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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appell ee

,

v.

PETER J

. WORKUM

, Appell ant

.

N o . 1 CA

- CR 17

- 0306

1 CA

- CR 19

- 0127 PRPC

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2012

- 00 9416

- 001 DT

The Honorable Pamela S

. Gates

, Judge

AFFIRMED ; REVIEW GRANTED; RELIEF DENIED

COUNSEL

Arizona Attorney General’s Office , Phoenix

By Michelle L

. Hogan , Mary L. Harriss

Counsel for Appell ee

Christian Dichter & Slug a

, P

. C

. , Phoenix

By Stephen M

. Dichter, Daniel B

. Bernardone

C ounsel for Appell ant FILED 1-14-2020STATE v. WORKUM

Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in

which Judge Diane M. Johnsen and Judge James B. Morse Jr. joined.

J O N E S

, Judge:

¶1 Peter Workum appeals his conviction s and sentences for theft,

money laundering in the first degree , fraudulent schemes and artifices , and

residential mortgage fraud

. He further seeks review of the superior court’s

denial of his p etition for p ost

- conviction relief (PCR)

. For the following

reasons, we affirm his convictions and sent ences, grant review of the denial

of his PCR, and deny relief

.

FACTS AND PROCEDURAL HISTORY

¶2 Between 200 5 and 200 7

, the victim and his w ife worked with

an attorney to form a limited liability company

, Dev e ras, L.L.C. 1 Based

up on a miscommunication with counsel

, t he articles of organiz ation were

never filed with the Stat e

. Mistakenly believing the company had been

properly formed

, the victim transferred the deed to his home to Dev e ras,

L.L.C

.

¶3 In 2010 and 2011

, the victim and Chad K

. imported and

distributed chlorine through a series of separate limited liability companies

(collectively, Shiner) financed in part by loans from the victim and Owen F

. Chad , a certified public accountant

, managed Shiner and handl ed all its

finances

.

¶4 By the summer of 2011, Shiner struggled to repay its debts

, and Owen told Chad that Workum might be interested in provid ing a cash

advance to Shiner

. At an informal meeting, Chad and Workum discussed

the details of a short

- term loan with a high interest rate , but nothing was

reduced to writing

. A t some point

, Workum advised Chad that “if [Shiner]

1 “ We view the facts in the light most favorable to sustaining the

convictions with all reasonable inferences resolved against the defendant. ”

State v. Harm , 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.

Valencia , 186 Ariz. 493, 495 (App. 1996)).STATE v. WORKUM

Decision of the Court

3 were to default or if anything happens, I ’ m coming after you . . . I’m coming

after everything .” The victim did not hear the details of t he loa n

, did not

agree to the specific terms of the loan , and did not pledge his personal assets

as collateral for Shiner’s debt

.

¶5 In September 2011, Workum wire d $25,000 to Owen , who

then transferred $2 3 ,000 to Shiner

. When Shiner failed to repay the loan

, Workum focused his repayment efforts at Shiner and Chad, eventually

filing an involuntary bankruptcy petition against Shiner claiming Workum

was owed $40,700 on the loan.

¶6 Meanwhile, i n October 2011

, Workum filed articles of

organization for Dev e ras, L.L.C. that identified Workum as its manager

. Having assumed control of the company the victim believed he had created

several years earlier, Workum transferred the victim’ s home

— the title to

which was already held by Deveras , L.L.C.

— to a different company

Workum controlled

. A lthough Workum met with Owen and the victim to

discuss the outstanding loan

, Workum never told either that he was

actively pursuing the victim ’s personal assets as repayment

.

¶7 A few months later, by claiming he lawfully owned the home

, used it as a rental property

, and did not want to inform the tenants of the

loan , Workum was able to obtain a $220,000 non

- recourse loan from CTP

Funding, L.L.C. (CTP) , which was secured by a deed of trust on the ho me

. Workum then distribut ed the proceeds of the loan to various other

companies he controlled

. Workum transferred the beneficial interest in the

deed of trust securing $137,000 in debt to Owen, who understood he w ould

receive the funds after the victim’ s home was sold at a trustee sale

.

¶8 By April 2012, Workum had not made any payments on the

loan and CTP initiated a trustee sale of the victim ’s home. Upon receiving

notice of the sale, the victim contacted Workum, CTP, and an investigator

with the Arizona Attorney General ’ s Office

. Workum relinquished his

interest in Deveras , L.L.C. back to the victim but did not repay CTP or

transfer the victim ’s home to the victim or Deveras

. The trustee ’ s sale was

canceled, and title insurance covered CTP ’ s loss

.

