State v. Fullen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN HOYT FULLEN, Appellant.

No. 1 CA-CR 23-0203
FILED 03-27-2025

Appeal from the Superior Court in Yavapai County
No. P1300CR202000806
The Honorable Krista M. Carman, Judge

AFFIRMED AS MODIFIED

COUNSEL

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

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
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MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 John Hoyt Fullen appeals his convictions and sentences for
one count of fraudulent schemes and artifices and two counts of forgery.
Fullen'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 questions of law and
asks this Court to search the record for fundamental error. Fullen filed a
supplemental brief in propria persona, which we have considered. Finding
no reversible error, we affirm Fullen's convictions and sentences but modify
the sentencing order to award additional presentence-incarceration credit.

FACTS AND PROCEDURAL BACKGROUND

¶2 Fullen formed American Veteran Movers sometime in 2017.
Fullen advertised that his company was entirely veteran-owned and
operated.

¶3 In June 2020, a detective began to investigate Fullen after
learning about him in a separate case. At Fullen's residence, the detective
saw two vehicles with Purple Heart license plates registered to Fullen. The
detective determined, however, that Fullen had never served in the U.S.
military. Fullen obtained the Purple Heart license plates by submitting a
false Purple Heart certificate to the Arizona Motor Vehicles Division
("MVD"). Fullen's driver's license included "Veteran" because he provided
an American Legion certificate to the MVD even though he never served in
the military.

¶4 The State charged Fullen with: one count of fraudulent
schemes and artifices (Count 1), a class 2 felony; and five counts of forgery
(Counts 2–6), class 4 felonies. See A.R.S. §§ 13-2002(A), -2310(A). At trial,
the superior court granted Fullen's motion for judgment of acquittal on
Counts 3, 4, and 6. Fullen was not present for part of the final jury-
instruction conference, but his counsel waived his presence. The jury
entered guilty verdicts on Counts 1, 2, and 5. For all three felony

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convictions, the jury found as an aggravating circumstance that Fullen
committed the offenses for pecuniary gain. See A.R.S. § 13-701(D)(6).

¶5 The superior court held a separate hearing to prove priors and
determined Fullen was a category-three repetitive offender. On Count 1,
fraudulent schemes and artifices, the superior court sentenced Fullen to a
mitigated prison term of 10.5 years. On Counts 2 and 5, forgery, the
superior court sentenced Fullen to a mitigated prison term of six years each.
The superior court ran the sentences concurrently. The superior court also
awarded Fullen 876 days of presentence incarceration credit.

¶6 Fullen timely appealed and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶7 Fullen raises several issues in his supplemental brief, none of
which he raised at trial. Thus, we review only for fundamental, prejudicial
error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). We view the facts in
the light most favorable to sustaining Fullen's convictions and resolve all
reasonable inferences against him. State v. Fontes, 195 Ariz. 229, 230, ¶ 2
(App. 1998).

I. Alleged Prosecutorial Misconduct.

¶8 Fullen asserts the prosecutor engaged in several instances of
misconduct.

A. Alleged Conduct Unsupported by the Record.

¶9 First, Fullen contends the prosecutor misrepresented
evidence, misstated the law, vouched for the State's case, shifted the burden
of proof, and appealed for the jurors to act as the conscience of the
community. In all such instances, the prosecutor either did not engage in
misconduct, or Fullen's allegations are not supported by the record.
Furthermore, the superior court instructed jurors not to treat the
prosecutor's comments as evidence and that they must follow the law
provided by the court. See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006)
(asserting the presumption that jurors follow court instructions "that
anything said in closing arguments was not evidence").

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B. Fullen Fails to Demonstrate Prejudice.

¶10 Second, Fullen argues the prosecutor improperly referred to
stricken testimony about his Marine tattoo being an "abomination" during
closing argument. Even if this comment was improper, the prosecutor's
statement did not rise to the level of reversible error—the prosecutor
mentioned the stricken testimony only once and the court instructed jurors
not to consider stricken testimony for any purpose. See id. On this record,
Fullen has failed to demonstrate that he was prejudiced by the isolated
remark. See State v. Riley, 248 Ariz. 154, 179–80, ¶ 88 (2020) (stating that a
defendant cannot rely on speculation but must point to record evidence to
prove prejudice under fundamental-error review).

