IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

GEORGE WILLIE RIOS,

Appellant.

No. 2 CA-CR 2022-0084

Filed April 10, 2023

Appeal from the Superior Court in Pima County

No. CR20195491001

The Honorable James E. Marner, Judge

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General

Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals

By Amy Pignatella Cain, Assistant Attorney General, Tucson

Counsel for Appellee

Megan Page, Pima County Public Defender

By David J. Euchner, Assistant Public Defender, Tucson

Counsel for Appellant
STATE v. RIOS

Opinion of the Court

2

OPINION

Judge Sklar authored the opinion of the Court, in which Vice Chief Judge 

Staring and Judge O’Neil concurred.

S K L A R, Judge:

¶1 George Rios appeals his convictions and sentences for theft of 

property, burglary, and theft of a means of transportation. He argues that 

the trial court abused its discretion in denying his motion to suppress based 

on Miranda v. Arizona, 384 U.S. 436 (1966). He further argues that the 

Miranda advisory was inadequate because it stated only that he had the 

right to “the presence of an attorney to assist you prior to questioning.” It 

did not expressly state that his right to counsel continued “during” 

questioning. We conclude that the advisory reasonably conveyed Rios’s 

rights, such that the trial court did not abuse its discretion. The “prior to” 

language conveyed to Rios when his right to the “presence” of counsel was 

triggered. It did not convey any subsequent limitation on that right. We 

also reject Rios’s arguments that insufficient evidence supported his 

convictions and that the trial court erred in giving certain jury instructions. 

We therefore affirm Rios’s convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the 

jury’s verdicts, and we resolve all inferences against Rios. See State v. Felix, 

237 Ariz. 280, ¶ 30 (App. 2015). In October 2019, Rios was doing

construction work at a fitness center in Tucson. M.V. also worked there as 

a custodian. On the morning of the offense, M.V. drove her son’s blue 2011 

Chevrolet HHR to work and parked in the front of the building. After she 

went inside, M.V. retrieved a janitorial cart and hung her lanyard, which 

included her car keys, on the cart. 

¶3 When her shift ended, M.V. noticed that both her keys and car 

were missing. Fitness center staff viewed the facility’s surveillance footage,

which showed a man walking across the parking lot and driving away in 

M.V.’s car. The man was wearing a black jacket over a pullover sweatshirt, 

a white hard-hat, jeans, and work boots. He was carrying a broom and 

shovel. Rios’s employer identified the man as Rios, based on his clothing, 

the broom, and the shovel. M.V. identified the car as hers and stated that 

she had not given Rios permission to drive it. 
STATE v. RIOS

Opinion of the Court

3

¶4 The next day, police officers detained Rios for questioning. 

After giving a Miranda advisory, they asked Rios what had happened the 

day before. Rios responded that nothing had seemed out of the ordinary. 

He denied stealing any vehicles and provided his residential address. 

¶5 During a visit to Rios’s home, officers found M.V.’s vehicle on 

a neighbor’s property, roughly 300 to 400 feet south. The license plate and 

VIN matched the vehicle M.V. had reported stolen. A witness had seen 

items being taken from the vehicle and carried into the neighbor’s 

residence. Some items from the vehicle were subsequently found in that 

residence. 

¶6 M.V. had left a purse containing her checkbook, 

identification, and $1,572 in cash under the vehicle’s front seat. Those items

were missing when the vehicle was recovered and were never found. 

¶7 Rios was indicted on five counts: (1) theft of means of 

transportation; (2) burglary in the third degree; (3) theft of property or 

services for stealing the keys, purse, and cash; and (4) two drug counts that 

were severed before trial. A jury found him guilty of the remaining three 

charges, and the trial court sentenced him to concurrent terms of 

imprisonment totaling 7.5 years. This appeal followed. We have 

jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 

13-4033(A)(1).

MIRANDA ADVISORY

¶8 Rios argues that the trial court improperly denied his motion 

to suppress his post-arrest statements and the fruits of those statements 

because the arresting officer gave an inadequate Miranda advisory. “We 

review the court’s denial of [the] motion to suppress for an abuse of 

discretion.” State v. Rushing, 243 Ariz. 212, ¶ 56 (2017). But we review de 

novo whether Rios received an adequate Miranda advisory. See State v. 

Aldana, 252 Ariz. 69, ¶ 10 (App. 2021).

