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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  KEVIN MICHAEL MURPHY, Appellant.

                             No. 1 CA-CR 18-0484
                               FILED 5-14-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-001189-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                            STATE v. MURPHY
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James P. Beene joined.


C A T T A N I, Judge:

¶1            Kevin Michael Murphy appeals his convictions and sentences
for aggravated taking the identity of another, three counts of forgery, and
two counts of taking the identity of another. Murphy’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he
found no arguable question of law that was not frivolous. Counsel asks this
court to search the record for reversible error. See State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999). Murphy filed a supplemental brief raising
multiple issues, none of which establish a basis for relief. Accordingly, and
for reasons that follow, we affirm Murphy’s convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2           In December 2015, Murphy opened an account with an
Arizona credit union. One week later, he deposited a forged check made
payable to himself in the amount of $499. The check appeared to be issued
by Benchmark Interiors LLC and displayed the company’s actual bank
account and routing numbers, but incorrectly listed its telephone number,
bank name, and logo and contained a forged, unauthorized signature of the
company’s owner, D.L.

¶3            About two months later, Murphy deposited another forged
check payable to himself, this time for $4,000. The next day, he deposited a
third forged check, this one for $2,500. Both of these checks appeared to be
issued by L.A.W., but L.A.W.’s middle name was misspelled, his address
was incorrect, and the signature was forged. The incorrect address listed
on the checks matched the address Murphy provided in his application to
open his account.

¶4          At trial, Murphy testified that he cashed the three checks as
repayment for loans and payment for items he sold and that he was
unaware that the checks were forged.




                                       2
                            STATE v. MURPHY
                            Decision of the Court

¶5            The jury convicted Murphy as outlined above, and the
superior court sentenced him to concurrent terms, the longest of which is
6.5 years, with 41 days of presentence incarceration credit. Murphy timely
appealed.

                               DISCUSSION

I.     Murphy’s Supplemental Brief.

¶6            Murphy asserts that the superior court erred by denying his
motion for judgment of acquittal. We review the denial of a motion for
judgment of acquittal de novo, viewing the evidence in the light most
favorable to sustaining the verdict, and we will not reverse unless there is
a complete absence of probative facts to support a conviction. State v. West,
226 Ariz. 559, 562, ¶¶ 15–16 (2011); State v. Johnson, 215 Ariz. 28, 29, ¶ 2
(App. 2007).

¶7            Here, the superior court did not err by denying Murphy’s
motion for judgment of acquittal. Murphy’s counsel argued that the motion
should be granted because none of the State’s witnesses made an in-court
identification of Murphy. But every instance of Murphy cashing a forged
check was caught on surveillance footage. A reasonable factfinder thus
could have compared that footage to Murphy’s appearance in the
courtroom and concluded that it was the same individual.

¶8            Murphy also contends that the State did not put forth any
direct evidence of intent and knowledge, instead relying on circumstantial
evidence and conflicting testimony. But the law makes no distinction as to
the weight afforded direct and circumstantial evidence. See State v. Harvill,
106 Ariz. 386, 389–91 (1970). And the existence of conflicting testimony
does not undermine the sufficiency of the evidence if probative evidence
supports the verdict. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App.
2004). The jury thus could have properly concluded that the evidence, even
if circumstantial and conflicting, supported a conviction on all counts.

¶9             Murphy next argues that the superior court erred by denying
his motion to sever the counts involving Benchmark Interiors from the
counts involving L.A.W. We review the denial of a motion to sever for an
abuse of discretion. See State v. Prince, 204 Ariz. 156, 159, ¶ 13 (2003). A
denial of a motion to sever is reversible “only if the evidence of other crimes
would not have been admitted at trial for an evidentiary purpose anyway.”
State v. Aguilar, 209 Ariz. 40, 51, ¶ 38 (2004) (citation omitted).




                                      3
                           STATE v. MURPHY
                           Decision of the Court

¶10            Here, evidence of Murphy’s crimes involving Benchmark
Interiors would have been admissible at a separate trial for his crimes
involving L.A.W. Under Rule 404(b) of the Arizona Rules of Evidence,
evidence of other crimes may be admissible to prove intent and knowledge.
Murphy testified that he was unaware that the checks were forged, and
thus, evidence of the forged Benchmark Interiors check would have been
admissible as evidence of Murphy’s knowledge that the checks involving
L.A.W. were also forged and that he intended to defraud the credit union.
See State v. Buot, 232 Ariz. 432, 434, ¶ 6 (App. 2013).

¶11            Next, Murphy argues that he was never read his Miranda1
rights after being arrested. But even assuming a Miranda violation, the only
remedy would be suppression of the defendant’s statements, see State v.
Schinzel, 202 Ariz. 375, 381, ¶ 25 (App. 2002), and here, the State never
introduced any statements Murphy made to law enforcement.
Accordingly, Murphy’s argument is unavailing.

¶12             Murphy also makes several arguments about the perceived
failings of his defense counsel. But ineffective assistance of counsel claims
can only be brought in post-conviction proceedings, not on direct appeal.
State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007). Consequently,
we do not address these arguments.

¶13           Additionally, Murphy argues that the prosecutor committed
misconduct, as evidenced by his use of coercion to “extort” a plea
agreement. Murphy did not accept a plea agreement, however, so any
analysis of the prosecutor’s “coercive” plea tactics is unnecessary. Cf. State
v. Horning, 158 Ariz. 106, 111 (App. 1988). Moreover, our independent
review of the record does not support a finding of prosecutorial
misconduct.

¶14           Finally, Murphy claims that the Arizona criminal justice
system discriminates against the indigent. He has not offered any evidence,
however, that his economic status biased the pretrial proceedings, trial, or
sentence, and absent evidence of purposeful discrimination, we reject his
claim. See State v. Stokley, 182 Ariz. 505, 516 (1995).




1      Miranda v. Arizona, 384 U.S. 436 (1966).


                                      4
                            STATE v. MURPHY
                            Decision of the Court

II.    Fundamental Error Review.

¶15          We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.

¶16           Murphy was present and represented by counsel at all stages
of the proceedings against him. The record reflects that the superior court
afforded Murphy all his constitutional and statutory rights, and that the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial was sufficient to support the jury’s
verdicts. Murphy’s sentences fall within the range prescribed by law, with
proper credit given for presentence incarceration.

                                CONCLUSION

¶17             Murphy’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Murphy’s
representation in this appeal will end after informing Murphy of the
outcome of this appeal and his future options, unless counsel’s review
reveals an issue appropriate for submission to the Arizona Supreme Court
by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On
the court’s own motion, Murphy has 30 days from the date of this decision
to proceed, if he desires, with a pro se motion for reconsideration or petition
for review.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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