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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEPHEN E. PHILBROOK, Appellant.

No. 1 CA-CR 22-0235 

Appeal from the Superior Court in Maricopa County

No. CR2019-006280-001

The Honorable Roy C. Whitehead, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Kevin M. Morrow

Counsel for Appellee

Brown & Little PLC, Chandler

By Matthew O. Brown

Counsel for Appellant

FILED 5-23-2023
STATE v. PHILBROOK

Decision of the Court

2

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Vice 

Chief Judge David B. Gass and Judge Andrew M. Jacobs joined.

F U R U Y A, Judge:

¶1 Stephen E. Philbrook appeals his convictions and sentences 

for molestation of a child and sexual exploitation of a minor, arguing the 

trial court should have suppressed incriminating statements he made 

during a police interview, and the prosecutor engaged in misconduct at 

trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Philbrook lived in Glendale with his girlfriend, “Julie,” 1 and 

Julie’s young daughter, “Natalee,” when he and Julie had a baby boy. Julie

moved out in 2016, but Philbrook continued giving her money “to help her 

get back on her feet.” And although she left the children under Philbrook’s 

care, Julie would frequently visit them at his home. 

¶3 During one of those visits in 2018, Julie found a video on 

Philbrook’s phone that showed eight-year-old Natalee sitting on 

Philbrook’s lap while “he’s touching her.” Natalee was not wearing 

underwear and the video was recorded from under a table where the two 

were sitting on a chair. Julie took the phone and called the police. 

¶4 Detectives arrested Philbrook and obtained a warrant to 

search his home. At Philbrook’s subsequent early-morning interview, the 

first detective advised him of his Miranda rights. Philbrook said he 

understood, and the interview proceeded. The second detective joined the 

interview one hour later. Telling Philbrook, “We know about everything,” 

the second detective described incriminating evidence collected during the 

search of Philbrook’s home. The second detective questioned Philbrook in 

an aggressive and loud manner, repeatedly using explicit language, stated 

that Philbrook “look[ed] like a monster . . . preying on this poor little girl,” 

and twice told Philbrook to “man up.” 

1 “Julie” and “Natalee” are the pseudonyms used in the State’s

Answering Brief.
STATE v. PHILBROOK

Decision of the Court

3

¶5 Philbrook immediately interjected and admitted he “made 

bad decisions . . . but I never meant to hurt her.” When asked how many 

times he had touched Natalee’s vagina, Philbrook responded, “I can’t 

believe I did it even once” before admitting, “Once or twice . . . if that.” 

Philbrook then explained that he did not know the video of Natalee sitting 

on his lap was saved on his phone. “I thought [it was] deleted,” he said. A 

video recording of the interview was admitted at trial without objection and 

played for the jury. 

¶6 Contrary to what he told Philbrook during the interview, the 

second detective admitted at trial he had not at that time personally viewed 

the video on Philbrook’s phone. Philbrook testified he either did not recall 

making the inculpatory statements or he falsely confessed because he was 

“in . . . unbearable pain” from his psoriatic arthritis, which was exacerbated 

by his cold jail cell. Philbrook explained he was “just trying to get out of 

there” because the second detective was “really aggressive.”

¶7 After the defense concluded its case, the court instructed the 

jurors not to consider any statements made by Philbrook during his 

interview unless they determined beyond a reasonable doubt that he made 

the statements voluntarily. The court then instructed: “The defendant’s 

statement was not voluntary if it resulted from the defendant’s will being 

overcome by a law enforcement officer’s use of any sort of violence,

coercion, or threats, or by any direct or implied promise, however slight.”

Philbrook’s closing argument followed, and he urged the jury to find his 

statements were involuntary because the detective “lied” to him, “got up in 

his face[,]” and “bullied him until he started saying what they wanted him 

to say.” 

¶8 The jury found Philbrook guilty on one count each of

molestation of a child and sexual exploitation of a minor. The trial court 

imposed presumptive and consecutive 17-year prison terms.

¶9 Philbrook timely appealed, and we have jurisdiction under 

Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -

4033(A)(1).

DISCUSSION

I. Philbrook’s Statements to the Detectives were Voluntary.

¶10 Philbrook argues the trial court erred by admitting evidence 

of his confessions. See A.R.S. § 13-3988(C) (defining “confession,” in part, as 

“any self-incriminating statement made or given orally or in writing.”). 
STATE v. PHILBROOK

Decision of the Court

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According to Philbrook, he confessed involuntarily and his incriminating 

statements therefore should have been suppressed.2

¶11 Philbrook admits he did not file a pretrial motion in superior 

court seeking to suppress his statements on voluntariness grounds. See 

Ariz. R. Crim. P. 16.1(b) (“Parties must make all motions no later than 20 

days before trial[.]”). He also concedes he did not raise a similar objection 

at trial. See State v. Alvarado, 121 Ariz. 485, 488 (1979) (defendant has the 

burden of raising issues regarding voluntariness). 

