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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               DANIEL PATRICK MCFARLAND, Appellant.

                             No. 1 CA-CR 17-0679
                               FILED 10-25-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201700057
                 The Honorable Richard Weiss, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                          STATE v. MCFARLAND
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson.


P E R K I N S, Judge:

¶1            Daniel McFarland appeals his conviction and sentence for
forgery. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). On December 10, 2016,
T.C., the manager of a temporary labor service, assigned nine workers,
including McFarland, to dig at a jobsite. Before the workers reported to the
jobsite that morning, T.C. provided each of them with a “ticket,” or time
sheet, that listed the name of the jobsite supervisor, C.B. To receive
payment, each worker was required to have his ticket signed by the
supervisor.

¶3             At the end of the workday, McFarland was the first worker to
report back to T.C. and tender his ticket for payment. Upon receiving his
ticket, T.C. immediately noticed that McFarland had retained the
customer’s copy, which was unusual, but she nonetheless accepted his
ticket. As the other workers subsequently submitted their tickets, however,
T.C. observed that only McFarland’s ticket bore C.B.’s signature, and all
other tickets were signed by A.S. After discussing this discrepancy with
C.B., T.C. contacted the police.

¶4             In response to T.C.’s report, an investigating officer later
testified he reviewed an “affidavit of forgery” from C.B. regarding
McFarland’s ticket. Comparing C.B.’s signature on the affidavit with the
signature on McFarland’s ticket, the officer concluded the signatures did
not match. The State then charged McFarland with one count of forgery, a
class 4 felony.

¶5           On September 6, 2017, five days before trial was scheduled to
commence, McFarland moved to continue the trial to substitute counsel.
McFarland explained he was indigent at the time the court appointed
counsel and that his family had since “pool[ed]” resources, providing the


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                         STATE v. MCFARLAND
                           Decision of the Court

funds necessary “to retain private counsel.” In his request, McFarland did
not dispute that appointed counsel was prepared to proceed, but instead
argued he had a right to counsel of his choice. McFarland asked for an
unspecified delay, stating at least a three to four-week continuance was
necessary for private counsel to ensure “full disclosure [wa]s in hand.”

¶6           In its response, the State asserted it “would be unfairly
prejudiced” by the requested continuance. Noting several issues, the State
argued the inconvenience of the delay weighed against granting the
motion. The trial court denied McFarland’s request for a continuance
without a hearing. The matter then proceeded to trial, as scheduled, with
appointed counsel.

¶7           At trial, A.S. testified that he was the jobsite supervisor on
December 10, 2016. Before permitting workers to enter the jobsite that
morning, he met them at the front gate and had them sign a roster. As
reflected on the sign-in sheet, the other workers signed the roster, but
McFarland did not.

¶8            When the prosecutor asked A.S. about his signature on the
other workers’ time sheets, notwithstanding that the tickets identified C.B.
as the supervisor, A.S. explained that C.B. was onsite only that morning and
left before noon. Accordingly, A.S. alone signed the workers’ tickets at the
end of the day.

¶9            Taking the stand in his own defense, McFarland testified that
on the day in question, he reported to the assigned jobsite forty minutes
early. The jobsite was initially empty and a white truck pulled up about half
an hour after McFarland arrived. The truck’s driver asked McFarland if he
was a temporary worker, and after he responded affirmatively, the pair left
to a secondary location approximately two miles from the assigned jobsite.
According to McFarland, he and the driver then spent nearly eight hours
digging together, and the driver signed his ticket at the end of the workday.
Avowing that he believed the driver was the jobsite supervisor, McFarland
denied intentionally submitting a forged time sheet.

¶10          The jury found McFarland guilty as charged, and the trial
court sentenced him to a one-year period of probation. McFarland timely
appealed.




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                           STATE v. MCFARLAND
                             Decision of the Court

                                DISCUSSION

I.     Sufficiency of the Evidence and Rule 20 Motion

¶11           After the State rested, McFarland moved for judgment of
acquittal pursuant to Arizona Rule of Criminal Procedure 20. Finding the
State had provided sufficient evidence “to move” the case “forward,”
though failing to find the evidence “substantial,” the trial court denied the
motion. McFarland argues the evidence was insufficient to support his
conviction and thus the trial court erroneously denied his motion for
judgment of acquittal.