¶9 In reviewing a motion to suppress, we generally consider 

“only the evidence presented at the suppression hearing.” Rushing, 243 

Ariz. 212, ¶ 56. But in this case no evidentiary hearing was held, and the 

trial court decided the matter on the parties’ motions, from which we draw 

the relevant and undisputed facts. The undisputed record shows that when 

Rios was arrested, an officer gave him the following Miranda advisory 

before questioning: 
STATE v. RIOS

Opinion of the Court

4

You have the right to remain silent. Anything 

you say can and will be used against you in a 

court of law. You have the right to the presence 

of an attorney to assist you prior to questioning. 

Um. If you can’t afford one we’ll provide one 

for you. Ok. Do you understand those rights? 

¶10 Before a custodial interrogation, police must advise suspects 

of their rights under the Fifth and Fourteenth Amendments to the United 

States Constitution. State v. Carlson, 228 Ariz. 343, ¶ 6 (App. 2011). The 

advisory must convey the following essential information:

[1] that he has the right to remain silent, 

[2] that anything he says can be used against 

him in a court of law, [3] that he has the right to 

the presence of an attorney, and [4] that if he 

cannot afford an attorney one will be appointed 

for him prior to any questioning if he so desires.

Id. ¶ 8 (quoting Florida v. Powell, 559 U.S. 50, 59-60 (2010)). Absent such an 

advisory, the defendant cannot be deemed to have knowingly waived those 

rights even if the defendant chooses to talk to police. Id. ¶¶ 5-6.

¶11 Although every element of the advisory must be conveyed, 

courts do not dictate the precise language. Id. ¶ 9. As long as “the sum total 

of statements in a Miranda advisory reasonably conveys the essential 

information,” the warning is sufficient. Id. Nevertheless, the advisory 

“must inform the defendant that the right to counsel exists before and 

during interrogation” and “must not convey the message that appointed 

counsel cannot be made available until some future time.” State v. 

Moorman, 154 Ariz. 578, 585 (1987).

¶12 Rios argues that the advisory was inadequate because the 

officer told him he had a right to counsel “prior to” questioning, but not

“during” questioning. We find instructive the United States Supreme 

Court’s decision in Powell, which concluded that a similar advisory was 

sufficient. 559 U.S. at 53, 62-63. There, the officer had advised the suspect 

that he had “the right to talk to a lawyer before answering any of [the 

officers’] questions” and that he could invoke this right “at any time . . .

during th[e] interview.” Id. at 53 (alterations in Powell). The Court reasoned 

that “in context, the term ‘before’ merely conveyed when [the defendant]’s 

right to an attorney became effective” and that “[n]othing in the words used 

indicated that counsel’s presence would be restricted after the questioning 
STATE v. RIOS

Opinion of the Court

5

commenced.” Id. at 63. It also rejected as “unlikely” a scenario in which a 

suspect who has just received a Miranda advisory would lose the right to 

counsel once the interview commenced. Id. at 62-63.

¶13 This case is distinguishable from Powell because here, the 

officer did not say that Rios could invoke his right to counsel at any time. 

He said only that Rios had the “right to the presence of an attorney to assist 

[him] prior to questioning.” No Arizona cases have applied Powell to 

advisories such as this. Two noteworthy cases from outside Arizona, 

however, have done so. In the first case, Rigterink v. State, the defendant 

had received an oral and written advisory that stated in relevant part, “I 

have the right to have an attorney present prior to questioning.” 66 So. 3d 

866, 884 (Fla. 2011) (emphasis omitted). In the second case, United States v. 

Clayton, the advisory stated, “You have the right to talk to a lawyer before 

we ask you any questions.” 937 F.3d 630, 634 (6th Cir. 2019). 

¶14 The courts in both Rigterink and Clayton concluded that the 

advisories had reasonably conveyed the essential information about the 

defendants’ rights. Like Powell, they concluded that the temporal 

language—“prior to questioning” in Rigterink and “before we ask you any 

questions” in Clayton—conveyed when the right to counsel was triggered. 

