               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42809

STATE OF IDAHO,                                )     2016 Unpublished Opinion No. 428
                                               )
       Plaintiff-Respondent,                   )     Filed: March 9, 2016
                                               )
v.                                             )     Stephen W. Kenyon, Clerk
                                               )
LEROY WAYNE SIMPSON,                           )     THIS IS AN UNPUBLISHED
                                               )     OPINION AND SHALL NOT
       Defendant-Appellant.                    )     BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Jon J. Shindurling, District Judge.

       Judgment of conviction and order denying motion to suppress, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Leroy Wayne Simpson appeals from his judgment of conviction for forcible sexual
penetration by use of foreign object, and specifically appeals the order denying the motion to
suppress his confession. For the reasons set forth below, we affirm.
                                                I.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
        M.G. was taken to the hospital with significant injuries, and medical providers
determined the injuries were the result of child abuse. Simpson was then investigated as a
potential suspect for inflicting M.G.’s injuries, although he was not suspected of being the only
person responsible for the injuries. At the time the injuries occurred, Simpson resided with M.G.
and M.G.’s parents, and Simpson was often left alone to care for M.G. Approximately four
months after M.G. was injured, Simpson was contacted by Officer Marley, one of the
investigating officers, and taken in for questioning. Officer Marley was familiar with Simpson

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and his background because she had worked with Simpson’s family as a social worker when
Simpson was a child.
       Simpson accompanied Officer Marley to the police station for an interview voluntarily,
and there is no dispute the nature of the interview was non-custodial. No Miranda1 warnings
were provided to Simpson. He was placed in an interrogation room and directed to a specific
chair in the room. Detective Lawrence was the first to interview Simpson. After Detective
Lawrence asked a few questions, he exited the room, and Officer Marley continued the
interview.   Officer Marley questioned Simpson about specific details of M.G.’s injuries,
including the injury to M.G.’s anus.      Detective Lawrence returned to the room and again
participated in the interview.    The interview lasted approximately one hour, during which
Simpson left the room accompanied by Officer Marley to smoke a cigarette. Simpson ultimately
confessed to injuring M.G., including using a vibrator in M.G’s anus. At the conclusion of the
interview, Simpson was not arrested and Officer Marley drove him home.
       Simpson was charged with forcible sexual penetration with a foreign object and injury to
a child. He filed a motion to suppress his statements, arguing the confession was coerced due to
the interrogation tactics of the investigating officers.    Simpson relied on the testimony of
Dr. Kenneth Lindsey and Dr. Charles Honts in support of the claim that the confession was
coerced.
       Simpson entered an Alford2 plea to the sexual penetration charge and reserved the right to
appeal the order denying the motion to suppress. He was sentenced to a unified sentence of
thirty-three years, with eight years determinate.      Simpson appeals from the judgment of
conviction and the denial of the motion to suppress his confession.
                                                II.
                                   STANDARD OF REVIEW
       The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,

1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
2
       See North Carolina v. Alford, 400 U.S. 25 (1970).
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weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
                                                III.
                                            ANALYSIS
       At issue in this appeal is Simpson’s claim that his confession was coerced and
consequently, the district court erred in denying the motion to suppress the confession.
Specifically, Simpson argues the district court did not give proper consideration to the fact that
Simpson was not provided the Miranda warnings because it determined the interview was a non-
custodial interrogation.3 He further contends the district court’s decision was erroneous because
it failed to consider Simpson’s mental health issues and his susceptibility to coercion as a result
of the interview techniques utilized by the investigating officers.
       In reviewing a claim of an involuntary confession obtained due to police coercion, we
look to the totality of the circumstances and whether the “defendant’s will was overborne by the
police conduct.” State v. Stone, 154 Idaho 949, 953, 303 P.3d 636, 640 (Ct. App. 2013). In
determining the voluntariness of a confession, a court must look to the characteristics of the
accused and the details of the interrogation, including: (1) whether Miranda warnings were
given; (2) the youth of the accused; (3) the accused’s level of education or low intelligence;
(4) the length of the detention; (5) the repeated and prolonged nature of the questioning; and
(6) deprivation of food or sleep. Stone, 154 Idaho at 953, 303 P.3d at 640; see also Schneckloth
v. Bustamonte, 412 U.S. 218, 226 (1973). Other considerations may include whether deception,
trickery, threats, or direct or implied promises were utilized. State v. Hays, 159 Idaho 476, 485,
362 P.3d 551, 560 (Ct. App. 2015); see also Stone, 154 Idaho at 953, 303 P.3d at 640. It is the
burden of the State to show by a preponderance of the evidence that a defendant’s confession or
other statements were voluntarily given.h Stone, 154 Idaho at 953, 303 P.3d at 640. The use of
an involuntary statement against a criminal defendant violates the Due Process Clause. Hays,
159 Idaho at 485, 362 P.3d at 560. The exclusionary rule “applies to any confession that was the
product of police coercion, either physical or psychological, or that was otherwise obtained by


