Opinion
No. 1 CA-CR 16-0050
12-06-2016
STATE OF ARIZONA, Appellee, v. TRACE RUBEN FLINK, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Elizabeth B.N. Garcia Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201500174
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Elizabeth B.N. Garcia
Counsel for Appellee Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Margaret H. Downie joined. NORRIS, Judge:
¶1 Trace Ruben Flink appeals his convictions and probation for owning or operating a chop shop and theft of means of transportation. On appeal, Flink argues the superior court violated his Sixth Amendment right to counsel by denying his motions to appoint new counsel, and the State failed to present sufficient evidence supporting his convictions. Because the record fails to support either argument, we affirm his convictions and probation.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013) (citation omitted). --------
¶2 On the afternoon of January 31, 2015, the victims' 2005 red custom pickup truck was stolen from a restaurant parking lot. The victims had both sets of their truck keys and had not given anyone permission to take their truck.
¶3 Two weeks later, a deputy received an anonymous call reporting the whereabouts of two stolen vehicles. Acting on the tip, the deputy drove to Flink's residence, walked the perimeter of the property, and saw a red truck that matched the description of the victims' truck, although numerous parts had been removed. When the deputy knocked at the residence door, he was unable to make contact with anyone. He then drove to Nowell Leon Wallace's residence. While there, another deputy confirmed that a blue truck parked in front of Wallace's residence had also been reported stolen.
¶4 At Wallace's residence, deputies made contact with both Wallace and Flink. They separated the two men for questioning. Flink told officers he had paid Wallace $300 to help buy the red truck, and they had agreed to split the proceeds from selling the truck for parts. Although Flink admitted he helped dismantle the truck, he claimed no parts had yet been sold. Flink also stated he did not know who had dropped the red truck off at his property, but admitted it had been in his possession for five days. He further explained that he and Wallace were stripping the red truck for parts because Wallace received the truck "from an insurance fraud" and, therefore, did not have marketable title. Flink admitted he had helped hand-paint the blue truck, but claimed he did not know it had been stolen.
¶5 Deputies confirmed that the vehicle identification number ("VIN") for the truck recovered at Flink's property matched the VIN of the victims' red truck. While searching Flink's property, deputies also discovered documents identifying the victims as the red truck's owners inside a "burn barrel."
¶6 The State charged Flink with one count of owning or operating a chop shop and one count of theft of means of transportation. At trial, Flink testified he worked as the "neighborhood mechanic," making repairs from his home shop. Consistent with his statements to the deputies, Flink acknowledged he had helped hand-paint the stolen blue truck recovered from Wallace's residence, but testified he did not know it had been stolen. He also testified Wallace had purchased the red truck for far less than its actual value because it was an "insurance write-off," and the two men had agreed to work together to sell it for parts and divide the proceeds. Flink asserted he did not know the red truck had been stolen, did not know where it was located between January 31 (date stolen) and February 9 (date Flink obtained possession), and did not know who had driven the red truck to his property. Flink also asserted the keys to the red truck were in it when he received it. He further denied seeing any paperwork with the victims' names and that he had placed the paperwork in his burn barrel.
DISCUSSION
I. Denial of Motion to Substitute Counsel
¶7 Flink argues the superior court violated his Sixth Amendment right to counsel by denying his oral and written motions to appoint new counsel. Specifically, Flink argues the superior court failed to conduct the requisite inquiry regarding the basis for his oral motion for new counsel and improperly found no genuine irreconcilable conflict existed. The superior court did not, however, abuse its discretion in denying Flink's motions for new counsel, and thus, the court did not violate his Sixth Amendment right to counsel. State v. Cromwell, 211 Ariz. 181, 186, ¶ 27, 119 P.3d 448, 453 (2005) (appellate court reviews superior court's denial of a request for new counsel for an abuse of discretion) (citation omitted).
¶8 At the final management conference, defense counsel informed the court that Flink wished to represent himself and she "need[ed] to withdraw." Initially, the court stated it could schedule a hearing later in the week to address Flink's request to represent himself, but explained that defense counsel would need to stay on the case as advisory counsel through trial. Defense counsel then stated she would file a motion to withdraw. At that point, the court asked Flink whether he would prefer to represent himself or have new counsel, and Flink responded that he would "like to have a new attorney." The court then asked defense counsel to explain the basis for withdrawal, and she explained Flink had "insist[ed]" she "file motions" that would "put[] [her] license in jeopardy" and had "refuse[d] to even listen to the legalities of his case." The superior court denied both defense counsel's motion to withdraw and Flink's request for substitute counsel, stating the attorney-client difficulties would be the same "no matter who [Flink's] attorney was."