Rigterink, 66 So. 3d at 892 (emphasis omitted); Clayton, 937 F.3d at 639. They 

rejected the suggestion that the advisory could reasonably be understood 

as limiting the right to counsel during interrogation. Id. In doing so, the 

Rigterink court emphasized the advisory’s reference to the right to have an 

attorney “present.” 66 So. 3d at 892-93. Like the Court in Powell, the 

Rigterink court concluded that it would be “indefensible” and “illogical” for 

the defendant to believe he “could have counsel present before questioning 

began and that, once questioning began, counsel must leave.” Id. at 893

(emphasis added). The court in Clayton also noted that the advisory at issue 

was similar to one that the United States Supreme Court had endorsed in 

Miranda itself. See 937 F.3d at 639-40 (citing Miranda, 384 U.S. at 479). 

¶15 Rios describes Clayton as an “aberration.” He does not 

address Rigterink at all. But he has cited no cases concluding that advisories 

like the one he received are insufficient to reasonably convey a defendant’s 

rights. We also find Rigterink and Clayton persuasive. Following their logic, 

we conclude that the advisory provided to Rios was sufficient. As in those 

cases, the officer’s statement that “[y]ou have the right to the presence of an 

attorney to assist you prior to questioning” reasonably conveys when the 

right to counsel was triggered. The advisory did not suggest that the right 

to counsel terminated once questioning began, nor could Rios have 

reasonably drawn such an inference. Doing so would involve the scenario 
STATE v. RIOS

Opinion of the Court

6

rejected by Powell and Rigterink as “unlikely,” “indefensible,” and 

“illogical,” where counsel would be present only until the interrogation 

began. 

¶16 Rios cites Moorman, 154 Ariz. at 585, to argue that the advisory 

was insufficient because it did not inform him that the right to counsel 

existed during the interrogation. But as we have explained, the advisory 

reasonably conveyed that message. The advisory also did not violate 

Moorman’s prohibition on “convey[ing] the message that appointed counsel 

cannot be made available until some future time.” See id. Rather, it 

expressly stated that Rios had the right to counsel even before the 

interrogation. 

¶17 Nor are we persuaded by Rios’s citation to Carlson, 228 Ariz. 

343, ¶¶ 13, 14. Unlike this case, the defendant in Carlson attempted to recite 

the Miranda advisory himself when the officer began to do so. Id. ¶ 3. 

However, the defendant did so incorrectly. Id. ¶ 10. He said he knew an 

“attorney will be appointed to represent [him] if [he] cannot afford one,” 

but he did not suggest he knew that the right to counsel existed before and 

during questioning. Id. ¶¶ 10, 12. Nor did the officer supply this 

information. Id. ¶ 3. Here, by contrast, the officer advised Rios that he had 

the right to the presence of counsel before questioning, rather than at some

future “unspecific stage in the criminal proceedings.” Id. ¶ 12. 

¶18 We acknowledge that Carlson refers repeatedly to the right to 

counsel before and during questioning. 228 Ariz. 343, ¶¶ 10, 13-14. Those 

comments made sense in the context of Carlson, where the defendant’s 

statement evidenced no understanding of when the right to counsel 

attaches or applies. Id. ¶ 12. Here, by contrast, the officer advised Rios of 

that information. Moreover, the defendant in Carlson said nothing about 

counsel’s presence. Id. ¶ 3. In this case, the officer told Rios that he had the 

right to the “presence” of an attorney. As we have explained, that 

statement, coupled with the “prior to questioning” language, conveyed to 

Ruiz that the right to counsel was triggered before questioning. It logically 

continued through questioning. We therefore conclude that the trial court 

did not err in denying Rios’s motion to suppress. However, we emphasize 

while the Miranda advisory reasonably conveyed Rios’s rights, the better 

practice is to explicitly state that defendants have the right to counsel’s 

presence both before and during the interrogation. 
STATE v. RIOS

Opinion of the Court

7

SUFFICIENCY OF THE EVIDENCE

¶19 Rios also argues that we must vacate his convictions because

the state presented insufficient evidence to support them. After the close of 

evidence, Rios moved for a judgment of acquittal, which the trial court 

denied. He renewed his motion after the verdict, asserting additional 

failures in the state’s evidence. He also filed a motion for a new trial,

arguing that the verdict was contrary to the weight of the evidence. The 

court denied each motion. 

Standard of review

¶20 A defendant is entitled to a judgment of acquittal if “there is 

no substantial evidence to support a conviction.” Ariz. R. Crim. P. 20(a). 

