State v. Cowled

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL J. COWLED, Appellant.

No. 1 CA-CR 23-0085
FILED 3-21-2024

Appeal from the Superior Court in Maricopa County
No. CR2019-007261-001
The Honorable Margaret B. LaBianca, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

The Law Office of Kyle T. Green, Tempe
By Kyle T. Green
Counsel for Appellant
 STATE v. COWLED
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.

C A T T A N I, Judge:

¶1 Michael J. Cowled appeals his convictions and sentences for
fraudulent schemes and artifices, theft, and forgery. For reasons that
follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Unable to work due to a disabling accident, “Deborah Smith”
relied for her income on social security disability checks and payments from
a long-term disability insurance policy.1 In 2016, Smith’s disability
insurance provider offered a lump-sum settlement option contingent upon
her meeting with a financial advisor. Smith approached her neighbor,
Cowled, who worked in the financial sector. Cowled agreed to help Smith
and gave her marketing materials for an annuity provider, recommending
she invest in an individual retirement account (“IRA”) or an annuity. Smith
stressed that, if she chose to accept the settlement, she would need to receive
a minimum monthly income of $500 from any investment. Cowled assured
her she would receive that amount by following his recommendations.

¶3 By the end of 2016, Smith agreed to invest in an IRA or
annuity, signing documents provided by Cowled that listed an annuity
provider’s name. Smith accepted the lump sum settlement and listed
Cowled as her financial advisor. Cowled directed Smith to sign documents
associated with the settlement and received $750 for acting as her adviser.
Smith endorsed the settlement check, totaling $67,458.69, to Cowled, with
the understanding that he would immediately transfer the money to an IRA
or annuity.

¶4 In January 2017, Cowled gave Smith her monthly check and
paid a portion of her outstanding bills. Shortly after, Smith’s accountant
informed her that the appropriate tax forms for her settlement had not been
completed. Smith learned that she owed approximately $10,000 in taxes,

1 We use a pseudonym to protect the victim’s privacy.

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even though Cowled had told her she would owe approximately $2,000.
When asked about this, Cowled created an invoice backdated to December
2016, stating that Smith owed him fees totaling $57,662, which included
$1,000 for an “IRA setup” and $35,000 for a “rendered” retainer fee. This
invoice did not reflect fees that Smith had agreed to pay, and Cowled later
stated that he “dummied up” the invoice to avoid tax liability.

¶5 Between February and July 2017, Smith continued to receive
monthly payments from Cowled, although the amounts fluctuated. By
August 2017, the monthly payments grew increasingly inconsistent, with
some checks bouncing and Cowled replacing the checks with cash
payments. By the end of 2017, Smith stopped receiving payments entirely.
Cowled became evasive with Smith, eventually telling her that he had
invested her money in “flipping houses.” He claimed that everyone
involved in this venture had lost their money.

¶6 Suspicious, Smith contacted law enforcement in November
2017 and again in March 2018. An investigator obtained records showing
that Cowled had deposited Smith’s settlement funds into his business
savings account, without ever acquiring an IRA or annuity. The annuity
provider Cowled had listed confirmed that there was no record of an
account under Smith’s name.

¶7 The investigator also discovered that between December 2016
and July 2017, Cowled transferred $55,506.93 of Smith’s money into his
checking account. Cowled used funds in that account to pay for food,
clothing, trips, vehicles, and miscellaneous personal bills. There were no
transfers to the annuity provider or withdrawals consistent with any type
of investment. After July 2017, Cowled’s accounts fluctuated between a low
to zero balance, regularly incurring overdraft fees for insufficient funds.

¶8 The State charged Cowled with one count each of fraudulent
schemes and artifices (a class 2 felony), theft (a class 2 felony), and forgery
(a class 4 felony). Before trial, Cowled provided documents to defense
counsel, purportedly signed by Smith in January and February 2017,
avowing that he and Smith discussed lower risk options, she chose to accept
the risk of non-conventional investments, understanding Cowled could not
be held liable for “bad investment outcomes,” and that Smith had
authorized him to make decisions on her behalf.

