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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANK LEE CULVER, Appellant.

No. 1 CA-CR 15-0294

Appeal from the Superior Court in Apache County

No. S0100CR201300276

The Honorable Michael P. Roca, Judge Pro Tempore Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Emily Danies, Attorney at Law, Tucson

By Emily L. Danies

Counsel for Appellant

Frank Lee Culver, Douglas

Appellant
STATE v. CULVER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in 

which Judge Samuel A. Thumma and Judge Randall M. Howe joined.

C A T T A N I, Judge:

¶1 Frank Lee Culver appeals his conviction of second degree 

money laundering and the resulting sentence. Culver’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, she

found no arguable question of law that was not frivolous.

¶2 Culver filed a supplemental brief in which he raised the 

following issues: (1) whether evidence gathered at the time of his arrest

should have been excluded because the arrest may have been based on 

invalid warrants, (2) whether there was probable cause to arrest him for 

money laundering and possession of marijuana, (3) whether collateral 

estoppel precluded the State from refiling the money laundering charge, (4) 

whether the court violated his speedy trial rights, and (5) whether the court 

improperly denied his requests for hearings and for expert witnesses.

1

¶3 After considering the issues raised in Culver’s supplemental 

brief and searching the record for reversible error, see State v. Clark, 196 Ariz.

530, 537, ¶ 30 (App. 1999), we affirm his conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

¶4 In September 2013, Apache County Sheriff’s Deputy Clark 

stopped a car heading westbound on Interstate 40 for following too closely 

behind the car in front of it. Both the driver, Joshua Habig, and the 

passenger, Culver, gave Deputy Clark identification when asked. Habig 

also gave Deputy Clark a rental agreement indicating that the car had been 

rented by a third party who was not present in the vehicle. Both Habig and 

 

1 Culver also raises issues related to a civil forfeiture proceeding 

regarding property seized during his arrest. But this court previously held 

that Culver failed to properly challenge that proceeding, State ex rel. 

Brnovich v. Culver, 240 Ariz. 18 (App. 2016), and we will not revisit that 

decision through this appeal.
STATE v. CULVER

Decision of the Court

3

Culver told Deputy Clark they were driving to California, but they gave 

different stories about the reason for their trip.

¶5 Deputy Clark ran a warrant check on both men and began to 

write Habig a warning for following too closely. A dispatcher informed 

Deputy Clark that Culver was wanted on two California warrants, one for 

an unspecified non-extraditable felony offense, the other for felony parole 

violation. Deputy Clark arrested Culver, and while searching him 

discovered three envelopes in his pockets containing approximately 

$18,000.

¶6 After Deputy Clark finished filling out Habig’s warning 

citation, Habig consented to a search of the vehicle. This search yielded

$17,000 in cash-stuffed envelopes, 1.5 grams of marijuana, and trash bins in 

the trunk that “reeked” of marijuana odor and had marijuana residue inside 

of them.

¶7 Culver was arrested and charged with possession of 

marijuana, possession of drug paraphernalia, and money laundering. The 

justice court initially dismissed the money laundering charge, finding that 

the State did not establish probable cause because Culver had receipts for 

the money found in the vehicle. The State refiled the money laundering 

charge, however, after Habig admitted that he and Culver were driving to 

California to purchase marijuana. The court eventually dismissed the

possession charges because Culver was a California medical marijuana 

cardholder. See Ariz. Rev. Stat. (“A.R.S.”) § 36-2811(B)(1).

2

¶8 A jury convicted Culver of money laundering in the second 

degree. The jury found two aggravating circumstances: the presence of an 

accomplice and the commission of the crime for pecuniary gain. Culver 

also admitted two prior felony convictions; the record suggests—and 

Culver does not dispute—that these convictions qualify as historical prior 

felony convictions under A.R.S. § 13-105(22). The court found as mitigating 

circumstances Culver’s openness to rehabilitation and his family support 

network. The court sentenced Culver as a repetitive offender to a slightly 

aggravated term of 13 years in prison, with credit for 528 days of 

presentence incarceration. Culver timely appealed.