¶12 In the absence of a trial objection, when a question of 

voluntariness is raised by the evidence, a trial court is not required to sua 

sponte conduct a hearing to determine whether a defendant’s confession 

was voluntary; rather, the court has discretion to do so. Bush, 244 Ariz. at 

588–90 ¶¶ 53–62. Similarly, if a defendant does not request a pretrial 

suppression hearing, a court may exercise its discretion and suppress a 

confession after finding the trial evidence establishes the defendant 

confessed involuntarily. See State v. Davolt, 207 Ariz. 191, 208 ¶ 60 (2004)

(“The admission of evidence is within the trial court’s discretion and will 

not be disturbed absent an abuse of discretion.”).

¶13 Because Philbrook did not move to suppress his confessions 

or object to their admission at trial on voluntariness grounds, he bears the 

burden on appeal of establishing fundamental error. State v. Escalante, 245 

Ariz. 135, 140, 142 ¶¶ 12, 21 (2018); see State v. Londo, 215 Ariz. 72, 76 ¶ 12 

(App. 2006) (reviewing defendant’s claim of an involuntary confession for 

fundamental error because he raised the issue “for the first time on 

appeal”). To carry his burden, Philbrook must prove either error and 

resulting prejudice or that the error “was so egregious that he could not 

possibly have received a fair trial.” Escalante, 245 Ariz. at 142 ¶ 21. That is, 

to prevail on appeal, Philbrook must first establish the trial court abused its 

discretion by failing to sua sponte suppress evidence of his confessions. See 

id. (“[T]he first step in fundamental error review is determining whether 

trial error exists.”). He did not do so.

2 Philbrook does not argue the court abused its discretion by failing to 

hold an evidentiary hearing to determine the voluntariness of his 

statements before admitting them. See State v. Bush, 244 Ariz. 575, 590 ¶ 62 

(2018) (“[I]f a trial court is aware of facts indicating that a confession was 

involuntary, the court, in its discretion and even absent a request, may 

order a voluntariness hearing.”).
STATE v. PHILBROOK

Decision of the Court

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¶14 A defendant’s statements to police are admissible if they are 

voluntary and not obtained by coercion or improper inducement. Haynes v. 

Washington, 373 U.S. 503, 513 (1963); see A.R.S. § 13-3988(A). “In assessing 

voluntariness, we consider the totality of circumstances to determine 

whether the statements were or were not the product of a ‘rational intellect 

and a free will.’” State v. Hoskins, 199 Ariz. 127, 137 ¶ 28 (2000) (quoting 

Mincey v. Arizona, 437 U.S. 385, 398 (1978)). “[C]oercive police activity is a 

necessary predicate to the finding that a confession is not ‘voluntary[.]’” 

Colorado v. Connelly, 479 U.S. 157, 167 (1986).

¶15 The evidence supports Philbrook’s contention that the second 

detective’s questioning was “aggressive” and “confrontational.” But we

find no support for Philbrook’s assertion that he was treated 

“inhumane[ly.]” Indeed, the recorded interview is consistent with the first 

detective’s testimony that Philbrook appeared to understand the 

conversation and did not assert he was too tired or in too much pain to 

continue the interview. In fact, Philbrook did not refuse to answer questions

for any reason. Nor did he otherwise invoke his right to remain silent. And 

although Philbrook was visibly shivering and complained of being cold

when he entered the interview room, he immediately agreed with the first 

detective’s assessment that the room was “warmer.” As the interview 

progressed, Philbrook stopped shivering and he did not repeat his initial 

complaint about the temperature. 

¶16 The interview video also supports the jury’s apparent 

determination the second detective’s questioning did not overcome 

Philbrook’s will and thus was not coercive. During the interview, the 

second detective—who was not wearing a uniform and did not have a 

gun—made no threats or promises. He was seated at a table opposite 

Philbrook throughout his questioning. Philbrook’s testimony that he was 

“just trying to get out of there” because he was cold and in pain from his 

psoriatic arthritis was therefore insufficient to find his confessions were 

involuntary. State v. Smith, 193 Ariz. 452, 457 ¶ 14 (1999) (“Coercive police 

activity is a necessary predicate to the finding that a confession is not 

voluntary[.] When evaluating coercion, the defendant’s physical and 

mental states are relevant to determine susceptibility to coercion, but alone 

are not enough to render a statement involuntary.”) (Internal quotation 

marks and citations omitted). And the second detective’s misrepresentation 

he had personally viewed the video found on Philbrook’s phone was also 

insufficient to render the confessions involuntary. See State v. Winters, 27

Ariz. App. 508, 511 (1976) (“Generally, deception alone does not render a 

statement inadmissible. . . . A statement induced by fraud or trickery is not

made involuntary unless there is additional evidence indicating that the
STATE v. PHILBROOK

Decision of the Court

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defendant’s will was overborne or that the confession was false or

unreliable.”). Moreover, that deception was on a collateral point, given the

video on the phone was in the State’s possession, so that its contents were

available to the second detective and known to Philbrook in the first place.