¶9 At trial, Smith testified that she had neither seen nor signed
these documents. And a forensic document examiner confirmed that the

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signatures on those documents had been transferred from another
document signed by Smith.

¶10 Cowled testified at trial that his bank records would not show
he invested the money by making a loan because the loan was a
“handshake” agreement paid “from a bag of cash” he kept in his home.
Cowled named Jim Yanello as the individual who lost the money in a
“house flipping scheme.” He claimed that Yanello disappeared, only
resurfacing after a failed suicide attempt. Cowled did not subpoena
Yanello for trial. The superior court continued trial for an extra day to
permit Yanello to attend, but when he did not appear, the court denied
Cowled’s request to further continue the trial or to declare a mistrial.

¶11 The jury found Cowled guilty as charged, and the court
sentenced him to a presumptive term of 2.5 years’ imprisonment for the
forgery conviction, followed by two concurrent terms of supervised
probation on the remaining counts. Cowled timely appealed. We have
jurisdiction under A.R.S. § 13-4033(A)(1).

DISCUSSION

¶12 Cowled argues that the superior court abused its discretion
by denying his motion to continue trial or, in the alternative, declare a
mistrial given Yanello’s unavailability to testify. Cowled contends the
court’s ruling violated his Sixth Amendment and due process rights to call
material witnesses and present a complete defense.

¶13 A motion to continue is not granted as a matter of right, and
rests solely within the court’s discretion. State v. Jackson, 112 Ariz. 149, 154
(1975). We will not disturb the superior court’s decision unless the
defendant shows resulting prejudice. State v. Forde, 233 Ariz. 543, 555, ¶ 18
(2014). Similarly, the superior court has broad discretion to grant or deny
a motion for mistrial. State v. Bible, 175 Ariz. 549, 598 (1993). The
“declaration of a mistrial is the most dramatic remedy for trial error and
should be granted only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz.
250, 262 (1983). We review claims implicating a defendant’s constitutional
rights de novo. State v. Sanchez-Equihua, 235 Ariz. 54, 56, ¶ 7 (App. 2014).

¶14 A criminal defendant has the right to present a complete
defense, compel the attendance of witnesses, and offer testimony that
would be “relevant and material to the defense” under his Sixth
Amendment and due process rights. Washington v. Texas, 388 U.S. 14, 17–
19, 23 (1967). Such rights, however, are not absolute. State v. Harrod, 218

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Ariz. 268, 276, ¶ 20 (2008). The defendant must attempt to secure the
attendance of witnesses to exercise his right to compulsory process. See
State v. Espinosa, 101 Ariz. 474, 476 (1966) (finding no constitutional
violation when the defendant made no attempt to find or subpoena the
witness); State v. Russell, 175 Ariz. 529, 535 (App. 1993) (finding no
constitutional violation when the defendant “never invoked the powers of
the court to compel” witness testimony).

¶15 The superior court “may continue trial only on a showing that
extraordinary circumstances exist, and that delay is indispensable to the
interests of justice.” Ariz. R. Crim. P. 8.5(b). And the court may grant a
continuance in the middle of trial only under exigent circumstances. State
v. Eisenlord, 137 Ariz. 385, 391 (App. 1983). The court has discretion to deny
a continuance based on the absence of an allegedly material witness when
the defendant has failed to act diligently in securing the attendance of the
witness, State v. Richie, 110 Ariz. 590, 592 (1974), or when “[n]o showing has
been made that the witness could have been located and produced within
a reasonable time had a continuance been granted,” State v. Cook, 172 Ariz.
122, 125 (App. 1992).

