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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JERONIMO LINARES, Appellant.

                             No. 1 CA-CR 15-0614
                              FILED 9-13-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-103476-001
               The Honorable Michael D. Gordon, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence H. Blieden
Counsel for Appellant
                           STATE v. LINARES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1            Jeronimo Linares appeals his conviction and imposition of
probation for child abuse. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           One January day in 2015, Linares dropped his two-year old
daughter off at daycare. Two daycare workers noticed that the child had
numerous bruises on her legs, torso, arms, and neck that she did not have
the day before. When asked where she got the “owies,” the child
responded, “Daddy.” The daycare then reported the bruises to law
enforcement.

¶3            An investigator from the Office of Child Welfare
Investigations and an investigator from the Department of Child Safety
went to the daycare to speak with the daycare workers and see the child.
Based on his observations, one investigator called Mesa police to take over
the investigation at the daycare. When the officers arrived, the investigator
took the child for a forensic examination at a nearby wellness center. A
forensic nurse examiner counted about 25 bruises on the child and
concluded that their locations were consistent with non-accidental injuries.

¶4            After the forensic examination, the investigator returned to
the daycare to wait with the police officers for Linares to arrive. When
Linares arrived, the investigators and two officers recorded an interview
with him in one of the daycare’s offices. During the interview, Linares was
not handcuffed and was seated nearest the door, across from the officers.
Before the officers or investigators asked any questions, Linares asked if
they were there to talk about the bruises on the child’s body and stated that
he did not know how they got there. He said that he had taken his daughter
to a clinic, which told him that the bruises were the result of an allergic
reaction. Because Linares is a native Spanish speaker, one of the
investigators translated the conversation.




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                            Decision of the Court
¶5            Midway through the interview, one officer warned Linares to
stop “playing games” and threatened to charge him with lying to a police
officer. One investigator added that he would make sure that the State
would remove the child from Linares. Linares did not change his story
despite the threats, however, and continued to deny knowing what caused
the bruises. Ultimately, the officers decided to arrest Linares. Because the
arrest concluded the interview, the investigator turned off the recording
device.

¶6            But once in handcuffs, Linares started crying and said that he
had grabbed his daughter the night before when she tried to run out of the
bathroom as he was trying to bathe her. He told the officers and
investigators, “I didn’t mean to go as far as I did.” After Linares made this
statement, the investigator turned the recording device back on and read
Linares his Miranda1 rights, after which Linares agreed to answer questions.
One officer then repeated what Linares had told them and Linares
responded by apologizing for his actions and saying that it would never
happen again. The State charged Linares with one count of child abuse.

¶7             Before his jury trial, Linares moved to preclude the forensic
nurse examiner from testifying that the injuries were “non-accidental” or
“inflicted injuries.” Linares also moved to preclude her from offering any
diagnoses of the causes of the child’s injuries, arguing that, as a nurse, she
was only qualified to make observations, not diagnoses. At the evidentiary
hearing, Linares further argued that Arizona Rule of Evidence 704(b)
—which prohibits expert witnesses in a criminal case from opining whether
the defendant had a “mental state or condition that constitutes an element
of the crime charged or of a defense”—prohibited the forensic nurse’s
testimony because “inflicted” is a term used in the statute defining child
abuse. The forensic nurse testified that she had training in examining
children and expertise in children’s injuries that would help the jurors
better understand the extent and nature of the injuries and the significance
of their locations.

¶8            The trial court denied Linares’ motion to preclude. The court
concluded that Arizona Rule of Evidence 702—relating to expert
testimony—permitted the forensic nurse’s opinion that the injuries were
consistent with non-accidental injuries. The court also noted that the
testimony was relevant and not otherwise inadmissible under Rule 704(b).
Later during the forensic nurse’s trial testimony, she identified and
described the locations of the child’s injuries for the jury and explained that,
based on scientific research and studies she had read, she concluded that

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


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                             Decision of the Court
the injuries may have been the result of “inflicted trauma.” Upon
cross-examination, Linares had the forensic nurse clarify that, although she
believed the injuries to be non-accidental, she could not determine whether
the injuries were inflicted “with intent to cause injury.”

