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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE TOMAS MORENO, JR., Appellant.

No. 1 CA-CR 15-0439

Appeal from the Superior Court in Maricopa County

No. CR2014-002199-001

The Honorable Brian Kaiser, Commissioner

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jillian Francis

Counsel for Appellee

Franklin & Associates, P.A., Tempe

By Colby Kanouse, Charles P. Franklin

Counsel for Appellant
STATE v. MORENO

Decision of the Court

2

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

N O R R I S, Judge:

¶1 A jury convicted Jose Tomas Moreno, Jr. of one count of 

aggravated driving or actual physical control while under the influence of 

intoxicating liquor or drugs, and one count of aggravated driving or actual 

physical control while under the influence of intoxicating liquor (alcohol 

concentration of 0.08 or more within two hours of driving), under Arizona 

Revised Statutes (“A.R.S.”) section 28-1383(A)(1) (Supp. 2015),

1 both class 

four felonies. On appeal, Moreno argues the superior court should have 

suppressed his statement to police that he had been driving. Even if we 

assume the superior court should have suppressed this statement, its 

admission was harmless error. We therefore affirm his convictions and 

sentences. 

FACTS AND PROCEDURAL BACKGROUND

¶2 On April 5, 2014, Moreno was drinking at the house of C.B. 

Later that day Moreno asked her for the keys to her car, but she would not 

give them to him. Moreno asked another person at the house, B.B., for a 

ride, but instead B.B. gave Moreno the keys to his white truck. At some 

point Moreno left the house, although neither C.B. nor B.B. saw him leave 

or drive that night. After Moreno left, police were dispatched to the house. 

C.B. gave Officer T.O. a physical description of Moreno, said he was 

wearing a yellow shirt, and stated the likely direction he was heading. 

¶3 Sometime later, Officer G.M. saw a white truck pull into a 

convenience store and park at the gas pump. Although Officer G.M. could 

not see the driver, he saw someone wearing a yellow shirt “standing on the 

driver’s side door outside the” truck. Officer G.M. ran the truck’s license 

plate confirming it was registered to B.B. Officer G.M. then saw the person, 

who he later identified in court as Moreno, walk from the truck into the 

 

1We cite to the current version of all statutes in this decision 

because the Arizona Legislature has not made any amendments to these 

statutes since the date of Moreno’s offenses.
STATE v. MORENO

Decision of the Court

3

convenience store and then back towards the truck. Officers arrested 

Moreno in the parking lot and then Officer D.G. viewed the convenience 

store surveillance video. The video showed a man in a yellow shirt walking

away from the truck, entering the convenience store, and purchasing items. 

After viewing the video, Officer D.G. opened the door of the police car in 

which Moreno was sitting and confirmed “the person that was in custody 

matched the clothing description and physical characteristics” of the person 

he “saw on the video.” Officer D.G. “also smelled the odor of alcohol 

coming from inside the patrol vehicle.”

¶4 Police transported Moreno to the police station. There, he

admitted to driving the truck and submitted to a breathalyzer test. The test 

results showed Moreno’s blood alcohol concentration exceeded 0.08.

¶5 Before trial Moreno moved to suppress the “incriminating 

statements” he had made to Officer D.G. at the station, which, he argued,

were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966). The superior court denied Moreno’s motion before 

the start of trial. 

DISCUSSION

¶6 On appeal, Moreno argues, under Miranda, the superior court 

should have suppressed “the admissions that he made to Officer [D.G.]

about driving the vehicle seen at the gas station.” Even assuming a Miranda 

violation, any error in the admission of his statement was harmless because, 

based on our review of the record, it did not contribute to or affect the 

verdict. See State v. Valverde, 220 Ariz. 582, 585, ¶ 11, 208 P.3d 233, 236 (2009)

(error is harmless “if the state, in light of all of the evidence, can establish 

beyond a reasonable doubt that the error did not contribute to or affect the 

verdict”) (quotations and citations omitted); State v. Montes, 136 Ariz. 491, 

497, 667 P.2d 191, 197 (1983) (“Statements obtained without the benefit of 

Miranda warnings, unlawful but not involuntary, are subject to the harmless 

error rule.”) (citation omitted). 

¶7 Here, aside from Moreno’s statement, the State, through the 

testimony of several witnesses, presented substantial circumstantial 

evidence Moreno had driven the truck to the convenience store. See Lohse v. 

Faultner, 176 Ariz. 253, 259, 860 P.2d 1306, 1312 (App. 1992) (“direct and 

circumstantial evidence have equal probative worth” in civil and criminal 

cases). In addition to the evidence summarized above, see supra ¶¶ 2-4, B.B.

testified that, after giving Moreno his keys, the next time he saw his truck 

was when he picked it up at the convenience store parking lot where 
STATE v. MORENO

Decision of the Court

4

officers had arrested Moreno the previous night. Further, Officer G.M. 

testified that, in addition to seeing Moreno standing next to the driver’s side 

door, he did not see anyone else inside the truck, anyone open the 

passenger door, or anyone hand the truck keys to Moreno. He did, 

however, see another officer take the truck keys from Moreno after police 

had taken him into custody, and that officer used those same keys to move 

the truck from the gas pump to a parking spot.

¶8 The State also presented substantial uncontested evidence 

that Moreno was under the influence of alcohol when officers took him into 

custody. Miranda bars illegally obtained “testimonial or communicative” 

evidence, but not physical evidence. See State v. Lee, 184 Ariz. 230, 233, 908 

P.2d 44, 47 (App. 1995). Officer D.G. testified that, at the station, Moreno 

exhibited physical signs of intoxication, including red watery eyes, delayed 

movements, and slurred speech. Additionally, an intoxilyzer test revealed 

that Moreno had a blood alcohol concentration greater than 0.08. See A.R.S. 

§ 28-1383(A)(1) (person is guilty of aggravated driving or actual physical 

control while under the influence if he or she violates A.R.S. § 28-1381); 

A.R.S. § 28-1381(A)(2) (2012) (criminalizing alcohol concentration of 0.08 or 

more within two hours of driving).

¶9 In short, based on our review of the record, we can say, 

beyond a reasonable doubt, that any error in the superior court’s admission 

of Moreno’s statement that he had driven the truck did not contribute to or 

affect the jury’s verdict.

CONCLUSION

¶10 For the foregoing reasons, we affirm Moreno’s convictions

and sentences.