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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
THOMAS LOUIS ADAIR, Appellant.
No. 1 CA-CR 18-0034
FILED 8-16-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-109770-001 DT
The Honorable Gregory Como, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. ADAIR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.
C R U Z, Presiding Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Thomas
Louis Adair has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Adair was convicted of three counts of sexual conduct with a minor under
the age of fifteen, Class 2 felonies and dangerous crimes against children;
one count of sexual abuse, a Class 3 felony and a dangerous crime against
children; one count of furnishing obscene or harmful items to a minor, a
Class 4 felony; and two counts of molestation of a child, Class 2 felonies and
dangerous crimes against children. Adair filed a supplemental brief in
propria persona, which the court has considered. After reviewing the record,
we affirm Adair’s convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Adair. See State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 Adair was in a relationship with the victim’s (“Victim”)
mother for roughly two years. Victim and her mother lived with Adair for
a period of time when Victim was nine to eleven years old.
¶4 In early November 2015, Victim told her mother that Adair
made her touch his penis. Victim’s mother and Victim moved out that same
night. Victim’s mother contacted police the next morning. During a
forensic interview a few days after her initial disclosure, Victim claimed
Adair sexually molested her on multiple occasions. Police conducted a
confrontation call with Adair, to which he denied forcing Victim to touch
him.
¶5 Adair voluntarily met with police on December 3, 2015. Adair
denied the accusations. In February 2016, Adair again met with police
during a recorded interview. A civilian interviewer, and then later the
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STATE v. ADAIR
Decision of the Court
detective, met with Adair, at which point Adair admitted many of the
allegations. Police then offered Adair the opportunity to write a victim
apology letter, apologizing for his actions.
¶6 Adair was charged with three counts of sexual conduct with
a minor under the age of fifteen, Class 2 felonies (counts one, two, and
three); one count of sexual abuse, a Class 3 felony (count four); two counts
of furnishing obscene or harmful items to a minor, Class 4 felonies (counts
five and six); and two counts of molestation of a child, Class 2 felonies
(counts seven and eight).
¶7 At trial, Victim testified that Adair touched her chest while
sleeping, digitally penetrated her, digitally penetrated her again on a
second occasion, showed her pornographic photos on his computer and
showed her a woman masturbating, kissed her breasts, placed her hand on
his penis, and again placed his hand on her chest. The forensic examiner
testified that during the examination, Victim disclosed Adair touched her
chest, placed his mouth on her chest, and disclosed two instances of digital
penetration. The detective testified Victim disclosed to her a third instance
of sexual contact which Adair’s recorded interview corroborated.
¶8 The State called a cold expert to testify to the general
characteristics of sexual molestation victims, their actions, and factors
affecting the disclosure of incidents of sexual contact, as well as the impact
of sexual offense on the victim. The expert testified to grooming patterns
perpetrators use on victims. The State then played the confrontation call
and Adair’s interview, and the detective testified that Adair admitted the
majority of the accusations and wrote Victim an apology letter.
¶9 After the State rested, Adair moved to dismiss the charges for
lack of evidence, and the court asked to clarify the evidence supporting
counts five, six, seven, and eight. The court denied Adair’s motion for
counts one through five, and seven through eight, but granted the motion
to dismiss count six. The State did not pursue aggravating factors. The jury
found Adair guilty on all remaining counts.
¶10 The superior court conducted the sentencing hearing in
compliance with Adair’s constitutional rights and Arizona Rule of Criminal
Procedure 26. Adair was sentenced two-and-a-half years on count five, five
years on count four, to be served consecutively to count five and served
concurrently with concurrent seventeen-year terms for counts seven and
eight, and then to three consecutive life sentences for counts one, two, and
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STATE v. ADAIR
Decision of the Court
three. Adair was credited 683 days presentence incarceration credit for time
served. Adair timely appealed.
DISCUSSION
¶11 We review the entire record for reversible error. State v.
Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Counsel for Adair has advised
this Court that after a diligent search of the entire record, counsel has found
no arguable question of law. In his supplemental brief, Adair argues his
statements to the lead detective were involuntary and thus should not have
been considered by the jury. Adair also argues that he was not advised of
his rights during the indictment hearing or arraignment hearing. We take
each argument in turn.