¶9 Several days later, Flink filed a pro se motion for substitute counsel. In his request, Flink explained defense counsel "w[ould] not work" with him because she believed he was guilty of the charged offenses. He also described a recent visit to defense counsel's office in which defense counsel asked him whether he was listening and then yelled: "Get the [expletive] out of my office."
¶10 Six days later, on the first day of trial, the superior court provided the prosecutor and defense attorney with copies of Flink's motion for substitute counsel. After reading the motion, defense counsel stated she had yelled at Flink as quoted in the motion, but explained she had previously "asked him to leave" and the situation had "got totally out of hand." Nonetheless, defense counsel stated she and Flink had "reached a truce" the day before. With the court's permission, Flink then read a prepared statement: "[D]ue to the biased opinion of my attorney of my guilt, . . . I have been unable to obtain legal advice . . . that would allow me to mount a full and proper substantial defense . . . ." The superior court denied Flink's motion to substitute counsel, acknowledging that Flink and defense counsel had "some problems," but noting the victims, witnesses, and jurors were ready for trial to begin and Flink had not demonstrated "a legitimate reason" for a new attorney.
¶11 An indigent criminal defendant has a right to competent counsel, but "is not entitled to counsel of choice, or to a meaningful relationship with his or her attorney." State v. Torres, 208 Ariz. 340, 342, ¶ 6, 93 P.3d 1056, 1058 (2004) (quotation and citations omitted). A complete breakdown in attorney-client communication or an irreconcilable conflict between a defendant and appointed counsel, however, violates a defendant's constitutional right to counsel. Id.
¶12 When a defendant requests new counsel, a trial court must inquire regarding the basis for the request. Id. at 343, ¶ 7, 93 P.3d at 1059 (citations omitted). "The nature of the inquiry will depend upon the nature of the defendant's request." Id. at 343, ¶ 8, 93 P.3d at 1059. A formal hearing may not be necessary to address "generalized complaints about differences in strategy," but a court "must conduct a hearing" when a defendant sets forth "sufficiently specific, factually based allegations" supporting a request for new counsel. Id. (quotations and citations omitted).
¶13 "At such a hearing, the defendant bears the burden of demonstrating that he has a genuine irreconcilable conflict with his counsel or that there has been a total breakdown in communications." Id. (citation omitted). "[T]o prove a total breakdown in communication, a defendant must put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible." State v. Paris-Sheldon, 214 Ariz. 500, 505, ¶ 12, 154 P.3d 1046, 1051 (App. 2007) (citation omitted). "If a defendant establishes a total breakdown in communication, or an irreconcilable conflict with his attorney, then the trial judge must grant the request for new counsel." Torres, 208 Ariz. at 343, ¶ 8, 93 P.3d at 1059 (citation omitted).
¶14 In evaluating a request for change of counsel, the trial court should consider whether an irreconcilable conflict exists, whether new counsel would face the same conflict, the timing of the motion, the 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 344, ¶ 15, 93 P.3d at 1060 (citations omitted).
¶15 As an initial matter, Flink argues the superior court should have held a formal hearing when he orally requested new counsel at the final management conference. Based on the limited information defense counsel and Flink provided to the court at that conference, however, the superior court was not obligated to make further inquiry. Defense counsel explained she needed to withdraw as counsel because Flink was pressuring her to file motions she deemed unethical and Flink had refused to assist in trial preparation. When the court addressed Flink directly, he did not raise any specific allegations of irreconcilable conflict, stating only that he would "like to have a new attorney represent [him]." Because Flink failed to state any basis for appointing new counsel, and defense counsel cited only differences in strategy and Flink's lack of participation, neither of which constitutes an irreconcilable conflict, see Cromwell, 211 Ariz. at 186-87, ¶ 29, 119 P.3d at 453-54 (disagreement over trial strategy does not constitute an irreconcilable conflict) (citations omitted); State v. Peralta, 221 Ariz. 359, 363, ¶ 18, 212 P.3d 51, 55 (App. 2009) (defendant's refusal to assist counsel in preparing for trial or insistence on unreasonable trial tactics does not "compel a change of counsel"), the superior court was not required to hold a formal hearing on Flink's oral motion to appoint new counsel before summarily denying it.
