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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 MATTHEW AARON MEINER, Appellant.

                             No. 1 CA-CR 18-0326
                               FILED 7-30-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-002182-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

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

Sharmila Roy, Attorney at Law, Laveen
By Sharmila Roy
Counsel for Appellant
                             STATE v. MEINER
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


C R U Z, Judge:

¶1             Matthew Meiner appeals his convictions and sentences for
second-degree murder, first-degree burglary, theft of means of
transportation, third-degree burglary, and two counts of theft. After
searching the entire record, Meiner’s defense counsel identified no arguable
question of law that is not frivolous. Therefore, in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
defense counsel asked this court to search the record for fundamental error.
Meiner was granted an opportunity to file a supplemental brief in propria
persona and did so. After reviewing the entire record, we reject the
arguments raised in Meiner’s supplemental brief and find no error.
Accordingly, Meiner’s convictions and sentences are affirmed.

                  FACTS AND PROCEDURAL HISTORY

¶2             On December 15 and 16, 2015, Meiner helped the victim
manufacture marijuana concentrate in a commercial space the victim and
K.C. rented for this purpose.1 On the afternoon of December 16, Meiner
and the victim returned to the victim’s home. At 4:51 p.m., the victim talked
to his girlfriend on the phone. Approximately one hour later, Meiner
presented to the hospital emergency room with superficial lacerations to his
non-dominant left hand and right thigh.

¶3            Friends discovered the victim’s body inside his blood-
splattered home on December 21, 2015. The medical examiner later
determined the victim had died from blood loss after being stabbed
seventy-three times during a violent struggle. Twenty of those wounds
were inflicted to the back of the victim’s head, neck, and torso; others
penetrated nearly every major organ and shattered the victim’s skull.



1       “We view the facts in the light most favorable to sustaining the
verdict[s].” State v. Trammell, 245 Ariz. 607, 608, ¶ 1 n.1 (App. 2018) (citing
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013)).


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                             STATE v. MEINER
                            Decision of the Court

¶4            In the five days between the attack and the discovery of the
body, Meiner sold or pawned expensive glassware, musical instruments,
and a camera that had belonged to the victim, all for more than $2,000.
Surveillance video showed Meiner driving the victim’s car to the
commercial space, hand now bandaged, and removing $10,000 worth of
marijuana concentrate, most of which was never recovered. And Meiner
attended a Christmas party wearing an expensive glass pendant that the
victim had been wearing the day before his death. Meiner lied about the
source of the injuries to his hand, told the victim’s mother and friends the
victim had left town, suggested to K.C. that the victim had stolen the
marijuana concentrate, and feigned surprise when the victim’s body was
discovered.

¶5            The victim’s car was later found abandoned nearby. Blood
found on the car’s steering wheel and in the victim’s bathroom were later
matched to Meiner through DNA testing. Police also found items
belonging to the victim and missing from the commercial space at Meiner’s
girlfriend’s home.

¶6            After an unsuccessful motion for judgment of acquittal,
Meiner testified in his defense. Meiner admitted he stabbed the victim
repeatedly with a knife on December 16, 2015 and then drove himself to the
hospital in the victim’s car. Although Meiner claimed he was acting in self-
defense after the victim attacked him following a verbal disagreement,
Meiner admitted the victim was unarmed for all but two of the seventy-
three stab wounds. Instead of calling 9-1-1 after the victim collapsed, he
covered the body with blankets, cleaned himself up in the bathroom of the
victim’s home, and sought medical care for his own superficial wounds.
Meiner denied any intent to steal from the victim before his death, testifying
instead that when he later found himself in possession of the victim’s
property, he sold it in a panic to raise funds for medical bills and legal fees.

¶7           The jury found Meiner guilty of second-degree murder, first-
degree burglary of the victim’s home, theft of the victim’s personal
property, theft of means of transportation, third-degree burglary of the
commercial space, and theft of the marijuana concentrate. The jury also
determined beyond a reasonable doubt that the murder was a dangerous
offense committed in an especially cruel manner, and several of the
remaining offenses were committed for pecuniary gain and caused
physical, emotional, or financial harm to the victim’s immediate family.

¶8          After considering the aggravating and mitigating
circumstances, the superior court sentenced Meiner to the maximum term


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                              STATE v. MEINER
                             Decision of the Court

of 25 years’ imprisonment for second-degree murder, credited him with 870
days of presentence incarceration, and ordered the term to run consecutive
to concurrent, presumptive terms of imprisonment on the remaining
counts, the longest of which was 10.5 years. Meiner timely appealed, and
we have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1),2 13-4031, and -4033(A).