 

2 Absent material revisions after the relevant date, we cite a statute’s 

current version.
STATE v. CULVER

Decision of the Court

4

DISCUSSION

I. Culver’s Supplemental Brief.

A. Motion to Suppress.

¶9 Culver argues that the evidence obtained during the search 

incident to arrest and the search of the rental car should have been 

suppressed because the arrest was based on invalid warrants. The superior 

court denied Culver’s motion to suppress, finding that Deputy Clark had 

“a number of reasons that he could legally search [the] vehicle” even if the 

arrest warrants had been defective.

¶10 In reviewing the court’s denial of Culver’s motion to 

suppress, “[w]e defer to the court’s factual findings, but review its legal 

conclusions de novo.” State v. Bennett, 237 Ariz. 356, 358, ¶ 8 (App. 2015). 

We review only the evidence presented at the suppression hearing, and 

consider it in the light most favorable to sustaining the court’s ruling. State 

v. Brown, 233 Ariz. 153, 156, ¶ 4 (App. 2013). “We will uphold the court’s 

ruling if legally correct for any reason supported by the record.” State v. 

Childress, 222 Ariz. 334, 338, ¶ 9 (App. 2009).

¶11 Culver’s argument fails because Habig consented to Deputy 

Clark searching the car. See United States v. Matlock, 415 U.S. 164, 169–70

(1974). Moreover, as the superior court noted at the suppression hearing, 

there were additional bases for the search. For example, the search was 

proper under the automobile exception to the warrant requirement of the 

Fourth Amendment, which allows an officer to search a “readily mobile 

vehicle” if there is probable cause to do so. State v. Reyna, 205 Ariz. 374, 375, 

¶ 5 (App. 2003). Deputy Clark indicated that he smelled marijuana before 

searching the car, the person listed on the rental agreement was not present, 

and Habig and Culver gave inconsistent stories when asked why they were 

going to California. These factors gave Deputy Clark probable cause to 

search the car without a warrant under the automobile exception.

¶12 Culver’s reliance on State v. Sweeney, 224 Ariz. 107 (App. 

2010), is misplaced. In Sweeney, an officer allowed the defendant to return 

to his car following a traffic stop, then called out to the defendant, asking

for consent to search the vehicle. Id. at 109, ¶ 5. When the defendant 

declined, the officer detained him, waited for a second officer to arrive, and 

searched the vehicle. Id. at 109–10, ¶¶ 5–6. This court held that the search 

was illegal because the defendant’s denial of consent did not give the officer 

reasonable suspicion to initiate a second detention and a search. Id. at 114–
STATE v. CULVER

Decision of the Court

5

15, ¶¶ 30–32. Here, Habig consented to the search. Accordingly, Sweeney

is inapposite.

B. Probable Cause for Arrest.

¶13 Culver argues that Deputy Clark lacked probable cause to 

arrest him for money laundering because possession of a large sum of 

money is not a crime. Culver’s argument fails because, as relevant here, a 

person commits money laundering when he “[a]cquires or maintains an 

interest in, transacts, transfers, transports, receives or conceals the existence 

or nature of racketeering proceeds knowing or having reason to know that 

they are the proceeds of an offense.” A.R.S. § 13-2317(B)(1). The purchase 

and sale of marijuana are racketeering offenses. A.R.S. §§ 13-2317(F)(3)(c), 

-2301(D)(4)(b)(xi). An officer has probable cause that an offense has been 

committed when he observes “facts as would lead a man of ordinary 

caution or prudence to believe, and conscientiously entertain a strong 

suspicion of guilt.” State v. Emery, 131 Ariz. 493, 506 (1982) (citation 

omitted).

¶14 As Deputy Clark arrested Culver for money laundering, he 

told Culver “you can’t have that much cash and be running around with it, 

it’s considered money laundering.” Culver points to this statement as proof 

that Deputy Clark arrested Culver solely because he was found with a large 

amount of money. But Culver’s argument ignores other evidence observed 

by Deputy Clark, such as the bins with marijuana residue and Culver and 

Habig’s inconsistent statements about the nature of their trip. Deputy Clark 

could reasonably infer from this evidence that the money was connected to 

the sale of drugs and that he had probable cause to arrest Culver and Habig

for money laundering. See Maryland v. Pringle, 540 U.S. 366, 373 (2003)

(holding an officer could infer a common illegal enterprise among all 

passengers in a vehicle where drugs and a large sum of cash were present).