¶11 Fullen further asserts the prosecutor did not provide his
counsel with a copy of an order of protection against Fullen that the court
had ordered be disclosed. The record is silent as to whether the prosecutor
complied with the order and Fullen fails to show that any alleged
nondisclosure prejudiced him. Accordingly, Fullen does not establish
reversible error. See Escalante, 245 Ariz. at 140, ¶ 21 (stating the defendant
bears the burden of proof and must establish "both fundamental error and
prejudice").

II. Other Arguments.

A. Motion for Judgment of Acquittal.

¶12 Fullen contends the superior court erred by denying his
motion for judgment of acquittal on Counts 1, 2, and 5. "A trial court should
grant a motion for a judgment of acquittal only if there is no substantial
evidence . . . to warrant a conviction." State v. Gray, 231 Ariz. 374, 377, ¶ 10
(App. 2013). Substantial evidence is "more than a mere scintilla." State v.
Mathers, 165 Ariz. 64, 67 (1990). "In determining whether substantial
evidence exists, we view the facts and all reasonable inferences therefrom
in the light most favorable to sustaining the jury's verdicts." Gray, 231 Ariz.
at 376, ¶ 3.

¶13 Witnesses testified at trial that customers hired Fullen's
company because they believed it was veteran-owned. The State also
introduced evidence that Fullen presented an American Legion Certificate
to the MVD, and that his Purple Heart Certificate was false. The evidence
was substantial, and the superior court did not err by denying Fullen's
motion for judgment of acquittal. Id. at 377, ¶ 10; Ariz. R. Crim. P. 20(a).

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B. Untimely Disclosure.

¶14 Fullen argues the superior court erred by allowing the State
to call his aunt as a witness despite an untimely disclosure. The record
shows the State disclosed his aunt as a witness more than seven days before
trial. Thus, the superior court did not fundamentally err. See Ariz. R. Crim.
P. 15.6(c) (requiring all disclosures "to be completed at least 7 days before
trial").

C. Mistrial.

¶15 Fullen alleges that the superior court erred by not declaring a
mistrial sua sponte based on his aunt's testimony. The superior court was
not required to do so because defense counsel elicited some of the testimony
that Fullen now challenges, and the superior court struck other
objectionable portions. Further, if a defendant believes a mistrial is
warranted, the defendant generally must ask for one. See State v. Laird, 186
Ariz. 203, 207 (1996) ("If a party wants a mistrial, it ordinarily must ask for
one."). Accordingly, the superior court did not commit fundamental error.

D. Jury Instructions on Lesser-Included Offenses.

¶16 Fullen contends the superior court erred by not instructing
the jury on false advertising as a lesser-included offense. But false
advertising is not a lesser-included offense because it has elements which
are not included in fraudulent schemes and artifices. See State v. Griest, 196
Ariz. 213, 214, ¶ 4 (App. 2000) ("A crime is a lesser included offense if the
crime is composed solely of some, but not all, of the elements of the greater
crime . . . ."); compare A.R.S. § 13-2310(A) (defining fraudulent schemes and
artifices) with A.R.S. § 13-2203(A) (defining false advertising). He also
suggests registration violations under A.R.S. § 28-2531, and military license
plate offenses under § 28-2471 are lesser-included offenses of A.R.S. § 13-
2002(A) (forgery). Fullen is mistaken—both have elements that are not
included in the offense of forgery. See Griest, 196 Ariz. at 214, ¶ 4.

E. Jury Instruction Defining "Defraud."

¶17 Although neither party requested it, Fullen argues the
superior court should have provided a jury instruction defining "defraud."
He fails to show fundamental error because the court's instructions
correctly stated the law. See State v. Brown, 131 Ariz. Cases Dig. 7, 12, ¶ 22
(App. Sept. 10, 2024) ("[J]ury instructions given must correctly state the
law."); see also Rev. Ariz. Jury Instr. Stand. Crim. 23.10 (fraudulent schemes
and artifices) (6th ed. 2022). Furthermore, the superior court provided an

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instruction nearly identical to what Fullen now requests. See State v. Forde, 233 Ariz. 543, 566, ¶ 91 (2014) ("When a jury is properly instructed on the
applicable law, the trial court is not required to provide additional
instructions that do nothing more than reiterate or enlarge the instructions
in defendant's language.").

F. Motion to Vacate Judgment and Sentence.

¶18 Fullen also contends the superior court erred by: (1) denying
his motion to vacate judgment and sentence; (2) denying him counsel
during a critical phase of the proceedings which impaired his post-trial
motion to vacate judgment and sentence; and (3) not recognizing he did not
receive the State's response to that motion, which deprived him of the
opportunity to provide information supporting his claim of newly
discovered evidence.

