THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

HOWE, Judge.

¶1 Anthony Joseph Canales ("Canales") appeals his convictions for leaving the scene of an injury or fatal accident, negligent homicide, and endangerment based on the denial of his motion for substitute counsel, the preclusion of evidence that the injured victims did not wear seat belts, and jury coercion. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On October 18, 2008, after a long night of drinking, Canales was driving with his friend on Alma School Road in Mesa when he crashed into a truck, causing it to roll over. Two passengers in the truck were thrown from the vehicle and sustained severe head trauma. One died shortly thereafter. Three other passengers in the truck sustained non-life-threatening injuries. Canales and his friend fled the scene. Later that evening, Canales's friend called the police and informed them of the collision. Three days later the police contacted Canales, who admitted to drinking excessively that evening and then driving. The State charged Canales with one count of leaving the scene of a serious injury or fatal accident, a class 2 dangerous felony, one count of manslaughter, a class 2 dangerous felony, one count of manslaughter, a class 2 dangerous felony and dangerous crime against children, one count of aggravated assault, a class 2 dangerous felony, one count of aggravated assault, a class 3 dangerous felony, and three counts of endangerment, a class 6 felony.

¶3 On October 31, 2008, Canales retained the firm of Phillips and Associates to represent him, and Rick Poster ("Poster") entered an appearance on behalf of the firm. The trial court set the first day of trial for October 26, 2009. Poster left the firm, however, and on July 2, 2009, Barry Handler ("Handler") filed a notice of change of counsel within the firm and began representing Canales.

¶4 Three weeks before the first day of trial, Handler moved to continue the trial date to allow for additional trial preparation. The trial court granted the motion and rescheduled trial for February 1, 2010. A week before the new trial date, Handler again moved to continue the trial date so that he could re-interview expert witnesses. Although the victims' family objected to the continuance, the State did not oppose it. The trial court granted the motion, and reset trial again for April 6, 2010.

¶5 On March 30, 2010, Handler moved to continue the trial date for a third time to allow for additional time to investigate medical issues potentially relevant to his client's ability to operate a motor vehicle. When the State opposed the third motion, citing the extensive delay and the victims' desire to proceed to trial, the trial court denied the requested continuance.

¶6 Handler and Canales appeared before Judge Ryan, the Master Calendar Assignment Judge, on the scheduled trial date, April 6. Canales advised Judge Ryan that he wanted to substitute Poster, the original attorney, in Handler's place. Judge Ryan noted the denial of the prior motion for continuance and denied any further continuances but informed Canales that he was free to have Poster substitute for Handler if Poster was ready for trial. Judge Ryan reset trial for the next day. The next day, Handler, Canales, and Poster appeared before Judge Ryan, and Poster informed Judge Ryan that he could not start the trial until June. Judge Ryan confirmed his earlier ruling and assigned the matter to Judge Pineda for trial.

¶7 When the parties appeared before Judge Pineda that same morning, Canales requested a substitution of counsel, citing a breakdown in attorney-client relations. Canales stated that his problems with Handler began three months earlier and that although he gave Handler "another try," the problems persisted. He complained that Handler "throws everything on me at the last minute." Handler confirmed this breakdown, informing the court that Canales had fired him and that Canales's mother had threatened him. After hearing that Canales had fired Handler, Judge Pineda scheduled a hearing to determine if Handler could continue to represent Canales.

¶8 At the hearing, Handler again referred to the firing and threats but did not specify the nature of the threats. Judge Pineda pressed Canales to identify specific issues affecting his ability to work with Handler, but he only expressed instances of dissatisfaction with the direction of the case. The State reiterated its desire to continue to trial, stating that the victims were present from California. Poster reiterated that he was unavailable to try the case as scheduled. After considering the arguments, Judge Pineda ruled that Handler was qualified to handle the representation and ordered the trial to proceed as scheduled.

