               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                         Docket Nos. 43556/43557/43558/43559/43560

STATE OF IDAHO,                                 ) 2016 Opinion No. 53
                                                )
       Plaintiff-Respondent,                    ) Filed: August 4, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
CARLOS ORLANDO ZAMORA,                          )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Molly J. Huskey, District Judge.

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

       Eric D. Fredericksen, Interim State Appellate Public Defender; Reed P. Anderson,
       Deputy Appellate Public Defender, Boise, for appellant.

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

GUTIERREZ, Judge
       Carlos Orlando Zamora appeals from judgments of conviction on three felonies and four
misdemeanors entered after his conditional guilty pleas. He challenges the district court’s denial
of his motion to suppress evidence. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       After a domestic disturbance at a motel, Zamora was arrested and charged for conduct
stemming from that dispute. The court entered a no-contact order against Zamora. Pursuant to
this arrest, officers searched the motel and found various items of contraband. Zamora was also
charged for those offenses.
       While in custody for these charges, Zamora allegedly made phone calls to the victim
named in the no-contact order. An investigator met with Zamora to question him about the

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phone calls. Prior to questioning, the investigator advised Zamora of his Miranda1 rights in the
following exchange:
       Investigator: So like I do follow-up and do whatever; a bunch of random things
                     they need done. So, since you’re in custody, and obviously you
                     can’t just get up and leave, I have to read you your Miranda rights
                     before I talk to you. So, I’m gonna do that first. You have the
                     right to remain silent. Anything you say may be used against you
                     in a court of law. You have the right to talk with a lawyer and
                     have them present while you are being questioned. If you cannot
                     afford to hire a lawyer, one will be appointed to represent you
                     before questioning. Do you understand each of these rights as I
                     have explained to you?

       Zamora:        Uh huh.

       Investigator: Okay. So, obviously you don’t know what I’m going to ask you
                     yet, so, at any point in time you don’t want to talk to me or if you
                     don’t want to answer any questions I’m going to ask you, you can
                     just say “no,” or you know, “I want to leave,” or “I’m done,” or
                     whatever.

       Zamora:        Okay.
Zamora proceeded to answer the investigator’s questions, admitting to hitting the victim and
having contact with her while in custody. Zamora allegedly contacted the victim several other
times while in custody and was charged for each of those violations of the no-contact order. The
State moved to consolidate all of the charges against Zamora into a single case, which the court
granted.
       Prior to trial, Zamora filed a motion to suppress the evidence or dismiss the case, arguing
the investigator’s questioning violated his Fifth Amendment Miranda rights and his Sixth
Amendment right to counsel. In denying Zamora’s Fifth Amendment claim, the district court
found that Zamora had waived his Miranda rights by indicating he understood his rights and by
subsequently voluntarily answering the investigator’s questions.           Regarding the Sixth
Amendment claim, the court found that Zamora waived his right to counsel as to questioning
regarding the already-charged conduct, and his right to counsel had not yet attached regarding
questioning about the uncharged conduct. The court found no constitutional violation.



1
       See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                2
         Zamora entered conditional Alford2 pleas to two counts of felony intimidating a witness,
Idaho Code § 18-2604; one count of felony possession of a controlled substance, I.C. § 37-
2732(c)(1); one count of misdemeanor possession of a controlled substance, I.C. § 37-
2732(c)(3); one count of misdemeanor possession of drug paraphernalia, I.C. § 37-2734A; two
counts of misdemeanor domestic battery, I.C. § 18-918(3)(b); and four counts of misdemeanor
violation of a no-contact order, I.C. § 18-920. Zamora reserved the right to appeal the district
court’s denial of his suppression motion. The State dismissed the remaining charges. Zamora
timely appeals.
                                                II.
                                           ANALYSIS
         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,
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).
         Zamora first argues the investigator’s questioning violated Zamora’s Miranda rights
under the Fifth Amendment to the United States Constitution. He specifically contests the
court’s finding that he waived his Miranda rights.        Any waiver of Miranda rights or the
underlying constitutional privilege against self-incrimination must be made knowingly,
voluntarily, and intelligently. State v. Dunn, 134 Idaho 165, 169, 997 P.2d 626, 630 (Ct. App.
2000).    The State bears the burden of demonstrating that an individual has knowingly,
voluntarily, and intelligently waived his or her rights by a preponderance of the evidence. State
v. Doe, 131 Idaho 709, 712, 963 P.2d 392, 395 (Ct. App. 1998). A trial court’s conclusion that a
defendant made a knowing and voluntary waiver of his or her Miranda rights will not be
disturbed on appeal where it is supported by substantial and competent evidence. State v. Luke,
134 Idaho 294, 297, 1 P.3d 795, 798 (2000).           An appellate review of this waiver issue


