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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JOSE TOMAS MORENO, JR., Appellant.

                             No. 1 CA-CR 15-0439
                               FILED 7-5-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002199-001
              The Honorable Brian Kaiser, Commissioner

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Franklin & Associates, P.A., Tempe
By Colby Kanouse, Charles P. Franklin
Counsel for Appellant
                            STATE v. MORENO
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


N O R R I S, Judge:

¶1             A jury convicted Jose Tomas Moreno, Jr. of one count of
aggravated driving or actual physical control while under the influence of
intoxicating liquor or drugs, and one count of aggravated driving or actual
physical control while under the influence of intoxicating liquor (alcohol
concentration of 0.08 or more within two hours of driving), under Arizona
Revised Statutes (“A.R.S.”) section 28-1383(A)(1) (Supp. 2015),1 both class
four felonies. On appeal, Moreno argues the superior court should have
suppressed his statement to police that he had been driving. Even if we
assume the superior court should have suppressed this statement, its
admission was harmless error. We therefore affirm his convictions and
sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On April 5, 2014, Moreno was drinking at the house of C.B.
Later that day Moreno asked her for the keys to her car, but she would not
give them to him. Moreno asked another person at the house, B.B., for a
ride, but instead B.B. gave Moreno the keys to his white truck. At some
point Moreno left the house, although neither C.B. nor B.B. saw him leave
or drive that night. After Moreno left, police were dispatched to the house.
C.B. gave Officer T.O. a physical description of Moreno, said he was
wearing a yellow shirt, and stated the likely direction he was heading.

¶3            Sometime later, Officer G.M. saw a white truck pull into a
convenience store and park at the gas pump. Although Officer G.M. could
not see the driver, he saw someone wearing a yellow shirt “standing on the
driver’s side door outside the” truck. Officer G.M. ran the truck’s license
plate confirming it was registered to B.B. Officer G.M. then saw the person,
who he later identified in court as Moreno, walk from the truck into the


              1We   cite to the current version of all statutes in this decision
because the Arizona Legislature has not made any amendments to these
statutes since the date of Moreno’s offenses.


                                       2
                             STATE v. MORENO
                             Decision of the Court

convenience store and then back towards the truck. Officers arrested
Moreno in the parking lot and then Officer D.G. viewed the convenience
store surveillance video. The video showed a man in a yellow shirt walking
away from the truck, entering the convenience store, and purchasing items.
After viewing the video, Officer D.G. opened the door of the police car in
which Moreno was sitting and confirmed “the person that was in custody
matched the clothing description and physical characteristics” of the person
he “saw on the video.” Officer D.G. “also smelled the odor of alcohol
coming from inside the patrol vehicle.”

¶4           Police transported Moreno to the police station. There, he
admitted to driving the truck and submitted to a breathalyzer test. The test
results showed Moreno’s blood alcohol concentration exceeded 0.08.

¶5              Before trial Moreno moved to suppress the “incriminating
statements” he had made to Officer D.G. at the station, which, he argued,
were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). The superior court denied Moreno’s motion before
the start of trial.

                                DISCUSSION

¶6             On appeal, Moreno argues, under Miranda, the superior court
should have suppressed “the admissions that he made to Officer [D.G.]
about driving the vehicle seen at the gas station.” Even assuming a Miranda
violation, any error in the admission of his statement was harmless because,
based on our review of the record, it did not contribute to or affect the
verdict. See State v. Valverde, 220 Ariz. 582, 585, ¶ 11, 208 P.3d 233, 236 (2009)
(error is harmless “if the state, in light of all of the evidence, can establish
beyond a reasonable doubt that the error did not contribute to or affect the
verdict”) (quotations and citations omitted); State v. Montes, 136 Ariz. 491,
497, 667 P.2d 191, 197 (1983) (“Statements obtained without the benefit of
Miranda warnings, unlawful but not involuntary, are subject to the harmless
error rule.”) (citation omitted).

¶7              Here, aside from Moreno’s statement, the State, through the
testimony of several witnesses, presented substantial circumstantial
evidence Moreno had driven the truck to the convenience store. See Lohse v.
Faultner, 176 Ariz. 253, 259, 860 P.2d 1306, 1312 (App. 1992) (“direct and
circumstantial evidence have equal probative worth” in civil and criminal
cases). In addition to the evidence summarized above, see supra ¶¶ 2-4, B.B.
testified that, after giving Moreno his keys, the next time he saw his truck
was when he picked it up at the convenience store parking lot where



                                        3
                            STATE v. MORENO
                            Decision of the Court

officers had arrested Moreno the previous night. Further, Officer G.M.
testified that, in addition to seeing Moreno standing next to the driver’s side
door, he did not see anyone else inside the truck, anyone open the
passenger door, or anyone hand the truck keys to Moreno. He did,
however, see another officer take the truck keys from Moreno after police
had taken him into custody, and that officer used those same keys to move
the truck from the gas pump to a parking spot.

¶8            The State also presented substantial uncontested evidence
that Moreno was under the influence of alcohol when officers took him into
custody. Miranda bars illegally obtained “testimonial or communicative”
evidence, but not physical evidence. See State v. Lee, 184 Ariz. 230, 233, 908
P.2d 44, 47 (App. 1995). Officer D.G. testified that, at the station, Moreno
exhibited physical signs of intoxication, including red watery eyes, delayed
movements, and slurred speech. Additionally, an intoxilyzer test revealed
that Moreno had a blood alcohol concentration greater than 0.08. See A.R.S.
§ 28-1383(A)(1) (person is guilty of aggravated driving or actual physical
control while under the influence if he or she violates A.R.S. § 28-1381);
A.R.S. § 28-1381(A)(2) (2012) (criminalizing alcohol concentration of 0.08 or
more within two hours of driving).

¶9             In short, based on our review of the record, we can say,
beyond a reasonable doubt, that any error in the superior court’s admission
of Moreno’s statement that he had driven the truck did not contribute to or
affect the jury’s verdict.

                              CONCLUSION

¶10          For the foregoing reasons, we affirm Moreno’s convictions
and sentences.




                                   :AA




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