MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                May 22 2020, 9:10 am

court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Jay A. Rigdon                                           George P. Sherman
Rockhill Pinnick LLP                                    Supervising Deputy Attorney
Warsaw, Indiana                                         General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jose Luis Izaguirre,                                    May 22, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2793
        v.                                              Appeal from the
                                                        Kosciusko Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     David C. Cates, Judge
                                                        Trial Court Cause No.
                                                        43D01-1904-F1-258



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020                      Page 1 of 10
[1]   Jose Luis Izaguirre (“Izaguirre”) was charged with three counts of child

      molesting,1 each as a Level 1 felony. He now brings this discretionary

      interlocutory appeal to challenge the denial of his motion to suppress, which

      asked the trial court to exclude from evidence Izaguirre’s statements made

      during police questioning. Izaguirre raises two issues, which we restate as:


                 I. Whether he sufficiently understood English to make a knowing
                 waiver of his Miranda rights; and


                 II. Whether the presence of his wife (“W.I.”) during his
                 interrogation made his confession involuntary.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Izaguirre moved to the United States from Mexico when he was thirteen years

      old and attended school in the United States. Tr. Vol. 2 at 7, 25. Around the

      age of twenty-two, he began a relationship with W.I. Id. at 6. Izaguirre and

      W.I. lived together and were eventually married in Warsaw, Indiana. Id. at 6-7.

      W.I. had three children, and they lived with her and Izaguirre. Id. at 7.

      Izaguirre enrolled in an English class in Warsaw but withdrew from the class

      because he thought it was “stupid” because he “already knew everything they

      were teaching . . . .” Id. at 8. Izaguirre spoke both English and Spanish at




      1
          See Ind. Code § 35-42-4-3(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 2 of 10
      home, but he spoke English more often. Id. He also spoke English to his

      Spanish-speaking friends who understood English. Id. at 8-9. Izaguirre would

      watch television shows and movies that were broadcast in English. Id. at 9.


[4]   On March 29, 2019, one of W.I.’s children (“Child”), who was less than

      fourteen years old, claimed Izaguirre had sexually assaulted her. Id. W.I. and

      Child were interviewed by Child Protective Services that day. Id. at 14.

      Warsaw Police Department Detective Paul Heaton (“Detective Heaton”)

      investigated Child’s allegations. He went to Izaguirre’s residence to speak with

      Izaguirre, and they conversed in English. Id. at 15. Detective Heaton then took

      Izaguirre to the Warsaw Police Department for an interview. Id. at 17. At no

      point during these conversations did Detective Heaton and Izaguirre speak in

      any language other than English. Id. at 18. The entrance to the police

      department displayed a sign advising that statements would be video recorded.

      Id.


[5]   During the interview, Izaguirre was not restrained, and Detective Heaton

      provided him with a glass of water. Id. Detective Heaton told Izaguirre he

      could stop answering questions at any time. Id. at 21. Detective Heaton asked

      if Izaguirre had ever been represented by an attorney, and Izaguirre responded

      affirmatively and also indicated he had prior contact with the criminal justice

      system. Id. at 20-21.


[6]   Before questioning Izaguirre, Detective Heaton advised Izaguirre of his

      Miranda rights. Id. at 18-19; State’s Ex. 3 at 15:33:43-15:36:25. Detective


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 3 of 10
      Heaton told Izaguirre to ask any questions he had, and Detective Heaton would

      answer them. Tr. Vol. 2 at 21. Izaguirre asked several questions as Detective

      Heaton read Izaguirre’s Miranda rights and when he did, Detective Heaton

      answered questions about each Miranda right “one by one.” Id. at 19. After

      Detective Heaton explained each Miranda right, Izaguirre said he understood

      that right. Id. At no point did Izaguirre ask Detective Heaton to read the

      Miranda rights in Spanish or request an interpreter. Id. at 22.


[7]   During the first thirty minutes of the interview, Izaguirre asked Detective

      Heaton several times about where W.I. was. Id. at 21-22; State’s Ex. 3 at

      15:46:53, 15:50:36. Detective Heaton asked Izaguirre if he wanted to talk to

      W.I., and Izaguirre said that he did. Tr. Vol. 2 at 21-22; State’s Ex. 3 at 15:47:08.

      Detective Heaton explained to Izaguirre that W.I. was not available at the time

      because she was at the Fort Wayne Sexual Assault Center so Child could be

      tested to determine if she was pregnant. Tr. Vol. 2 at 22; State’s Ex. 3 at

      15:50:45. W.I. returned to Warsaw from Fort Wayne about three hours after

      Izaguirre asked to talk to her. Tr. Vol. 2 at 22.


