                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                     DANIEL S. COVEN, Appellant.

                         No. 1 CA-CR 13-0524
                           FILED 1-8-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-133433-001
              The Honorable Susanna C. Pineda, Judge

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Law Offices of Thomas Jacobs, Tucson
By Thomas Jacobs
Counsel for Appellant



                              OPINION

Judge Kenton D. Jones delivered the Opinion of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
                            STATE v. COVEN
                           Opinion of the Court

J O N E S, Judge:

¶1            Daniel S. Coven appeals his convictions for resisting arrest
and disorderly conduct, each a class one misdemeanor. Coven argues the
trial court erred in permitting his fourth privately retained attorney to
withdraw from his representation following the attorney’s avowal of an
ethical conflict, without thereafter providing Coven court-appointed
counsel for trial. He further argues error in the admission of evidence
obtained from his iPod during the search incident to arrest. We find the
trial court did not abuse its discretion in permitting Coven’s attorney to
withdraw as a result of an ethical conflict, and that he was not an indigent
person entitled to court-appointed counsel. Additionally, although
admission of the iPod evidence was error, there was no prejudice.
Therefore, we affirm Coven’s convictions and probation.

                FACTS1 AND PROCEDURAL HISTORY

¶2            On June 30, 2011, in contravention of notices posted
throughout the Maricopa County Superior Court Southeast Facility in
Mesa, Arizona, prohibiting photography or videotaping within the
courthouse, Coven took a digital image of a superior court clerk with his
iPod. Coven refused to comply with requests from the clerk, the superior
court security officer, and law enforcement to delete the photograph.
Instead he became increasingly loud and refused to move from the line of
customers waiting to file paperwork with the clerk’s office. When advised
he was being placed under arrest for his disruptive behavior, Coven forced
his hands apart, pinned one arm underneath himself, and kicked at the
officers in an attempt to prevent them from applying handcuffs. When
Coven was finally secure, he was physically escorted from the scene.

¶3            Following a three-day jury trial in May 2013, Coven was
found guilty of resisting arrest and disorderly conduct. At the sentencing
phase, the trial court suspended imposition of sentence and placed Coven
on probation for one year on each count to be served concurrently. Coven




1      We view the evidence “in the light most favorable to sustaining the
conviction” and resolve all reasonable inferences against the defendant.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We also
resolve any conflict in the evidence in favor of upholding the verdicts. Id.



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                              STATE v. COVEN
                             Opinion of the Court

timely appealed. This Court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1),2 13-4031 and -4033(A)(1).

                                DISCUSSION

I.     Withdrawal and Appointment of Counsel

¶4              Coven first argues the trial court erred in permitting his
fourth attorney to withdraw thirty-four days prior to the scheduled trial
date without appointing a lawyer to represent him. “We will overturn a
trial court’s decision on a motion to withdraw only if the trial court abused
its discretion.” State v. Jones, 185 Ariz. 471, 482, 917 P.2d 200, 211 (1996). A
trial court’s interpretation of a constitutional right, including the right of an
indigent criminal defendant to counsel, is a question of law we review de
novo. Robinson v. Hotham, 211 Ariz. 165, 168, ¶ 9, 118 P.3d 1129, 1132 (App.
2005).

       A.     The Trial Court Did Not Abuse Its Discretion in Permitting
              Coven’s Fourth Attorney to Withdraw Following an Avowal
              of an Ethical Conflict.

¶5            In support of his claim, Coven asserts the trial court erred
because it did not make a detailed inquiry into the basis for withdrawal, but
simply accepted counsel’s avowal of an ethical conflict.

¶6             Coven’s fourth, and final, counsel filed a motion to withdraw
on the basis that “[c]ircumstances ha[d] developed in the course of the
representation that ha[d] caused an irremediable breakdown in the
attorney client relationship,” which prevented the attorney from providing
effective assistance of counsel. Upon inquiry by the trial court, counsel
confirmed the problem was not “in any way, shape, or form related to any
fees, attorney’s fees, and compensation,” further stating:

       It’s difficult to elaborate. Basically, based on privileged
       communications, Your Honor, it seems that all of the efforts I
       have put forward to effectively defend the case, I’m not — I’m
       not receiving any assistance, in my opinion. I don’t believe,
       based on some of the statements that have been made, that I




2     Absent material revisions from the relevant date, we cite a statute’s
current version.



                                       3
                              STATE v. COVEN
                             Opinion of the Court

       can ethically proceed at this point with regards to some other
       issues as well.

       I cannot ethically, based on some of the statements that have
       been made, I simply — I don’t believe that ethically I can
       proceed.

The trial court informed Coven that the ethical rules prohibited it from
delving further into the attorney-client relationship, accepted counsel’s
avowals as “an Officer of the Court” over Coven’s objections and entered
an order allowing her to withdraw.