¶9 T he State ultimately prosecuted Workum for two count s of

theft of property valued at more than $25,000 ( c ount s 1 and 4 ), two counts

of money laundering in the first degree (counts 2 and 6), one count of

fraudulent schemes and artifices ( count 3), and one count of residential

mortgage fraud (count 5)

. After an eleven

- day trial, the trial court denied

Workum’s motion for judgment of acquittal , and the jury found him guiltySTATE v. WORKUM

Decision of the Court

4 on all counts

. The co urt then sentenced Workum to concurrent term s of

imprisonment

, the longest of which was five years

.

¶10 Workum timely appeal ed

. While the appeal was stayed,

Workum filed a timely petition for PCR

. The superior court held

evidentiary hearing s and denied relief

. Workum petitioned for review

, and

we gran ted his request to c onsolidate the petition and appea l. See Ariz. R.

Crim. P. 31.4(b). 2 We have jurisdiction over both matters pursuant to

Arizona Revised Statutes (A.R.S.) §§ 12

- 120.21 (A)(1) , 13

- 4031,

- 4033(A) (1)

, and Arizona Rule of Criminal Procedure 32 .9

.

DISCUSSION

I. Sufficien t Evidence Supports the Verdicts.

¶11 Workum argues the trial court erred in denying his motion

for judgment of acquittal because insufficient evidence support s his

convictions. We review claim s of insufficient evidence de novo and will

affirm so long as the record contains substantial evidence to support the

ver dicts

. State v. West , 226 Ariz. 559, 562, ¶ ¶ 15

- 16 (2011)

. Substantial

evidence is evide nce that, when viewed in the light most favorable to

sustaining the verdict, “reasonable persons could accept as adequate and

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

reasonable doubt.” Id. at ¶ 16 (quoting State v. Mathers , 165 Ariz. 64, 6 7

(1990) )

. We do not distinguish between direct and circumstantial evidence

, State v. Stuard

, 176 Ariz. 589, 603 (1993) (citing State v. Harvill

, 106 Ariz. 386,

391 (1970))

, or reweigh the evidence

, State v. Tison

, 129 Ariz. 546, 552 (1981)

(collecting cases)

. Applying this standard, we find no error in Workum’s

convictions.

¶12 Workum argues, generally, that the State failed to prove

criminal intent because he presented testimony that conflicted with the

State’s theory

. But substantial evidence may exist even when the jury hears

conflicting evidence

. S ee State v. Felix , 234 Ariz. 118, 120

- 21, ¶ 10 (App. 2014)

(citing State v. Soto

- Fong , 187 Ariz. 186, 200 (1996)) . The weight given to

witness testimony at trial is a question of credibility left entirely to the jury.

Id. Additionally

, criminal intent is typically prove n by circumstantial

evidence. Harm

, 236 Ariz. at 406, ¶ 13 (cit ing State v. Lester

, 11 Ariz. App.

408, 410 (1970), and then State v. Routhier

, 137 Ariz. 90, 99 (1983) ). T he

2 Absent material changes from the relevant date, we cite the current

version of rules and statutes.STATE v. WORKUM

Decision of the Court

5 record contains substantial circumstantial evidence that Workum

, an experienced businessman, acted deliberately to use the victim’s property to

pay Shiner’s debts without the victim’s permission

. Thus, sufficient

evidence supports the jury’s determination that Workum possessed the

requisite criminal intent, as well as the remaining elements, of each count.

See infra ¶ ¶ 13

- 16.

A. Counts 1 and 4: Theft

¶13 As relevant here, a person is guilty of theft if, without lawful

authority, he “ knowingly . . . [ c ] ontrol s property of another with the intent

to deprive the other person of such property ” or “[ o ] btain s property of

another by means of any material misrepresentation with intent to deprive

the other person of such property

, ” and the property is valued at $25,000 or

more. A.R.S. § 13

- 1802(A)(1), (3)

, (G). As to count 1

, substantial evidence

showed that Workum filed articles of organization falsely establish ing

himself as manager of Deveras , L.L.C. and then transferred title of the

victim ’s home

, valued at over $ 2 00,000, to a company Workum controlled

. Additionally, t he victim testified he did not pledge his home as collateral

for the loan to Shiner and did not au th orize the transfer of the deed

. As to

count 4, substantial evidence showed that Workum obtain ed the $220,000

loan from CTP by misrepresent ing the purpose of the loan and the

circumstances surrounding his ownership of the property he pledged as

security for the loan

.

