IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

VINCENT MICHAEL ALLEN,

Appellant.

No. 2 CA-CR 2013-0194

Filed June 4, 2014

Appeal from the Superior Court in Pinal County

No. S1100CR201102161

The Honorable Gilberto V. Figueroa, Judge

AFFIRMED

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By David A. Sullivan, Assistant Attorney General, Tucson

Counsel for Appellee

Harriette P. Levitt, Tucson

Counsel for Appellant

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in 

which Chief Judge Howard and Judge Miller concurred.
STATE v. ALLEN

Opinion of the Court

2

V Á S Q U E Z, Presiding Judge:

¶1 After a jury trial, Vincent Allen was convicted of 

forgery and criminal trespass. The trial court sentenced him to ten 

years’ imprisonment for forgery and time served for criminal 

trespass. On appeal, Allen argues the state presented insufficient 

evidence to support a conviction for forgery. He also argues the 

court illegally sentenced him in absentia after he walked out of the 

courtroom during sentencing. For the reasons that follow, we affirm

Allen’s convictions and sentences.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences 

therefrom in the light most favorable to sustaining Allen’s 

convictions. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 

34 (App. 2008). In August 2011, Apache Junction Police Detective 

Stephen Jeansonne responded to a report from a gas station clerk, 

who had asked police to remove Allen from the premises.

Jeansonne found Allen standing in the parking lot outside of the gas 

station. He explained to Allen that he was “no longer welcome” 

there, asked him for his “date of birth, height, [and] weight, . . . and 

began to write out [a] written warning.” Allen identified himself as 

“Aubrey Swanson” and signed the warning using the false name. 

Jeansonne provided a copy of the warning to the gas station clerk 

and gave Allen the original.

¶3 Fifteen days later, Jeansonne responded to another 

report from the gas station and immediately recognized Allen from 

the previous incident. This time, Allen identified himself using his 

real name. When Jeansonne checked the clerk’s copy of the 

warning, he discovered the discrepancy. Allen confessed, “You got 

me,” and explained that he had given a false name because “[h]e 

was avoiding an outstanding criminal warrant at the time.”

¶4 Allen was arrested and charged with forgery, taking the 

identity of another person, and criminal trespass. At trial, at the 

state’s request, the court dismissed the charge of taking the identity 
STATE v. ALLEN

Opinion of the Court

3

of another.

1 At the close of the state’s case, Allen moved for a 

judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., on the 

forgery charge. He argued that the state “presented no evidence 

that a warrant really was outstanding so that he would have any 

reason or intent to be defrauding the officer.” The court denied the

motion, and the jury found him guilty of both remaining counts.

¶5 During sentencing, the trial court explained to Allen

that “the most appropriate sentence” for the forgery conviction was 

“the presumptive sentence because [the court could not] find any 

mitigating factors.” Allen then cursed at the judge and walked out 

of the courtroom. The court found he had “voluntarily absented 

himself” and proceeded to sentence Allen as described above. This 

appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-

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

Insufficient Evidence

¶6 Allen first argues there was insufficient evidence to 

support his conviction for forgery. The sufficiency of the evidence is 

a question of law we review de novo. State v. West, 226 Ariz. 559, 

¶ 15, 250 P.3d 1188, 1191 (2011). We will reverse “‘only if no 

substantial evidence supports the conviction.’” State v. Fimbres, 222 

Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App. 2009), quoting State v. Pena, 

209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App. 2005). “Substantial 

evidence is proof that ‘reasonable persons could accept as adequate 

. . . to support a conclusion of [a] defendant’s guilt beyond a 

reasonable doubt.’” State v. Bearup, 221 Ariz. 163, ¶ 16, 211 P.3d 684, 

688 (2009) (first alteration in Bearup), quoting State v. Jones, 125 Ariz. 

417, 419, 610 P.2d 51, 53 (1980).

