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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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

C ounsel for Appellant FILED 5-23-2023STATE 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

, J udge :

¶1 Stephen E. Philbrook appeals his convictions and sentences for molestation of a child and sexual exp l oitation 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 G le ndale with his g irlfriend

, “Julie

, ” 1 and Jul i e’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 Philb rook ’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 a nd t he 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 warr ant to

sear c h 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 o ne hour later

. Telling Philbrook, “We know about everything ,”

t he 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 us ing explicit language , stated that Philbrook “look[ed] like a mon ster . . . preying on this poor little girl, ”
and t wice t old Philbrook to “man up.”

1 “Julie” and “Natalee” are the pseudonym s 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, “ O nce 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 C ontrary 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

. P hil brook 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 consid er 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 w ill 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 w e 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

4 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 groun ds

. 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, w hen 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 def endant’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 o n 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

i d. (“[ 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, 5 90 ¶ 62 (2018) ( “ [I]f a trial court is aware of facts indicating that a confession wa s involuntary, the court, in its discretion and even absent a request, may order a voluntariness hearing.” ).STATE v. PHILBROOK

Decision of the Court

5 ¶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 i n too much pain to
continue the interview. In fact, Philbrook did not refuse to answer questions for any reason . N or did he otherwise in voke his right to remain silent. And although Philbrook was visibly shivering and complained of being cold
when he enter ed 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 psoria tic arthritis was therefore insufficient to fin d 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.”) ( I nternal quotation
marks and citation s 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 theSTATE v. PHILBROOK

Decision of the Court

6 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 S tate’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 nine ty

- 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

suppress ing evidence of Philbrook’s confessions

. No error, fundamental or otherwise, occurred. Cf. State v. Strayhand , 184 Ariz. 571, 58 2 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 require s showing “intentional conduct which the prosecutor

kno ws to be improper and prejudicial

. . . [and] not merely the result of legal error, negligence, mistake, or insignificant impropriety.” State v. Lapan

, 249 Ariz. 540, 54 8

– 9 ¶ 25 (App

. 2020) (quoting State v. Martinez , 221 Ariz. 383,

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

error , prosecutorial misconduct m ust “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. Anders o n , 210 Ariz. 327, 340 ¶ 45 (2005)

. Here however, t he record belies that argument.STATE v. PHILBROOK

Decision of the Court

7 ¶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 examina tion 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 n oted Julie’s attorney “wanted a cut[,]” but “ n o 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 p ay 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 a pparently 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, o r 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 r ecord 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 fat her. The prosecutor did not, as Philbrook argues, refer to the loan documents the trial court had precluded. Accordingly, w e 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

8 CONCLUSION

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

and sentences.