¶16 Before trial, Cowled disclosed Yanello as an out-of-state
witness, but he did not request a subpoena. The superior court continued
the trial ten times at Cowled’s request, including three times for Yanello’s
travel preparations. The parties indicated that they needed time to
schedule transportation for out-of-state witnesses and jointly requested a
“date certain” for trial. When trial began, Cowled did not express concerns
about the attendance of his witnesses. On the fourth day of trial, however,
Cowled informed the court that Yanello was ill and might not be able to
attend trial. The court explained that if the witness had an illness
preventing attendance, Cowled needed to provide documentation from a
doctor and proof that he had already made travel arrangements for that
week. Later that day, after the State rested its case-in-chief, Cowled told the
court that Yanello would be arriving the following evening and could
provide testimony on the sixth day of trial. Cowled offered no additional
details regarding Yanello’s alleged illness or travel plans. Nevertheless, the
court agreed to end the fifth trial day early and allow for Yanello’s
attendance the following day.

¶17 On the fifth day of trial, Cowled informed the superior court
that Yanello still felt ill and had a high temperature. But Cowled gave
contradictory information about possible travel arrangements,
acknowledging that Yanello had been non-committal and had not
purchased a plane ticket. Cowled further admitted that he had no medical

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documentation regarding Yanello’s illness. At that point, the State voiced
its concern that Yanello had no intention of attending trial. The court
similarly expressed “skepticism” as to whether Yanello was “a theoretical
witness and not an actual witness,” adding that Cowled’s counsel had not
been forthcoming about Yanello’s travel arrangements.

¶18 The next day, Cowled moved to continue trial or, in the
alternative, declare a mistrial based on Yanello’s unavailability. Cowled
asserted that Yanello claimed to have seen a medical professional, but he
had not provided any documentation. The State objected to the
continuance, arguing that the superior court already made concessions for
Yanello to arrive on a later trial date. The State noted that Yanello never
agreed to a face-to-face interview and had shown no “actual intent” to
appear for trial. The court denied both of Cowled’s motions, finding that
Cowled failed to present any “actual reliable evidence” of Yanello’s illness
or intent to attend trial.

¶19 Cowled’s assertions of error regarding Yanello’s absence
from trial are unavailing. The court granted multiple continuances, at least
three of which specifically related to Yanello. Cowled never requested a
subpoena for Yanello or expressed a concern that Yanello would not
willingly attend trial. Cowled did not raise the issue until the fourth day of
trial, as the State’s case-in-chief drew to a close. Even then, Cowled could
not provide a clear answer as to whether Yanello would be traveling to
Arizona for trial. Further, Cowled failed to provide documentation or any
reliable information to confirm Yanello suffered an illness that prevented
him from traveling. And although Cowled claimed on various occasions
that travel arrangements had been made, he ultimately acknowledged
Yanello had never booked a flight to Arizona.

¶20 Cowled had the right and opportunity to subpoena Yanello
for trial, but he did not do so. See A.R.S. § 13-4071(D) (entitling a defendant
to obtain subpoenas in a criminal proceeding); A.R.S. § 13-4093 (compelling
attendance of out-of-state witness). He had ample time to secure travel
arrangements for Yanello, but he did not do so. Accordingly, Cowled has
not shown he acted diligently to secure Yanello’s attendance at trial. See
Richie, 110 Ariz. at 592.

¶21 Furthermore, Cowled has not demonstrated that Yanello
would have attended trial had a continuance or new trial been granted. See
Cook, 172 Ariz. at 125. As noted by the court, the record suggests that
Yanello was merely “a theoretical witness.” Without more, the court was
justified in concluding that there were no exigent circumstances warranting

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a continuance mid-way through trial, Eisenlord, 137 Ariz. at 391, or that
justice would be “thwarted” without a new trial, Adamson, 136 Ariz. at 262.
The court did not abuse its discretion by denying Cowled’s motions to
continue or to declare a mistrial, and those rulings did not violate Cowled’s
Sixth Amendment or due process rights.

CONCLUSION

¶22 For the foregoing reasons, we affirm Cowled’s convictions
and resulting sentences.

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

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