State v. Gwen, 1 CA-CR 21-0077

Background

Gwen rented a Jeep in Sedona on November 2, 2015, agreed to return it the same day, and failed to do so; he was arrested the next day in Texas driving the Jeep with rental decals removed.
The vehicle contained personal items and had parts of the rental identification removed.
A grand jury indicted Gwen on one count of Fraudulent Schemes and Artifices and two counts of Theft of Means of Transportation; Gwen waived counsel and proceeded with advisory counsel at trial.
A jury convicted Gwen on all counts after a four-day trial; the trial court sentenced him as a category two offender to concurrent prison terms (longest eight years) plus two years for on-release status, to run consecutive to another sentence.
Appellate counsel filed an Anders/Leon brief asserting no arguable issues; Gwen filed a pro se supplemental brief raising several claims. The court reviewed the record for fundamental error and affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Gwen)	Held
Sufficiency of the evidence	Evidence (rental agreement, witnesses, removal of decals, apprehension in TX) supports convictions	Rental agreement was altered/forged; insufficient evidence	Convictions supported — substantial evidence and forensic examiner found no alteration
Probable cause / grand jury / preliminary hearing	Any defects moot after conviction by jury; indictment is a valid alternative to a preliminary hearing	Arrest lacked probable cause; prosecutor presented altered rental agreement to grand jury; denied preliminary hearing	Claims moot or irrelevant because of indictment and jury verdict; no error in proceeding by grand jury
Charging decisions	Prosecutor has broad discretion to select charges	Case could have been civil or charged as single theft count; law enforcement mischaracterized investigation	Prosecutorial charging discretion not abused or illegal; court will not substitute its judgment
Denial of bail	Gwen was non-bondable under Ariz. Const. art. 2 §22(A)(2) because on release for a separate felony and proof/presumption great	Trial court erred in holding him non-bondable	Court properly found Gwen non-bondable after hearing; no error
Discovery / disclosure	State provided copies and allowed inspection of originals	State failed to disclose original rental agreement and payment receipts, prejudicing defense	Record shows copies were sent and originals made available; no prejudice shown
Speedy trial (Rule 8 & constitutional)	Gwen waived Rule 8 by waiting until trial to object; delays were largely defense-requested and COVID-related; no prejudice	Delay (arraignment May 2017; trial Jan 2021) violated Rule 8 and constitutional speedy trial rights	Rule 8 waived for failure to timely object; Barker factors show no constitutional violation — no prejudice established
Admission of “other acts” (Rule 404(b))	Evidence admissible to explain officers’ decision once defense opened the door; limiting instruction given	Admission of pawn-shop, U-Haul, failure-to-appear, and vacating apartment evidence was improper character evidence	Trial court did not abuse discretion: Gwen opened the door by cross-examining officers; evidence admitted for proper purpose with limiting instruction
Sentencing as category two offender	Historical prior felony qualifies if committed within 10 years even if conviction occurred later	Error because prior offense in CR‑2015‑80451 had not been convicted at time of present offense	Court correctly treated prior offense as a historical prior felony under A.R.S. §13-105(22)(b)
Fundamental-error / appellate review	No reversible error after full record review	Raised various claims pro se; sought relief	Court conducted Anders/Leon review, found no reversible error, and affirmed convictions and sentences

Key Cases Cited

Anders v. California, 386 U.S. 738 (1967) (procedure when counsel files brief asserting no arguable appellate issues)
State v. Leon, 104 Ariz. 297 (1969) (state-law companion to Anders review)
State v. Borquez, 232 Ariz. 484 (App. 2013) (de novo review for sufficiency of the evidence)
State v. Barger, 167 Ariz. 563 (1990) (substantial-evidence standard)
State v. Agnew, 132 Ariz. 567 (App. 1982) (probable-cause and grand jury defects moot after conviction)
State v. Bojorquez, 111 Ariz. 549 (1975) (indictment by grand jury as alternative to preliminary hearing)
State v. Garrett, 16 Ariz. App. 427 (1972) (standard for non-bondable determination under article 2 §22)
State v. Spreitz, 190 Ariz. 129 (1997) (Rule 8 waiver principles)
Barker v. Wingo, 407 U.S. 514 (1972) (four-factor test for constitutional speedy trial claims)
State v. Hausner, 230 Ariz. 60 (2012) (standards for admission of other-acts evidence under Rule 404(b))