¶12            We review a trial court’s ruling on a Rule 20 motion de novo.
State v. West, 226 Ariz. 559, 562, ¶¶ 14–15 (2011). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (internal
quotation omitted). In reviewing the sufficiency of the evidence, we test the
evidence “against the statutorily required elements of the offense,” State v.
Pena, 209 Ariz. 503, 505, ¶ 8 (App. 2005), and neither reweigh conflicting
evidence nor assess the credibility of witnesses, State v. Buccheri-Bianca, 233
Ariz. 324, 334, ¶ 38 (App. 2013). Sufficient evidence may be direct or
circumstantial, West, 226 Ariz. at 562, ¶ 16, and a judgment of acquittal is
appropriate only when “there is no substantial evidence to warrant a
conviction.” Ariz. R. Crim. P. 20(a) (2017). A defendant who presents a
defense “waives any error if his case supplies evidence missing in the state’s
case.” State v. Nunez, 167 Ariz. 272, 279 (1991). In such circumstances, we
consider all the evidence presented at trial. Id.

¶13            As charged in this case, a person commits forgery “if, with
intent to defraud, the person . . . [o]ffers or presents . . . a forged instrument
or one that contains false information.” Ariz. Rev. Stat. (“A.R.S.”) § 13-
2002(A)(3) (2018). A “[f]orged instrument” is a “written instrument that has
been falsely made, completed or altered.” A.R.S. § 13-2001(8) (2018).

¶14           An intent to defraud may be proven through circumstantial
evidence, State v. Thompson, 194 Ariz. 295, 297, ¶ 13 (App. 1999), and is
generally a “question of fact for the jury.” State v. Hernandez, 4 Ariz. App.
451, 452 (1966). Because a mental state “is often difficult to prove,” an intent
to defraud may be inferred from the parties’ conduct, particularly actions
that “cause a pecuniary loss or gain.” Thompson, 194 Ariz. at 297, ¶ 13
(internal quotation omitted).




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                          STATE v. MCFARLAND
                            Decision of the Court

¶15           At trial, A.S. testified that: (1) he required each worker to sign
a roster before entering the jobsite, yet McFarland failed to do so; and (2)
C.B. was not at the jobsite at the end of the workday, and therefore did not
sign any worker’s ticket. In addition to this testimony, the State presented
evidence that C.B. signed an affidavit avowing that he did not sign
McFarland’s ticket and his signature had been forged.

¶16           During the defense’s presentation, McFarland admitted that
he submitted the ticket in question and did not dispute that it was not
actually signed by C.B. Instead, he contested only the element of his intent,
arguing that he had unwittingly worked the entire day under false
pretenses. In other words, McFarland believed he had dug for the company
that hired him through the temporary agency and assumed that the driver
he had worked with was a supervisor “authorized” to sign his time sheet.

¶17            Although McFarland provided an explanation for the forged
time sheet that absolved him of any wrongdoing, the jury was not required
to believe him. See State v. Fimbres, 222 Ariz. 293, 300, ¶ 21 (App. 2009)
(deferring to jury’s assessment of a defendant’s credibility and the weight
to be given to his testimony when the defendant testified he did not act with
an intent to defraud). Indeed, the State introduced the roster that showed
workers began arriving by 7:22 a.m., thereby rebutting McFarland’s claim
that he had arrived at the assigned jobsite at 7:20 a.m. and found it vacant
for about half an hour. Moreover, contrary to McFarland’s claim on appeal,
the State was not required to prove that McFarland forged C.B.’s signature.
Rather, under A.R.S. § 13-2002(A)(3), the State needed only to demonstrate
that McFarland’s ticket had been falsely signed and McFarland had
submitted the forged document with the intent to defraud T.C. Viewing
the trial evidence in its entirety, a reasonable jury could find that the
evidence was sufficient to show McFarland knew the supervisor’s signature
on his ticket was invalid and that he knowingly, with an intent to defraud,
presented the ticket for payment. On this record, we cannot say the trial
court erred when it denied McFarland’s motion for judgment of acquittal.

