                                IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                     VINCENT MICHAEL ALLEN,
                            Appellant.

                       No. 2 CA-CR 2013-0194
                         Filed June 4, 2014


          Appeal from the Superior Court in Pinal County
                     No. S1100CR201102161
            The Honorable Gilberto V. Figueroa, Judge

                              AFFIRMED


                               COUNSEL

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

Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Howard and Judge Miller concurred.
                          STATE v. ALLEN
                         Opinion of the Court

V Á S Q U E Z, 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




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                          STATE v. ALLEN
                         Opinion of the Court

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


      1Aubrey  Swanson, Allen’s brother-in-law, “indicate[d] that he
d[id] not want to pursue prosecution and that . . . Allen had
permission to use his information.”


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                         STATE v. ALLEN
                        Opinion of the Court

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

      2 Relying  on State v. Singh, 4 Ariz. App. 273, 419 P.2d 403
(1966), Allen maintains that “the use of the false name did not
constitute an uttering.” His reliance on Singh is misplaced, however,
because that case applied a former forgery statute distinct from § 13-
2002(A)(1), and an “uttering” is no longer an element of the offense.
See Singh, 4 Ariz. App. at 276, 419 P.2d at 406.


                                  4
                          STATE v. ALLEN
                         Opinion of the Court

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. See A.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


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                          STATE v. ALLEN
                         Opinion of the Court

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, 664 P.2d
208, 209 (1983). Compare Ariz. R. Crim. P. 9.1 (defendant may waive
presence at criminal proceedings “[e]xcept as otherwise provided in
these rules”), with Ariz. R. Crim. P. 26.9 (providing no exception for
sentencing).3


      3A   “‘reasonable and rational sentencing’” must include the
“essential warnings and information” regarding appellate rights, as
well as “‘[a] presentence report based upon personal interview, the
defendant[’s] exercis[e of] his right of allocution, and a chance for
the judge to personally question and observe the defendant.’” State
v. Forte, 222 Ariz. 389, ¶ 17, 214 P.3d 1030, 1035 (App. 2009)
(alterations in Forte), quoting Fettis, 136 Ariz. at 59, 664 P.2d at 209.

                                   6
                          STATE v. ALLEN
                         Opinion of the Court

¶17         Here, the trial court had removed Allen for disruptive
behavior earlier in the proceeding. When Allen returned, the court
advised him that it was “making every effort to comply with [his]
Constitutional rights to be present for this sentencing.” But, the
court warned:

             [I]f your outburst continues or if you cause
             any kind of a physical reaction, force the
             officers to restrain you or you put the
             officers in any kind of a danger or put
             [your counsel] or anybody else in any kind
             of danger from any physical act, I will have
             you removed and you’ll not be here for
             your sentencing.

After Allen made another outburst and walked out of the
courtroom, the court found that he “voluntarily absented himself by
walking away” and the court proceeded with sentencing. See Ariz.
R. Crim. P. 9.1.

¶18          The state contends that Allen “waived his right to be
present at sentencing by getting up and walking out of his own
accord.” Relying on State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286,
1288 (App. 1982), the state argues that “Arizona courts have long
held a defendant may waive his presence at sentencing, so long as
the waiver is knowing.” The state’s reliance on Pyeatt is misplaced.
When Pyeatt, and the cases it relied upon were decided, Rule 26.9
provided that the defendant “shall be present at sentencing” and
also stated that the “failure of the defendant to appear for sentencing
shall not delay the . . . entry of judgment and sentence.” 174 Ariz.
LXXXVI (1993); see State v. Ellerson, 125 Ariz. 249, 252-53, 609 P.2d 64,
67-68 (1980) (holding defendant who voluntarily absents himself
may be sentenced in absentia); State v. Cook, 115 Ariz. 146, 148-49,
564 P.2d 97, 99-100 (App. 1977), supp. op., 118 Ariz. 154, 155, 575 P.2d


And, the committee comment to the 1993 amendment to Rule 26.9
provides: “The 1993 amendment to Rule 26.9 deleted language to
comply with [our supreme court’s] decision prohibiting sentencing
in absentia.”


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                           STATE v. ALLEN
                          Opinion of the Court

353, 354 (App. 1978) (same). In 1993, Rule 26.9 was amended,
deleting the language that provided “failure of the defendant to
appear for sentencing shall not delay the pronouncement and entry
of judgment and sentence.” 174 Ariz. LXXXVI. As we noted above,
the committee comment to the 1993 amendment to Rule 26.9
provides that the amendment was intended “to comply with [our
supreme court’s] decision prohibiting sentencing in absentia.”

¶19           In Fettis, our supreme court stated “[w]e do not retreat
from our position that a defendant who voluntarily absents himself
from a trial may be tried, convicted and adjudged guilty in
absentia.” 136 Ariz. at 59, 664 P.2d at 209. But the court stated: “We
do retreat from our previous position of allowing the defendant to
be sentenced in absentia, except in extraordinary circumstances.” Id.
Accordingly, although we agree with the trial court’s conclusion that
Allen “voluntarily absented himself” from the proceeding, that fact,
standing alone, does not constitute an exceptional circumstance that
would permit the court to sentence Allen in absentia. Indeed, “a
defendant’s decision to willfully avoid a sentencing hearing by
becoming a fugitive [or refusing transport from the jail to the
courthouse] has not been regarded as an extraordinary circumstance
sufficient to justify conducting a sentencing in absentia.” Forte, 222
Ariz. 389, ¶ 11, 214 P.3d at 1034. Under such circumstances, the
court has “the means and authority to compel [a defendant]’s
appearance regardless of whether [he or she chooses] to appear.” Id.