¶9 On September 16, 2009, the State filed a Motion in Limine to exclude "any reference to the victims' use or nonuse of a seat belt." The State argued that the failure to wear a seat belt was not a superseding cause to negate criminal culpability. Meanwhile, Canales argued that the evidence was admissible because the victims' failure to use a seat belt was unforeseeable.

¶10 During trial, one of the victims testified to the injuries his family sustained. The injuries to two of the victims included seat belt burns. On cross-examination, Canales questioned the victim about whether he observed "seat belt burns on everybody in the vehicle." The State objected to the question. Canales argued that the State had "opened the door to the seat belt issue," and that he should be "at least entitled to establish not everyone in the vehicle was wearing a seat belt." The State argued that the testimony was about the injuries not whether the victims were wearing seat belts. The court sustained the State's objection and found that to the extent the jurors would draw any inference about the use of seat belts, they would infer that the two victims who were ejected were not wearing seat belts.

¶11 In the court's final instructions, the court instructed the jurors that if they found Canales guilty of the offenses, they would need to indicate whether each offense was "dangerous." During deliberations, the jury foreman notified the court that the jurors were at an impasse on one of the counts. After consulting with the parties, the court told the jurors that it would accept the verdicts on the resolved counts and declare a mistrial on the unresolved counts. When the court received the verdicts forms from the jury, however, the court noticed that the jurors had not made any findings on whether the offenses were dangerous. Judge Pineda advised counsel of the omission and stated that she would instruct the jurors that they needed to answer the interrogatories about dangerousness. Without objection, the trial court instructed the jurors to return to the jury room and answer the dangerousness interrogatories.

¶12 The jurors found Canales not guilty of manslaughter but guilty of the lesser-included offense of negligent homicide, and found that the offense was dangerous. They also found Canales guilty of leaving the scene of a fatal accident, a dangerous offense, and of three counts of misdemeanor endangerment. The court sentenced Canales to a presumptive six-year prison term for negligent homicide, with a credit for 663 days of presentence incarceration. The court also imposed probation for seven years for leaving the scene of a fatal accident, and for three years on each of the three counts of misdemeanor endangerment.

¶13 Canales timely appeals. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033(A) (West 2013).1

DISCUSSION

¶14 Canales argues that the trial court violated his constitutional rights to counsel of choice and to present a complete defense. He also contends the trial court coerced a verdict on the issue of dangerousness. We find no error and affirm.

I. Right to Choice of Counsel

¶15 Canales first argues that the trial court erred in refusing to grant his motion for substitution of counsel because he had an irreconcilable conflict with his counsel. We review a trial court's decision on substitution of counsel for abuse of discretion. State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998).

¶16 A criminal defendant has a constitutional right to competent representation. U.S. Const. Amend. 6; Ariz. Const. art. 2, § 24. The right to counsel includes the right to choose retained counsel. Robinson v. Hotham, 211 Ariz. 165, 168, ¶ 12, 118 P.3d 1129, 1132 (App. 2005). When a defendant who has counsel moves to substitute new counsel, and the substitution requires continuing the trial date, a trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness[] and the demands of its calendar." United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). However, "an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates a defendant's right to counsel of choice." State v. Aragon, 221 Ariz. 88, 90, ¶ 5, 210 P.3d 1259, 1261 (App. 2009) (internal quotations and citations omitted).

¶17 One such justifiable reason for substituting counsel is that the defendant has an irreconcilable conflict with current counsel. State v. Cromwell, 211 Ariz. 181, 186, ¶ 29, 119 P.3d 448, 453 (2005) (nothing that "[t]he presence of an irreconcilable conflict or a completely fractured relationship between counsel and the accused ordinarily requires the appointment of new counsel."). "Conflict that is less than irreconcilable, however, is only one factor for a court to consider in deciding whether to appoint substitute counsel." Id. Other factors that a judge considers include: "whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and the quality of counsel." Id. at 187, ¶ 31, 119 P.3d at 454 (quoting State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987))