[8]   After explaining Izaguirre’s rights, Detective Heaton asked if Izaguirre was

      willing to talk with him. State’s Ex. 3 at 15:36:24. Izaguirre replied, “It

      depends,” which Detective Heaton understood to mean that it depended on

      what questions Detective Heaton was going to ask. Tr. Vol. 2 at 20; State’s Ex. 3

      at 15:36:27. Detective Heaton explained the purpose of the interview and told

      Izaguirre that he believed Izaguirre had engaged in sexual activity with Child.

      Izaguirre repeatedly denied the allegations. State’s Ex. 3 at 15:36:38-15:51:10.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 4 of 10
[9]    Before bringing W.I. into the interview room, Detective Heaton asked her some

       clarifying questions based on what Izaguirre had told Detective Heaton up to

       that point. Tr. Vol. 2 at 22. However, Detective Heaton did not ask W.I. about

       the best plan or strategy to question Izaguirre. Id. Detective Heaton told W.I.

       that the conversation between her and Izaguirre would be recorded. Id. at 12.

       Detective Heaton walked W.I. into the interview room, and she sat down.

       State’s Ex. 3 at 19:04:51. Detective Heaton told W.I and Izaguirre, “Not to

       touch . . . no fighting, no nothing; you guys can have your own time here for a

       second.” Id. at 19:04:47-19:05:01. After Detective Heaton left the room, W.I.

       asked Izaguirre, “Why” and “tell me why you did it,” and then they began

       talking in Spanish. Id. at 19:04:51; 19:05:36-19:06:09; 19:06:24-19:06:44. W.I.

       also said, “She was your baby.” State’s Ex. 3 at 19:06:24-19:06:44. W.I. was

       emotional yet composed during the discussion, crying softly on occasion, and

       usually maintaining a conversational tone. She never screamed or yelled and

       raised her voice only two or three times.


[10]   After about twenty minutes, W.I. left the interview room. Id. at 19:24:30. Less

       than a minute later, Detective Heaton and W.I. re-entered the interview room,

       and Detective Heaton questioned Izaguirre for around eighteen minutes. Id. at

       19:25:19-19:43:16. During this time, W.I. remained calm, usually acting as a

       translator between Detective Heaton and Izaguirre, although Izaguirre and

       Detective Heaton sometimes communicated directly in English. Izaguirre

       eventually admitted he had often engaged in sexual behavior with Child,

       beginning six years earlier, when Child was eight years old, and the family lived

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 5 of 10
       in Muncie. State’s Ex. 3 at 19:31:25, 19:34:20. At first, Izaguirre would rub

       Child’s genitals with his hand, and as Child grew older, Izaguirre would insert

       his penis into Child’s anus. State’s Ex. 3 at 19:31:30-19:31:45; Id. at 19:28:35-

       19:28:35.


[11]   On April 1, 2019, the State charged Izaguirre with three counts of Level 1

       felony child molesting. Appellant’s App. Vol. II at 9-10. On September 9, 2019,

       Izaguirre filed a motion to suppress his confession, and on October 23, 2019,

       the trial court denied the motion to suppress. Id. at 33, 39. On November 14,

       2019, Izaguirre filed a motion that asked the trial court to certify its order for an

       interlocutory appeal, and on November 15, 2019, the trial court granted the

       request. Id. at 6. On December 20, 2019, we granted Izaguirre’s motion to

       accept jurisdiction over his interlocutory appeal. Id. at 53. On January 3, 2020,

       Izaguirre filed his notice of appeal. Notice of Appeal, Odyssey. We will provide

       additional facts as necessary.


                                      Discussion and Decision
[12]   We review a trial court’s denial of a motion to suppress the same way we

       review other sufficiency issues. Sanders v. State, 989 N.E.2d 332, 334 (Ind.

       2013). There must be substantial evidence of probative value to support the

       ruling of the trial court. Id. We do not reweigh the evidence, and we consider

       conflicting evidence most favorably to the trial court's ruling. Id. We also

       consider undisputed evidence favorable to the defendant. Harris v. State, 60

       N.E.3d 1070, 1072 (Ind. Ct. App. 2016), trans. denied. We review the trial


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 6 of 10
       court’s legal conclusions de novo. State v. Brown, 70 N.E.3d 331, 335 (Ind.

       2017).


                          I. Knowing Waiver of Miranda Rights
[13]   Izaguirre argues that he did not knowingly waive his Miranda rights because he

       did not understand Detective Heaton’s English rendition of Izaguirre’s Miranda

       rights. A waiver of Miranda rights is not knowing, voluntary, or intelligent if

       the warnings are not provided in a language a defendant understands. Morales

       v. State, 749 N.E.2d 1260, 1266-67 (Ind. Ct. App. 2001). “Due to the various

       ways a person may be warned under Miranda, a claim that advisements were

       inadequate requires that the State prove the warnings were given with sufficient

       clarity.” State v. Keller, 845 N.E.2d 154, 162 (Ind. Ct. App. 2006).


