aggravated driving while impaired to the slightest degree
(“aggravated DUI”), endangerment, and possession of drug paraphernalia
(“PODP”). Because he fails to establish error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 This case arose out of a “road rage” incident in the area of
milepost 64 of Interstate 40 on August 8, 2023. Viewed in the light most
favorable to upholding the conviction, State v. Griffin, 250 Ariz. 651, 653, ¶ 2
(App. 2021), the evidence shows that Robert 1 was driving in his Subaru on
Interstate 40 toward Kingman, traveling in the right-hand lane, when he
noticed a white Mazda driving alongside him at the same speed in the left-
hand lane. As Robert later stated, he “could tell” that the driver of the
Mazda was “irritated at me[,]” although he did not know why. Upon
realizing that the driver of the Mazda was “upset[,]” Robert tried to put
distance between the two vehicles by slowing down, expecting the Mazda
to maintain its speed and drive away.

¶3 After driving ahead of Robert’s decelerating Subaru, the
Mazda suddenly pulled off the highway onto the right-hand shoulder and
stopped. “[N]ervous” that the Mazda would begin to “follow” him if he
passed it, Robert pulled his Subaru onto the shoulder about “a football field
or so” behind the Mazda and then “kind of waited to see what was gonna
[sic] happen.” Robert watched as the Mazda’s driver, “a very tall African
American” man later identified as Diakhate, “got out of” the car and began
“waving his arms in the air[.]” After “maybe 30 seconds,” the man got back
in the Mazda, “turn[ed] his vehicle around” so it was facing the wrong
direction, and “started to drive” toward Robert’s Subaru. Alarmed at seeing
the Mazda “coming for me,” Robert called 911 while he pulled back “onto

1 We use a pseudonym to protect the victim’s identity. See Ariz. R. Crim. P.

31.10(f).

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the freeway[,]” “dart[ed]” over “to the fast lane,” and drove past the Mazda.
As Robert later testified, the Mazda turned around again and started
“following me down the freeway.” Although Robert continued to
“accelerate[] . . . all the way up to . . . 100 miles an hour[,]” the Mazda “kept
closing in on” the Subaru. Fearing for his safety, Robert pulled off at the
next exit and headed toward a gas station, hoping that the presence of other
people would deter the Mazda’s driver from continuing his pursuit of the
Subaru. Instead, the Mazda followed the Subaru to the gas station. In an
effort to “kill time” until police arrived in response to his 911 call, Robert
drove “around in circles in the gas station parking lot” while the Mazda
“follow[ed]” behind and its driver yelled threats to “kill” Robert. After
“maybe five minutes or something,” Department of Public Safety (“DPS”)
Trooper Clark entered the parking lot in a marked DPS vehicle. The Mazda
then “left the parking lot and got back on the freeway.”

¶4 Robert later testified that his Subaru had a dash-cam that
records video in “one-minute segments.” When Trooper Clark contacted
him in the gas station parking lot, he gave Clark the memory card from the
dash-cam. Clark took the memory card and “entered” the videos it
recorded “into [the] computer” of his DPS vehicle and watched them. Clark
then passed along the information he had learned.

¶5 After receiving a report of the road rage incident, Trooper
Cooney stopped a white Mazda traveling westbound on I-40 at milepost 50.
He approached the Mazda and spoke with the driver, Diakhate, who
identified himself and acknowledged having been “involved in an incident
with another vehicle.” Cooney observed that Diakhate seemed “animated”
and moved “a lot . . . as he spoke.” Trooper Turriff soon arrived at the scene
and joined in the conversation. By now, Diakhate had gotten out of the
Mazda. Turriff, a certified drug recognition expert, noted that Diakhate
seemed “very amped up,” explaining that Diakhate was “constantly
moving back and forth” and would “crouch[] down” before “standing up”
and “throwing his arms completely out[.]” Turriff later testified, “agitation”
and “exaggerated movements” are “indicators” of methamphetamine use.

¶6 After speaking with Diakhate, the troopers placed him under
arrest, and Trooper Turriff conducted an inventory of the Mazda before it
was towed to an impound lot. In the car’s center console, Turriff found a
bong used to smoke methamphetamine; the bong had “burn marks” on the
bottom and “black burned residue” inside.