¶15 Culver also argues that Deputy Clark lacked probable cause 

to arrest him for possession of marijuana and paraphernalia, because 

Culver could legally possess the small amount of marijuana found in the 

vehicle. But Culver initially denied that the drugs were his, without 

indicating that he had a medical marijuana card. And in any event, this 

issue is moot because there was clearly probable cause to arrest him for 

money laundering.

C. Collateral Estoppel.

¶16 Culver argues that the doctrine of collateral estoppel 

precluded the State from refiling the money laundering charge after the 
STATE v. CULVER

Decision of the Court

6

justice court dismissed it. Collateral estoppel precludes re-litigation of an 

issue of ultimate fact already determined in a previous final judgment

involving the same parties. State v. Jimenez, 130 Ariz. 138, 140 (1981). But a

dismissal without prejudice is not a final judgment for purposes of 

collateral estoppel, State v. Greenberg, 236 Ariz. 592, 599, ¶ 30 (App. 2015).

And here, the court dismissed Culver’s original money laundering charge 

without prejudice after determining there was no probable cause to bind 

the case over to superior court. Accordingly, the dismissal did not preclude 

prosecutors from refiling the charge after Habig confessed that they 

intended to use the money to purchase drugs. See also Ariz. R. Crim. P. 5.4

cmt. to 2007 amend. (noting that after a magistrate dismisses a case for lack 

of probable cause, the prosecutor thereafter may file another complaint); 

State v. Elling, 19 Ariz. App. 317, 318 (App. 1973).

D. Speedy Trial.

¶17 Culver alleges that the superior court violated his speedy trial 

rights under Rule 8 of the Arizona Rules of Criminal Procedure, and under 

the United States and Arizona Constitutions. See U.S. Const. amend. VI;

Ariz. Const. art. 2, § 24. In the absence of excludable time, Rule 8.2(a)(1) 

required that Culver be brought to trial by May 29, 2014, 150 days after his 

arraignment. Excludable time includes any delays occasioned by Culver or 

on his behalf. Ariz. R. Crim. P. 8.4(a).

¶18 Culver’s trial began on February 11, 2015, which was 259 days 

beyond the initial speedy trial deadline. We generally review the superior

court’s decision to exclude time for an abuse of discretion. State v. Spreitz, 

190 Ariz. 129, 136 (1997). But because Culver only alleged a speedy trial 

violation once, on June 5, 2014, we review any alleged violations after that 

date only for fundamental, prejudicial error. See State v. Henderson, 210 

Ariz. 561, 567, ¶¶ 19–20 (2005).

¶19 Culver has not established that the court abused its discretion 

by denying his asserted speedy trial violation, and there was no 

fundamental error from that point forward, particularly in light of Culver’s 

failure to alert the court to any asserted speedy trial violation. See Spreitz, 

190 Ariz. at 138.

¶20 The court initially set a trial date of April 16, 2014, within the 

original 150-day limit. Culver thereafter filed two motions for a change of 

judge that caused delays of 9 and 21 days, respectively. The court vacated

the original trial date when Culver requested advisory counsel only two 

weeks before trial. This led to a delay of 60 days, which ended when the 
STATE v. CULVER

Decision of the Court

7

court set a new July trial date. Culver filed his allegation of a speedy trial 

violation shortly after this delay. Because all delays to that point had been 

occasioned by Culver or were on his behalf, the court did not abuse its 

discretion by denying Culver’s speedy trial allegation.

¶21 Any delay following the denial of Culver’s speedy trial 

allegation did not result in fundamental, prejudicial error. All the time 

between June 11 and July 8 was excludable due to two continuances on 

Culver’s behalf and the entry of a stay. The court set a new October trial 

date after this delay, but this trial date was vacated when Culver again filed 

a motion for a change of judge, which was denied 36 days later. After 27

more days of delay, the court set a trial date of February 11, 2015. Culver 

also filed no fewer than nine motions to dismiss during the pendency of the 

case, and even though the court did not explicitly exclude time every time 

Culver’s motions caused a delay, the motions to dismiss created delay 

attributable to Culver and did not result in a speedy trial violation.