Substantial evidence is more than a “mere scintilla.” State v. Hughes, 189 

Ariz. 62, 73 (1997) (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). It 

requires “such proof that reasonable persons could accept as adequate and 

sufficient to support a conclusion of defendant’s guilt beyond a reasonable 

doubt,” State v. West, 226 Ariz. 559, ¶ 16 (2011) (quoting Mathers, 165 Ariz. 

at 67). However, where “reasonable minds may differ on inferences drawn 

from the facts, the case must be submitted to the jury,” as the court may not

“re-weigh the facts or disregard inferences that might reasonably be drawn 

from the evidence.” Id. ¶ 18 (quoting State v. Lee, 189 Ariz. 590, 603 (1997)).

Furthermore, when considering whether substantial evidence exists, we 

resolve conflicts in the evidence against the defendant and view the facts in 

the light most favorable to sustaining the verdict. State v. Pena, 235 Ariz. 

277, ¶ 5 (2014). 

¶21 Substantial evidence must support each element of the crime 

charged. West, 226 Ariz. 559, ¶ 16. Additionally, while a defendant’s 

mental state is often challenging to prove, absent an outright admission, it 

may be properly “ascertained by inference from all relevant surrounding 

circumstances.” In re William G., 192 Ariz. 208, 213 (App. 1997); see also State 

v. Bearup, 221 Ariz. 163, ¶ 16 (2009) (“Criminal intent, being a state of mind, 

is shown by circumstantial evidence.”).

¶22 Rios does not clearly argue that the trial court improperly 

denied his motion for a new trial, so we do not consider that ruling apart 

from his claims related to the sufficiency of the evidence. See State v. Bolton, 

182 Ariz. 290, 298 (1995) (“Failure to argue a claim on appeal constitutes 

waiver of that claim.”); cf. also State v. Clark, 249 Ariz. 528, ¶ 18 (App. 2020) 

(“A conviction based on insufficient evidence is fundamental error whether 

a defendant expressly argues fundamental error or not.”). We review Rios’s 
STATE v. RIOS

Opinion of the Court

8

sufficiency-of-the-evidence argument claim de novo. See State v. Fuentes, 

247 Ariz. 516, ¶ 36 (App. 2019). 

Theft of means of transportation

¶23 We first address Rios’s conviction for theft of a means of 

transportation. Under the two theories the state argued at trial, a person is 

guilty of theft of means of transportation if the person knowingly and 

without lawful authority controls another person’s vehicle either with the 

intent to permanently deprive them of it or while knowing or having reason 

to know that the vehicle was stolen. See A.R.S. §§ 13-1814(A)(1), (5), 

13-1801(A)(9). 

¶24 Substantial evidence supported Rios’s conviction. M.V. and 

her son filled out a stolen-vehicle affidavit. The surveillance footage 

showed a man identified as Rios driving away in M.V.’s car. Additionally,

given that the vehicle had been found very near Rios’s home, the jury could 

reasonably conclude that he was the person in the video. From those 

circumstances, as well as M.V.’s missing keys and Rios’s opportunity to 

steal them, the jury could also infer that Rios had knowingly taken the 

vehicle. Also, as more than two weeks had passed before the vehicle was 

found, the jury could conclude that Rios intended to permanently deprive 

M.V. of the vehicle, or at a minimum, that he knew the vehicle was stolen. 

¶25 Rios argues that several weaknesses in the evidence rendered 

it insufficient. Specifically, he argues that: (1) the surveillance video was 

low quality and his employer might have mistakenly identified him; 

(2) Rios and his manager provided conflicting testimony about when Rios

had left work; (3) no physical evidence connected him to the stolen vehicle 

or its contents; (4) no evidence showed that he had an opportunity to steal 

M.V.’s keys; and (5) the police investigation was insufficiently thorough.

¶26 We agree with Rios that a reasonable jury could have weighed 

the evidence differently. But we may not reverse a conviction for 

insufficiency of the evidence simply because another jury might have 

reached a different verdict. See State v. Williams, 209 Ariz. 228, ¶6 (2004). 