                                DISCUSSION

I.     Substitution of Counsel

¶9             Within his supplemental brief, Meiner argues he was
unconstitutionally deprived of conflict-free counsel when the superior
court denied a pretrial motion to substitute counsel. We review the denial
of a request for new counsel for an abuse of discretion. State v. Cromwell,
211 Ariz. 181, 186, ¶ 27 (2005) (citing State v. Lee, 142 Ariz. 210, 220 (1984)).
When exercising that discretion, the court must “balance the rights and
interests of the defendant against the public interest in judicial economy,
efficiency and fairness” by considering the following factors:

       [w]hether an irreconcilable conflict exists between counsel
       and the accused, and whether new counsel would be
       confronted with the same conflict; the timing of the motion;
       inconvenience to witnesses; the time period already elapsed
       between the alleged offense and trial; the proclivity of the
       defendant to change counsel; and [the] quality of counsel.

Id. at 187, ¶ 31 (quoting State v. LaGrand, 152 Ariz. 483, 486-87 (1987), and
citing State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998)).

¶10            Meiner complains, as he did below, that his defense counsel
did not communicate effectively, adequately explain the defense strategy,
or properly prepare for trial. These circumstances do not create an
irreconcilable conflict. See id. at 186-87, ¶ 29 (citing State v. Henry, 189 Ariz.
542, 546-47 (1997)); State v. Bible, 175 Ariz. 549, 591 (1993). “A single
allegation of lost confidence in counsel does not require the appointment of
new counsel, and disagreements over defense strategies do not constitute
an irreconcilable conflict.” Cromwell, 211 Ariz. at 186, ¶ 29. Moreover, the
record reflects the superior court considered the factors identified in
Cromwell, including that: counsel was Meiner’s second attorney, discovery
was largely complete, counsel had provided Meiner with the discovery he

2      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                        4
                             STATE v. MEINER
                            Decision of the Court

was permitted while incarcerated, counsel had provided adequate
representation, and nearly two years had elapsed since the offense
occurred. Accordingly, we reject Meiner’s suggestion that the court made
only a “perfunctory inquiry” into the basis for his motion. And because
each of these factors counsels against further substitution of counsel, and,
on this record, we cannot say the court abused its discretion in denying
Meiner’s request for new counsel. See id., 211 Ariz. at 187, ¶ 35.

II.    Motion for Mistrial/Prosecutorial Misconduct

¶11             Meiner argues the superior court erred in denying a motion
for mistrial made after the State impermissibly “besmirched [his] character
by accusing him of theft at a previous place of employment” in violation of
Arizona Rule of Evidence 404(b) (prohibiting the admission of “evidence of
other crimes, wrongs, or acts . . . to prove the character of a person in order
to show action in conformity therewith”). When a defendant moves for a
mistrial based upon evidentiary concerns, we review the order for an abuse
of discretion. Bible, 175 Ariz. at 598 (citing State v. Koch, 138 Ariz. 99, 101
(1983)). “This deferential standard of review applies because the trial judge
is in the best position to evaluate ‘the atmosphere of the trial, the manner in
which the objectionable statement was made, and the possible effect it had
on the jury and the trial.’” Id. (quoting Koch, 138 Ariz. at 101).

¶12            Meiner suggests, for the first time in his supplemental brief,
that the references to his employment history also constitute a “campai[g]n
of prosecutorial misconduct.”         To warrant reversal, “prosecutorial
misconduct must be present, and a ‘reasonable likelihood must exist that
the misconduct could have affected the jury’s verdict, thereby denying the
defendant a fair trial.’” State v. Acuna Valenzuela, 245 Ariz. 197, 216, ¶ 66
(2018) (quoting State v. Martinez, 230 Ariz. 208, 214, ¶ 24 (2012)).

¶13          To support these arguments, Meiner relies on the following
questions and answers posed to him by the prosecutor during cross-
examination:

       Q:    You also, on direct, did not tell us that you were fired
       from Ivy League, did you?

       A:     I actually quit.

       Q:    So you’re telling us that you weren’t fired because you
       were stealing product?

       A:     No, that did not happen.


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                             STATE v. MEINER
                            Decision of the Court

       Q:    You weren’t fired because you were selling stuff to
       customers at the store?

       A:     No, that did not happen.

       Q:     So if the owners said that, they would be lying?

       A:    I remember it was Khaleb G[.] I had tossed him my
       keys and told him I quit and walked out.

       Q:    And that was after he caught you selling cannabis to
       customers, right?

       A:     No ma’am.

