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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TRAVIS LAVOY ORNER, Appellant.

No. 1 CA-CR 15-0580

Appeal from the Superior Court in Maricopa County

No. CR2014-144647-001

The Honorable Peter C. Reinstein, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Christopher V. Johns

Counsel for Appellant
STATE v. ORNER

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Peter B. Swann and Judge Jon W. Thompson joined.

K E S S L E R, Judge:

¶1 Travis Lavoy Orner appeals his convictions and sentences for

two counts of aggravated assault. For the following reasons, we affirm. 

FACTUAL AND PROCEDURAL HISTORY1

¶2 One afternoon, SR stepped outside of CK’s garage to inspect 

a sudden disruption in electrical service. Orner ambushed SR and then 

kicked him in the head as he lay on the ground. CK attempted to intervene, 

but Orner beat him with a jack handle. As Orner was assaulting CK, SR hit 

Orner in the head with a golf club. 

¶3 Police officer JW responded to a call regarding the altercation. 

As Officer JW approached the scene, he observed Orner walking away. 

Orner, CK, and SR were visibly injured. Officer JW briefly handcuffed 

Orner and searched him for weapons, then emergency medical personnel 

transported Orner to a nearby hospital. 

¶4 Officer JW arrived at the hospital and, when permitted to do 

so by Orner’s treatment providers, asked Orner questions on three distinct 

occasions pertaining to the events at CK’s home. Before starting the third 

interview, Officer JW informed Orner of his rights under Miranda v. Arizona, 

384 U.S. 436 (1966). During the interviews, Orner made conflicting 

statements about the positions of the victims relative to his position during 

the fight and whether he had “anything to swing with.” 

¶5 The State charged Orner with two counts of aggravated 

assault, one a class 3 dangerous felony (“Count 1”), the other a class 6 felony 

(“Count 2”). Orner moved to suppress the statements he made to Officer 

 

1 We view the facts in the light most favorable to upholding the 

verdicts and resolve all reasonable inferences against the defendant. State 

v. Harm, 236 Ariz. 402, 404-05 n.2 (App. 2015) (citing State v. Valencia, 186 

Ariz. 493, 495 (App. 1996)).
STATE v. ORNER

Decision of the Court

3

JW while in the hospital, but the court denied the motion after an 

evidentiary hearing. During jury selection, Orner unsuccessfully 

challenged the State’s peremptory strike of potential juror #42 (“#42”), 

arguing the strike was improper under Batson v. Kentucky, 476 U.S. 79 

(1986). At trial, the State played recordings of Officer JW’s three interviews 

with Orner for the jury. 

¶6 The jury found Orner guilty as charged. As an aggravating 

factor regarding Count 1—the assault on CK—the jury found the State 

proved beyond a reasonable doubt that the offense involved the use, 

threatened use, or possession of a dangerous instrument during the 

commission of the offense. The court imposed presumptive concurrent 

terms of imprisonment. Orner timely appealed, and we have jurisdiction 

pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 

13-4031, and -4033(A)(1).

DISCUSSION

I. Batson Challenge

¶7 Orner argues the court erred in denying his Batson challenge. 

We disagree.

¶8 “A Batson challenge proceeds in three steps: (1) the party 

challenging the strikes must make a prima facie showing of discrimination; 

(2) the striking party must provide a race-neutral reason for the strike; and 

(3) if a race-neutral explanation is provided, the trial court must determine 

whether the challenger has carried its burden of proving purposeful racial 

discrimination.” State v. Roque, 213 Ariz. 193, 203, ¶ 13 (2006) (internal 

quotation marks and citations omitted). The third step is fact-intensive; the 

trial court evaluates the credibility of the State’s proffered explanation, 

considering factors such as “the prosecutor’s demeanor . . . how reasonable, 

or how improbable, the explanations are[,] and . . . whether the proffered 

rationale has some basis in accepted trial strategy.” Miller-El v. Cockrell, 537 

U.S. 322, 339 (2003); State v. Newell, 212 Ariz. 389, 401, ¶ 54 (2006). 

“Implausible or fantastic justifications may (and probably will) be found to 

be pretext[ual].” Newell, 212 Ariz. at 401, ¶ 54 (quoting Purkett v. Elem, 514 

U.S. 765, 768 (1995)). 

¶9 “We review a trial court’s decision regarding the State’s 

motives for a peremptory strike for clear error.” Roque, 213 Ariz. at 203, ¶ 

12. Absent extraordinary circumstances, “[w]e give great deference to the 

trial court’s ruling, based, as it is, largely upon an assessment of the 
STATE v. ORNER

Decision of the Court

4

prosecutor’s credibility.” Id. at ¶ 13. We review the trial court’s application 

of the law de novo. State v. Lucas, 199 Ariz. 366, 368, ¶ 6 (App. 2001). 

