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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

DAVID MCELVEEN, Petitioner.

No. 1 CA-CR 13-0621 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2009-007600-001

The Honorable John C. Rea, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Lisa Marie Martin

Counsel for Respondent

David McElveen, Kingman

Petitioner

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.
STATE v. MCELVEEN

Decision of the Court

2

B R O W N, Judge:

¶1 David McElveen petitions this court for review from the 

dismissal of his petition for post-conviction relief. We have considered the 

petition for review and, for the reasons stated, grant review and deny relief. 

¶2 A jury convicted McElveen of two counts of trafficking in the 

identity of another and the trial court sentenced him to concurrent terms of 

7.5 years’ imprisonment for each count. We affirmed McElveen’s 

convictions and sentences on direct appeal. State v. McElveen, 1 CA-CR 10-

0374, 2011 WL 887755 (Ariz. App. Mar. 15, 2011) (mem. decision). 

McElveen filed a pro se petition for post-conviction relief after his counsel 

found no colorable claims for relief. The trial court summarily dismissed 

the petition and McElveen now seeks review. 

¶3 McElveen claims he has newly discovered evidence that the 

undercover officer committed perjury when he testified at trial. McElveen

first argues the officer committed perjury when he testified that he did not 

record the transaction between himself and McElveen because he did not 

have access to recording equipment that day. McElveen contends newly 

discovered evidence shows the officer had access to recording equipment 

because he recorded another transaction in an unrelated matter earlier that 

day. McElveen next argues the officer committed perjury when the officer 

testified he did not ask “Joe,” another person involved in the events, to 

obtain stolen identification cards and credit cards for the officer. McElveen 

argues the newly discovered evidence shows the officer did make such a 

request. 

¶4 For a defendant to obtain post-conviction relief based on 

newly discovered evidence:

(1) The evidence must appear on its face to have existed at the 

time of trial but be discovered after trial; 

(2) The petition must allege facts from which the court could 

conclude the defendant was diligent in discovering the facts 

and bringing them to court’s attention;

(3) The evidence must not simply be cumulative or 

impeaching; 

(4) The evidence must be relevant to the case; 
STATE v. MCELVEEN

Decision of the Court

3

(5) The evidence must be such that it would likely have 

altered the verdict, finding, or sentence if known at the time 

of trial. 

State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989).

¶5 McElveen conceded below that he obtained this alleged new

information based on his review of police reports. McElveen does not 

contend he did not possess or otherwise have access to the reports prior to 

trial, but argues only that he did not “scour” the reports until after trial. 

This is not “newly discovered” evidence. Additionally, the evidence 

would, at best, serve only to impeach the officer. As noted above, to obtain 

post-conviction relief based on newly discovered evidence, the new 

evidence must not serve merely to impeach. Id. 

¶6 Furthermore, the evidence does not establish that the officer 

committed perjury or that his testimony was inconsistent with any evidence 

in any material way. Regarding the availability of recording equipment, 

the officer testified he sometimes carried his recording equipment with him 

in his vehicle, but he did not have it with him at the time he met with 

McElveen. It was defense counsel who subsequently asked the officer on 

cross-examination, “[Y]ou didn’t have . . . your recording device that day,”

to which the officer answered “[t]hat’s correct.” That a police report in a 

separate matter shows the officer recorded a conversation with a different 

suspect earlier in the day does not establish that the officer had operable 

recording equipment available to him when he spoke with McElveen. 

¶7 Regarding whether the officer asked “Joe” to get stolen 

identification cards and credit cards for the officer, the officer testified he 

never asked Joe to obtain stolen property for him. The language McElveen 

identifies in a police report does not directly contradict this. The officer 

wrote in his report that he told Joe “that if [Joe] was to come into possession 

of any checks or credit cards to give [the officer] a call so [the officer] could
STATE v. MCELVEEN

Decision of the Court

4

take a look at them.” This is not the equivalent of telling Joe to obtain stolen 

identification cards and credit cards for the officer. 

¶8 For the reasons stated above, we grant review and deny relief.