¶7 Pursuant to A.R.S. § 13-2002(A)(1), “[a] person commits 

forgery if, with intent to defraud, the person . . . [f]alsely makes, 

completes or alters a written instrument.” A “[w]ritten instrument”

includes “[a]ny paper, document or other instrument that contains 

 

1Aubrey Swanson, Allen’s brother-in-law, “indicate[d] that he 

d[id] not want to pursue prosecution and that . . . Allen had 

permission to use his information.”
STATE v. ALLEN

Opinion of the Court

4

written or printed matter or its equivalent.” A.R.S. § 13-2001(12)(a); 

see State v. Bedoni, 161 Ariz. 480, 482-83, 779 P.2d 355, 357-58 (App. 

1989) (“written instrument” includes traffic citation). And, the 

intent to defraud may be shown through either direct or 

circumstantial evidence. State v. Thompson, 194 Ariz. 295, ¶ 13, 981 

P.2d 595, 597 (App. 1999).

¶8 The written warning that Jeansonne issued to Allen falls 

under the “broad statutory definition of a written instrument.” 

Bedoni, 161 Ariz. at 483, 779 P.2d at 358. And Allen’s use of a false 

signature on the warning constituted making or completing that

instrument pursuant to § 13-2002(A)(1).

2 Thus, the remaining issue 

is whether the state presented sufficient evidence of Allen’s intent to 

defraud.

¶9 In Bedoni, this court considered whether the use of a 

false signature on a traffic citation was sufficient evidence of the 

defendant’s intent to defraud. 161 Ariz. at 482-84, 779 P.2d at 357-59. 

In that case, an officer gave the defendant a citation during a traffic 

stop for driving without a license. Id. at 482, 779 P.2d at 357. The 

defendant signed the citation on the “‘promise to appear’ portion of 

the ticket” using a false name. Id. The defendant was charged with 

and convicted of forgery. Id.

¶10 On appeal, we first noted that a “promise to appear by a 

fictitious person is meaningless.” Id. at 484, 779 P.2d at 359. The 

false signature “deceive[d] the officer and the court system, not to 

mention risk[ed] trouble for some unknown person” bearing the 

same name. Id. In addition, the defendant would gain a benefit 

because “[i]t conceals the true identity of the perpetrator of the 

alleged crime and seeks to obtain the release, without incarceration, 

of someone not entitled to release.” Id. We concluded that “all of 

 

2Relying on State v. Singh, 4 Ariz. App. 273, 419 P.2d 403 

(1966), Allen maintains that “the use of the false name did not 

constitute an uttering.” His reliance on Singh is misplaced, however, 

because that case applied a former forgery statute distinct from § 13-

2002(A)(1), and an “uttering” is no longer an element of the offense. 

See Singh, 4 Ariz. App. at 276, 419 P.2d at 406.
STATE v. ALLEN

Opinion of the Court

5

these acts could be found by a jury to constitute an ‘intent to 

defraud.’” See id.

¶11 In this case, there was similar circumstantial evidence of 

Allen’s intent to defraud. Use of the false signature deceived the 

officer into believing the warning had been issued to the correct 

person. See id. But, a warning issued to and acknowledged by the 

wrong person “is meaningless.” Id. It created the “risk[ of] trouble” 

for some other person, in this case, Allen’s brother-in-law. Id. And, 

the court system was deprived of evidence that Allen had received 

notice he was no longer welcome at the gas station and would be 

arrested if he visited there again. See id. If any other officer had 

responded to the second report from the gas station, Allen would 

not have been recognized at all. “[A]ll of these acts could be found 

by a jury to constitute an ‘intent to defraud.’” Id.

¶12 Allen attempts to distinguish Bedoni, arguing that no 

one actually relied on his false signature, and, therefore, “the name 

[he] used was immaterial.” He notes that Jeansonne only “issued 

the warning citation for the purpose of advising [him] that he was 

no longer welcome at the [gas] station” but was able to identify

Allen approximately two weeks later without relying on the 

warning. Allen also argues that “[t]here was no evidence that the 

store clerk relied on the document when someone, either the same or 

a different store clerk, called the police two weeks later.”