[14]   We reject Izaguirre’s claim that he did not knowingly waive his Miranda rights.

       Even though Spanish is Izaguirre’s first language, he is capable of

       communicating in English and has done so for years, both at home and with

       friends. Izaguirre dropped out of a local English class because he already

       “knew everything they were teaching.” Tr. Vol. 2 at 8. Izaguirre spoke English

       at home more often than Spanish, he spoke English to his Spanish-speaking

       friends who understood English, and he would watch English language

       television shows and movies. Id. at 8-9. When Izaguirre told Detective Heaton

       that he did not understand his Miranda rights, Detective Heaton reviewed each

       right again, one at a time, providing detailed explanations of each right. Id. at

       18-19; State’s Ex. 3 at 15:33:43-15:36:25. After each explanation, Izaguirre told


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 7 of 10
       Detective Heaton that he understood that particular right. Tr. Vol. 2 at 19;

       State’s Ex. 3 at 15:33:43 to 15:36:25. At no point did Izaguirre ask Detective

       Heaton to read the Miranda rights in Spanish or request an interpreter. Tr. Vol.

       2 at 22. The trial court did not abuse its discretion by rejecting Izaguirre’s

       argument that his confession should be suppressed because he did not

       knowingly waive his Miranda rights.


                                            II. Voluntariness
[15]   Izaguirre contends his confession was involuntary because the State used W.I.

       to pressure Izaguirre into confessing that he had molested Child. Izaguirre does

       not cite specific behaviors or statements by W.I. as being coercive, but he

       instead argues that the State created an inherently coercive atmosphere by

       allowing W.I., the mother of Child, to come into the interview room while

       Detective Heaton questioned Izaguirre.


[16]   When a defendant challenges the admission of a confession, the State must

       prove beyond a reasonable doubt that the confession was given voluntarily.

       Strickland v. State, 119 N.E.3d 140, 148 (Ind. Ct. App. 2019), trans. denied. We

       review the totality of the circumstances surrounding the confession, focusing on

       whether the confession was free, voluntary, and not induced by violence,

       threats, promises, or other improper influences. Id. We will affirm the trial

       court’s decision if there is substantial evidence of probative value to support

       it. Id. We do not reweigh the evidence, and we consider any conflicting

       evidence most favorable to the trial court’s ruling. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 8 of 10
[17]   W.I.’s presence in the interview room did not render Izaguirre’s confession

       involuntary. First, there is no evidence the State hatched a plan with W.I. to

       use W.I. to intimidate Izaguirre into confessing. Indeed, it was Izaguirre’s idea

       to bring W.I. into the interview room. State’s Ex. 3 at 15:46:53, 15:47:08. It is

       true that when W.I. entered the interview the first time, she asked Izaguirre two

       uncomfortable questions: “Why?” and “tell me why you did it.” Id. at

       19:04:15-19:06:44. However, W.I. remained surprisingly calm and composed,

       never screaming or yelling at Izaguirre. W.I.’s behavior and demeanor were

       the same after she re-entered the interview room, this time accompanied by

       Detective Heaton. When Detective Heaton and Izaguirre were not speaking

       English to each other, W.I. acted as a translator. Moreover, none of Izaguirre’s

       behavior during the interview indicated that he was emotionally distressed to a

       degree that made his confession involuntary. Izaguirre did not pace, fidget,

       shout, withdraw, or act out in any manner. The tone and timbre of his voice

       remained consistent. The totality of these circumstances established that W.I.’s

       presence in the interview room did not create an inherently coercive

       atmosphere. Thus, the totality of the circumstances show that Izaguirre’s

       confession was free, voluntary, and not induced by violence, threats, promises,

       or other improper influences. See Strickland, 119 N.E.3d at 148. Accordingly,




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020   Page 9 of 10
       the trial court did not abuse its discretion in denying Izaguirre’s motion to

       suppress.2


[18]   Affirmed.


       Najam, J., and Brown, J., concur.




       2
         Additionally, Izaguirre argues that the recording of his statement violated his rights under the marital
       privilege statute because he was not advised that his conversation with Detective Heaton would be recorded.
       See Ind. Code § 34-46-3-1. We reject this argument because the marital privilege is not grounds to exclude
       evidence in child molesting cases. See Ind. Code § 31-32-11-1; Baggett v. State, 514 N.E.2d 1244, 1245 (Ind.
       1987). Also, the marital privilege would not bar W.I. from testifying about Izaguirre’s confession because
       the privilege may be waived by either spouse. Glover v. State, 836 N.E.2d 414, 422 (Ind. 2005).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2793 | May 22, 2020                   Page 10 of 10