II.    Denial of Motion to Continue

¶18           McFarland argues the trial court violated his constitutional
right to counsel of choice by denying his request for a continuance to
substitute private counsel for appointed counsel. The trial court denied
McFarland’s motion to continue without a hearing, leaving us little record
on the matter. “It would have been better for our review if the court at the
time it made its decision had given specific reasons in the record.” State v.
Hein, 138 Ariz. 360, 369 (1983). That said, we may affirm the trial court’s


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                           STATE v. MCFARLAND
                             Decision of the Court

“ruling if it is legally correct for any reason.” State v. Espinoza, 229 Ariz. 421,
424, ¶ 15 (App. 2012).

¶19             Both the federal and Arizona constitution guarantee a
defendant the right to counsel for his defense. U.S. Const. amend VI; Ariz.
Const. art. 2, § 24. Implicit in these provisions “is the right to be represented
by counsel of one’s choice.” Hein, 138 Ariz. at 368. But “the essential aim”
of these constitutional protections “is to guarantee an effective advocate for
each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers.” Wheat v. United
States, 486 U.S. 153, 159 (1988). Accordingly, “the right to choice of counsel
is not absolute, but [] subject to the requirements of sound judicial
administration.” Hein, 138 Ariz. at 369.

¶20            The trial court “has wide latitude in balancing the right to
counsel of choice against the needs of fairness, and against the demands of
its calendar.” State v. Aragon, 221 Ariz. 88, 90, ¶ 5 (App. 2009) (internal
quotation omitted). We will uphold the court’s ruling on a request for a
continuance absent a clear abuse of discretion. Hein, 138 Ariz. at 368. This
deferential standard recognizes that the trial court “is the only party in a
position to judge the inconvenience of a continuance to the litigants,
counsel, witnesses, and the court,” and therefore “the only party in a
position to determine whether there are extraordinary circumstances
warranting a continuance and whether delay is indispensable to the
interests of justice.” Id. (internal quotation omitted); see also Ariz. R. Crim.
P. 8.5(b) (“A court may continue trial only on a showing that extraordinary
circumstances exist and that delay is indispensable to the interests of justice,
and only for so long as is necessary to serve the interests of justice.”).

¶21            “Whether an accused’s constitutional rights are violated by
the denial of a request for a continuance [to substitute private counsel of the
defendant’s choice] depends on the circumstances present in the particular
case.” Hein, 138 Ariz. at 369. In reviewing a court’s denial, we consider: (1)
whether other continuances were granted; (2) whether the defendant had
other competent counsel prepared to try the case; (3) the convenience or
inconvenience to the litigants, counsel, witnesses, and the court; (4) the
length of the requested delay; (5) the complexity of the case; and (6) whether
the requested delay was for legitimate reasons or was merely dilatory. Id.

¶22          Examining and weighing all the Hein factors in this case, the
trial court did not abuse its discretion by denying the request for a
continuance. The record does not reflect that McFarland had previously
requested any other continuances. However, McFarland failed to cite any


                                        6
                          STATE v. MCFARLAND
                            Decision of the Court

basis for believing appointed counsel was incompetent, and he did not
contest that she was ready to proceed, though he claimed that his request
itself reflected a lack of “faith in [appointed counsel’s] abilities.” See Hein,
138 Ariz. at 369 (“If the defendant has other competent counsel prepared
for trial, then the court, when considering all the factors, need not tolerate
as much inconvenience as in the case where defendant has no other counsel
prepared to go to trial.”) (internal quotation omitted). In addressing the
inconvenience to other parties, McFarland conceded that his “eleventh-
hour” request for a continuance was inconvenient, but argued the
inconvenience was “minor” and outweighed by his right to counsel of
choice. The length of the requested delay, at least several weeks in duration,
was not insignificant. See Ariz. R. Crim. P. 8.5(b) (explaining that in
evaluating the merits of a motion to continue, the court “must consider”
both “the rights of the defendant and any victim to a speedy disposition of
the case”). The case was not complex, and ultimately tried in a single day.
See Hein, 138 Ariz. at 369 (explaining the “straightforward” nature of the
case did not support a continuance). Finally, while the request may have
been legitimate, it was, admittedly, submitted at the “eleventh-hour.”

¶23            Although this was McFarland’s first request for a
continuance, and nothing in the record suggests that the request was a
delay tactic, the other Hein factors weighed against granting a continuance.
On these facts, the trial court acted within its discretion by denying
McFarland’s motion to continue, and did not infringe upon his
constitutional rights.

                               CONCLUSION

¶24           For the foregoing reasons, we affirm.




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




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