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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JAMIE ROSE AGUILAR, Appellant.

                            Nos. 1 CA-CR 14-0313
                                1 CA-CR 14-0365
                                1 CA-CR 14-0366
                                  (Consolidated)
                              FILED 9-8-2015


          Appeal from the Superior Court in Maricopa County
                       Nos. CR2010-160343-001
                            CR2011-107822-002
                            CR2013-416292-002
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
                           STATE v. AGUILAR
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.


B R O W N, Chief Judge:

¶1            Jamie Rose Aguilar appeals her convictions and sentences for
two counts of burglary in the third degree in Maricopa County Superior
Court No. CR2013-416292-002.1 She contends the trial court erred in
denying her motion for new trial and motion for change of counsel. For the
reasons that follow, we affirm.

                             BACKGROUND

¶2            The State charged Aguilar with two counts of burglary in the
third degree and two counts of possession of burglary tools committed
while Aguilar was on probation for two previous convictions. At trial, the
court granted Aguilar’s motion for a directed verdict as to one count of
possession of burglary tools, and the jury returned guilty verdicts on the
two burglary counts. The jury acquitted Aguilar of the remaining count of
possession of burglary tools.

¶3           During voir dire, none of the jurors answered affirmatively
when the court asked them whether they knew Aguilar. Several days after
the verdicts were returned, however, Juror No. 6 informed the court that
Aguilar’s daughter, J.Z., had been her student the previous year while Juror
No. 6 was working as a substitute teacher. After the court held a status
conference, at which the court and the parties had the opportunity to
question Juror No. 6 regarding her contact with Aguilar, Aguilar moved for




1     Aguilar also appeals from the trial court’s revocation of probation
and imposition of sentences in Maricopa County Superior Court Nos.
CR2010-160343-001 and CR2011-107822-002. Other than her challenges to
the convictions and sentences in CR2013-416292-002, Aguilar raises no
separate arguments challenging her probation revocation.




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                            Decision of the Court

a mistrial based on the juror’s failure to disclose their connection during
trial. The court denied the motion.

¶4         Prior to sentencing, Aguilar filed a motion to change counsel.
The court denied the motion, proceeded to sentencing, and Aguilar
appealed.

                               DISCUSSION

¶5            Aguilar first argues she was entitled to a new trial based on
Juror No. 6’s failure to inform the court, at trial, that she was acquainted
with Aguilar. According to Aguilar, Juror No. 6 could not be fair and
impartial based on their previous interaction.

¶6              “Motions for new trial are disfavored and should be granted
with great caution.” State v. Rankovich, 159 Ariz. 116, 121 (1988). We review
a trial court’s decision to deny a new trial based on juror misconduct for an
abuse of discretion. State v. Hall, 204 Ariz. 442, 447, ¶ 16 (2003). Misconduct
can occur when a juror “willfully fail[s] to respond fully to a direct question
posed during voir dire examination.” Ariz. R. Crim. P. 24.1(c)(3)(iii). A
juror’s failure to disclose contact with the defendant “during trial, although
improper, is not grounds for a mistrial or new trial unless [the] defendant
establishes that the misconduct was prejudicial to the rights of the
defendant or when such a state of facts is shown that it may fairly be
presumed . . . that the defendant’s rights were prejudiced.” State v. Vasquez,
130 Ariz. 103, 105 (1981) (internal quotations omitted).

¶7             At the status conference, Juror No. 6 explained that during
voir dire she “had no idea” she had any connection to Aguilar. When
Aguilar testified and mentioned the age of her daughter and the location of
her daughter’s school, the juror had “a fleeting thought there could be a
connection” but then concluded “[i]t’s probably not possible.” She learned
of the association when she returned to work and a co-worker informed her
that J.Z. was Aguilar’s daughter. Until she received this information, Juror
No. 6 “had no idea” because the two did not share the same last name.

¶8              When questioned regarding any previous contact with
Aguilar, Juror No. 6 said she remembered an incident when she put J.Z. on
a school bus to return home, and Aguilar confronted her because Aguilar
was there to drive the child home. Juror No. 6 stated that Aguilar was “a
little irritated with me” at the time. Juror No. 6 also mentioned that she
must have had a parent-teacher conference with Aguilar the prior year but
she could not “picture” the meeting. Juror No. 6 repeatedly stated that her
connection with Aguilar did not affect her deliberations at trial because she


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                            Decision of the Court

was unaware of their acquaintance at the time. The juror also stated that,
had she recognized Aguilar during voir dire, she “absolutely” would have
disclosed that information.