¶13 But actual reliance is not required to show intent to 

defraud. Bedoni does not suggest that to establish intent, “all of the[] 

acts” described therein actually had to occur or did occur. 161 Ariz.

at 484, 779 P.2d at 359 (suggesting risk of trouble for “some 

unknown person” sufficient evidence of intent to defraud). Rather,

circumstantial evidence of the defendant’s desire for a result to 

occur was sufficient to show intent. See A.R.S. § 13-105(10)(a)

(“‘[W]ith the intent to’ means, with respect to a result or to conduct 

described by a statute defining an offense, that a person’s objective is 

to cause that result . . . .”); Thompson, 194 Ariz. 295, ¶ 13, 981 P.2d at 

597 (“[I]t is irrelevant whether anyone was actually injured.”).

¶14 Allen similarly argues that he did not receive an actual

benefit by using a false name because, contrary to his belief at the 
STATE v. ALLEN

Opinion of the Court

6

time, there was no outstanding warrant for his arrest, and because

his “significant criminal history” could not be used to enhance his 

sentence for the misdemeanor conviction for criminal trespass. This 

argument is unavailing for the same reasons discussed above. Only

Allen’s “objective” to cause a particular result through deception is 

relevant here. See § 13-105(10)(a). And, at the time of his arrest, 

Allen confessed he had intended to “avoid[] an outstanding criminal 

warrant.” See Thompson, 194 Ariz. 295, ¶ 13, 981 P.2d at 597. 

Therefore, sufficient evidence supports Allen’s conviction for 

forgery. See West, 226 Ariz. 559, ¶ 15, 250 P.3d at 1191.

Absence from Sentencing

¶15 Allen argues the trial court violated Rule 26.9, Ariz. R. 

Crim. P., when it sentenced him in absentia. Allen failed to raise this 

issue below. Because he did not object, he has forfeited review for 

all but fundamental, prejudicial error. See State v. Henderson, 210 

Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). To warrant reversal, 

Allen must show “that error occurred, that it was fundamental, and 

that it prejudiced him.” State v. Moreno-Medrano, 218 Ariz. 349, ¶ 16, 

185 P.3d 135, 140 (App. 2008).

¶16 Rule 26.9 provides that “[t]he defendant . . . shall be 

present at sentencing.” Thus, even if a defendant is absent 

voluntarily, “the trial judge, except in extraordinary circumstances, 

must postpone the imposition of sentence until such time as the 

defendant can be present.” State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 

208, 209 (1983). Compare Ariz. R. Crim. P. 9.1 (defendant may waive 

presence at criminal proceedings “[e]xcept as otherwise provided in 

these rules”), with Ariz. R. Crim. P. 26.9 (providing no exception for 

sentencing).

3

 

3A “‘reasonable and rational sentencing’” must include the 

“essential warnings and information” regarding appellate rights, as 

well as “‘[a] presentence report based upon personal interview, the 

defendant[’s] exercis[e of] his right of allocution, and a chance for 

the judge to personally question and observe the defendant.’” State 

v. Forte, 222 Ariz. 389, ¶ 17, 214 P.3d 1030, 1035 (App. 2009)

(alterations in Forte), quoting Fettis, 136 Ariz. at 59, 664 P.2d at 209. 
STATE v. ALLEN

Opinion of the Court

7

¶17 Here, the trial court had removed Allen for disruptive 

behavior earlier in the proceeding. When Allen returned, the court 

advised him that it was “making every effort to comply with [his] 

Constitutional rights to be present for this sentencing.” But, the 

court warned:

[I]f your outburst continues or if you cause 

any kind of a physical reaction, force the 

officers to restrain you or you put the 

officers in any kind of a danger or put 

[your counsel] or anybody else in any kind 

of danger from any physical act, I will have 

you removed and you’ll not be here for 

your sentencing.

After Allen made another outburst and walked out of the 

courtroom, the court found that he “voluntarily absented himself by 

walking away” and the court proceeded with sentencing. See Ariz. 

R. Crim. P. 9.1.

¶18 The state contends that Allen “waived his right to be 

present at sentencing by getting up and walking out of his own 

accord.” Relying on State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 

1288 (App. 1982), the state argues that “Arizona courts have long 

held a defendant may waive his presence at sentencing, so long as 

the waiver is knowing.” The state’s reliance on Pyeatt is misplaced. 

When Pyeatt, and the cases it relied upon were decided, Rule 26.9 

provided that the defendant “shall be present at sentencing” and 

also stated that the “failure of the defendant to appear for sentencing 

shall not delay the . . . entry of judgment and sentence.” 174 Ariz. 

