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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 PANCHO RAMON DICKSON, Appellant.

                             No. 1 CA-CR 17-0132
                               FILED 6-5-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-002338-001
          The Honorable James R. Rummage, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                           STATE v. DICKSON
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


P E R K I N S, Judge:

¶1             Pancho Ramon Dickson appeals his conviction for voyeurism.
He argues the trial court erred when it denied a mid-trial motion to
suppress a statement made to police, based on Miranda v. Arizona, 384 U.S.
436 (1966), and when it permitted the State to present other-act evidence to
the jury. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). On May 6, 2016,
Dickson entered Divaz Boutique, a women’s clothing store. He walked to
the back of the store and began to undress a mannequin wearing a
swimsuit. He grabbed the mannequin’s breasts, made “ooh” and “aah”
sounds, and commented out loud that the mannequin had a “nice rack.”
During this time, one of the store’s employees, “M”, was on her break trying
on a swimsuit in a dressing room. After undressing the mannequin,
Dickson stepped onto a nearby bench and peered into M’s dressing room
from above. M heard a commotion, peeked outside the dressing room, and
saw Dickson standing nearby. Another employee called the police, and law
enforcement arrived shortly thereafter.

¶3          Officers Kleppe and Adams escorted Dickson out of the store.
They asked him to sit down on the curb outside, in full view of traffic and
members of the public. Without reciting Miranda warnings, Officer Kleppe
asked Dickson some questions about where he lived, then asked him,
“What brought you to Tempe?” Dickson responded simply, “Sluts.”

¶4             The State charged Dickson with one count of voyeurism for
the conduct with M. Dickson filed a motion in limine to preclude, among
other things, evidence of his interactions with the mannequin. There is no
explicit order in the record denying the motion, but the trial court permitted
the State to present the evidence to the jury.




                                      2
                            STATE v. DICKSON
                            Decision of the Court

¶5             Before trial, Dickson moved to suppress statements that he
argued were taken in violation of Miranda. In responding to the motion, the
State asserted Miranda did not apply to the statement Dickson made on the
curb outside the boutique because he was not then in custody, arguing
Dickson “could have ended the encounter if he so desired.” During the
hearing on the motion, Dickson’s counsel clarified that he was not moving
to suppress the statement made on the curb, because he did not believe he
could prove custody. At trial, however, Officer Kleppe testified that after
officers asked Dickson to sit on the curb, he was not free to leave. At that
point, Dickson objected and requested to approach, and the court held an
unrecorded bench conference, presumably regarding a Miranda challenge
to the statements. After the bench conference, under the State’s questioning,
the officer testified regarding Dickson’s curbside statements.

¶6           The jury found Dickson guilty of voyeurism. The court
sentenced Dickson to a mitigated term of three years in prison. Dickson
timely appealed.

                                DISCUSSION

   I.      Miranda Motion to Suppress

¶7             To protect a suspect’s constitutional right against compelled
self-incrimination, law enforcement must recite Miranda warnings before
interrogating a person in custody. Miranda, 384 U.S. at 478–79. A suspect’s
freedom to leave a police encounter is a necessary factor in determining
whether the suspect was in custody for Miranda purposes. State v. Maciel,
240 Ariz. 46, 49, ¶ 12 (2016) (citing Howes v. Fields, 565 U.S. 499, 509 (2012)).
The United States Supreme Court defines custody as the “formal arrest or
restraint on freedom of movement of the degree associated with a formal
arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotations
and citation omitted).

¶8           Dickson argues the trial court erred by denying his mid-trial
motion to suppress his statement made outside the boutique. The State
argues the invited error doctrine applies, precluding appeal.

           A. The invited error doctrine does not apply.

¶9            The State argues Dickson invited any error by failing to object
to the statement in his pretrial motion to suppress and further argues
Miranda protections do not apply because Dickson was not in custody. The
invited error doctrine precludes recourse on appeal when the appealing
party’s conduct was the source of the error. State v. Lucero, 223 Ariz. 129,


                                       3
                            STATE v. DICKSON
                            Decision of the Court

138, ¶¶ 30–31 (App. 2009). To determine whether Dickson’s conduct was
the source of the error, the question we consider is whether he
“affirmatively and independently initiated the error.” Id. at ¶ 31.

¶10            Here, the facts do not show Dickson was the source of the
error. Before trial, both parties agreed, and the evidence seemed to indicate,
that Dickson was free to terminate the encounter, and therefore could not
have been in custody. At trial, however, Officer Kleppe testified that
Dickson was not free to leave at that time. Dickson then withdrew his
concession that he was not in custody and asserted a Miranda violation.
Nothing in this case indicates that Dickson affirmatively and independently
initiated the alleged error. Therefore, the invited error doctrine does not
apply.

          B. The trial court did not err in denying the motion to
             suppress.

¶11          We review the trial court’s denial of a motion to suppress for
abuse of discretion and its legal conclusions de novo. State v. Peterson, 228
Ariz. 405, 407–08, ¶ 6 (App. 2011). Whether a person is in custody for
Miranda purposes is a mixed question of law and fact, which we review de
novo. Thompson v. Keohane, 516 U.S. 99, 112–13 (1995).

