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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTONIO RAYELL COOPER, JR., Appellant.

No. 1 CA-CR 16-0869

No. 1 CA-CR 17-0502

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2016-114883-001

No. CR2011-142001-001

The Honorable Gregory Como, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jillian Francis

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Rena P. Glitsos

Counsel for Appellant

FILED 11-29-2018
STATE v. COOPER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in 

which Judge Michael J. Brown and Chief Judge Samuel A. Thumma joined.

B E E N E, Judge:

¶1 Antonio Rayell Cooper, Jr., appeals his convictions and 

sentences for aggravated assault, resisting arrest, threatening or 

intimidating, and three counts of attempt to commit assault by owner’s 

vicious dog. Cooper challenges the constitutionality of the statutory 

provision that elevates threatening or intimidating from a class 1 

misdemeanor to a class 6 felony if the offender is a criminal street gang 

member. Cooper also argues that the legislature improperly invaded the 

province of the judiciary by providing for the admission of gang member

indicia evidence in prosecutions for participating in or assisting a criminal 

street gang. Finally, Cooper contends the superior court erred by denying 

his requests for new counsel, and the court should have ordered an 

evaluation of his psychological competency to stand trial. For the reasons 

that follow, we affirm. 

FACTS1 AND PROCEDURAL HISTORY

¶2 As twelve-year-old J.O. and his two school-age friends 

approached an ice cream truck, Cooper, who was on probation for offenses 

committed in CR2011-142001-001, “let [his] dog go” and commanded the 

eighty-pound pit bull to “attack, go get them.” The boys fled from the dog 

and jumped atop a “power box,” ensuring their relative safety as the dog

barked and lunged at them. Cooper approached the boys, yelled at them

to get down from the box, and continued inciting the dog to attack them. 

¶3 Police officer Conn arrived at the scene shortly thereafter, and 

Cooper approached him with the dog, “provok[ing]” the officer. Cooper 

threatened Conn that he was going to take the officer’s gun and kill him. 

Cooper then “charged” the officer, and the dog, following Cooper’s 

command to “go get him,” “jump[ed] up” on Conn as if attempting to bite 

 

1 We view the facts in the light most favorable to upholding the

verdicts and resolve all reasonable inferences against the defendant. State 

v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015).
STATE v. COOPER

Decision of the Court

3

him. The dog tore the flap off the ammunition pouch that was attached to 

Conn’s duty belt, and Cooper swung the dog’s leash at Conn, hitting him 

in the head with the metal end. Conn then “[t]ased” Cooper right before 

other officers arrived and detained Cooper on the ground. As the officers 

attempted to handcuff Cooper, he tensed his arms to keep them under his 

body. As a result of his encounter with Cooper and the dog, Officer Conn 

sustained injuries to his head, hand, and knee. 

¶4 The State charged Cooper in CR2016-114883-001 with 

aggravated assault, resisting arrest, threatening or intimidating, and three 

counts of attempt to commit assault by owner’s vicious dog. In connection 

with the threatening or intimidating charge, the State also alleged Cooper 

was a member of a criminal street gang, thereby raising the offense from a 

class 1 misdemeanor to a class 6 felony. See Ariz. Rev. Stat. (“A.R.S.”) 

§ 13-1202(B). Detective Hall of the Phoenix Police Department’s Gang 

Enforcement Unit testified regarding various indicia of Cooper’s 

membership in the Hellbound Gangsters, a criminal street gang. See A.R.S. 

§ 13-105(9) (indicia of criminal street gang membership).

¶5 The jury found Cooper guilty on all counts. The superior 

court imposed a combination of concurrent and consecutive prison terms 

totaling 24 years and revoked Cooper’s probation in CR2011-142001-001.2

Cooper timely appealed, and we have jurisdiction pursuant to A.R.S.

§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. A.R.S. § 13-1202(B) Does Not Violate Cooper’s Constitutional 

Rights.

¶6 The threatening or intimidating statute provides, in relevant 

part:

A. A person commits threatening or intimidating if the 

person threatens or intimidates by word or conduct:

1. To cause physical injury to another person . . . .

. . .

 

2 Cooper raises no issues independently related to the probation 

revocation.
STATE v. COOPER

Decision of the Court

4

B. Threatening or intimidating pursuant to subsection A, 

paragraph 1 . . . is a class 1 misdemeanor, except that it is a 

class 6 felony if:

. . .

2. The person is a criminal street gang member.

A.R.S. § 13-1202.

¶7 Cooper presents multiple arguments contesting the 

constitutionality of § 13-1202(B)(2) under the federal and state constitutions. 

Asserting “[m]ere membership in a gang is not a crime[,] ”Cooper 

principally argues § 13-1202(B)(2) facially violates his right to freely 

associate, and he contends the provision denies him due process because 

his conduct underlying the threatening and intimidating offense was not 

gang-related. 

¶8 Because Cooper did not raise these arguments at trial, we 

review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19

(2005). “[T]he first step in fundamental error review is determining 

whether trial error exists.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). 