¶7               The Arizona Rules of Professional Conduct provide that a
lawyer “shall withdraw from the representation of a client if . . . the
representation will result in violation of the Rules of Professional Conduct
or other law.” Ariz. R. Sup. Ct. 42, ER 1.16(a)(1). Upon filing of such a
motion, the trial court must determine whether good cause has been shown
before permitting the withdrawal, Ariz. R. Crim. P. 6.3(b), and may request
an explanation for the withdrawal. Ariz. R. Sup. Ct. 42, ER 1.16, cmt. 3. The
trial court should not condition grant or denial of the request on the
attorney’s willingness to disclose confidential information; rather, “[t]he
lawyer’s statement that professional considerations require termination of
the representation ordinarily should be accepted as sufficient.” Id.; see also
State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025, 1027 (1973) (“The trial court
should give great weight to a representation by counsel that there is a
conflict . . . .”); Maricopa Cnty. Public Defender’s Office v. Superior Court, 187
Ariz. 162, 166, 927 P.2d 822, 826 (App. 1996) (concluding disclosure of
confidential information not ordinarily required when counsel avows he
has an ethical conflict requiring withdrawal).

¶8           Contrary to Coven’s contentions, the trial court made
adequate inquiry into the circumstances necessitating withdrawal, and
acted within its discretion in granting the request based upon counsel’s
avowals that ethical considerations mandated her withdrawal. Therefore,
we find no error in the trial court’s order permitting Coven’s fourth
attorney to withdraw.

       B.     The Trial Court Did Not Err in Denying Coven’s Request
              for Court-Appointed Counsel.

¶9            Coven also argues the trial court erred by denying his request
for court-appointed counsel prior to trial. To support his argument, Coven
relies on Arizona Rule of Criminal Procedure 6.3(c), which provides that no
attorney shall be permitted to withdraw after a case has been set for trial


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                              STATE v. COVEN
                             Opinion of the Court

“except upon motion accompanied by the name and address of another
attorney, together with a signed statement by the substituting attorney that
he or she is advised of the trial date and will be prepared for trial.”

¶10           First, although a proper motion to withdraw will designate a
substitute attorney, we have previously held that failure to do so may be
overlooked if substantial justice to the defendant is done and the error is
not so prejudicial to defendant’s rights as to require reversal. State v. Schaaf,
169 Ariz. 323, 331, 819 P.2d 909, 917 (1991). Because Coven’s fourth
privately retained attorney could not ethically continue her representation,
we find no prejudice to Coven in the failure of his counsel to comply with
Rule 6.3(c).

¶11           Second, Coven bases his argument on the right to counsel
guaranteed by the U.S. and Arizona constitutions, which require the State
to provide an indigent criminal defendant with appointed counsel. U.S.
Const. amend. VI and XIV, § 1; Ariz. Const. art. 2, § 24; State v. McGonigle,
103 Ariz. 267, 269, 440 P.2d 100, 102 (1968). However, Coven consistently
refused to provide the trial court with financial information, admitted he
was not indigent,3 and does not challenge that fact on appeal. Indeed,
during the course of these proceedings, Coven hired four separate private
attorneys. Because he was not indigent, Coven was not entitled to court-
appointed counsel, McGonigle, 103 Ariz. at 269, 440 P.2d at 102, and the trial
court did not err by declining to appoint him an attorney.4




3       In his June 2012 “Application for Court-Appointed Counsel,” Coven
“acknowledge[d] he ha[d] the financial resources” to retain private counsel,
adding that “[c]ompleting indigent defense financial forms in this case
would be pointless since he would not meet the indigent criteria and the
filing would be a burden on [him]” because he “wished to keep his financial
and personal information private.”

4       Coven argues the trial court should have appointed counsel
pursuant to Arizona Rule of Criminal Procedure 6.7(d), which authorizes
the court to order a defendant to pay the costs of court-appointed counsel
if the defendant has enough funds to offset a portion of those costs. Thus,
Coven maintains that the court could have appointed counsel, for which he
would then have paid. Coven’s argument fails to acknowledge the opening
lines of the rule, which state that the court may order such payment if, “in
determining that a person is indigent,” it also determines that the person



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                             STATE v. COVEN
                            Opinion of the Court

¶12           Finally, Coven asserts the trial court erred in finding he
waived his right to counsel without engaging in a colloquy to determine if
his waiver was voluntary. See, e.g., State v. McLemore, 230 Ariz. 571, 578,
¶ 22, 288 P.3d 775, 782 (App. 2012). Coven correctly states that a formal
colloquy was not provided, and he did not expressly waive his right to
counsel. However, “[e]ven in the absence of an express waiver, a defendant
can implicitly waive his right to counsel through his conduct.” State v.
Hampton, 208 Ariz. 241, 244, ¶ 7, 92 P.3d 871, 874 (2004) (citing United States
v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995)). “In some circumstances,
persistent disruptive or dilatory conduct by a defendant will support a
determination that the defendant ‘waived’ his right to counsel.” Id. (citing
Goldberg, 67 F.3d at 1100). This type of waiver can occur after a court warns
of the consequences of continued misconduct and explains the implications
of a waiver of counsel. Id. (citations omitted).