¶9            In denying Aguilar’s new trial motion, the court found Juror
No. 6 honestly indicated during voir dire that she did not know Aguilar.
The court also found that Aguilar suffered no prejudice because the juror
did not recognize her association with Aguilar until after the verdicts were
rendered.2 The record supports these findings. Therefore, the court did not
abuse its discretion in denying Aguilar’s motion for new trial.

¶10           Aguilar next argues the court erred in denying her motion to
change counsel. We review a court’s denial of a motion to change counsel
for an abuse of discretion. State v. Hernandez, 232 Ariz. 313, 318, ¶ 11 (2013).

¶11            On the day of sentencing, Aguilar filed a motion to change
counsel without indicating any basis for the request. Aguilar explained
orally to the court that she was not satisfied with her appointed counsel’s
representation. Specifically, she asserted counsel had done nothing to
protect or defend her, pointing to his refusal to take actions she had
requested, his failure to visit her in jail, and his failure to return her phone
calls. She also asserted that counsel told her at the start of trial that the
funds he was given for her defense were “spent a long time ago” and that
it was “basically BS to have to defend” her.

¶12           Aguilar further stated, “[Counsel is] telling me he . . . need[s]
to do something to protect himself, which is not fair in my case.”           In
response to this statement, defense counsel explained that he would not
stipulate to the State’s allegations of prior convictions, and “that protects
everybody, including myself[.]” In denying the motion, the court found that
Aguilar’s attorney, having represented her through trial, was “in the best
position” to represent her at sentencing.

¶13          Although the Sixth Amendment guarantees criminal
defendants the right to representation by competent counsel, an indigent


2      Additionally, we note that nothing in the record indicates Aguilar
recognized Juror No. 6 as J.Z.’s former teacher, which bolsters the juror’s
credibility regarding her inability to recognize Aguilar at trial. In any event,
Aguilar’s challenges to the juror’s credibility are not persuasive on appeal.
See State v. Ossana, 199 Ariz. 459, 461, ¶ 7 (App. 2001) (“The trial court
determines the credibility of witnesses.”).



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defendant is not “entitled to counsel of choice, or to a meaningful
relationship with his or her attorney.” State v. Torres, 208 Ariz. 340, 342, ¶ 6
(2004) (internal citation omitted). Rather, the constitutional right to counsel
is violated “when there is a complete breakdown in communication or an
irreconcilable conflict between a defendant and his appointed counsel[.]”
Id. A defendant’s lack of confidence in counsel and disagreements over trial
strategy do not constitute an irreconcilable conflict and do not require the
court to conduct a formal hearing to inquire as to the basis of the
defendant’s request for new counsel. Id. at 343, ¶ 8; State v. Cromwell, 211
Ariz. 181, 186-87, ¶¶ 29-30 (2005). In deciding whether to grant a motion to
change counsel, a trial court should also consider other factors, including
the timing of the motion. Id. at 187, ¶ 31 (internal quotation omitted).

¶14          Aguilar contends she presented sufficient factual allegations
of an irreconcilable conflict with trial counsel such that the court should
have granted her motion to change counsel or, alternatively, the court was
required to further investigate her allegations by holding an evidentiary
hearing.3

¶15           Without question, Aguilar expressed a lack of confidence in
her attorney’s representation and explained she and her attorney disagreed
about trial strategy. Aguilar also conveyed her dissatisfaction with the
amount of contact she had with counsel throughout the proceedings. None
of these complaints, however, demonstrate a complete breakdown in
communication between attorney and client that would mandate a formal
hearing or substitution of counsel.4       Consequently, and especially
considering the delayed timing of the request, the court did not abuse its
discretion by denying Aguilar’s motion for new counsel or failing to
conduct a more extensive formal hearing. Finally, to the extent Aguilar

3      To the extent Aguilar contends her appointed counsel did not inform
her of a plea bargain until after trial had commenced, the record indicates
otherwise. Even if counsel failed to do so, however, the record shows the
court informed Aguilar of the State’s proposed plea agreement, and Aguilar
knowingly rejected it.

4       Aguilar argues trial counsel’s failure to return her phone calls and
meet with her violates our supreme court’s rules of professional conduct.
She provides no authority, however, that such violations amount to a denial
of the Sixth Amendment’s right to counsel. Accordingly, we do not address
this issue. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004) (“In
Arizona, opening briefs must present significant arguments, supported by
authority, setting forth an appellant’s position on the issues raised.”).


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                           STATE v. AGUILAR
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challenges her attorney’s competence in handling the trial, we note that
claims for ineffective assistance of counsel must be raised in a petition for
post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32.
See State v. Sprietz, 202 Ariz. 1, 3, ¶ 9 (2002).

                              CONCLUSION

¶16           We affirm Aguilar’s convictions and sentences for two counts
of burglary in the third degree, and the revocation of Aguilar’s probation
and the resulting sentences.




                                  :ama




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