¶16 In contrast, Flink raised specific allegations in his written motion for substitution of counsel, asserting defense counsel believed he was guilty of the charged offenses and describing a harsh exchange between Flink and defense counsel that occurred a week before trial. The superior court addressed this motion at a hearing on the first day of trial, and repeatedly invited Flink to present any additional allegations supporting the motion. Initially, Flink stated his claims were thoroughly set forth in the written motion, but subsequently read a prepared statement claiming defense counsel was not fully advocating on his behalf because she believed he was guilty.
¶17 "A single allegation of lost confidence in counsel does not require the appointment of new counsel," and personality conflicts and disagreements over defense strategies do not constitute an irreconcilable conflict. Cromwell, 211 Ariz. at 186-87, ¶ 29, 119 P.3d at 453-54 (citations omitted). Although asked to explain his reasons for requesting new counsel, Flink failed to identify how defense counsel's purported belief hampered her ability to present a defense. Neither a defense attorney's analysis of the strength of the State's case nor her opinion regarding the likely outcome of trial creates an irreconcilable conflict. See State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987) (concluding "[n]o real conflict between the [defendant] and counsel is discernible from the record," even though counsel had allegedly informed the defendant he would be "found guilty no matter what"). Furthermore, when the court questioned defense counsel, she acknowledged previous discord with Flink, but stated they had reached a "truce" and implied she was prepared to proceed to trial on that basis. Given this record, we cannot say the superior court, after hearing statements from both Flink and defense counsel and considering the other relevant factors, abused its discretion by not finding an irreconcilable conflict and denying Flink's motion for substitute counsel. See Paris-Sheldon, 214 Ariz. at 505, ¶ 13, 154 P.3d at 1051 (trial court must resolve any factual dispute that arises during a Torres inquiry, and a reviewing court defers "to that resolution so long as the record supports it") (citation omitted). II. Sufficiency of the Evidence
¶18 Flink argues the State failed to present sufficient evidence that he knew the red truck was stolen and, thus, failed to prove his guild beyond a reasonable doubt. The record does not support this argument.
¶19 We review a claim of insufficient evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (citation omitted). Sufficient evidence may be direct or circumstantial and "is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Borquez, 232 Ariz. 484, 487, ¶¶ 9, 11, 307 P.3d 51, 54 (App. 2013) (citation omitted). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." Id. at 487, ¶ 9, 307 P.3d at 54 (quotations and citation omitted). In evaluating 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, 104 P.3d 873, 875 (App. 2005), and we will "not reweigh the evidence to decide if [we] would reach the same conclusions as the trier of fact," Borquez, 232 Ariz. at 487, ¶ 9, 307 P.3d at 54 (quotations and citations omitted).
¶20 As charged in this case, a person commits theft of a 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." Ariz. Rev. Stat. ("A.R.S.") § 13-1814(A)(1) (2010). A person commits owning or operating a chop shop, A.R.S. § 13-4702(A)(1) (2010), by knowingly operating any "premises in which one or more persons alters, destroys, disassembles, dismantles, reassembles or stores at least one motor vehicle . . . that the person . . . knows w[as] obtained by theft, fraud or conspiracy to defraud with the intent to . . . [s]ell or dispose of the motor vehicle[] or motor vehicle parts," A.R.S. § 13-4701(1), (1)(b) (2010).
¶21 With the elements of the offenses in mind, the trial evidence reflects first, neither Flink nor Wallace held title to the red truck; second, the red truck was worth substantially more than the $300 Flink paid to acquire it; third, the red truck was stored at a location on Flink's property hidden from street view; fourth, the victims retained both sets of keys to the red truck; and fifth, the documents identifying the victims as the owners of the red truck were in Flink's burn barrel. Although Flink testified he did not know the red truck had been stolen and had no idea who delivered it to his property, the jury, as the finder of fact, assessed Flink's credibility and was not required to accept his testimony as true. See State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38, 312 P.3d 123, 133 (App. 2013) (citations omitted). Therefore, the State presented substantial evidence supporting Flink's convictions for owning and operating a chop shop and theft of a means of transportation.
CONCLUSION
¶22 For the foregoing reasons, we affirm Flink's convictions and probation.