B. Counts 2 and 6: Money Laundering in the First Degree

¶14 A person is guilty of money laundering in the first degree if

he “[k] nowingly initiates, organizes, plans, finances, directs, manages,

supervises or is in the business of money laundering

. ” A.R.S. § 13

- 2317(A)(1). A person commits money laundering if he “ acquir es or

maintains an interest in

, transacts, transfer s

, transports, rece ives or conceal s

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).

R acketeering activity includes theft committed for financial gain

. A.R.S.

§ § 13

- 2301 (D) ( 4)(b) (v)

, - 2317( F)(3)(c)

. For count s 2 and 6

, substantial

evidence showed that Workum obtained control of the victim ’s home and

the proceeds of a loan secured by that home by means of theft

. Workum

then transferr ed the home and the proceeds of the loan to various

companies he controlled

. A dditionally, a n investigator testified for the

State that disbursing funds to multiple companie s

, or “layering

, ” is a

common method of concealing unlawful conduct

.STATE v. WORKUM

Decision of the Court

6 C. Count 3: Fraudulent Schemes and Artifices

¶15 A person is guilty of fraudulent schemes and artifices if he

“pursuant to a scheme or artifice to defraud, knowingly obtain s any benefit

by means of false or fraudulent pretenses, representations, promises or

material omissions

. ” A.R.S. § 13

- 2310 (A). As to count 3

, substantial

evidence showed that Worku m obtained the CTP loan by lying about the

circumstances of his ownership interest in the victim’s home and its

occupancy, effectively preventing CTP from communicating with the

victim

.

D. Count 5: Residential Mortgage Fraud

¶16 A person is guilty of residential mortgage fraud if

, “ with the

intent to defraud, the person . . . [k] nowingly makes any deliberate

misstatement, misrepresentation or material omission during the mortgage

lending process that is relied on by a mortgage lender, borrower or other

party to the mortgage lending p rocess. ” A.R.S. § 13

- 2320 (A) (1)

. As to count

5, substantial evidence showed CTP relied up on deliberately false

information provided by Workum during the mortgage lending process

.

II. Preclusion of Victim ’s Prior Business Transactions Was Not

Prejudicial

.

¶17 Workum argues the trial court erred in precluding evidence

that the victim defraud ed lenders and investors in prior business

transactions

. On appeal, Workum contends th e evidence was admissible

under Arizona Rule of Evidence 404(b) and as third

- party culpabilit y

evidence

. 3 Because Workum did not move to admit the evidence on th ese

theories at trial

, he has waived all but fundamental error review. See State

v. Hargrave , 225 Ariz. 1, 11, ¶ 28 (2010) (citing State v. Henderson

, 210 Ariz.

561, 56 7

- 6 8, ¶ ¶ 19

- 20 (2005) ) ; State v. Bolton

, 182 Ariz. 290, 304 (1995)

( limiting consideration of evidentiary theories advanced for the first time

on appeal to fundamental error review ).

¶18 To establish fundamental error, a defendant must show that

error occurred and that the error w as so egregious t he defendant could not

possibly have received a fair trial

, the error went to the foundation of the

3 Workum concedes that no legal authority supports admission of the

evidence under Arizona Rule of Evidence 404(a)(2), which conditionally

permits “[e]vidence of a pertinent trait of character of the victim of the crime

offered by an accused.” See State v. Coghill , 216 Ariz. 578, 582 (App. 2007)

(identifying other limitations on the admissibility of other

- act evidence).STATE v. WORKUM

Decision of the Court

7 case

, or the error took from the defendant a right essential to his defense

. State v. Escalante

, 245 Ariz. 135, 142, ¶ 21 (2018) (citing Henderson

, 210 Ariz.

at 568, ¶ 23)

. If fund amental error is established under either of the latter

two circumstances

, the defendant must also prove prejudice. Id

. (citing

Henderson

, 210 Ariz. at 568, ¶ 26).

¶19 Workum fails to prove that the preclusion of the evidence was prejudicial or deprived him of a fair trial. Although the trial court

prevented Workum from eliciting testimony about specific business

transactions to show the victim had a history of “scammin g” lenders and

investors, the court did allow Workum to question the victim about using

funds from a relative ’s company to invest in Shiner and permitted the

victim’s business associate to testify that the victim was not entirely

trustworthy. Workum also elicited testimony that the victim had a history

of unwise business decisions. Workum then painted the victim as a “crook”

and liar in his closing argument. Thus, the jury hear d evidence and

argument that the victim mis handled investment s and lacked

trustworthiness in business relationships

, and n o fundamental, prejudicial

error occurred.