¶7 Trooper Turriff transported Diakhate to the Kingman DPS
substation, where he administered field sobriety tests (“FSTs”). Among

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other FSTs, the trooper administered the “walk and turn” test, which
required Diakhate to take nine heel-to-toe steps along a white line painted
on the pavement of the parking lot. Diakhate performed the test poorly,
taking too many steps while holding his arms “out” to “maintain his
balance” in disregard of instructions to keep his arms at his sides. After
unsuccessfully performing two more FSTs, Diakhate refused to participate
any further, complaining of hip pain and stating that he had only slept two
hours in the preceding two days.

¶8 Because Diakhate refused consent to a blood test, DPS
obtained a search warrant to draw his blood. The phlebotomist later noted
that Diakhate was “[p]retty agitated” at the time, and began “screaming
. . . God is great . . . over and over” during the blood draw. The sample was
later tested and found to contain methamphetamine.

¶9 The State charged Diakhate with aggravated DUI, a class 4
felony in violation of A.R.S. §§ 28-1381(A)(1), -1383(A)(5); endangerment, a
class 1 misdemeanor in violation of A.R.S. § 13-1201; possession of a
dangerous drug (“PODD”), a class 4 felony in violation of A.R.S. § 13-
3407(A)(1); and PODP, a class 6 felony in violation of A.R.S. § 13-3415. The
PODD charge was dismissed before trial.

¶10 A three-day jury trial began in May 2025. The State presented
the testimony of Robert as well as various law enforcement officials and
criminalists.

¶11 The troopers who interacted with Diakhate at the scene
described him acting “animated,” “amped up,” and “agitated.” The
phlebotomist who took Diakhate’s blood likewise testified about Diakhate’s
agitated state. Trooper Turriff testified, based on his training and
experience as a “drug recognition expert,” that Diakhate’s poor
performance on the FSTs was “a sign of impairment.” Referencing
Diakhate’s statement that he had slept only two hours in the preceding two
days, Turriff also testified that “staying up for long periods of time” is “an
effect methamphetamine can have[.]”

¶12 The State also presented body cam video of the troopers’
interactions with Diakhate as well as 22 video clips from Robert’s dash-cam.
Although most of the video clips were of a one-minute duration, two of
them were only about thirty seconds each.

¶13 The forensic toxicologist testified that methamphetamine is a
stimulant and that people under its influence may exhibit “hyperactivity.”
Further, he stated, methamphetamine use was associated with impulsive

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behavior, stating that users “can be quick to make decisions” that are “often
. . . wrong,” or at least “the wrong ones to make while driving or operating
a vehicle.” As the methamphetamine wears off, the toxicologist went on,
users often become “agitated” and “irritable.” He further testified that
methamphetamine is typically detectable for four to eight hours after use.

¶14 Diakhate testified in his own defense. He stated that he was
driving to Las Vegas when a “small S.U.V.” cut him off. He “wasn’t upset
at that moment[,]” however, and instead gave the other driver a “thumbs
up.” Without responding to his friendly gesture, the other driver pulled
over and stopped. “Concerned” for the other driver’s well-being, Diakhate
pulled off the freeway, too. He stepped out of his car and called out, “You
okay?” Receiving no response, he decided to “get close” to the other vehicle
to determine if the driver was in need of help. He made a U-turn and drove
toward the other vehicle. Only when the other vehicle drove off, Diakhate
stated, did he become upset. He admitted following the vehicle in his
Mazda, explaining, rather confusingly, that he had come to the conclusion
that the driver must have been “someone I know” and he wanted to
determine who it was. By the time they reached the gas station parking lot,
Diakhate acknowledged, he was mad. He admitted that he yelled “the
F word” and said he would “kill” the driver, but insisted that he had “no
intention to harm” him. He then left the parking lot, he stated, because he
had other, “more important” things to do.

¶15 Diakhate denied using methamphetamine. When asked to
explain the presence of the bong in his car, he stated that it had been left
there the day before, without his knowledge, by a “homeless lady” whom
he “used to help[.]” He denied refusing to submit to a drug test, insisting
that he offered to undergo a urine test instead of a blood test. He further
attributed his poor performance on the FSTs to “a sciatic nerve problem[.]”

¶16 Noting that two of the dash-cam video clips were each half as
long as the others, defense counsel alleged that some of the video of the
incident must have been deleted and so requested a Willits instruction. The
court denied the request.

¶17 The jury found Diakhate guilty as charged. After designating
the PDOP conviction a misdemeanor, the superior court sentenced
Diakhate to the presumptive term of 1.5 years in prison for aggravated DUI
and 3 days in jail for the remaining counts, with credit for time served.

