State v. Jimenez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STATE OF ARIZONA, Appellee,

v.

GILBERTO CRUZ JIMENEZ, Appellant.

No. 1 CA-CR 19-0151
FILED 6-2-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-109865-001
The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
 STATE v. JIMENEZ
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.

C A T T A N I, Judge:

¶1 Gilberto Cruz Jimenez appeals his convictions and sentences
for two counts of child molestation and two counts of sexual conduct with
a minor. He argues that his confession to police officers should have been
suppressed because it was involuntary and obtained in violation of his
Miranda1 rights. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Jimenez lived with the victim and the victim’s mother, with
whom he was romantically involved, in various apartments from 2004 until
the relationship ended in 2007. During this period, the victim was between
about three and six years old. In 2014, the victim told her grandmother that
Jimenez had sexual contact with her on multiple occasions while they were
living together.

¶3 Later that year, the victim reported the sexual conduct to the
police. After the victim spoke to a forensic interviewer, two officers went
to Jimenez’s place of work to speak with him. The officers arrived and
entered an office, which was a double-wide mobile home on a large area of
farmland, and informed two workers behind a counter that the officers
needed to speak to Jimenez. The workers called for Jimenez and directed
the officers to a room where they could speak with him.

¶4 Jimenez entered the office, and an officer asked Jimenez if he
would speak with him. Jimenez did not verbally respond but followed the
officers to the room. Once Jimenez and the officers entered the room, one
of the officers informed Jimenez that he was not under arrest and began to
question him.

¶5 The questioning began by going over biographical
information to confirm Jimenez’s identity. The officer then informed
Jimenez of the victim’s allegations and asked Jimenez whether he

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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committed the acts in question. After repeatedly denying any wrongdoing,
Jimenez eventually admitted to having sexual contact with the victim. In
total, the questioning lasted around 45 minutes.

¶6 After the interview, the officers left Jimenez at work, and he
was arrested later that day. The State charged Jimenez with three counts of
sexual conduct with a minor and one count of child molestation. Before
trial, Jimenez moved to suppress his statements to police, arguing that he
should have received Miranda warnings and that his statements were
obtained involuntarily. The superior court held an evidentiary hearing and
denied the motion.

¶7 After a four-day trial, the jury found Jimenez guilty of two
counts of sexual conduct with a minor as charged, guilty of child
molestation as a lesser-included offense of the third count of sexual conduct
with a minor, and guilty of the charged count of child molestation. He was
sentenced to consecutive life sentences without the possibility of release on
the sexual conduct with a minor counts and to concurrent 10-year sentences
on the other two counts. Jimenez appealed, and we have jurisdiction under
A.R.S. § 13-4033(A).

DISCUSSION

¶8 We review the denial of a motion to suppress for an abuse of
discretion, considering only the evidence presented at the suppression
hearing and viewing the facts in the light most favorable to sustaining the
ruling. State v. Maciel, 240 Ariz. 46, 49, ¶ 9 (2016).

I. Miranda Warnings.

¶9 Jimenez first argues that the superior court should have
suppressed his statements because the officers failed to read him his
Miranda rights. We disagree.

¶10 “Police are free to ask questions of a person who is not in
custody without having to give the person any warnings under Miranda.”
State v. Zamora, 220 Ariz. 63, 67, ¶ 9 (App. 2009). However, one must be
informed of one’s Miranda rights once in custody and subject to
interrogation. See id. at 67–68, ¶ 10. Here, both parties agree that Jimenez
was subject to an interrogation intended to elicit an incriminating response,
so the Miranda issue turns on whether Jimenez was in custody.

¶11 A person is “in custody” for purposes of Miranda when his
“freedom of action [is] significantly curtailed” and “the environment in

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which he [is] questioned present[s] inherently coercive pressures similar to
a station house interrogation.” Maciel, 240 Ariz. at 50, ¶ 13. Determining
whether someone’s freedom of movement was curtailed depends on
whether, under the totality of the circumstances, a reasonable person would
have felt free to terminate the encounter and leave. Id. at ¶ 14. “Relevant
factors include the location of the questioning, its duration, statements
made during the interview, the presence or absence of physical restraints
during the questioning, and whether the interviewee was released at the
end of the questioning.” State v. Waller, 235 Ariz. 479, 484, ¶ 10 (App. 2014).