2
         See North Carolina v. Alford, 400 U.S. 25 (1970).

                                                 3
encompasses the totality of the circumstances. State v. Johnson, 126 Idaho 859, 863, 893 P.2d
806, 810 (Ct. App. 1995).
       In finding that Zamora waived his rights, the court stated the following:
       Here, the defendant was read the Miranda warnings and indicated he understood
       them. He further was told he could terminate the questioning at any time and
       indicated he also understood that. He then [proceeded] to answer questions and
       did not invoke any of the Miranda protections . . . .
       Zamora specifically challenges the court’s finding that he understood his rights. He
asserts that his “simple response of ‘Okay’ did not make it clear that he understood his rights
before he started answering questions.” This argument is contradicted by the record. The audio
recording of the interview clearly reveals Zamora responding affirmatively to the investigator’s
inquiry into whether Zamora understood his rights. The audio then clearly reveals Zamora
responding, “Okay,” to the investigator’s indication that Zamora could terminate the questioning
at any time. Moreover, there is nothing in the record suggesting that Zamora was otherwise
unable to understand the investigator during that time or at any other time during the interview.
       After receiving his Miranda warnings, Zamora voluntarily responded to the investigator’s
questions. Zamora’s conduct is consistent with waiver. See, i.e., State v. Butcher, 137 Idaho
125, 132, 44 P.3d 1180, 1187 (Ct. App. 2002) (holding that a defendant who knows and
understands his or her rights can waive them by subsequently voluntarily responding to
questioning). The court’s finding that Zamora understood and waived his rights is supported by
substantial and competent evidence. Thus, the court did not err in dismissing the motion to
suppress on Fifth Amendment grounds.
       Zamora next argues the investigator’s questioning violated Zamora’s right to counsel
under the Sixth Amendment to the United States Constitution. Regarding the investigator’s
questioning of Zamora about his contact with the victim named on the no-contact order, the
district court concluded that Zamora’s Sixth Amendment right to counsel had not yet attached.
The Sixth Amendment guarantees the accused in a criminal prosecution the right to have the
assistance of counsel for his defense. Kirby v. Illinois, 406 U.S. 682, 688 (1972). However, this
right does not arise until the suspect has become a defendant in a criminal proceeding. Id. In
Idaho, a defendant’s Sixth Amendment right to counsel is triggered by the filing of a criminal
complaint or an indictment. State v. Tapp, 136 Idaho 354, 363, 33 P.3d 828, 837 (Ct. App.
2001). Once the right attaches, it is “offense specific” such that it does not apply to uncharged


                                                 4
crimes to which the Sixth Amendment right has not yet attached. McNeil v. Wisconsin, 501 U.S.
171, 176 (1991). This is true even where the charged and uncharged crimes are factually related.
Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 230 (2008). But see Texas v. Cobb, 532 U.S. 162,
173 (2001) (holding “when the Sixth Amendment right to counsel attaches, it does encompass
offenses that, even if not formally charged, would be considered the same offense under the
Blockburger3 test”).
       Here, the State had not charged Zamora for violating the no-contact order by contacting
the victim. However, the uncharged conduct occurred while Zamora was in custody on other
charged offenses. Zamora argues that, but for the charged conduct, the uncharged conduct
would not have occurred--thus, the charged and uncharged conduct “were so closely intertwined
that Mr. Zamora’s Sixth Amendment right to counsel attached on the alleged charges also.” We
are not persuaded. In following the United States Supreme Court precedent, the fact that the
charged and uncharged conduct might be closely factually related is insufficient to attach
Zamora’s Sixth Amendment right to his uncharged conduct. Zamora’s right to counsel as to the
uncharged conduct had not yet attached. Thus, the district court did not err in finding no
constitutional violation.
       Regarding the investigator’s questioning of Zamora about the charged offense, the district
court found that Zamora’s waiver of his Fifth Amendment rights pursuant to Miranda also
waived his Sixth Amendment right. A defendant can waive his or her right to counsel if the
waiver is knowing, intelligent, and voluntary. Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
“And when a defendant is read his Miranda rights (which include the right to have counsel
present during interrogation) and agrees to waive those rights, that typically does the trick, even
though the Miranda rights purportedly have their source in the Fifth Amendment.” Id.
       Here, Zamora has conceded that he never invoked his right to counsel. Moreover, he was
apprised of his Miranda rights, and as discussed above, he waived those rights. Because Zamora
waived his Miranda rights by voluntarily answering the investigator’s questions, he has also
waived his right to counsel under the Sixth Amendment. The district court properly found that
Zamora waived his Sixth Amendment right to counsel as to the charged offenses. Therefore, the
district court did not err in dismissing Zamora’s motion to suppress on Sixth Amendment
grounds.

3
       Blockburger v. United States, 284 U.S. 299 (1932).
                                                5
                                               III.
                                        CONCLUSION
       As to Zamora’s Fifth Amendment claim, there was substantial and competent evidence to
support the district court’s finding that Zamora waived his Miranda rights. As to Zamora’s Sixth
Amendment claim, the district court did not err in finding Zamora’s right to counsel had not yet
attached to the uncharged conduct. Additionally, there was also substantial and competent
evidence to support the district court’s finding that Zamora waived his right to counsel as to the
charged conduct.    Therefore, the district court did not err in denying Zamora’s motion to
suppress evidence. Zamora’s judgment of conviction is affirmed.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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