This Court reviews de novo the constitutionality of a statute, beginning with 

a presumption that the law is constitutional. State v. Russo, 219 Ariz. 223, 

225, ¶ 4 (App. 2008). The party challenging the statute bears the burden to 

persuade us otherwise. Id. 

¶9 Cooper misconstrues § 13-1202. The statute does not 

criminalize one’s association with a gang; rather, it enhances the penalty

imposed on a criminal street gang member who commits threatening or 

intimidating. State v. Meeds, 244 Ariz. 454, 463, ¶ 28 (App. 2018). As this 

Court recently determined, § 13-1202(B)(2) does not violate the First 

Amendment’s right of association. Id. at ¶¶ 29-32. We discern no 

principled justification to depart from Meeds. Absent compelling authority 
STATE v. COOPER

Decision of the Court

5

to the contrary,3 we will not construe Arizona’s right of association more 

broadly than the federal counterpart. See State v. Casey, 205 Ariz. 359, 354, 

¶ 8 (2003) (“Normally we interpret clauses in the Arizona Constitution in 

conformity with decisions of the United States Supreme Court and its 

interpretation of similar clauses in the United States Constitution.”),

superseded by statute on other grounds.

¶10 Cooper’s due process challenge also fails. He provides no 

authority to support the proposition that a conviction under 

§ 13-1202(A)(1), (B)(2) requires evidence of gang-related threatening or 

intimidating conduct. Indeed, Cooper admits that “A.R.S. § 13-1202(B) is 

clear and the Court should interpret it accordingly — that the purpose is to 

punish gang members with a felony conviction if they threaten or 

intimidate anyone, regardless of the circumstances.” 

¶11 Moreover, Cooper’s apparent substantive due process 

argument is without merit. “Substantive due process protects an individual 

from government interference with rights implicit in the concept of ordered 

liberty.” Simpson v. Owens, 207 Ariz. 261, 267, ¶ 17 (App. 2004) (quotations

omitted). Because Cooper does not contend § 13-1202(B)(2) implicates a 

fundamental right or that criminal street gang members constitute a suspect 

class, this Court will find the statute comports with due process if the law

has “any conceivable rational basis to further a legitimate governmental 

interest.” Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 555 (1981). 

The sentence enhancement provision in § 13-1202 for gang members clearly 

“serves a compelling state interest . . . : to protect the public from threats 

and intimidation by members of criminal street gangs, who presumably 

have a much greater ability than non-gang members to make good on those 

threats.” Meeds, 244 Ariz. at 463, ¶ 32. Consequently, § 13-1202(B)(2) does 

not violate substantive due process.

 

3 Cooper relies on a number of cases to support his assertion that the 

Arizona Constitution “may grant broader rights or protections than its 

federal counterparts in some areas.” Only one of the cited cases, however, 

mentions the right to assemble. See Ariz. Const. art. II, § 5 (“The right . . . 

of the people peaceably to assemble for the common good, shall never be 

abridged.”); Helge v. Druke, 136 Ariz. 434, 439 (App. 1983). But, as Cooper 

properly conceded, the court in Helge did not apply Article 2, Section 5, in 

rejecting the petitioner’s claim that a subpoena duces tecum violated his 

freedom of association. Id. Thus, Helge is not applicable.
STATE v. COOPER

Decision of the Court

6

¶12 No error, fundamental or otherwise, occurred. See Escalante, 

245 Ariz. at 142, ¶ 21.

II. Cooper Lacks Standing to Challenge A.R.S. § 13-2321(E).

¶13 For prosecutions of participating in or assisting a criminal 

street gang, A.R.S. § 13-2321(E) provides: “Use of a common name or 

common identifying sign or symbol shall be admissible and may be 

considered in proving the existence of a criminal street gang or membership 

in a criminal street gang.” (Emphasis added.) Cooper argues that, by 

mandating admission of a common name or common identifying sign or 

symbol in § 13-2321(E), the legislature “strips the court of discretion, and 

dictates to the Supreme Court that it must allow such evidence,” thereby 

violating the separation of powers doctrine set forth in the Arizona 

Constitution. See Ariz. Const. art. 3 (“The powers of the government of the 

state of Arizona shall be divided into three separate departments, the 

legislative, the executive, and the judicial; and, except as provided in this 

constitution, such departments shall be separate and distinct, and no one of 

such departments shall exercise the powers properly belonging to either of 

the others.”); Ariz. Const. art. 6, § 5(5) (“The supreme court shall have . . . 

[p]ower to make rules relative to all procedural matters in any court.”).

¶14 We do not address Cooper’s argument because he lacks 

standing to challenge § 13-2321(E). He was not convicted, let alone charged, 

in this case with participating in or assisting a criminal street gang. See State 

v. Varela, 120 Ariz. 596, 599 (1978) (noting a defendant lacks standing “to 

attack a statute on grounds not applicable to himself”).

III. The Court Did Not Abuse Its Discretion by Denying the Motion 

for New Counsel.