3
       Simpson does not contend this was a custodial interview and that Miranda warnings were
required. Rather, his argument is the district court did not give proper weight to the lack of
Miranda warnings as a factor for determining voluntariness of the confession.
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methods offensive to due process.” Id.; State v. Doe, 130 Idaho 811, 814, 948 P.2d 166, 169 (Ct.
App. 1997).
       At the motion to suppress hearing, the district court heard testimony from both
investigating officers involved in the interview with Simpson, as well as testimony from
Dr. Lindsey, who performed a psychosexual evaluation, and Dr. Honts, who offered expert
opinion that Simpson’s confession was a coerced-compliant confession obtained through use of
improper police interview techniques. The district court issued a written order and made the
specific findings of fact to support the denial of the motion to suppress the confession.
       The district court determined the interview was a non-custodial interrogation because
Simpson was informed he was not under arrest and was free to leave, and therefore, it was not
necessary for Simpson to receive the Miranda warnings. On appeal, Simpson argues the court
erroneously disposed of this factor of the voluntariness analysis. Simpson’s argument is not
supported by the record. In its order, the district court recognized the Miranda warnings as a
relevant factor in the analysis of whether the confession was voluntary in a non-custodial
interrogation setting. In addition, the district court noted additional factors weighing in favor of
the validity of the confession, including Simpson’s age of twenty-nine years, the length of the
interview, which was less than ninety minutes, and the fact that Simpson was not deprived of any
physical necessities. The district court considered the totality of the circumstances and properly
analyzed the relevant facts in making this determination.
         Also at issue is Simpson’s claim the district court did not properly consider his mental
health issues in deciding the confession was voluntarily given. Simpson argues he was in special
education programs as a high school student. In addition, he argues he was diagnosed with
frontal lobe and executive function deficits, bipolar disorder, attention deficit/hyperactivity
disorder, and a mixed learning disability. However, much of this information was contained in
the two psychosexual evaluation reports and the presentence investigation report and thus, was
not before the district court at the time of the suppression hearing. The only evidence of
Simpson’s mental health issues presented during the motion to suppress hearing was the
testimony of Dr. Kenneth Lindsey, who conducted a psychosexual evaluation of Simpson prior
to the hearing. Dr. Lindsey testified that during the evaluation process, he observed what he
considered to be indicators of executive dysfunction.         These indicators included apparent
difficulty with social comprehension and social judgment, slow speed of processing information,

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difficulty thinking through a situation, and the apparent reversal of Simpson’s version of how the
injuries were inflicted upon M.G.
       However, Dr. Lindsey also testified he had not conducted any tests or evaluations on
Simpson to confirm this diagnosis, and his testimony was limited to his observations of Simpson
during the process of conducting the psychosexual evaluation.              Simpson’s reliance on
information adduced after the motion to suppress hearing cannot be considered for purposes of
appeal because he did not make the information available to the district court at the motion to
suppress hearing and did not renew his motion based on the additional evidence. Generally,
issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121
Idaho 192, 195, 824 P.2d 123, 126 (1992).
         In its order, the district court makes specific reference to Dr. Lindsey’s testimony and
opinion that Simpson had difficulty tracking conversations. However, the district court also
found the video of the interview supported the investigating officers’ testimony that Simpson
was tracking the course and content of the interview. The district court properly exercised its
discretion to evaluate the credibility of witnesses and evidence and to assign the weight to be
afforded to each piece of evidence. We do not find error in the district court’s finding that
Simpson was able to track the course of the interview and was not coerced by the nature of the
questioning during the interview. The district court’s findings are supported by the record and
were arrived at by a proper exercise of discretion.
       Finally, we address Simpson’s claim that improper interview techniques were utilized
which led to a coerced-compliant confession. On appeal, Simpson argues the district court did
not give proper consideration to the testimony of Dr. Honts on the coercive nature of the
techniques utilized during the interview, including the use of theme-building, false friend, false
evidence, minimization, and not allowing Simpson to take an unaccompanied smoke break. The
district court concluded the nature of the questioning did not impermissibly confuse, trick, or
deceive Simpson and that Officer Marley’s use of information from Simpson’s past was not
sufficiently coercive to overcome Simpson’s will. The district court considered the totality of
the circumstances, and its findings of fact are supported by the record as it existed at the time of
the motion to suppress hearing. The district court properly exercised its authority to assess the
credibility of the witnesses and the evidence, and its decision that the interview was not so
coercive to render Simpson’s statements involuntary is affirmed.

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                                              IV.
                                       CONCLUSION
       The district court properly considered the applicable legal standards and the evidence in
the record, and its decision that Simpson’s will was not overborne during the interview is
supported by the record. The judgment of conviction and order denying Simpson’s motion to
suppress his confession is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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