¶9            As part of its case-in-chief, the State notified the trial court and
Linares that it intended to introduce and play the portions of the recorded
interview during which Linares admitted that he grabbed the child. The
State argued, however, that because the officer that conducted the interview
was not testifying at trial, his statements on the recording were hearsay and
should be omitted. Linares objected to the State’s use of only portions of the
interview, arguing that such use violated the rule of completeness under
Arizona Rule of Evidence 106 because the jury would not hear the officer’s
and investigator’s threatening comments. Linares and the State then
worked together to redact the recording, and the trial court ultimately
admitted it into evidence upon the parties’ stipulation.

¶10         After deliberating, the jury convicted Linares of child abuse
and found that the offense was a domestic violence offense. The court
suspended sentencing and imposed three years’ probation. Linares timely
appealed.

                                DISCUSSION

              1. Voluntariness

¶11            Linares first argues that the trial court fundamentally erred
by failing to sua sponte conduct a voluntariness hearing regarding Linares’
recorded confession, which could have led to the confession’s preclusion.
Because Linares did not raise this objection at trial, we review his claim for
fundamental error only. See State v. Henderson, 210 Ariz. 561, 568 ¶ 22, 115
P.3d 601, 608 (2005). To prevail under a fundamental error review, a
defendant must prove that the trial court erred, the error was fundamental,
and the error prejudiced him. Id. at 567 ¶ 20, 115 P.3d at 607. Error is
fundamental when it goes to the foundation of the defendant’s case, takes
from him a right essential to his defense, and is error of such magnitude
that he could not possibly have received a fair trial. Id. at ¶ 19, 115 P.3d at
607. But because the trial court did not have an obligation to conduct a
voluntariness hearing on its own accord, the court did not err, much less
fundamentally, by failing to determine voluntariness before admitting the
confession.

¶12            Due process affords a defendant a constitutional right at some
stage in the criminal proceedings to object to the use of a confession and to


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                            Decision of the Court
have a fair hearing and reliable determination on the issue of voluntariness.
Jackson v. Denno, 378 U.S. 368, 376–77 (1964). However, “absent some
contemporaneous challenge to the use of the confession,” the United States
Constitution does not require the trial court to conduct a voluntariness
hearing. Wainwright v. Sykes, 433 U.S. 72, 86 (1977). Although A.R.S.
§ 13–3988 requires the trial court to “determine any issue as to
voluntariness” before admitting a statement into evidence, the burden of
raising any issue of voluntariness rests in the first instance with the
defendant, State v. Alvarado, 121 Ariz. 485, 487, 591 P.2d 973, 975 (1979). The
trial court is not required to determine the voluntariness of evidence sua
sponte. State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977).

¶13            Here, Linares did not request a voluntariness hearing, object
to the confession’s admission, or otherwise raise issue of involuntariness.
In fact, although Linares moved to preclude the State from introducing
several portions of the State’s evidence before trial, he did not move to
suppress his recorded statement. Additionally, not only did Linares fail to
object to the admission of the recorded interview during trial, but he argued
that the rule of completeness required the State to play additional parts of
the recording for the jury. Linares worked with the State to redact the
recording and the trial court admitted it upon the State’s and Linares’
stipulation.

¶14           Nor did the evidence otherwise present a question regarding
the voluntariness of Linares’ confession to require the court to conduct a
hearing, as Linares argues. Nothing in the record suggests that the officers
or investigator coerced Linares to confess or that Linares’ will was
overborne. See State v. Boggs, 218 Ariz. 325, 335–36 ¶ 44, 185 P.3d 111, 121–
22 (2008) (“To find a confession involuntary, we must find both coercive
police behavior and a causal relation between the coercive behavior and the
defendant’s overborne will.”). Despite the officer’s demeanor and the
investigator’s threat to remove the child from him, Linares maintained his
innocence and repeatedly insisted that he did not know where the bruises
on his daughter’s body came from. During this time, Linares was not in
handcuffs and was seated closest to the daycare office’s door. Only after the
interview had concluded and police had arrested him did Linares’ own
demeanor change and—crying—he confessed that he grabbed his daughter
the night before. After Linares said that he did not mean to go as far as he
did, the investigator turned the recorder back on and read Linares his
Miranda rights, which he waived. The officer then repeated Linares’
statement to Linares. Linares acknowledged the statement and apologized.
Thus, because Linares failed to raise an issue regarding his confession’s
voluntariness and the evidence did not otherwise present a question