¶18 The trial court did not abuse its discretion in refusing to substitute counsel. Canales contends that he had an irreconcilable conflict with Handler. The record, however, shows no irreconcilable conflict. When a defendant raises a substantial complaint about counsel in requesting new counsel the trial court is obligated to make an inquiry on the record. State v. Torres, 208 Ariz. 340, 344, ¶ 8, 93 P.3d 1056, 1060 (2004). "At such a hearing, the defendant bears the burden of demonstrating that he has a genuine irreconcilable conflict with his counsel or that there has been a total breakdown in communications." Id. An irreconcilable conflict goes "beyond personality conflicts or disagreements with counsel over trial strategy." Cromwell, 211 Ariz. at 187, ¶ 30, 119 P.3d at 454.

¶19 The record clearly showed that Canales was upset with Handler, but when the trial court pressed Canales about the nature of his conflict with Handler, he pointed to nothing but disagreements about the conduct of the defense. Disagreements over trial strategy are insufficient to show an irreconcilable conflict. Id. Moreover, although Canales claimed that his conflict had begun three months earlier, at no point in those three months did either Canales or Handler inform the trial court of this deteriorating relationship. Instead, Canales brought the conflict to the court's attention on the first day of trial.

¶20 Similarly, Handler's allegations of threats also fail to meet this burden. The threats came from Canales's mother, not Canales, and Handler never specified the nature of the threats. Canales failed to meet his burden of demonstrating that he and Handler had an irreconcilable conflict and we find the trial court did not abuse its discretion in finding no irreconcilable conflict.

¶21 The other factors support the conclusion that the trial court acted within its discretion in refusing to further postpone the trial to accommodate Canales's request. The court had already granted two continuances, and another continuance would place a burden on the out-of-state victims who had already traveled to Arizona for the trial. Further, Canales waited until the day of trial to move for substitute counsel. Thus, we hold the trial court did not abuse its discretion in refusing to grant Canales's motion for substitution of counsel.

II. Right to Present a Defense

¶22 Canales next argues that the trial court violated his right to present a complete defense by granting the State's motion to preclude evidence that several of the victims injured in the collision had not been wearing seat belts. We review rulings on the admissibility of evidence for abuse of discretion, and constitutional issues de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). Although a defendant has the fundamental constitutional right to present a defense, he must still follow the rule of evidence. State v. Dickens, 187 Ariz. 1, 14, 926 P.2d 468, 481 (1996), abrogated in part on other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (holding "[t]he accused . . . must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.").

¶23 The trial court did not err in precluding evidence that Canales's victims were not wearing seat belts. Evidence is relevant if it tends to make a fact of consequence in determining the action more or less probable. Ariz. R. Evid. 401. Evidence of the victims' use or non-use of seat belts would be relevant and therefore admissible only if failure to wear seat belts would be a superseding cause of their injuries. See State v. Freeland, 176 Ariz. 544, 548, 863 P.2d 263, 267 (App. 1993) (holding failure to wear seat belt not a superseding cause in a criminal case). An intervening event is a superseding cause only if "its occurrence was both unforeseeable and when with benefit of hindsight it may be described as abnormal or extraordinary." State v. Bass, 198 Ariz. 571, 575-76, ¶ 11, 12 P.3d 796, 800-01 (2000); accord State v. Slover, 220 Ariz. 239, 244, ¶ 11, 204 P.3d 1088, 1093 (App. 2009) ("An intervening event must be unforeseeable and abnormal or extraordinary to qualify as a superseding cause that can excuse a defendant from liability for a criminal act."). This Court has held that evidence that a victim of an automobile collision was not wearing a seatbelt is not unforeseeable or abnormal. Freeland, 176 Ariz. at 548, 863 P.2d at 267 (holding "[o]ne who drinks and drives should reasonably foresee that some among the potential victims of drunken driving will not wear seat belts and that such victims, among others, might be seriously injured in an alcohol-induced collision.").