¶12            Dickson argues Officer Kleppe’s testimony that Dickson was
not free to leave means he was in custody for Miranda purposes. Regardless
of whether the officer intended to allow Dickson to leave, custody for
Miranda purposes is “determined by an objective test of whether a
reasonable person would feel deprived of his freedom in a significant way.”
Maciel, 240 Ariz. at 49, ¶ 11 (2016) (quoting State v. Perea, 142 Ariz. 352, 354
(1984)). Moreover, “restraint on freedom of movement alone does not
establish Miranda custody.” Id. at 49, ¶ 12 (citing Howes v. Fields, 565 U.S.
499, 509 (2012)). Instead, to determine custody for Miranda purposes, we
look at all the circumstances that show “a serious danger of coercion.”
Maciel, 240 Ariz. at 49–50, ¶¶ 12, 14. These circumstances include the site
of the questioning, the presence of objective indicia of arrest, and the length
and form of the interrogation. Id. at ¶¶ 11, 14.

¶13            In this case, the officers questioned Dickson while he was
sitting on the curb. He was in full view of all passersby and several people
walked by during questioning. Exposure to public view tends to diminish
the likelihood of coercion, and this weighs against a finding of custody. Id.
at ¶ 18.




                                       4
                            STATE v. DICKSON
                            Decision of the Court

¶14            There was no evidence that the officers physically restrained
Dickson or threatened him with force. Dickson was not in handcuffs. There
was no evidence of a prolonged detention or unreasonable delay. See Maciel
at 51, ¶ 23 (detainment of less than one hour did not, on its own, amount to
Miranda custody).

¶15            Moreover, even assuming Dickson was in custody, the record
does not establish that the officers “interrogated” him. A question posed by
an officer can only be considered an interrogation for Miranda purposes if,
“in the light of all the circumstances, the police should have known that
[the] question was reasonably likely to elicit an incriminating response.”
State v. Waggoner, 139 Ariz. 443, 445–46 (App. 1983) (quoting United States
v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981)). Here, the officer’s questioning
(“What brought you to Tempe?”) was conversational in nature and not
reasonably likely to elicit an incriminating response. Thus, the facts do not
establish that there was an interrogation, much less show a danger of
coercion.

¶16           Because the circumstances surrounding the questioning do
not establish that Dickson was subjected to a custodial interrogation when
the officer questioned him, the trial court did not abuse its discretion in
allowing the officer to recount Dickson’s statement made outside the
boutique.

   II.    Admissibility of the Mannequin Evidence

¶17           We review the trial court’s ruling on a motion in limine for
abuse of discretion. State ex rel. Collins v. Superior Court, 132 Ariz. 180, 182
(1982). Dickson argues his interaction with the mannequin was an
irrelevant other act that the trial court should have precluded under
Arizona Rule of Evidence 404. For the following reasons, we disagree.

¶18            As relevant here, a person commits voyeurism by “knowingly
invad[ing] the privacy of another person without the knowledge of the
other person for the purpose of sexual stimulation.” Ariz. Rev. Stat.
(“A.R.S.”) § 13-1424(A). A person’s privacy is invaded when she has a
reasonable expectation that she will not be viewed, and the defendant views
her while she is “in a state of undress or partial dress” or she is viewed in a
manner that directly or indirectly “allows the viewing of the person’s
genitalia, buttock or female breast, whether clothed or unclothed, that is not
otherwise visible to the public.” A.R.S. § 13-1424(C).

¶19         Evidence of other acts is admissible under Rule 404(b) to
prove motive and intent. Dickson’s overtly sexual interaction with the


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                            STATE v. DICKSON
                            Decision of the Court

mannequin could be used to show his motive and intent to seek sexual
stimulation, which is an element of voyeurism. Dickson’s interactions with
the mannequin took place immediately before he looked into the dressing
room. The sexual nature of his interaction with the mannequin, combined
with the temporal and spatial proximity to the location of the charged
offense, is indicative of Dickson’s intent in looking into the dressing room.

¶20            In addition, Dickson has failed to show how the mannequin
evidence was unduly prejudicial under Rule 403. As applied here, relevant
evidence may be excluded under Rule 403 only if its probative value is
substantially outweighed by a danger of unfair prejudice. Dickson argues
he was unfairly prejudiced because without the mannequin evidence, the
State would have been left with less evidence to prove the offense. This
tautological statement is insufficient to make a showing of unfair prejudice,
which results if “evidence has an undue tendency to suggest decision on an
improper basis, such as emotion, sympathy, or horror.” State v. Mott, 187
Ariz. 536, 545 (1997). Accordingly, the trial court did not abuse its discretion
in admitting the mannequin evidence.

¶21           Finally, Dickson argues the trial court was required to sua
sponte minimize the prejudice of the mannequin evidence. Because Dickson
did not object at trial to the manner of admission, we review for
fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).
Dickson must show the court committed fundamental error and that this
error prejudiced him. Id. at ¶ 20. But Dickson has not shown how the court
erred. While Dickson argues the court should have sanitized the
mannequin evidence testimony, he does not suggest what the court should
have done to minimize prejudice. Therefore, we find no fundamental error.

                               CONCLUSION

¶22           For the reasons set forth, we affirm Dickson’s conviction and
resulting sentence.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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