Finally, while Philbrook’s confession occurred in a ninety-minute

interrogation in the middle of the night, he does not argue that fatigue or

the unusual hour of interrogation overbore his will. See United States v.

Castro-Higuero, 473 F.3d 880, 886 (8th Cir. 2007) (explaining “that early

morning/late night interrogations are not in themselves coercive”).

¶17 On this record, the court acted within its discretion by not 

suppressing evidence of Philbrook’s confessions. No error, fundamental or 

otherwise, occurred. Cf. State v. Strayhand, 184 Ariz. 571, 582 n.3 (App. 1995) 

(finding trial court committed fundamental error by failing to sua sponte

suppress confessions because “the admission of the [d]efendant’s

confessions [that] followed repeated refusals to honor his invocation of his

right to remain silent and which were based on threats constitutes a denial

of due process[.]”).

II. This Record Does Not Support Allegations of Prosecutorial 

Misconduct.

¶18 Philbrook argues the prosecutor engaged in misconduct by 

questioning him in front of the jury about the existence of evidence the court 

had previously ruled was inadmissible. Allegations of prosecutorial 

misconduct requires showing “intentional conduct which the prosecutor 

knows to be improper and prejudicial . . . [and] not merely the result of legal 

error, negligence, mistake, or insignificant impropriety.” State v. Lapan, 249 

Ariz. 540, 548–9 ¶ 25 (App. 2020) (quoting State v. Martinez, 221 Ariz. 383, 

393 ¶ 36 (App. 2009) (cleaned up). In other words, unlike prosecutorial 

error, prosecutorial misconduct must “imply a concurrent ethical rules 

violation.” State v. Shortman, 254 Ariz. 338, 410 ¶ 20 (App. 2022) (quoting 

State v. Murray, 250 Ariz. 543, 548 ¶ 12 (2021)). Because Philbrook failed to 

allege any ethical violation by the prosecutor at trial, we consider his 

argument as one of prosecutorial error.

¶19 Philbrook also cannot show prosecutorial error. Prosecutorial 

error requires showing both that error occurred and “a reasonable 

likelihood exists that the [error] could have affected the jury’s verdict, 

thereby denying [the] defendant a fair trial.” Murray, 250 Ariz. at 548 ¶ 13

(quoting State v. Anderson, 210 Ariz. 327, 340 ¶ 45 (2005). Here however, the 

record belies that argument.
STATE v. PHILBROOK

Decision of the Court

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¶20 The day after the State concluded its case-in-chief, Philbrook 

disclosed handwritten documents he claimed proved his “loans” to Julie. 

The trial court sustained the State’s objection to the documents’ admission, 

finding Philbrook’s disclosure was untimely. The court, however, allowed 

the parties to present testimony “regarding the issues [they] would like to 

elicit testimony on[.]” 

¶21 Philbrook then explained on direct examination he loaned 

Julie $20,000 over the course of two years “for food and stuff” and, 

approximately one week before “this all went down,” Julie learned she 

would be getting $30,000 from Natalee’s father for “back child support[.]”

Of that amount, Philbrook noted Julie’s attorney “wanted a cut[,]” but “no 

matter what, I wanted my $20,000 back[.]” 

¶22 During her cross-examination of Philbrook, the prosecutor

referenced Philbrook’s testimony that “there was some sort of an order 

where [Julie] was going to have to pay you money[,]” before beginning to 

ask: “You haven’t provided any documents or any other information that 

would show—.” Philbrook’s counsel promptly interrupted, and apparently 

alluding to the loan paperwork the court precluded, she objected to “Mr. 

Philbrook not having any documents to support this allegation.” The 

prosecutor clarified for the court that “there hasn’t been anything to 

support that there was some sort of judgment, or a court order, or anything 

in 2018, [which] he has testified to this morning.” The court overruled the 

objection, and the prosecutor continued questioning Philbrook, who stated, 

“There was not a judgment from the court, but it was an agreement between 

me and her.”

¶23 The record therefore shows the prosecutor’s incomplete 

question on cross-examination referred to the lack of documentation 

corroborating Philbrook’s direct testimony Julie received $30,000 in a court 

proceeding involving back child support owed by Natalee’s father. The 

prosecutor did not, as Philbrook argues, refer to the loan documents the 

trial court had precluded. Accordingly, we reject Philbrook’s claim of 

prosecutorial misconduct. The prosecutor did not err, let alone commit 

misconduct. See In re Martinez, 248 Ariz. 458, 470 ¶ 47 (2020) (“When 

reviewing the conduct of prosecutors in the context of ‘prosecutorial 

misconduct’ claims, courts should differentiate between ‘error,’ which may 

not necessarily imply a concurrent ethical rules violation, and ‘misconduct,’

which may suggest an ethical violation.”).
STATE v. PHILBROOK

Decision of the Court

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CONCLUSION

¶24 For the foregoing reasons, we affirm Philbrook’s convictions 

and sentences.