¶19 This Court lacks jurisdiction to review the superior court's
denial of Fullen's motion to vacate judgment and sentence because Fullen
did not file a notice of appeal of the court's denial within 20 days after entry.
See Ariz. R. Crim. P. 31.2(a)(2)(B). The superior court did not completely
deny Fullen counsel by allowing his attorney to withdraw after sentencing
because Fullen has not established that his subsequent motion to vacate
judgment and sentence was a "critical stage." See United States v. Cronic, 466
U.S. 648, 659 (1984) (stating that "a trial is unfair if the accused is denied
counsel at a critical stage of his trial"); cf. Rose v. Hedgpeth, 735 Fed Appx.
266, 269 (9th Cir. 2018) ("The U.S. Supreme Court has never held that a post-
trial, pre-appeal motion for a new trial is a 'critical stage' to which the Sixth
Amendment right to counsel applies."). In addition, the record reflects that
Fullen had the benefit of representation while the motion was prepared. He
fails to show how the re-appointment of withdrawn counsel as advisory
counsel prejudiced him. See Ariz. Const. art. 6, § 27 ("No cause shall be
reversed for technical error in pleadings or proceedings when upon the
whole case it shall appear that substantial justice has been done."); State v.
Henderson, 210 Ariz. 561, 567, ¶ 20 (2005) ("To prevail under this standard
of review, a defendant must establish both that fundamental error exists
and that the error in his case caused him prejudice."). Nor was the superior
court responsible for serving Fullen with the response to his motion to
vacate judgment and sentence. See Ariz. R. Crim. P. 1.9(b).

G. Motion for New Trial and/or Judgment of Acquittal.

¶20 Fullen argues the superior court erred by denying his motion
for new trial and/or judgment of acquittal. Fullen has shown no error

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because his motion was untimely and filed well past the deadline. See State
v. Vasquez, 98 Ariz. 157, 159 (1965) (holding when a motion for new trial is
untimely, "the effect is the same as if no motion [were] filed at all").

III. Presentence Incarceration Credit.

¶21 Finally, Fullen contends the superior court did not award
sufficient presentence incarceration credit. A defendant is entitled to
presentence incarceration credit for all time spent in custody pursuant to an
offense. A.R.S. § 13-712(B). Awarding an incorrect amount of credit is
fundamental error. State v. Ritch, 160 Ariz. 495, 498 (App. 1989).

¶22 The superior court awarded Fullen 876 days of presentence
incarceration credit, apparently based on the date originally scheduled for
sentencing, April 10, 2023. But sentencing was continued to May 15, 2023,
and Fullen's presentence incarceration credit was not adjusted
correspondingly. Thus, he should receive 911 days of presentence
incarceration credit. Although Fullen argues for 974 days of presentence
incarceration credit, he offers no evidence to support his position.

IV. No Fundamental Error.

¶23 In addition to evaluating the arguments raised in Fullen's
brief, we have conducted an independent review of the record. Our review
revealed no fundamental error. See Leon, 104 Ariz. at 300. All proceedings
were conducted in compliance with the Arizona Rules of Criminal
Procedure, and the record reveals that Fullen was present and represented
by counsel at all critical stages of the proceedings. See Ariz. R. Crim. P. 6.1,
19.2. The State presented sufficient evidence from which the jury could
determine Fullen's guilt beyond a reasonable doubt. See State v. West, 226
Ariz. 559, 562, ¶ 16 (2011). The jury was properly composed and instructed,
and there is no evidence of reversible misconduct. Although a judge, rather
than a jury, determined whether Fullen's prior offenses were "committed
on the same occasion" for purposes of sentencing him as a repetitive
offender, no reasonable jury could have plausibly and intelligently come to
a different conclusion than the sentencing judge. See State v. Porter, 136
Ariz. Cases Dig. 4, 7, ¶ 11 (App. Nov. 21, 2024). Thus, other than as
discussed above, Fullen's sentences fall within the range prescribed by law.

CONCLUSION

¶24 For the foregoing reasons, we affirm Fullen's convictions and
sentences except that we increase the presentence incarceration credit to 911
days. Upon the filing of this decision, defense counsel shall inform Fullen

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of the status of the appeal and of his future options. Counsel has no further
obligations unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584–85 (1984). Fullen shall have 30 days from the
date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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