LXXXVI (1993); see State v. Ellerson, 125 Ariz. 249, 252-53, 609 P.2d 64, 

67-68 (1980) (holding defendant who voluntarily absents himself 

may be sentenced in absentia); State v. Cook, 115 Ariz. 146, 148-49, 

564 P.2d 97, 99-100 (App. 1977), supp. op., 118 Ariz. 154, 155, 575 P.2d 

 

And, the committee comment to the 1993 amendment to Rule 26.9 

provides: “The 1993 amendment to Rule 26.9 deleted language to 

comply with [our supreme court’s] decision prohibiting sentencing 

in absentia.”
STATE v. ALLEN

Opinion of the Court

8

353, 354 (App. 1978) (same). In 1993, Rule 26.9 was amended, 

deleting the language that provided “failure of the defendant to 

appear for sentencing shall not delay the pronouncement and entry 

of judgment and sentence.” 174 Ariz. LXXXVI. As we noted above, 

the committee comment to the 1993 amendment to Rule 26.9 

provides that the amendment was intended “to comply with [our 

supreme court’s] decision prohibiting sentencing in absentia.”

¶19 In Fettis, our supreme court stated “[w]e do not retreat 

from our position that a defendant who voluntarily absents himself 

from a trial may be tried, convicted and adjudged guilty in 

absentia.” 136 Ariz. at 59, 664 P.2d at 209. But the court stated: “We 

do retreat from our previous position of allowing the defendant to 

be sentenced in absentia, except in extraordinary circumstances.” Id.

Accordingly, although we agree with the trial court’s conclusion that 

Allen “voluntarily absented himself” from the proceeding, that fact, 

standing alone, does not constitute an exceptional circumstance that 

would permit the court to sentence Allen in absentia. Indeed, “a

defendant’s decision to willfully avoid a sentencing hearing by 

becoming a fugitive [or refusing transport from the jail to the 

courthouse] has not been regarded as an extraordinary circumstance 

sufficient to justify conducting a sentencing in absentia.” Forte, 222 

Ariz. 389, ¶ 11, 214 P.3d at 1034. Under such circumstances, the 

court has “the means and authority to compel [a defendant]’s 

appearance regardless of whether [he or she chooses] to appear.” Id.

¶20 Here, the record does not support the trial court’s 

assertion that it had done “everything possible to keep him [in the 

courtroom].”4 While discussing with counsel whether or how to 

 

4The requirement of “exceptional circumstances” is rooted in 

common law doctrine. United States v. Songer, 842 F.2d 240, 242-43 

(10th Cir. 1988); Johnson v. State ex rel. Eyman, 4 Ariz. App. 336, 338, 

420 P.2d 298, 300 (1966); see also United States v. Leavitt, 478 F.2d 1101, 

1103-04 (1st Cir. 1973); United States v. DeValle, 894 F.2d 133, 138 n.2 

(5th Cir. 1990); United States v. Curtis, 523 F.2d 1134, 1135 (D.C. Cir. 

1975). Rule 43, Fed. R. Crim. P., now permits the federal courts to 

sentence a defendant in absentia based solely on a defendant’s 

waiver. See United States v. Achbani, 507 F.3d 598, 601 (7th Cir. 2007).
STATE v. ALLEN

Opinion of the Court

9

advise Allen of his right to an appeal, the court asked a detention 

officer if Allen was standing outside the courtroom. The officer 

replied that Allen had gone “downstairs.” The court took no action 

to have Allen brought back into the courtroom and instead

reasserted that “he [had] voluntarily walked out.” Moreover, 

although Allen left the courtroom during an emotional outburst, the 

court made it clear that “[h]e was not removed” for disruptive 

behavior. Therefore, the court erred in its decision to proceed with 

Allen’s sentencing in his absence. See Fettis, 136 Ariz. at 59, 664 P.2d 

at 209.

