Court of Appeals of Arizona, Second Division, Division Two
Appeal from the Superior Court in Pima County No. CR20101253001 The Honorable John S. Leonardo, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender By David J. Euchner and Lisa M. Hise, Assistant Public Defenders, Tucson Counsel for Appellant
Judge Eckerstrom authored the opinion of the Court, in which Judge Vásquez and Judge Brammerconcurred.
¶1This case comes to us on remand from State v. Yonkman, 231 Ariz. 496, ¶ 19, 297 P.3d 902, 905 (2013), vacating 229 Ariz. 291, 274 P.3d 1225 (App. 2012). Appellant David Yonkman was convicted of sexual abuse and sexual conduct with a minor based on acts he had committed against his stepdaughter, C. The remaining issues to be decided on appeal are (1) whether his statements to police should have been suppressed because his Mirandawaiver had been involuntary and his wife had acted as an agent of the state; (2) whether the trial court erred by admitting prior acts for which Yonkman had been acquitted or by precluding evidence of his acquittals; and (3) whether prior consistent statements had been admitted improperly. Finding no reversible error, we affirm.
Factual and Procedural Background
¶2We view the facts in the light most favorable to upholding the convictions. State v. Fontes, 195 Ariz. 229, ¶ 2, 986 P.2d 897, 898 (App. 1998). In March 2010, fifteen-year-old C. told her mother, and Yonkman's wife, Kelly, that he had "been touching [C] inappropriately." Kelly reported the allegations to police, and C. underwent a forensic interview in which she repeated the allegations. Kelly later contacted a detective to report that her daughter had recanted. Although Yonkman initially invoked his rights pursuant to Miranda when he was detained by a police officer, he talked to Kelly after his release and then called a detective to arrange an interview at a police station. There, Yonkman admitted he had touched C. on her breasts and vagina.
¶3 At trial, C. testified about two separate incidents in which she had awoken to find her pants off, her underwear around her ankles, and Yonkman fondling her breasts and/or her vagina. Over Yonkman's objection, the state also presented the testimony of two of C.'s friends who allegedly had been molested by him during sleepovers at the Yonkman home. The trial court refused to allow Yonkman to introduce evidence that he had been acquitted of charges stemming from these allegations. After being convicted, he was sentenced to a mitigated term of four years' imprisonment for sexual conduct with a minor, followed by lifetime probation for sexual abuse.
Motion to Suppress
¶4 Before trial, Yonkman filed a motion to suppress on the grounds that both his Miranda waiver and his confession had been involuntary. On appeal, however, he challenges the trial court's ruling only as to his waiver of rights pursuant to Miranda and Edwards v. Arizona, 451 U.S. 477 (1981). "We review a ruling on the motion to suppress for an abuse of discretion if it involves a discretionary issue, but review constitutional and purely legal issues de novo." State v. Allen, 216 Ariz. 320, ¶ 11, 166 P.3d 111, 114 (App. 2007). We limit our review to the evidence presented at the suppression hearing and view the facts in the light most favorable to upholding the trial court's ruling. Id. ¶ 2.
¶5 The facts pertinent to this issue are set forth more fully in our supreme court's decision. See Yonkman, 231 Ariz. 496, ¶¶ 2-4, 297 P.3d at 903. Yonkman contends the detective in this case violated his right to counsel by suggesting to Kelly that he come to the police station for a polygraph test in order to close the case. Relying on Maryland v. Shatzer, 559 U.S. 98, 110 (2010), Yonkman argues his invocation of his right to counsel less than fourteen days earlier made the subsequent waiver of that right presumably involuntary, unless he reinitiated contact with the police. Our supreme court, however, has held that Yonkman reinitiated contact in this case, not the police. Yonkman, 231 Ariz. 496, ¶¶ 15, 17, 297 P.3d at 905. The court determined that Kelly's telephone conversation with the detective that prompted this reinitiation "[was] far removed from the coercive conduct Edwards seeks to prevent." Id. ¶ 15. And when, as our supreme court determined was the case here, "the suspect reinitiates contact with the police, he waives his rights and questioning can continue." State v. Smith, 193 Ariz. 452, ¶ 22, 974 P.2d 431, 437 (1999).
¶6 Although Yonkman voluntarily reinitiated contact with the police, the interviewing detective gave Yonkman another Miranda warning before the interview. He stated he understood his rights and agreed to answer the detective's questions. Thus, at any time during the interview, Yonkman could have invoked his right to counsel. See Edwards, 451 U.S. at 484-85. Although Yonkman inquired about his right to counsel, he never unambiguously stated he wanted a lawyer present; therefore, the detective lawfully continued the interview. See State v. Newell, 212 Ariz. 389, ¶ 25, 132 P.3d 833, 841 (2006) ("If a reasonable officer in the circumstances would have understood only that the defendant might want an attorney, then questioning need not cease."); see also Davis v. United States, 512 U.S. 452, 459 (1994) (holding objectively ambiguous statement insufficient to invoke right to counsel). On the record before us, we find the waiver of his rights was valid. See Shatzer, 559 U.S. at 104.
¶7 Alternatively, Yonkman argues the detective enlisted Kelly as an instrument or agent of the state in an effort to elicit statements from Yonkman, despite his invocation of the right to counsel several days earlier. Although Shatzer aims to prevent governmental badgering after a suspect invokes the right to counsel, our supreme court has held, "[T]he Constitution provides no 'protection against friends or family members who convince [a suspect] to talk with police' or 'against third-party cajoling, pleading, or threatening.'" Yonkman, 231 Ariz. 496, ¶¶ 8, 11, 297 P.3d at 904, quoting Van Hook v. Anderson, 488 F.3d 411, 421 (6th Cir. 2007) (alteration in Yonkman); cf. Coolidge v. New Hampshire, 403 U.S. 443, 489-90 (1971) (finding no constitutional protection "against the adverse consequences of a spontaneous, good-faith effort by [suspect's] wife to clear [defendant] of suspicion"). In light of our supreme court's determination that the police did not reinitiate contact in this case, Yonkman, 231 Ariz. 496, ¶ 15, 297 P.3d at 905, his agency argument would appear to be foreclosed by that opinion. Our ...