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                            STATE v. LINARES
                            Decision of the Court
regarding voluntariness, the trial court did not err—much less
fundamentally err—by not conducting a hearing sua sponte.

              2. Expert Testimony

¶15           Linares next argues that the forensic nurse’s testimony
identifying and describing the injuries was inadmissible under Arizona
Rule of Evidence 702(a) because the bruises’ locations were within the
common knowledge of jurors and did not help the jurors understand the
evidence. Generally, we review a court’s admissibility ruling for abuse of
discretion. State v. Dann, 220 Ariz. 351, 368 ¶ 89, 207 P.3d 604, 621 (2009).
But because Linares did not object to the forensic nurse’s testimony on this
ground during trial, we review his argument for fundamental error only.
Henderson, 210 Ariz. at 567 ¶ 20, 115 P.3d at 607. Linares fails to meet his
burden on fundamental error review.

¶16             Rule 702(a) provides that an expert may testify if “the expert’s
scientific, technical, or otherwise specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue.” Here, the
forensic nurse testified that she had training in examining children and an
expertise in children’s injuries. This expertise would help the jurors better
understand the extent and nature of the child’s injuries and the significance
of their locations. The forensic nurse explained that, based on research and
studies she had read, the locations and degrees of healing of the bruises on
the child’s body led her to believe that the injuries had been inflicted. Thus,
because the forensic nurse had expertise in children’s injuries that was
outside the jurors’ common knowledge and her testimony helped the jurors
understand the evidence, the court committed no error—much less
fundamental error—in allowing this testimony.

¶17            Linares also argues that he was deprived of a fair trial because
the forensic nurse’s opinion that the injuries were consistent with non-
accidental injuries was an opinion “as to an ultimate issue in the trial.” But
Linares offers no argument and cites no authority for this proposition and
has accordingly waived this claim of error. See Ariz. R. Crim. P.
31.13(c)(1)(vi) (requiring that an appellant’s brief contain arguments with
the proper standard of review on appeal and “citations to relevant
authority”); see also State v. Moody, 208 Ariz. 424, 452 ¶ 101 n.9, 94 P.3d 1119,
1147 n.9 (2004) (providing that failure to present “significant arguments,
supported by authority” in opening brief constitutes a waiver of the issue).

¶18           Waiver notwithstanding, Linares’ argument lacks support in
both the law and the facts. Arizona Rule of Evidence 704 provides that “[a]n
opinion is not objectionable just because it embraces an ultimate issue” and


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                           STATE v. LINARES
                           Decision of the Court
prohibits only an opinion that addresses “whether the defendant did or did
not have a mental state or condition that constitutes an element of the crime
charged or of a defense.” Ariz. R. Evid. 704(a), (b). As relevant here, a
person commits child abuse if he intentionally or knowingly causes the
child to suffer physical injury or abuse, under circumstances other than
those likely to produce death or serious physical injury. See A.R.S.
§ 13–3623(B). The forensic nurse’s opinion that the injuries were consistent
with non-accidental injuries was based on her expertise. Her opinion did
not address whether Linares had any particular mental state at the time
necessary for commission of child abuse, much less whether he had an
“intentional” or “knowing” mental state when he committed the abuse.
Linares even elicited clarification from the forensic nurse that she could not
determine whether the injuries were inflicted “with intent to cause injury.”
Thus, Linares’ argument fails.

                              CONCLUSION

¶19           For the foregoing reasons, we affirm.




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




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