III. Trial Counsel ’s Absence During the Verdicts Was Not Structural

Error.

¶20 Workum argues his trial counsel ’ s absence when the jury

returned its verdicts depriv ed him of his constitutional right to counsel

. 4

See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall

. . . have the Assistance of Counsel for his defence.”)

. Workum did not raise

this argument with the trial court but contends on appeal that the

circumstances constitut e structural error

. We review Sixth Amendment

issues de novo

. State v. Rasul

, 216 Ariz. 491, 493

, ¶ 4 (App. 2007) (citing State

v. Glassel

, 211 Ariz. 33, 50, ¶ 59 (2005), and United States v. Goldberg

, 67 F.3d

1092, 1097 (3d Cir. 1995))

.

¶21 A criminal defendant has the right to assistance of competent

counsel at trial at every stage of the proceedings where the “substantial

4 To the extent Workum asserts that trial counsel’s absence constituted

ineffective assistance of counsel, we address the argument solely in the

c ontext of our PCR review. See State v. Spreitz

, 202 Ariz. 1, 3, ¶ 9 (2002)

(reiterating that “the appellate court simply will not address” ineffective

assistance of counsel claims on direct appeal, as such claims “are to be

brought in Rule 32 proceedings”)

.STATE v. WORKUM

Decision of the Court

8 rights of the accused may be affected.” State v. Conner

, 163 Ariz. 97, 104

(1990). Counsel’s absence constitutes s truct ural error where the “ fail [ ure ]

to subject the prosecution ’s case to meaningful adversarial testing ” renders

“ the adversary process presumptively unreliable

. ” Glassel

, 211 Ariz. at 51,

¶ 62 (quoting United States v. Cronic

, 466 U.S. 648, 659 (1984) )

.

¶22 Th e record does not support the contention that Workum ’ s

trial counsel completely failed to subject the State’s case to adversarial

testing. Although trial counsel was absent w hen the jury returned guilty

verdicts, he was present for all other critical stage s of the proceedings,

conducted pretrial litigation, called and cross

- examined witnesses, and

presented evidence and argument on Workum ’s behalf

. See, e.g.

, id. at ¶ 6 4

( rejecting a claim of deprivation of counsel where the record demonstrated

that trial counsel had presented arguments and evidence). A ddition ally

, Workum ’ s Knap p counsel 5 actively participated throughout trial and was

present when the jury returned guilty verdicts

. On this record, n o

structural error occurred

.

IV. Workum Did Not Prove Ineffective Assistance of Trial Counsel

.

¶23 Workum contends the superior court erred in denying his

PCR petition based on his claim of ineffective assistance of trial counsel

. 6

Workum argued counsel was ineffective because he was unreceptive to

Workum’s comments, improperly advised him not to testify, and rushed

through the trial to go on vacation. Workum also argued he committed the

offenses based upon advice from civil counsel, believing his actions to be

lawful, and trial counsel failed to present an advice

- of

- counsel defense. If

available, 7 an advice

- of

- counsel defense requires a showing that:

5 Pursuant to Knapp v. Hardy , 111 Ariz. 107, 111 (1974), privately

ret ained counsel may associate with appointed counsel in representing a

criminal defendant.

6 Workum is precluded from raising any issues that were raised or

could have been raised on appeal. Ariz. R. Crim. P. 32.2(a). Accordingly,

w e decline to address a ny issues that exceed the scope of the claim of

ineffective assistance of counsel.

7 Although the parties, Workum’s trial counsel, and the superior court

seem to accept this premise, it is unclear whether an “advice of counsel”

defense exists in Arizona. We have identified no Arizona case law on theSTATE v. WORKUM

Decision of the Court

9 1) [the defendant] placed all the relevant facts known to him

before his counsel 2) counsel rendered an opinion on the

propriety of a particular course of a ction 3) he believed that

the opinion was rendered in good faith, and 4) in reasonable

reliance upon that opinion he engaged in a course of action

which corresponded with his counsel ’ s opinion

.

State v. Fendler , 127 Ariz. 464, 478 (App. 1980) (identifying “general rule” of

advice

- of

- counsel defense under federal law) (citing United States v. Danser

, 26 F.R.D. 580, 587 ( D. Mass. 1959), and Bursten v. United States , 395 F.2d 976

(5th Cir. 1968)).

