State v. Allen

• Decision Date: 04 June 2014
• Docket Number: No. 2 CA–CR 2013–0194.,2 CA–CR 2013–0194.
• Citation: State v. Allen, 235 Ariz. 72, 326 P.3d 339, 688 Ariz. Adv. Rep. 4 (Ariz. App. 2014)
• Parties: The STATE of Arizona, Appellee, v. Vincent Michael ALLEN, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 72

326 P.3d 339

688 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Vincent Michael ALLEN, Appellant.

No. 2 CA–CR 2013–0194.

Court of Appeals of Arizona, Division 2.

June 4, 2014.

Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee.

Harriette P. Levitt, Tucson, Counsel for Appellant.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 After a jury trial, Vincent Allen was convicted of forgery and criminal trespass. The trial court sentenced him to ten years' imprisonment for forgery and time served for criminal trespass. On appeal, Allen argues the state presented insufficient evidence to support a conviction for forgery. He also argues the court illegally sentenced him in absentia after he walked out of the courtroom during sentencing. For the reasons that follow, we affirm Allen's convictions and sentences.

Factual and Procedural Background

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Allen's convictions. See State v. Haight–Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). In August 2011, Apache Junction Police Detective Stephen Jeansonne responded to a report from a gas station clerk, who had asked police to remove Allen from the premises. Jeansonne found Allen standing in the parking lot outside of the gas station. He explained to Allen that he was “no longer welcome” there, asked him for his “date of birth, height, [and] weight, ... and began to write out [a] written warning.” Allen identified himself as “Aubrey Swanson” and signed the warning using the false name. Jeansonne provided a copy of the warning to the gas station clerk and gave Allen the original.

¶ 3 Fifteen days later, Jeansonne responded to another report from the gas station and immediately recognized Allen from the previous incident. This time, Allen identified himself using his real name. When Jeansonne checked the clerk's copy of the warning, he discovered the discrepancy. Allen confessed, “You got me,” and explained that he had given a false name because “[h]e was avoiding an outstanding criminal warrant at the time.”

¶ 4 Allen was arrested and charged with forgery, taking the identity of another person, and criminal trespass. At trial, at the state's request, the court dismissed the charge of taking the identity of another.¹ At the close of the state's case, Allen moved for a judgment of acquittal pursuant to Rule 20, Ariz. R.Crim. P., on the forgery charge. He argued that the state “presented no evidence that a warrant really was outstanding so that he would have any reason or intent to be defrauding the officer.” The court denied the motion, and the jury found him guilty of both remaining counts.

¶ 5 During sentencing, the trial court explained to Allen that “the most appropriate sentence” for the forgery conviction was “the presumptive sentence because [the court could not] find any mitigating factors.” Allen then cursed at the judge and walked out of the courtroom. The court found he had “voluntarily absented himself” and proceeded to sentence Allen as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(1).

Insufficient Evidence

¶ 6 Allen first argues there was insufficient evidence to support his conviction for forgery. The sufficiency of the evidence is a question of law we review de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). We will reverse “ ‘only if no substantial evidence supports the conviction.’ ” State v. Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App.2009), quoting State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App.2005). “Substantial evidence is proof that ‘reasonable persons could accept as adequate ... to support a conclusion of [a] defendant's guilt beyond a reasonable doubt.’ ” State v. Bearup, 221 Ariz. 163, ¶ 16, 211 P.3d 684, 688 (2009) (first alteration in Bearup), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).

¶ 7 Pursuant to A.R.S. § 13–2002(A)(1), “[a] person commits forgery if, with intent to defraud, the person ... [f]alsely makes, completes or alters a written instrument.” A “[w]ritten instrument” includes “[a]ny paper, document or other instrument that contains written or printed matter or its equivalent.” A.R.S. § 13–2001(12)(a); see State v. Bedoni, 161 Ariz. 480, 482–83, 779 P.2d 355, 357–58 (App.1989) (“written instrument” includes traffic citation). And, the intent to defraud may be shown through either direct or circumstantial evidence. State v. Thompson, 194 Ariz. 295, ¶ 13, 981 P.2d 595, 597 (App.1999).

¶ 8 The written warning that Jeansonne issued to Allen falls under the “broad statutory definition of a written instrument.” Bedoni, 161 Ariz. at 483, 779 P.2d at 358. And Allen's use of a false signature on the warning constituted making or completing that instrument pursuant to § 13–2002(A)(1).² Thus, the remaining issue is whether the state presented sufficient evidence of Allen's intent to defraud.

