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1:35 PM Tue, Nov. 13th

<I>Jury milestone:</I><BR>Aggravating factors exist for Zylstra

PRESCOTT – For the first time in this county a jury, rather than a judge, on Friday found that aggravating factors exist in the case that involves Joseph Lee Zylstra, who kidnapped and raped two Bradshaw Mountain High School students 11 years ago.

The same jury convicted Zylstra, 47, a month ago on five counts including two counts of sexual assault and three counts of kidnapping.

The jury found that three aggravating factors exist in each one of the four counts they convicted him of, including threatened infliction of a serious injury; the offense was committed in an especially cruel, heinous and depraved manner; and physical and/or emotional harm to the victims caused by the defendant's conduct.

Deputy Yavapai County Attorney Mark Ainley said that the state did not seek the finding of aggravating factors in the third count of kidnapping because of the State vs. Jones case, which was a Prescott case.

He said the court ruled that two counts of kidnapping should be merged during this phase of the trial because "the victims never were out of his (Zylstra's) control during the abduction."

Ainley said the defendant could face as long as 84 years in prison.

Authorities arrested and extradited Zylstra from Tennessee to Arizona about two years ago after officials in another state matched his DNA with the DNA evidence from the victims after the incident.

Zylstra was in the courtroom, although Yavapai County Superior Court Judge Pro Tem Ralph Hess warned him, in absence of the jurors, that he would not tolerate any outbursts by the defendant and that he would remove Zylstra from the courtroom if it occurred.

On Tuesday, Zylstra spat on Ainley during another proceeding and refused to be present during his Rule 11 hearing on Thursday.

The defendant apologized to the judge for his prior conduct and told him that it was because of his post traumatic stress disorder. He also cooperated with his two attorneys, Kenneth Ray and Thomas Kelly. Zylstra had refused to talk to his attorneys since the Oct. 15 verdict. But on Thursday, both attorneys were able to establish some communication with him, Ray said.

Ainley did not present any additional evidence during the finding of special circumstances hearing and he told the judge and the jury that the evidence he presented during the trial applies to this phase. He then proceeded with his closing argu-ment.

Ainley said the defendant repeatedly threatened the two victims by saying, "If you run, I'll kill your friend and which one of you wants to be the first to die?"

"He toyed with them like a cat with a mouse," Ainley said, adding that Zylstra terrorized the girls in such a manner that the victims still cry 11 years after the incident happened.

He said one of the victims testified that the reason she could remember Zylstra's face is because "he is the monster to me."

In his closing argument, Ray told the jurors that this will be a grand experience for them as well as for the lawyers, considering that they are the first jury in this county to decide whether special circumstances exist in this case.

"It has never been done in this jurisdiction," he said.

Ray said that prior to the June 2004 U.S. Supreme Court decision in Washington vs. Blakely, the judge decided on these matters.

The Supreme Court declared in Blakely that a judge may impose an aggravated prison term for an offense only if a jury finds aggravating circumstances or if the defendant admits those circumstances.

He said the state opted not to present any evidence to support the finding of special circumstances in this case.

"Your decision must not be prejudiced by sympathy, passion or prejudice," he said.

Ray claimed that the jury already considered the evidence presented during the guilty phase to determine the defendant's guilt. He claimed that because the jury has considered that evidence, it no longer applies to this phase.

"There is nothing that made these things exceptional," he said.

But in his rebuttal, Ainley argued that not every crime is the same.

He told the jurors that they have to look at the consequences of a defendant's actions as well as the actions themselves.

Contact the reporter at mburicadam@prescottaz.com