¶21 By failing to object below, however, Allen has forfeited 

the right to seek relief for all but fundamental, prejudicial error. See

Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Our supreme court 

has signaled that, at a minimum, sentencing in absentia is 

fundamental error. Fettis, 136 Ariz. at 58-59, 664 P.2d at 208-09

(reversing for error not raised below). A sentence in absentia “is a 

nullity” and requires resentencing. State v. Hensley, 160 Ariz. 557, 

558, 774 P.2d 1347, 1348 (1989); State v. Zavala, 136 Ariz. 356, 358 n.1, 

666 P.2d 456, 458 n.1 (1983). The court also has suggested that no 

prejudice results where the defendant is not physically present in 

the courtroom but nevertheless has fully participated in the 

sentencing hearing. See State v. Adler, 189 Ariz. 280, 284-85, 942 P.2d 

439, 443-44 (1997) (telephonic sentencing); see also Forte, 222 Ariz. 

389, ¶¶ 18-22, 214 P.3d at 1035-36 (prejudice analysis for sentencing

via audiovisual equipment). The circumstances of this case fall 

between that of an absconding defendant who was not present for 

any part of the sentencing hearing and one who, although not 

physically present, was able to participate through other means.

¶22 “We must therefore assess whether the conduct of 

[Allen]’s sentencing so insulted the basic framework of a criminal 

sentencing such that the proceeding could no longer serve its core 

function.” Forte, 222 Ariz. 389, ¶ 16, 214 P.3d at 1035. The 

“minimum requirements” for a “reasonable and rational sentencing”

include “[a] presentence report based upon [a] personal interview,”

an opportunity for the court to question and observe the defendant, 

an opportunity for the defendant to exercise his right of allocution, 
STATE v. ALLEN

Opinion of the Court

10

and essential warnings regarding the defendant’s appellate rights.

Fettis, 136 Ariz. at 59, 664 P.2d at 209.

¶23 Here, Allen was present for most of the sentencing 

hearing, during which the trial court addressed Allen’s criminal 

history, the presentence report, 5 a mental health report made 

pursuant to Rule 26.5, Ariz. R. Crim. P., and considered a 

presentence memorandum filed by Allen’s counsel. The court also 

noted that it had presided over the case for two years and was 

familiar with Allen. Allen essentially gave a brief allocution, 

addressing the severity of the recommended sentence, his concern 

for his family during his incarceration, his willingness to admit guilt,

and his mental competency. Although the court did not 

immediately pronounce his sentence, see Ariz. R. Crim. P. 26.10(b), it 

informed Allen that “the most appropriate sentence” for the forgery 

conviction was “the presumptive sentence because [the court could 

not] find any mitigating factors.” Allen has not described how he 

was prejudiced by the fact that the formal pronouncement of 

sentence did not immediately follow his allocution. Cf. State v. 

Anderson, 210 Ariz. 327, ¶¶ 100-01, 111 P.3d 369, 392 (2005) 

(defendant must argue specific prejudice when alleging violation of 

right to allocution before imposition of death sentence).

¶24 Nor can Allen show he has been prejudiced by the trial 

court’s failure to advise him of his appellate rights during 

sentencing. See Ariz. R. Crim. P. 26.11. The current appeal 

demonstrates that Allen was not prejudiced by the omission. In fact, 

after Allen walked out of the courtroom, defense counsel informed 

the court: “I have discussed [an] appeal with him, and I’m going to 

file a Notice of Appeal, so I don’t think you need to bring him back 

in to tell him that.” And, his counsel requested that the court 

appoint appellate counsel, which it did. Moreover, Allen still will 

have the opportunity to file a Rule 32, Ariz. R. Crim. P., petition for 

post-conviction relief “within thirty days after the issuance of the . . . 

 

5Although entitled to a presentence report based on a personal 

interview, see Forte, 222 Ariz. 389, ¶ 17, 214 P.3d at 1035, Allen 

refused to participate during his interview and “would not even 

confirm his correct name or date of birth.”
STATE v. ALLEN

Opinion of the Court

11

mandate in [this] appeal.” Ariz. R. Crim. P. 32.4(a); see also Ariz. R. 

Crim. P. 26.11 cmt. Therefore, although the court erred when it 

sentenced Allen outside of his presence, the decision was not 

fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 19, 

115 P.3d at 607.

Disposition

¶25 For the foregoing reasons, we affirm Allen’s convictions 

and sentences.