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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 3-21-2024
STATE v. COWLED

Decision of the Court

2

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.
STATE v. COWLED

Decision of the Court

3

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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Decision of the Court

4

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 
STATE v. COWLED

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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 
STATE v. COWLED

Decision of the Court

6

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
STATE v. COWLED

Decision of the Court

7

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.