¶24 W e will not disturb a superior court ’ s ruling on a petition f or

PCR absent an abuse of discretion

. State v. Gutierrez , 229 Ariz. 573, 577, ¶ 19

(2012) (citing State v. Bennett , 213 Ariz. 562, 566, ¶ 17 (2006))

. A defendant

bears the burden of showing the court abused its discretion. State v. Poblete

, 227 Ariz. 537, 538, ¶ 1 (App. 2011). On review, w e accept the court’s factual

findings unless clearly erroneous, but review legal conclusions and any

alleged const itutional issues de novo

. State v. Pandeli , 242 Ariz. 175, 180,

¶¶ 3

- 4 (2017).

¶25 To prevail on a claim of ineffective assistance of counsel, a

defendant must show that counsel’s performance fell below objectively

reasonable standards and that the deficient performance prejudiced the

defense

. Strickland v. Washington , 466 U.S. 668, 687 (1984); State v. Nash , 143

Ariz. 392, 397 (1985). To establish prejudice, a defendant must show there

is “ a reasonable probability that, but for counsel’s unprofessional erro rs, the

result of the proceeding would have been different.” Strickland , 466 U.S

. at

694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id . A criminal defendant does not have the

right to “perfect counse l, only competent counsel,” State v. Valdez , 160 Ariz.

9, 15 (1989), overruled on other grounds by Krone v. Hotham , 181 Ariz. 364, 366

(1995), and ineffectiveness must be “ a demonstrable reality rather than a

matter of speculation, ” State v. Mc Call , 1 60 Ar iz. 1 19 , 1 27 (198 9 ) (citation

omitted)

.

subject, and, on its face, the theory appears contrary to our legislature’s

decree that “[i]gnorance or mistake as to a matter of law does not relieve a

person of criminal responsibility.” A.R.S. § 1 3

- 204. Because Workum fails

to prove the defense was viable, see infra ¶ 28, we do not address the issue,

which was neither briefed nor argued.STATE v. WORKUM

Decision of the Court

10 ¶26 H ere, t he trial court found Workum raised colorable claims of

ineffective assistance of trial counsel and conducted bifurcated evidentiary

hearing s . At the hearing s

, Workum testified t o the deficiencies identified

above. See supra ¶ 23. Workum’s t rial c ounsel testified that he presented a

strategically targeted defense, did not rush the trial for personal reasons,

and maintained a good working relationship with Workum throughout the

trial

. And, t rial counsel was assisted by Knapp counsel and a defense

investigator in presenting Workum ’ s case

. Workum’s civil counsel did not

testify regarding his role in the events underlying Workum’s convictions,

choosing instead to invoke his right to remain sile nt

.

¶27 In two detailed rulings, the superior court denied the PCR

petition

. T he court first found that Workum failed to show that his trial

counsel disregarded his requests or forced him not to testify . Rather, the

court found that “trial counsel provided c redible and reasonable

explanations for his recommendation that Mr. Workum waive his right to

testify” and “credibly testified that he did not abbreviate Mr. Workum’s

defense for any reason other than his assessment that the State had failed to

meet its bu rden of proof.” T he court then found Workum failed to prove

by a preponderance of the evidence that the advice

- of

- counsel defense w as

viable on the facts, i.e., Workum failed to prove he sought advice from civil

counsel and acted in accordance with that advice in pursuing the

transactions forming the basis of the offenses. Th is was based, at least in

part, upon th e court ’s finding that Workum’s testimony at the hearing “was

implausibly evolving and refuted by cre dible trial witnesses. ” As such , the

court concluded Workum failed to show the alleged error s prejudiced him

.

¶28 We find no abuse of discretion . J ust as we do not reweigh trial

evidence on appeal, we do not reweigh evidence presented at a post

conviction ev identiary hearing

. S ee State v. Sasak , 178 Ariz. 182, 186 (App.

1993)

. The superior court acted within its discretion in considering

Workum’s credibility as a witness, s ee State v. Fritz , 157 Ariz. 139, 141 (App.

1988) , and properly held Workum to his burden of pro ving the factual

allegations underlying his claim by a preponderance of the evidence

, s ee

Ariz. R. Crim. P. 32. 13 (c). The court’s conclusion that an advice

- of

- counsel

defense was not viable and/or would not have affected the outcome o f the

trial is reasonably supported by the evidence; indeed, Workum did not

present evidence that he provided his civil counsel with all the relevant

facts or explain what advice he received based on those facts

. Thus, o n this

record, we can not say that “ but for ” the alleged errors, the result of the

proceeding would have been different , or that the court erred in applying

the Strickland test

.STATE v. WORKUM

Decision of the Court

11 CONCLUSION

¶29 Workum’s convictions and sentences are affirmed

. Additionally, w e grant review but deny relief from the denial of his petition

for PCR

.