¶12 Here, the superior court did not abuse its discretion by
determining that Jimenez was not in custody. First, Jimenez’s freedom of
action was not significantly curtailed. The officer asked Jimenez to
accompany him to the room, and shortly after the beginning of their
discussion, he told Jimenez he was not under arrest. See State v Stanley, 167
Ariz. 519, 523 (1991) (noting that being told one is not under arrest weighs
against a finding of custody); State v. Carter, 145 Ariz. 101, 106 (1985) (same).
And at no point was Jimenez physically restrained. Only two officers were
present at the time of the interview, and although at least one of them wore
a gun and badge on his hip, both officers were in plain clothes. See Maciel,
240 Ariz. at 52, ¶ 26 (“The police presence was relatively modest . . . . [T]here
were never more than three at one time.”); Carter, 145 Ariz. at 106 (noting
that officers not having weapons drawn weighed against a finding of
custody). The interview lasted around 45 minutes. See State v. Spreitz, 190
Ariz. 129, 143 (1997) (holding that 45-minute detention was reasonable
under the circumstances).

¶13 Further, the interview did not contain the inherent coercive
pressure indicative of a custodial interrogation. The superior court
correctly noted that under some circumstances, a workplace interview may
be inherently coercive, but that fact on its own does not require Miranda
warnings. See Maciel, 240 Ariz. at 50, ¶ 17 (“[C]oercion is often lacking when
a person is questioned in familiar surroundings.”); State v. Cruz-Mata, 138
Ariz. 370, 373 (1983) (noting that questioning occurring in a “coercive
environment” does not, without more, require Miranda warnings). In
addition, Jimenez was told that the other workers did not know the reason
officers were speaking with him.

¶14 Further weighing against a finding of custody is the fact that
the interview was conducted in Spanish, which is Jimenez’s primary
language. See Cruz-Mata, 138 Ariz. at 373. And the interviewing officer did
not raise his voice or become argumentative or threatening towards

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Jimenez. See id. To the contrary, after the interview concluded, Jimenez
told the officer he felt like hugging the officer.

¶15 Jimenez notes that although he repeatedly denied any
misconduct with the victim, the officer continued to question him. Jimenez
further contends that the officer did not conduct the interview with a
general investigatory purpose, but rather to confirm that Jimenez was the
specific perpetrator. Although these facts may weigh in his favor, but see
Maciel, 240 Ariz. at 52, ¶ 28 (“Miranda custody does not turn on an officer’s
undisclosed suspicions about a person’s possible guilt.”), viewing the
totality of circumstances, the superior court did not abuse its discretion by
concluding that Jimenez was not in custody and did not require Miranda
warnings.

II. Voluntariness.

¶16 Jimenez next argues that his statement was involuntarily
obtained in violation of his right to due process. We disagree.

¶17 We review the superior court’s finding of voluntariness for an
abuse of discretion. State v. Cota, 229 Ariz. 136, 144, ¶ 22 (2012). “A
confession is prima facie involuntary and the state must show by a
preponderance of the evidence that the confession was freely and
voluntarily made.” State v. Newell, 212 Ariz. 389, 399, ¶ 39 (2006) (citation
omitted). “In determining whether a confession is voluntary, we consider
whether the defendant’s will was overcome under the totality of the
circumstances.” State v. Boggs, 218 Ariz. 325, 335, ¶ 44 (2008).

¶18 Here, the State carried its burden to show Jimenez’s
confession was freely made. As discussed above, the circumstances
surrounding the questioning do not indicate that Jimenez’s will was
overborne. Jimenez was questioned at his place of work, a location familiar
to him, for 45 minutes. The officers did not subject Jimenez to any undue
pressure and did not use loud or threatening language. Accordingly, the
superior court did not abuse its discretion by determining Jimenez’s
confession was voluntarily obtained.

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CONCLUSION

¶19 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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