¶ 9 In Bedoni, this court considered whether the use of a false signature on a traffic citation was sufficient evidence of the defendant's intent to defraud. 161 Ariz. at 482–84, 779 P.2d at 357–59. In that case, an officer gave the defendant a citation during a traffic stop for driving without a license. Id. at 482, 779 P.2d at 357. The defendant signed the citation on the “ ‘promise to appear’ portion of the ticket” using a false name. Id. The defendant was charged with and convicted of forgery. Id.

¶ 10 On appeal, we first noted that a “promise to appear by a fictitious person is meaningless.” Id. at 484, 779 P.2d at 359. The false signature “deceive[d] the officer and the court system, not to mention risk[ed] trouble for some unknown person” bearing the same name. Id. In addition, the defendant would gain a benefit because “[i]t conceals the true identity of the perpetrator of the alleged crime and seeks to obtain the release, without incarceration, of someone not entitled to release.” Id. We concluded that “all of these acts could be found by a jury to constitute an ‘intent to defraud.’ ” See id.

¶ 11 In this case, there was similar circumstantial evidence of Allen's intent to defraud. Use of the false signature deceived the officer into believing the warning had been issued to the correct person. See id. But, a warning issued to and acknowledged by the wrong person “is meaningless.” Id. It created the “risk[ of] trouble” for some other person, in this case, Allen's brother-in-law. Id. And, the court system was deprived of evidence that Allen had received notice he was no longer welcome at the gas station and would be arrested if he visited there again. See id. If any other officer had responded to the second report from the gas station, Allen would not have been recognized at all. “[A]ll of these acts could be found by a jury to constitute an ‘intent to defraud.’ ” Id.

¶ 12 Allen attempts to distinguish Bedoni, arguing that no one actually relied on his false signature, and, therefore, “the name [he] used was immaterial.” He notes that Jeansonne only “issued the warning citation for the purpose of advising [him] that he was no longer welcome at the [gas] station” but was able to identify Allen approximately two weeks later without relying on the warning. Allen also argues that “[t]here was no evidence that the store clerk relied on the document when someone, either the same or a different store clerk, called the police two weeks later.”

¶ 13 But actual reliance is not required to show intent to defraud. Bedoni does not suggest that to establish intent, “all of the[ ] acts” described therein actually had to occur or did occur. 161 Ariz. at 484, 779 P.2d at 359 (suggesting risk of trouble for “some unknown person” sufficient evidence of intent to defraud). Rather, circumstantial evidence of the defendant's desire for a result to occur was sufficient to show intent. SeeA.R.S. § 13–105(10)(a) (“ ‘[W]ith the intent to’ means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result....”); Thompson, 194 Ariz. 295, ¶ 13, 981 P.2d at 597 (“[I]t is irrelevant whether anyone was actually injured.”).

¶ 14 Allen similarly argues that he did not receive an actual benefit by using a false name because, contrary to his belief at the time, there was no outstanding warrant for his arrest, and because his “significant criminal history” could not be used to enhance his sentence for the misdemeanor conviction for criminal trespass. This argument is unavailing for the same reasons discussed above. Only Allen's “objective” to cause a particular result through deception is relevant here. See§ 13–105(10)(a). And, at the time of his arrest, Allen confessed he had intended to “avoid[ ] an outstanding criminal warrant.” See Thompson, 194 Ariz. 295, ¶ 13, 981 P.2d at 597. Therefore, sufficient evidence supports Allen's conviction for forgery. See West, 226 Ariz. 559, ¶ 15, 250 P.3d at 1191.

Absence from Sentencing

¶ 15 Allen argues the trial court violated Rule 26.9, Ariz. R.Crim. P., when it sentenced him in absentia. Allen failed to raise this issue below. Because he did not object, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005). To warrant reversal, Allen must show “that error occurred, that it was fundamental, and that it prejudiced him.” State v. Moreno–Medrano, 218 Ariz. 349, ¶ 16, 185 P.3d 135, 140 (App.2008).

¶ 16 Rule 26.9 provides that “[t]he defendant ... shall be present at sentencing.” Thus, even if a defendant is absent voluntarily, “the trial judge, except in extraordinary circumstances, must postpone the imposition of sentence until such time as the defendant can be present.” State v. Fettis, 136 Ariz. 58, 59, ...