¶22 Moreover, even assuming Culver’s trial was held outside the 

Rule 8 time limits, he is not entitled to relief because he has not established 

that he was prejudiced by the delay. See State v. Vasko, 193 Ariz. 142, 147, 

¶ 22 (App. 1998). A speedy trial violation is only prejudicial when the 

defendant can show “that his defense has been harmed by the delay.” Id. 

Although Culver alleges that he lost contact with witnesses because of the 

delay, he does not point to any specific evidence in the record supporting 

this claim, and our independent review of the record reveals none.

¶23 The record similarly does not support Culver’s argument 

asserting a constitutional speedy trial violation. When analyzing a 

potential constitutional speedy trial violation, courts consider “1) the length 

of the delay; 2) the reason for the delay; 3) whether the defendant has 

demanded a speedy trial; and 4) the prejudice to the defendant.” State v. 

Lukezic, 143 Ariz. 60, 69 (1984) (citing Barker v. Wingo, 407 U.S. 514 (1972)). 

Prejudice is the most important factor in determining whether a 

constitutional speedy trial violation has occurred. Spreitz, 190 Ariz. at 139–

40. Culver has not established prejudice, and no other factor militates 

significantly in his favor. Accordingly, he is not entitled to a reversal of his 

conviction on this basis.

E. Denial of Hearings, Oral Arguments, and Expert Witnesses.

¶24 Culver argues that the court erred by denying his requests for 

hearings and oral arguments on his motions. But hearings and arguments 

are not automatically required upon request, and under Rule 35.2 of the 
STATE v. CULVER

Decision of the Court

8

Arizona Rules of Criminal Procedure, “[t]he court may limit or deny oral 

argument on any motion.” This rule is designed “to give the court 

maximum discretion in deciding what procedures” to use when ruling on 

written motions. Ariz. R. Crim. P. 35.2 cmt. Here, Culver does not point to 

unresolved fact issues that required a hearing, and the court did not abuse 

its discretion when it ruled on many of Culver’s motions by court order 

without oral argument.

¶25 Culver also claims that the court erred by rejecting his 

requests for expert witnesses. Although the court must provide an indigent 

defendant with an expert witness when such a witness is reasonably 

necessary, Ariz. R. Crim. P. 15.9(a), the determination of necessity is within 

the court’s discretion. Jones v. Sterling, 210 Ariz. 308, 315, ¶ 29 (2005). 

Culver requested an expert on police misconduct, an expert on GPS who 

could testify as to whether Habig was speeding at the time of the stop, an 

expert on selective enforcement, and an expert on civil forfeiture. The court 

did not abuse its discretion by denying these requests because Culver’s 

motions did not demonstrate how any of these expert witnesses would be 

reasonably necessary. See State v. Apelt, 176 Ariz. 369, 375 (1993) (“Mere 

undeveloped assertions that the requested assistance would be beneficial 

are not enough.”) (quotation omitted).

II. Fundamental Error Review.

¶26 We have read and considered counsel’s brief and have 

reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find 

none.

¶27 Culver was present and was represented by counsel or by 

himself at all stages of the proceedings against him.3 The record reflects 

that the superior court afforded Culver all his constitutional and statutory 

rights, and that the proceedings were conducted in accordance with the 

Arizona Rules of Criminal Procedure. The court conducted appropriate 

pretrial hearings, and the evidence presented at trial and summarized 

above was sufficient to support the jury’s verdict. Culver’s sentence falls

 

3 The record does not indicate whether Culver’s advisory counsel was 

present at a status conference held on May 12, 2014. However, even if it 

were error for the court to hold this hearing without Culver’s advisory 

counsel present, there is no indication that her absence from this brief 

hearing, during which the court made no substantive rulings, prejudiced 

Culver. See Henderson, 210 Ariz. at 567, ¶ 20.
STATE v. CULVER

Decision of the Court

9

within the range prescribed by law, with proper credit given for

presentence incarceration.

CONCLUSION

¶28 Culver’s conviction and sentence are affirmed. After the 

filing of this decision, defense counsel’s obligations pertaining to Culver’s 

representation in this appeal will end after informing Culver of the outcome 

of the appeal and his future options, unless counsel’s review reveals an 

issue appropriate for submission to the Arizona Supreme Court by petition 

for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s 

own motion, Culver has 30 days from the date of this decision to proceed, 

if he desires, with a pro se motion for reconsideration or petition for review.