¶24 Canales contends that Freeland is outdated because mandatory seat belt laws and the public's increased seat belt usage have made non-use of seat belts unforeseeable. But Freeland remains good law for two reasons. First, the seat belt law Canales cites to mandates use only for front-seat occupants. See A.R.S. § 28-909. Seat belt laws that mandate use only for certain individuals are not enough to make non-use for other occupants unforeseeable. Second, even assuming that seat belt use has increased, this alone does not make non-use unforeseeable. Indeed, the statistics Canales uses to support his argument indicate that nearly one in five occupants of motor vehicles did not use seat belts in 2008, the year the collision occurred. Canales has not shown that either the existence of new mandatory seat belt laws or the shift in seat belt usage has mandated a departure from Freeland.

¶25 Canales also claims that the trial court abused its discretion in precluding him from cross-examining a State's witness about his testimony identifying injuries on two of the victims as seat belt burns. The trial court did not abuse its discretion in ruling that the State had not "opened the door" to such testimony. The State had asked the witness not about the victims' seat belt use but about their injuries, and the witness described them as seat belt burns. The reference to seat belts was oblique, unexpected, and volunteered. In such situations, we give great deference to a trial court's decision of how to handle the matter because the trial court "is in the best position to determine whether the evidence will actually affect the outcome of the trial." State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000). We cannot say the trial court abused its discretion.

III. Jury Coercion

¶26 Canales contends the trial court coerced a verdict on the issue of dangerousness in directing the jury to return to the jury room to complete the verdict forms. Because Canales failed to object to the manner in which the trial court handled the incomplete verdict forms, our review is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567-68, ¶ 20, 115 P.3d 601, 607-08 (2005). To prevail under this standard of review, Canales must establish both that fundamental error occurred and that the error prejudiced him. Id. at 568, ¶ 20, 115 P.3d at 608. Canales cannot meet this standard.

¶27 "Jury coercion exists when the trial court's actions or remarks, viewed in the totality of the circumstances, displaced the independent judgment of the jurors, or when the trial judge encourages a deadlocked jury to reach a verdict." State v. Davolt, 207 Ariz. 191, 213, ¶ 94, 84 P.3d 456, 478 (2004) (internal quotations and citations omitted). "What conduct amounts to coercion is particularly dependent upon the facts of each case." State v. Fernandez, 216 Ariz. 545, 548, ¶ 8, 169 P.3d 641, 644 (App. 2007) (quoting State v. Roberts, 131 Ariz. 513, 515, 642 P.2d 858, 860 (1982)).

¶28 We find nothing coercive in the trial court's informing the jury about the incomplete verdicts and asking they be completed with respect to the issue of dangerousness. In the notes the jury submitted to the trial court about the lack of consensus on the charge of aggravated assault in Count 3, the jury made no mention of any deadlock on the issue of dangerousness. To the contrary, the jury specifically informed the trial court that verdicts had been reached on all the other counts. Under these circumstances, the most rational conclusion is that the failure to answer the interrogatories was simply an oversight, and not the result of lack of unanimity. The absence of any objection to the trial court's action is consistent with this conclusion.

¶29 Finally, we reject Canales's contention that the trial court committed fundamental error by referring to the issue of dangerousness as an "interrogatory" rather than verdict. The trial court's instructions were clear in indicating that the "questions," like all the other questions addressed by the jury on the verdict forms, were part of the verdicts. The claim that the jury might mistakenly view this question as not requiring unanimity because the trial court referred to it as an interrogatory is pure speculation. A defendant cannot meet his burden of proving prejudice for purposes of fundamental error review based on speculation. State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006).

CONCLUSION

¶30 For the foregoing reasons, we affirm the convictions and sentences.

PATRICIA K. NORRIS, Presiding Judge, ANDREW W. GOULD, Judge, concurring.