¶14           In resolving Meiner’s motion for mistrial, the superior court
found that, even assuming that information regarding the circumstances of
Meiner’s departure from his prior employment was improperly admitted,
those remarks were not likely to affect the jury’s verdict. Rather, the court
found, “th[e] jury is more than probably going to hinge their verdicts . . . on
the basis of witness testimony [from] more than two dozen witnesses,
including the entire balance of Mr. Meiner’s testimony, the expert witness
testimony, and the hundreds of exhibits that the Court has admitted for the
jury presentation.” Given the brevity of this exchange in the context of
Meiner’s lengthy testimony and the volume of other evidence submitted for
the jury’s consideration, we cannot say the court abused its discretion in
reaching this conclusion.

¶15           Moreover, the jurors were instructed that the State’s
allegations “with respect to the alleged reasons for his departure from
employment” did not have “any relevance to [its] determination of the
charges against the defendant” and they were “not to consider those
allegations for any purpose whatsoever.” We presume the jury followed
the court’s instructions and disregarded the evidence. See State v. Newell,
212 Ariz. 389, 403, ¶ 68 (2006) (citing State v. Ramirez, 178 Ariz. 116, 127
(1994)).

¶16           In the absence of any effect on the jury’s verdict, Meiner’s
claims fail. Accordingly, we find no error.

III.   Fundamental Error Review

¶17            Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any



                                      6
                              STATE v. MEINER
                             Decision of the Court

prejudicial error.”). Although the record does not contain a presentence
report, it is apparent the superior court ordered the report and considered
it, as well as the mitigation information submitted by Meiner, in advance of
the sentencing hearing. Under these circumstances, the absence of the
presentence report in the appellate record does not amount to fundamental
error. See State v. Maese, 27 Ariz. App. 379, 380 (1976); see also Ariz. R. Crim.
P. 26.4(c) (requiring the presentence report to be “delivered to the
sentencing judge and to all counsel” but not filed).

¶18           As relevant here, a person is guilty of second-degree murder
if “without premeditation” the person either “intentionally causes the death
of another person,” or, “causes the death of another person . . . [via conduct
he knows] will cause death or serious physical injury.” A.R.S. § 13-
1104(A)(1)-(2). A person commits burglary “by [e]ntering or remaining
unlawfully in [a location] with the intent to commit any theft or any felony
therein.” A.R.S. §§ 13-1506(A)(1), -1507(A). Burglary is in the first degree
if the person “knowingly possesses . . . a deadly weapon or a dangerous
instrument in the course of committing [the] theft or . . . felony.” A.R.S.
§ 13-1508(A). A dangerous weapon “means anything that under the
circumstances in which it is used, attempted to be used or threatened to be
used is readily capable of causing death or serious physical injury.” A.R.S.
§ 13-105(12). Burglary is in the third degree if the location is a
nonresidential structure. A.R.S. § 13-1506(A)(1). “A person commits theft
if, without lawful authority, the person knowingly . . . [c]ontrols property
of another with the intent to deprive the other person of such property.”
A.R.S. § 13-1802(A)(1). Theft is a class 5 felony if the property is valued
between $2,000 and $3,000. A.R.S. § 13-1802(G). Finally, “[a] person
commits theft of means of transportation if, without lawful authority, the
person knowingly . . . [c]ontrols another person’s means of transportation
with the intent to permanently deprive the person of the means of
transportation.” A.R.S. § 13-1814(A)(1). The record contains sufficient
evidence upon which a reasonable jury could determine beyond a
reasonable doubt that Meiner was guilty of the crimes for which he was
convicted.

¶19             All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Meiner
was present for and represented by counsel at all stages of the proceedings.
See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages)
(citations omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be
present at critical stages). The jury was properly comprised of twelve
jurors, and the record shows no evidence of jury misconduct. See Ariz.
Const. art. 2, § 23; A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a). The superior


                                        7
                             STATE v. MEINER
                            Decision of the Court

court properly instructed the jury on the elements of the charged offenses,
the State’s burden of proof, and Meiner’s presumption of innocence. At
sentencing, Meiner was given an opportunity to speak, and the court stated
upon the record the evidence and materials it considered and the factors it
found in imposing the sentences. See Ariz. R. Crim. P. 26.9, 26.10.
Additionally, the sentences imposed were within the statutory limits. See
A.R.S. §§ 13-702(A), (D), -710(A).

                               CONCLUSION

¶20           Meiner’s convictions and sentences are affirmed.

¶21            Defense counsel’s obligations pertaining to Meiner’s
representation in this appeal have ended. Defense counsel need do no more
than inform Meiner of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).

¶22            Meiner has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.21. Upon the court’s own motion, we also grant Meiner thirty
days from the date of this decision to file an in propria persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.




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




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