¶13            Here, as early as August 2012, after Coven’s second privately
retained attorney withdrew, the trial court informed him that if he did not
retain new counsel, he would be representing himself. Additionally, Coven
admitted having consulted other private attorneys who expressed a
willingness to take his case after the fourth attorney withdrew. The record
is devoid of explanation as to why Coven did not follow through with
obtaining new representation. Rather, the record reflects numerous
discussions, in open court, confirming Coven’s self-representation and
attempting to address his apparent refusal to take any action to remedy the
situation, his only response being repeated demands for court-appointed
counsel.

¶14             When the trial court offered to provide advisory counsel to
assist with Coven’s self-representation, Coven stated that, if that
appointment occurred, he would make an “immediate request” that his
then-advisory counsel act as his attorney of record for the trial. When the
court did not permit Coven to “back-door the system,” Coven chose to
forego any further participation in the proceedings, stating “I intend to be
here at the beginning of every proceeding and . . . if I don’t have an attorney
present . . . then I’m going to waive my right to be here and I will show up
again the next day and the next day for however long that is.” While the
trial court informed Coven, on the record, of the perils inherent in his
decision to proceed pro per and in absentia, Coven appeared at the beginning

has some financial resources. When read in totality, Rule 6.7(d) does not
authorize the appointment of counsel for non-indigent defendants.




                                      6
                              STATE v. COVEN
                             Opinion of the Court

of trial each day to waive his presence and participation, and permitted the
trial to proceed in his absence.5

¶15           Under these circumstances, we find Coven implicitly waived
any right to counsel through his unreasonable behavior, which was clearly
aimed at thwarting his prosecution and effectively delayed his trial for
nearly two years following the incident.

II.    Suppression of iPod Evidence

¶16           Coven next argues the trial court erred in admitting a digital
image of the court clerk taken from his iPod because it was (1) irrelevant
and (2) obtained illegally in the absence of a search warrant. In response to
Coven’s motion to suppress this evidence, the State argued the evidence
established the basis for placing Coven under arrest, and a warrant was
unnecessary because the search of the iPod was “incident to arrest.” The
court admitted the evidence although acknowledging it was of marginal
relevance to the resisting arrest charge.

¶17            We review a trial court’s ruling on a motion to suppress for
an abuse of discretion. State v. Zamora, 220 Ariz. 63, 67, ¶ 7, 202 P.3d 528,
532 (App. 2009). However, even if a trial court erroneously denies a motion
to suppress, we will not overturn a verdict if we find the error to be
harmless. State v. Solano, 187 Ariz. 512, 519, 930 P.2d 1315, 1322 (App. 1996).
“‘Error, be it constitutional or otherwise, is harmless if we can say, beyond
a reasonable doubt, that the error did not contribute to or affect the
verdict.’” Id. (quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191
(1993)).

¶18           On appeal, the State acknowledges the U.S. Supreme Court’s
recent decision in Riley v. California, ___U.S. ___, 134 S. Ct. 2473, 2495 (2014),
holding police must obtain a warrant prior to searching a cell phone seized
incident to arrest. Nonetheless, the State argues that, even assuming the


5      Coven argues that allowing him to waive his presence at the
beginning of trial each day, and proceeding in his absence without “making
arrangements” for legal representation, resulted in a series of impermissible
ex parte proceedings. Coven cites no authority for this proposition;
therefore, we will not address it further. See ARCAP 13(a)(6) (requiring
argument in appellate brief contain “citations to the authorities, statutes,
and parts of the record relied upon”); Ritchie v. Krasner, 221 Ariz. 288, 305,
¶ 62, 211 P.3d 1272, 1289 (App. 2009) (deeming waived an issue
unsupported by legal authority).


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                           STATE v. COVEN
                          Opinion of the Court

warrantless search of the iPod was impermissible, any error in admitting
the evidence was harmless. We agree.

¶19            At trial, the clerk testified that Coven admitted taking her
photograph in violation of courthouse rules, and then became angry and
loud when asked to delete it. The security officer and law enforcement
officer confirmed that Coven became aggressive and refused to delete the
images upon their requests, which ultimately caused the disturbance that
led to his arrest. During these interactions, Coven never denied taking the
clerk’s photograph with his iPod. The witnesses’ testimony is further
supported by a courthouse security video, which captured Coven’s refusal
to follow instructions to either delete the photograph or move out of the
line of customers waiting to file documents with the clerk, as well as his
struggle with court personnel and the arresting officers.

¶20           This uncontroverted evidence supports the jury’s verdict,
even if the images obtained from the iPod had not been shown to the jury.
Therefore, we find, beyond a reasonable doubt, that any error resulting
from the admission of evidence obtained from a warrantless search of
Coven’s iPod was harmless.

                             CONCLUSION

¶21           For the foregoing reasons, we affirm Coven’s convictions and
resulting term of probation.




                                  :ama




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