¶10 During voir dire, #42, along with the other potential jurors, 

informed the court and the parties of his employment, whether he was 

married and had children, and whether he served on a jury before. He also 

raised his hand, as did five others, to the court’s question posed to the panel: 

“[W]ho would vote not guilty right now[?]” 

¶11 After Orner raised his Batson challenge, the court asked the 

State to give a race-neutral explanation for the strike, and the prosecutor 

responded, “[W]e had very little information on [#42].” The State indicated 

it had also struck two other potential jurors based on the limited 

information they revealed during voir dire. 

¶12 By asking for a “race-neutral” explanation, the court 

implicitly found that Orner met his initial burden to make a prima facie case 

of intentional discrimination based on race.2 State v. Bustamante, 229 Ariz. 

256, 261, ¶ 16 (App. 2012). As for the second step of the Batson analysis, the 

State’s proffered explanation for the strike—having little information about 

#42—is facially race-neutral. State v. Harris, 184 Ariz. 617, 620 (App. 1995). 

And, by denying Orner’s Batson challenge and impaneling the jury, the 

court implicitly found Orner failed to establish that the State’s explanation 

was a pretext for purposeful discrimination. Id. This implicit 

determination “properly rested on an assessment of the prosecutor’s 

credibility.” Id. 

¶13 Nonetheless, Orner contends the State engaged in racial 

discrimination because the State did not strike some (apparently white) jury 

members who similarly divulged little information during voir dire. We 

cannot address this contention, however, because the record does not reveal 

the racial composition of the venire panel or the jury, let alone the race of 

other panel members stricken by the State. See State v. Decker, 239 Ariz. 29, 

32, ¶ 10 (App. 2016) (recognizing that although “‘lack of general 

information’ is generally an unpersuasive rationale for striking a 

prospective juror,” the rationale alone does not show purposeful racial 

discrimination). Orner also argues the prosecutor “misled” the court by 

stating the only information known about #42 was his biographical 

information, when, in fact, #42 had responded to the court’s question 

regarding Orner’s guilt before evidence had been presented. We do not 

discern any intention to mislead the court; indeed, the court was 

 

2 In his opening brief, Orner refers to #42 as “nonwhite.” We note, 

however, that nothing in the record indicates #42’s race. 
STATE v. ORNER

Decision of the Court

5

presumably aware of #42’s response because it noted #42’s answer to the 

question regarding guilt. Finally, we reject Orner’s assertions that, to 

survive his Batson challenge, the prosecutor was required to (1) question 

#42 more thoroughly, and (2) establish “some relationship” between this 

case and the reason for striking #42. See Purkett, 514 U.S. at 769 (explaining 

“legitimate reason” behind a peremptory strike need not be “a reason that 

makes sense, but a reason that does not deny equal protection.”).

¶14 On this record, and based on the deference properly afforded 

the trial court in its evaluation of the prosecutor’s credibility, Orner has not 

shown the clear error required to reverse the trial court’s denial of his Batson

challenge. 

II. Motion to Suppress

¶15 Orner argues the trial court erred in denying his motion to 

suppress. We review a trial court’s ruling on a motion to suppress a 

defendant’s inculpatory statements for an abuse of discretion. Newell, 212 

Ariz. at 396 n.6, ¶ 22. In conducting such a review, we consider only the 

evidence presented at the suppression hearing, and we view that evidence 

in a light most favorable to upholding the court’s ruling. Id. at ¶ 22; State v. 

Hyde, 186 Ariz. 252, 265 (1996). We defer to the trial court’s determinations 

of an interrogator’s credibility and the reasonableness of the interrogator’s 

inferences. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996). But we 

review the trial court’s ultimate legal conclusion de novo. Id.

¶16 Orner first contends the statements made before Officer JW 

read him his Miranda rights occurred while he was in custody and were 

therefore inadmissible. Miranda requires the police to warn suspects who 

are in custody of their rights before initiating questioning. State v. Spears, 

184 Ariz. 277, 286 (1996) (citing Miranda, 384 U.S. at 444). Consequently, as 

Orner properly observes, the threshold issue is whether he was in custody 

when questioned the first two times by Officer JW at the hospital.

¶17 Miranda warnings are required “only where there has been 

such a restriction on a person’s freedom as to render him ‘in custody.’” 

Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Oregon v. Mathiason, 

429 U.S. 492, 495 (1977)). “Custody” as used in Miranda “is a term of art that 

specifies circumstances that are thought generally to present a serious 

danger of coercion.” Howes v. Fields, 132 S. Ct. 1181, 1189 (2012). As relevant 

here, “custody” means either a “‘formal arrest or restraint on freedom of 

movement’ of the degree associated with a formal arrest.” Maryland v. 

Shatzer, 559 U.S. 98, 112 (2010) (quoting New York v. Quarles, 467 U.S. 649, 

655 (1984)). 
STATE v. ORNER

Decision of the Court

6

¶18 In determining whether a person is in custody for purposes 

of Miranda, the court considers all the circumstances of the interrogation to 

determine whether a reasonable person would have felt deprived of his or 

her freedom “in a significant way.” State v. Morse, 127 Ariz. 25, 28 (1980). 