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STATE v. DIAKHATE
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¶18 Diakhate timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21, 13-
4031, and 13-4033(A).

DISCUSSION

I. Sufficient evidence supports Diakhate’s aggravated DUI
conviction.

¶19 Diakhate contends that the evidence was insufficient to
support his aggravated DUI conviction. As charged in this case, a
conviction for aggravated DUI requires proof that the defendant “[drove]
the wrong way on a highway” while “under the influence of . . . any
drug . . . if the person [was] impaired to the slightest degree.” A.R.S. §§ 28-
1381(A)(1), -1383(A)(5). Diakhate does not dispute that he drove the wrong
way on a highway, nor does he dispute that the State “presented evidence
of methamphetamine in his system[.]” He asserts, however, that the State
presented no evidence that he was impaired while driving.

¶20 Evidence is sufficient to support a conviction “if a rational
trier of fact could have found[,]” from the evidence presented, “the
elements of the offense beyond a reasonable doubt.” State v. Whalen, 192
Ariz. 103, 111 (App. 1997). “To set aside a jury verdict for insufficient
evidence[,] it must clearly appear that upon no hypothesis is there sufficient
evidence to support the conclusion reached by the jury.” State v. Clark, 249
Ariz. 528, 534, ¶ 21 (App. 2020) (citation modified). Stated differently, a
reviewing court “will reverse a conviction for insufficient evidence only if
there is a complete absence of probative facts to support the jury’s
conclusion.” Id. (citation modified).

¶21 Here, ample evidence supports the jury’s determination that
Diakhate was impaired by the methamphetamine in his system. Robert’s
account of Diakhate’s erratic driving, for example, constitutes evidence of
his impairment. See State v. Holguin, No. 1 CA-CR 15-0836, 2016 WL 7093867
at *3, ¶ 23 (Ariz. App. Dec. 6, 2016) (mem. decision) (rejected defendant’s
challenge to sufficiency of evidence to support aggravated DUI conviction
and noting that officer’s testimony about defendant’s “erratic
driving . . . supports a finding of impairment”). Further, Robert, the
troopers, and the phlebotomist all testified that Diakhate acted in an
agitated and hyperactive manner during and immediately after the
incident. As the forensic toxicologist testified, methamphetamine can cause
users to exhibit such behavior. The phlebotomist also testified that users can
become “irritable” as the methamphetamine is wearing off, and Diakhate’s

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own testimony about his angry reaction when the Subaru drove away as he
approached it establishes his irritability at the time.

¶22 The forensic toxicologist testified that methamphetamine can
negatively affect users’ judgment, leading them to make unwise choices.
The jury heard Diakhate admit that he intentionally drove the wrong way
on the freeway, and could reasonably consider this testimony as evidence
of an unwise decision that supports a finding that his judgment was
impaired at the time. Further, Trooper Turriff’s testimony, and the body-
cam video that the jurors were able to observe, established that Diakhate
performed poorly on the FSTs, including by disregarding instructions to
take nine steps while keeping his arms at his side during the walk-and-turn
test. As Turriff testified, poor performance on FSTs, including the subject’s
inability to follow directions, constitutes an indicator of impairment. See
State v. Campoy, 214 Ariz. 132, 134-35, ¶¶ 8-9 (App. 2006) (holding that a
defendant’s performance on FSTs, though not conclusive, is “relevant
evidence of [the] defendant’s impairment”); see also State v. Aulbach, No. 1
CA-CR 17-0014, 2018 WL 2355293 at *4, ¶ 15 (Ariz. App. May 24, 2018)
(mem. decision) (holding that defendant’s DUI conviction was supported
by evidence that included drug recognition expert’s testimony about “signs
and symptoms of impairment” exhibited by defendant). All of this
evidence, taken together, is more than sufficient to support Diakhate’s
conviction for aggravated DUI. See State ex rel. McDougall v. Albrecht, 168
Ariz. 128, 132 (App. 1991) (vacating order setting aside guilty verdict in DUI
case; the defendant’s “failure to stop at a red light and speeding coupled
with his poor performance of the [FSTs] and physical signs of impairment
constituted substantial evidence of impairment”). We therefore reject
Diakhate’s challenge to the sufficiency of the evidence.

