State v. Yonkman

• Decision Date: 20 November 2013
• Docket Number: No. 2 CA–CR 2010–0338.,2 CA–CR 2010–0338.
• Citation: 674 Ariz. Adv. Rep. 21,233 Ariz. 369,312 P.3d 1135
• Parties: The STATE of Arizona, Appellee, v. David James YONKMAN, Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 369

312 P.3d 1135

674 Ariz. Adv. Rep. 21

The STATE of Arizona, Appellee,

v.David James YONKMAN, Appellant.

No. 2 CA–CR 2010–0338.

Court of Appeals of Arizona, Division 2.

Nov. 20, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix, and Alan L. Amann, Assistant Attorney General, Tucson, for Appellee.

Lori J. Lefferts, Pima County Public Defender By David J. Euchner and Lisa M. Hise, Assistant Public Defenders, Tucson, for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 This case comes to us on remand from State v. Yonkman, 231 Ariz. 496, ¶ 19, 297 P.3d 902, 905 (2013), vacating229 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 Miranda¹ waiver 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

¶ 2 We 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, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (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, 101 S.Ct. 1880. 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, 114 S.Ct. 2350, 129 L.Ed.2d 362 (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, 130 S.Ct. 1213.

¶ 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, 91 S.Ct. 2022, 29 L.Ed.2d 564 (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 high court's analysis was based on the premise that Kelly acted as a third party when she spoke to Yonkman after he had invoked his rights, see id. ¶¶ 10–12, and any finding that she acted as an agent of the state would conflict with that decision.

¶ 8 Nevertheless, because our supreme court expressly identified Kelly's status as an issue for our determination on remand, id. ¶ 18, we independently address the issue. We conclude the trial court did not err in rejecting Yonkman's contention that Kelly was acting as an agent of the state. “Whether a private person acted as a state agent is ‘a fact-intensive inquiry that is guided by common law agency principles.’ ” State v. Martinez, 221 Ariz. 383, ¶ 14, 212 P.3d 75, 79 (App.2009), quoting United States v. Jarrett, 338 F.3d 339, 344 (4th Cir.2003); see also State v. Estrada, 209 Ariz. 287, ¶ 17, 100 P.3d 452, 456 (App.2004) (“Whether a private citizen acted as a state agent is determined on a case-by-case basis....”). Under the common law, agency is a “consensual relationship in which one person ... acts on behalf of another person”; the agent has certain powers, such as the “authority to negotiate or to transmit or receive information on the [other's] behalf”; and “the person represented has a right to control the actions of the agent.” Restatement (Third) of Agency § 1.01 cmt. c (2006). Even in the absence of an express principal-agent relationship, the circumstances of a particular case may give rise to an implied agency. Canyon State Canners v. Hooks, 74 Ariz. 70, 73, 243 P.2d 1023, 1024 (1952). The numerous factors to consider when determining agency include a person's purpose or motive in actingand whether law enforcement provided any reward. See United States v. Alexander, 447 F.3d 1290, 1295 (10th Cir.2006); United States v. McAllister, 18 F.3d 1412, 1417–18 (7th Cir.1994).

¶ 9 Here, Kelly initiated the contact with the detective, and only then did the detective suggest that Yonkman voluntarily submit to a polygraph test. The detective neither ordered nor coerced Kelly to relay any information to Yonkman. Further, the detective offered Kelly no reward apart from the possibility of closing the investigation, which, if Yonkman were innocent and if C.'s recantation were true, would have been in her own family's interests. Overall, the evidence suggested that Kelly acted as a concerned spouse and mother, not an agent subject to law enforcement control. Under these circumstances, we conclude the trial court did not abuse its discretion in declining to find Kelly acted as an agent of the state. Nor did the court otherwise abuse its discretion in denying the motion to suppress.

Other–Act Evidence

Acquitted Conduct

¶ 10 Yonkman next argues the trial court abused its discretion by admitting other-act evidence when he “had been acquitted by a jury of the alleged acts.” We review the admission of other-act evidence for an abuse of discretion. State v. Lehr, 227 Ariz. 140, ¶ 19, 254 P.3d 379, 386 (2011). Before trial, the state filed a notice of intent to introduce evidence of prior allegations by...