¶15 Before trial, Cooper repeatedly requested appointment of 

new counsel. The superior court denied each request but offered to allow 

Cooper to represent himself. Cooper chose not to appear pro per. 

¶16 On appeal, Cooper argues the court erred by denying his 

requests for new counsel without conducting an evidentiary hearing. We 

review the superior court’s decision to deny a request for new counsel for 

an abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186, ¶ 27 (2005).

¶17 Although a criminal defendant has the right to be represented 

by competent counsel, he is entitled neither to counsel of his choice nor to 

a meaningful relationship with his attorney. Id. at ¶ 28. Ordinarily, only 

the presence of an “irreconcilable conflict or a completely fractured 
STATE v. COOPER

Decision of the Court

7

relationship” between trial counsel and an accused will require the 

appointment of new counsel. Id. at ¶ 29. If a defendant makes sufficient 

factual allegations that raise a colorable claim of an irreconcilable conflict 

or of a complete breakdown in communication with counsel, the court must 

conduct a hearing. State v. Torres, 208 Ariz. 340, 343, ¶ 9 (2004). However, 

not every complaint voiced by a defendant requires a formal hearing or an 

evidentiary proceeding. See id. at ¶ 8. “For example, generalized 

complaints about differences in strategy may not require a formal hearing 

or an evidentiary proceeding.” Id.

¶18 Here, the court was not required to conduct a formal hearing 

before denying Cooper’s requests for new counsel. In response to Cooper’s 

complaints that appointed counsel had not provided him with the State’s 

discovery nor communicated with him about “details” of his case, his 

lawyer explained the following to the court:

I do want to let you know we have had communications. He 

was originally out of custody. He did fail to appear, a warrant 

was issued for arrest; so we did lose contact with him. When 

he was brought into Judge Richter’s court, he wasn’t happy 

with the plea and had to be removed from the court. We set 

up two jail visits . . . and he failed to appear for both of those 

jail visits.

We did have a settlement conference where all of his pleas 

were explained to him by Commissioner French. The fact he 

was on release on one of them and on probation on the others, 

that was all explained and it was gone into detail. In fact, the 

offer does expire today. We did follow-up with his request to 

run it concurrent; that was denied by the State.

. . .

And Your Honor, he honestly will not listen to me. . . . [H]e 

is upset I will not file motions that I have told him there are 

no legal bas[e]s to file. 

. . .

[W]e’ve sent [discovery] to him. We sent him the first group 

when he was out. We sent him another group when he was 

in custody. We’ve given it to him. I talked to him on the 

phone about the case . . . and the witnesses that we were 

interviewing just last week; we went over that. 
STATE v. COOPER

Decision of the Court

8

I went over his concerns, what he thinks the witnesses would 

say. Also we have a 40-minute jail visit to go over everything 

with him. 

. . .

We’ve done significant work on the case. We’ve done all the 

interviews. We’re ready to go . . . . 

¶19 In light of counsel’s comments, she and Cooper did 

communicate about this case. See State v. Ossana, 199 Ariz. 459, 461, ¶ 7

(App. 2001) (noting superior court determines credibility of witnesses). 

Further, her comments reveal that Cooper and his insistence in filing 

baseless motions caused the conflict between the two. Thus, the conflict 

was not “irreconcilable.” As a result, Cooper failed to make a sufficient 

showing of a fractured relationship that would require an evidentiary 

hearing. In any event, the court properly explored the bases of Cooper’s 

stated reasons for his request for substitute counsel, and Cooper does not

describe what additional facts would arise had a more formal hearing been 

conducted. See State v. Paris-Sheldon, 214 Ariz. 500, 505, ¶ 11 (App. 2007). 

No abuse of discretion occurred. 

IV. The Court Did Not Err By Declining to Sua Sponte Order an 

Evaluation of Cooper’s Competency to Stand Trial.

¶20 Finally, Cooper complains that the superior court should 

have sua sponte ordered an evaluation of his competency to stand trial. We 

disagree. When the court explored with Cooper the possibility of him 

proceeding pro per, the court found: “Obviously you have some college, 

you’re at least of a normal intelligence or probably higher than that. You 

have no psychiatric or psychological problems.” The court’s findings 

apparently were based, at least in part, on Cooper’s express assurances that

he was educated, “not incompetent[,]” and “not Rule 11.” See Ariz. R. Crim. 

P. 11 (describing procedures for determining a defendant’s mental 

competency to stand trial). On this record, although there are indications 

that Cooper suffered from a bipolar disorder as a juvenile, the court acted 

well within its discretion in declining to sua sponte order an evaluation of 

Cooper’s mental capacity for purposes of this trial. See Ariz. R. Crim. P. 

11.2 (stating “the court may, on motion or on its own, order a defendant’s 

examination”) (emphasis added). No error, fundamental or otherwise, 

occurred. 
STATE v. COOPER

Decision of the Court

9

CONCLUSION

¶21 Cooper’s convictions and sentences are affirmed.