II. The court did not commit reversible error by denying Diakhate’s
request for a Willits instruction.

¶23 Noting that two of the video clips from Robert’s dash-cam
were shorter than the others, Diakhate maintains that video was missing
which could have “corroborated” his testimony that he gave Robert the
“thumbs up signal” and that he drove back toward Robert’s car with benign
intentions. The missing video, he contends, entitled him to a Willits
instruction, which the court improperly refused to give.

¶24 A Willits instruction tells the jurors that they may infer that
evidence that the State lost or destroyed would have been exculpatory. See
State v. Willits, 96 Ariz. 184, 191 (1964); State v. Fulminante, 193 Ariz. 485,
503, ¶ 62 (1999). To establish entitlement to a Willits instruction, the

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defendant must show that: (1) the evidence existed, (2) the State destroyed
or failed to preserve the evidence, (3) the evidence had a tendency to
exonerate the defendant by being “potentially useful to a defense theory
supported by the evidence[,]” and (4) the defendant was prejudiced. State
v. Togar, 248 Ariz. 567, 575, ¶ 25 (App. 2020) (citation omitted). We review
the denial of a Willits instruction for an abuse of discretion. State v.
Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014).

¶25 Diakhate points to nothing in the record showing that the
purportedly missing portions of the video clips ever existed. Both Robert
and Trooper Clark denied altering the clips in any manner. Absent evidence
that the allegedly missing evidence actually existed, a Willits instruction
was clearly unwarranted. Togar, 248 Ariz. at 575, ¶ 25.

¶26 Further, even if video from Robert’s dash-cam was taken and
then deleted or otherwise lost, Diakhate fails to show how the failure to
preserve those clips was attributable to the State. Any loss of video due to
the malfunctioning of Robert’s dash-cam or his mishandling of the
equipment before he turned the memory card over to Trooper Clark would
not justify a Willits instruction. See State v. Young, No. 2 CA-CR 2020-0087,
2021 WL 5542080 at *6, ¶ 24 (Ariz. App. Nov. 26, 2021) (mem. decision)
(affirming trial court’s denial of requested Willits instruction based on the
purported loss of exculpatory recordings and messages on defendant’s cell
phone, in part because defendant did not explain how evidence was
“destroyed or rendered unavailable to him as a result of” conduct by the
State); cf. State v. Gerhardt, 161 Ariz. 410, 411, 413 (App. 1989) (defendant
moved to dismiss DUI charge on due process grounds because his
interaction with police after arrest was not videorecorded in its entirety as
a result of “mechanical malfunction or human error while operating the
video camera”; affirming denial of motion to dismiss, the Court held that
“[t]here is nothing in the record to suggest that the blank spot on the
videotapes is the result of the state’s bad faith”).

¶27 Finally, even if the State could be faulted for the failure to
preserve some of the video from Robert’s dash-cam, Diakhate fails to
establish that the missing video would have had a tendency to exonerate
him. See State v. Dunlap, 187 Ariz. 441, 464 (App. 1996) (holding that trial
court did not err in refusing to give Willits instruction based on purported
removal of documents from police file; defendant’s claim that “allegedly
missing” documents “would have supported his theory of the case” was
“entirely speculative” because documents’ “contents” were “unknown”).
Diakhate asserts that the missing video could have corroborated his
testimony that he gave a “thumbs up” to Robert after Robert purportedly

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cut him off. Evidence that he gave Robert a “thumbs up,” however, would
hardly exonerate Diakhate of the charged offenses. Such evidence would
not explain or excuse Diakhate’s erratic and reckless driving, the threats he
yelled at Robert at the gas station, or the presence of a bong in the center
console of his car. Because Diakhate has identified nothing that the
purportedly missing video could have shown that would have exonerated
him, the trial court committed no error in denying his request for a Willits
instruction. See Fulminante, 193 Ariz. at 503, ¶ 62 (“A trial court does not
abuse its discretion by denying a request for a Willits instruction when a
defendant fails to establish that the lost evidence would have had a
tendency to exonerate him.”); see also State v. Olivieri, No. 2 CA-CR 2023-
0226, 2025 WL 604765 at *4, 5, ¶¶ 20, 23 (Ariz. App. Feb. 25, 2025) (mem.
decision) (defendant was charged with second-degree murder and other
crimes based on shooting in parking lot that was partly captured on security
video, but which contained “thirty-four seconds” of “unviewable” footage;
holding that trial court did not err in denying request for Willits instruction
because defendant offered nothing but “speculat[ion]” that “the missing
footage contained exculpatory content”).

CONCLUSION

¶28 We affirm.

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

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