¶20          Here, the record does not support the trial court’s
assertion that it had done “everything possible to keep him [in the
courtroom].” 4 While discussing with counsel whether or how to


      4The  requirement of “exceptional circumstances” is rooted in
common law doctrine. United States v. Songer, 842 F.2d 240, 242-43
(10th Cir. 1988); Johnson v. State ex rel. Eyman, 4 Ariz. App. 336, 338,
420 P.2d 298, 300 (1966); see also United States v. Leavitt, 478 F.2d 1101,
1103-04 (1st Cir. 1973); United States v. DeValle, 894 F.2d 133, 138 n.2
(5th Cir. 1990); United States v. Curtis, 523 F.2d 1134, 1135 (D.C. Cir.
1975). Rule 43, Fed. R. Crim. P., now permits the federal courts to
sentence a defendant in absentia based solely on a defendant’s
waiver. See United States v. Achbani, 507 F.3d 598, 601 (7th Cir. 2007).

                                    8
                          STATE v. ALLEN
                         Opinion of the Court

advise Allen of his right to an appeal, the court asked a detention
officer if Allen was standing outside the courtroom. The officer
replied that Allen had gone “downstairs.” The court took no action
to have Allen brought back into the courtroom and instead
reasserted that “he [had] voluntarily walked out.” Moreover,
although Allen left the courtroom during an emotional outburst, the
court made it clear that “[h]e was not removed” for disruptive
behavior. Therefore, the court erred in its decision to proceed with
Allen’s sentencing in his absence. See Fettis, 136 Ariz. at 59, 664 P.2d
at 209.

¶21           By failing to object below, however, Allen has forfeited
the right to seek relief for all but fundamental, prejudicial error. See
Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Our supreme court
has signaled that, at a minimum, sentencing in absentia is
fundamental error. Fettis, 136 Ariz. at 58-59, 664 P.2d at 208-09
(reversing for error not raised below). A sentence in absentia “is a
nullity” and requires resentencing. State v. Hensley, 160 Ariz. 557,
558, 774 P.2d 1347, 1348 (1989); State v. Zavala, 136 Ariz. 356, 358 n.1,
666 P.2d 456, 458 n.1 (1983). The court also has suggested that no
prejudice results where the defendant is not physically present in
the courtroom but nevertheless has fully participated in the
sentencing hearing. See State v. Adler, 189 Ariz. 280, 284-85, 942 P.2d
439, 443-44 (1997) (telephonic sentencing); see also Forte, 222 Ariz.
389, ¶¶ 18-22, 214 P.3d at 1035-36 (prejudice analysis for sentencing
via audiovisual equipment). The circumstances of this case fall
between that of an absconding defendant who was not present for
any part of the sentencing hearing and one who, although not
physically present, was able to participate through other means.

¶22          “We must therefore assess whether the conduct of
[Allen]’s sentencing so insulted the basic framework of a criminal
sentencing such that the proceeding could no longer serve its core
function.” Forte, 222 Ariz. 389, ¶ 16, 214 P.3d at 1035. The
“minimum requirements” for a “reasonable and rational sentencing”
include “[a] presentence report based upon [a] personal interview,”
an opportunity for the court to question and observe the defendant,
an opportunity for the defendant to exercise his right of allocution,




                                   9
                          STATE v. ALLEN
                         Opinion of the Court

and essential warnings regarding the defendant’s appellate rights.
Fettis, 136 Ariz. at 59, 664 P.2d at 209.

¶23           Here, Allen was present for most of the sentencing
hearing, during which the trial court addressed Allen’s criminal
history, the presentence report, 5 a mental health report made
pursuant to Rule 26.5, Ariz. R. Crim. P., and considered a
presentence memorandum filed by Allen’s counsel. The court also
noted that it had presided over the case for two years and was
familiar with Allen. Allen essentially gave a brief allocution,
addressing the severity of the recommended sentence, his concern
for his family during his incarceration, his willingness to admit guilt,
and his mental competency.            Although the court did not
immediately pronounce his sentence, see Ariz. R. Crim. P. 26.10(b), it
informed Allen that “the most appropriate sentence” for the forgery
conviction was “the presumptive sentence because [the court could
not] find any mitigating factors.” Allen has not described how he
was prejudiced by the fact that the formal pronouncement of
sentence did not immediately follow his allocution. Cf. State v.
Anderson, 210 Ariz. 327, ¶¶ 100-01, 111 P.3d 369, 392 (2005)
(defendant must argue specific prejudice when alleging violation of
right to allocution before imposition of death sentence).

¶24          Nor can Allen show he has been prejudiced by the trial
court’s failure to advise him of his appellate rights during
sentencing. See Ariz. R. Crim. P. 26.11. The current appeal
demonstrates that Allen was not prejudiced by the omission. In fact,
after Allen walked out of the courtroom, defense counsel informed
the court: “I have discussed [an] appeal with him, and I’m going to
file a Notice of Appeal, so I don’t think you need to bring him back
in to tell him that.” And, his counsel requested that the court
appoint appellate counsel, which it did. Moreover, Allen still will
have the opportunity to file a Rule 32, Ariz. R. Crim. P., petition for
post-conviction relief “within thirty days after the issuance of the . . .

      5Although  entitled to a presentence report based on a personal
interview, see Forte, 222 Ariz. 389, ¶ 17, 214 P.3d at 1035, Allen
refused to participate during his interview and “would not even
confirm his correct name or date of birth.”


                                   10
                         STATE v. ALLEN
                        Opinion of the Court

mandate in [this] appeal.” Ariz. R. Crim. P. 32.4(a); see also Ariz. R.
Crim. P. 26.11 cmt. Therefore, although the court erred when it
sentenced Allen outside of his presence, the decision was not
fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 19,
115 P.3d at 607.

                             Disposition

¶25         For the foregoing reasons, we affirm Allen’s convictions
and sentences.




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