Nor is the lack of physical evidence connecting Rios to the crime 

dispositive. State v. Hall, 204 Ariz. 442, ¶ 49 (2003) (“[P]hysical evidence is 

not required to sustain a conviction if the totality of the circumstances 

demonstrates guilt beyond a reasonable doubt.”). 
STATE v. RIOS

Opinion of the Court

9

Burglary

¶27 A person commits burglary in the third degree by entering or 

remaining unlawfully in a vehicle with the intent to commit any theft or 

felony therein. A.R.S. § 13-1506(A)(1); see also § 13-1501(12) (defining 

“structure” to include vehicles). Sufficient evidence also supported Rios’s 

burglary conviction. The surveillance footage, the identification, and the 

location of the stolen vehicle allowed the jury to conclude that Rios had 

unlawfully entered M.V.’s vehicle. The evidence likewise supported the 

conclusion that Rios had an intent to commit a felony within the vehicle, 

namely, theft of a means of transportation. 

Theft

¶28 A person commits theft if, without lawful authority, the 

person knowingly controls the property of another with the intent to 

deprive that person of it or while knowing or having reason to know that 

the property was stolen. See A.R.S. § 13-1802(A)(1), (5). 

¶29 Rios was charged with theft of property valued between

$1,000 and $2,000 for stealing M.V.’s cash, purse, and keys. See A.R.S. 

§ 13-1802(A), (G). Sufficient evidence also supported this conviction. M.V. 

testified that her purse had contained $1,572 to pay wages to the employees 

she was supervising. She also testified that she had left the purse hidden 

under the vehicle’s front seat, which was moved forward. However, when 

the vehicle was recovered, the front seat had been moved back, which 

would have exposed the purse. The purse, including the cash and keys, 

were missing and never recovered. 

¶30 From this evidence, the jury could reasonably conclude that 

Rios had exposed the purse when he moved the seat back, then 

intentionally removed the purse and its contents. Although no evidence 

corroborated the existence of the purse and the cash, corroboration would 

not necessarily be expected given the nature of the stolen items, nor was it 

required. See State v. Munoz, 114 Ariz. 466, 469 (App. 1976) (“conviction 

may be based on the uncorroborated testimony of the victim unless the 

story is physically impossible or so incredible that no reasonable person 

could believe it”). M.V. credibly explained the presence and amount of the 

cash—she was using it to pay employees. And as the evidence supported 

the other theft and burglary convictions, it also provided a sufficient basis 

for the jury to reasonably conclude that Rios had known the purse was 

stolen.
STATE v. RIOS

Opinion of the Court

10

JURY INSTRUCTION

¶31 Finally, Rios argues that the trial court improperly instructed 

the jury on theories of theft and theft of means of transportation. Those 

instructions allowed the jury to convict Rios based on a finding that he had 

knowingly controlled the stolen property. He argues that the instructions

were improper because they invited the jury to speculate and find guilt 

when unsupported by the evidence. 

¶32 We review the trial court’s decision to give a jury instruction 

for abuse of discretion, and we will only reverse if “the instructions, when 

taken as a whole, would mislead the jurors.” See Leon v. Marner, 244 Ariz. 

465, ¶ 11 (App. 2018) (quoting State v. Rutledge, 197 Ariz. 389, ¶ 15 (App. 

2000)). A party is entitled to a jury instruction on any theory that is 

reasonably supported by the evidence. State v. Rodriguez, 192 Ariz. 58, ¶ 16 

(1998). We view the evidence in the light most favorable to the proponent 

of the instruction. State v. Almeida, 238 Ariz. 77, ¶ 9 (App. 2015). The court 

may not weigh or resolve conflicts in the evidence, but must decide only 

whether there is sufficient evidence to sustain the verdict. Id. The “slightest 

evidence” is sufficient to support a jury instruction. Id. (quoting State v. 

King, 225 Ariz. 87, ¶ 14 (2010)). 

¶33 We conclude that the trial court did not abuse its discretion in 

providing the instruction. Sufficient evidence supported the theory that 

Rios had knowingly controlled the stolen vehicle and other property, given 

the surveillance video and the vehicle being found close to his home. We 

reject Rios’s argument that this theory presumes that he must have been 

caught in possession of the property. The jury could reasonably infer from 

those circumstances that Rios had knowingly controlled the property. 

¶34 Rios also notes that the state did not request an optional 

instruction under A.R.S. § 13-2305 that allows jurors to infer from certain 

types of evidence that a defendant controlled stolen property. But Rios has 

pointed to nothing to suggest that the jury is precluded from making the 

same inference based on other evidence. Nor does A.R.S. § 13-2305 contain 

such a suggestion. 

DISPOSITION

¶35 For the foregoing reasons, we affirm Rios’s convictions and 

sentences.