Relevant factors include the location and duration of the questioning, 

statements made during the questioning, the presence or absence of 

physical restraints and whether the person was released at the end of 

questioning. Howes, 132 S. Ct. at 1189.

¶19 The evidence from the suppression hearing shows Officer JW

did not accompany Orner to the hospital, and when they both arrived at the 

emergency room “roughly around the same time,” Officer JW stood off to 

the side so hospital staff could commence treating Orner’s head wound. 

Officer JW did not know whether Orner was a suspect, victim, or witness. 

¶20 When staff informed Officer JW he could speak to Orner, he

did so, saying, “Look, I need to know the basics of what happened, what 

transpired, and how did we get to this point.” Orner replied that he was at 

CK’s to check on personal property he had stored there, and when he 

arrived, a fight ensued involving people swinging weapons at each other. 

¶21 A nurse returned to continue treatment, and Officer JW

contacted officers who were interviewing the others involved in the 

altercation. Officer JW learned that, according to the other subjects, Orner 

was not “welcome at [CK’s residence,]” and Orner instigated the fight. 

¶22 Still not certain who the initial aggressor was, Officer JW 

returned to Orner’s bedside to clarify what happened. Orner gave a more 

detailed description of the altercation, which, according to him, ended 

when he was hit in the head with an object before retreating and calling 9-

1-1.3 Orner claimed he “may have hit one of them,” but he was not certain 

because he “was just swinging.” The first two interviews lasted between 

eight and fifteen minutes, and Officer JW did not know “who was telling 

the truth” as between Orner on the one hand, and CK and SR on the other. 

¶23 Medical staff returned to Orner to begin scanning and taking 

X-rays of his head, and Officer JW again contacted the officers interviewing 

the other subjects. During this conversation, the officers discussed evidence 

collected at the scene and the inconsistencies between Orner’s and the other 

 

3 According to the record, Orner called 9-1-1 two minutes after one of 

the victims did so. 
STATE v. ORNER

Decision of the Court

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subjects’ description of the altercation. Based on this information, Officer 

JW and the other officers suspected Orner was the initial aggressor. 

¶24 Orner completed his scans and X-rays and returned to his 

room where Officer JW read him his Miranda rights. Orner agreed to 

answer questions, and he repeated “essentially the same story.” Officer JW

waited for Orner to be discharged from the hospital before arresting him. 

¶25 The foregoing demonstrates that Orner was not in custody 

while he was in the hospital and being interviewed by Officer JW. Officer 

JW was the only officer present, and no evidence was presented showing 

JW restrained Orner at the hospital (or that Orner was restrained at all). No 

evidence revealed that Officer JW exhibited undue force, made threatening 

comments or promises, or engaged in any activity that could have 

overborne Orner’s will. Officer JW had not indicated that Orner was 

suspected of assaulting CK and SR, had not told Orner he was under arrest, 

and the questioning was not prolonged. Rather, Officer JW’s questioning 

amounted to nothing more than a short investigation. Merely responding, 

while hospitalized and unrestrained, to a police officer’s questions 

regarding a possible crime does not alone rise to the level of custodial 

interrogation for purposes of Miranda. See State v. Tucker, 557 A.2d 270, 272 

(N.H. 1989) (noting majority of courts have determined police must impose

a restraint on defendant’s freedom of movement in hospital to implicate 

Miranda). Under these circumstances, no reasonable person would believe 

she was deprived of her freedom in a significant way. Orner, therefore, was 

not in custody, and no Miranda violation occurred. 

¶26 Orner also argues that the three separate interviews 

amounted to a “three-stage ploy to obtain inculpatory statements,” thereby 

rendering the statements made after Officer JW informed him of his 

Miranda rights inadmissible under Missouri v. Seibert, 542 U.S. 600 (2004).

¶27 We have previously described the two-stage interrogation 

technique prohibited by Seibert as follows:

In the first stage, police interrogate a person in custody 

without having given the person his Miranda warnings and 

the person has made statements in response to that 

questioning. Then, in the second stage, the police give the 

person his Miranda warnings, the person waives his right to 

remain silent and the person repeats his prior statements in 

response to the police repeating the questions or lines of 

questions asked prior to the Miranda warnings being given.
STATE v. ORNER

Decision of the Court

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State v. Zamora, 220 Ariz. 63, 66 n.2, ¶ 1 (App. 2009) (citing Seibert, 542 U.S. 

at 604). As we noted in Zamora, the two-stage interrogation technique 

prohibited by Seibert exists only when Miranda is violated initially. Id. at ¶ 

1. Because Miranda was not violated during Orner’s first two interviews, 

Seibert does not apply.

¶28 For the foregoing reasons, the trial court properly denied 

Orner’s motion to suppress.

CONCLUSION

¶29 For the foregoing reasons, we affirm Orner’s convictions and 

sentences.