I. Voluntariness of Statements
¶12 Adair argues that statements he made to the detective were
involuntary because his will was overborne. Adair claims statements he
made to the detective were coerced because the civilian interviewer assured
him that if he spoke with police he would receive an alternative sentence to
prison.1 Adair claims the detective told him he might receive probation.
Adair claims he was led to believe that he had sufficiently helped the police
to justify a sentence of probation, and thus believed he should not accept a
plea deal that was more severe.2
¶13 After reviewing the record, we find that it does not support
Adair’s claims. Adair did not challenge the voluntariness of his statements
before trial, nor did the evidence suggest voluntariness was at issue. See
State v. Smith, 114 Ariz. 415, 419 (1977) (not raised by counsel); State v. Finn,
111 Ariz. 271, 275 (1974) (not raised by evidence). During Adair’s second
interview in February 2016, the civilian interviewer stated he believed
1 Adair claims his polygraph statements were involuntary because the
detective warned him in November 2015 that if he did not submit to a
polygraph exam she would convene a grand jury and a warrant would be
issued for his arrest, and thus Adair claims he did not feel like he had a
choice. No evidence supports Adair’s claim, and no polygraph statements
were introduced as evidence before the jury.
2 Regarding his denial of any plea deal, the court offered Adair the
opportunity to consider a plea deal at the beginning of trial, which he
declined to do, stating he was aware of the consequences he could suffer if
found guilty.
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STATE v. ADAIR
Decision of the Court
Adair was speaking to police to reach out for help, and described those who
were not willing to change as more dangerous and unwilling to tell the
truth. However, stating that the defendant was there to tell the truth and
make amends is not coercive. See State v. Walton, 159 Ariz. 571, 579 (1989)
(finding that statements such as “[i]t’s nothing that can’t be worked out”
and “to lie isn’t going to help . . . give yourself a chance” were the detective’s
opinions and not an express or implied promise). Nor does the evidence
indicate Adair was compelled to be there. The civilian interviewer spoke
in a relaxed tone, and even offered Adair consolation when he became
upset. Though the interviewer and Adair agreed that telling the truth
presented a better attitude and sense of character for Adair and was the first
step to rectify the situation, at no point did the interviewer guarantee or
suggest to Adair that he would receive a lesser sentence if he confessed. See
State v. Villalobos, 225 Ariz. 74, 79, ¶ 14 (2010) (“The polygrapher’s request
that Villalobos tell the truth to ‘get out of this hole’ was also permissible.”);
State v. Amaya-Ruiz, 166 Ariz. 152, 165 (1990) (“Mere advice from the police
that it would be better for the accused to tell the truth when unaccompanied
by either a threat or a promise does not render a subsequent confession
involuntary.”). Neither do we consider the interviewer’s statement that the
person deciding the case would be interested in whether Adair told the
truth and was remorseful to be an inaccurate statement or coercive. To the
extent the interviewer appealed to religion to get Adair to tell the truth, he
did not suggest anything other than having Adair tell the truth and does
not evidence Adair’s will being overborne. See State v. Newell, 212 Ariz. 389,
400, ¶¶ 47-48 (2006) (“‘[G]et[ting] right with God,’ confessing sins, and
asking for forgiveness . . . do not render confessions involuntary unless they
lead to the suspect’s will being overborne.”).
¶14 Upon the detective entering, Adair indicated that he had
previously been read his Miranda3 rights and understood them. The
detective stated she was only trying to determine the truth, to which Adair
confessed to initially touching Victim’s genitals with his hand while lying
in bed because Victim was restless. Adair stated he touched Victim’s
genitals four to five times again over the year while Victim was roughly ten
years old and admitted to digitally penetrating her on at least three
occasions. Adair admitted showing Victim a sexual video. Adair denied
ever having Victim touch his penis, and denied touching Victim for sexual
gratification, though he knew it was a mistake. The detective never told
Adair he would receive a sentence of probation if he confessed, and no plea
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. ADAIR
Decision of the Court
deal was ever presented, promised, or suggested. Adair did not attach or
introduce any other recordings of the interview.
¶15 At trial, Adair’s counsel cross-examined the detective
whether she had made any promises to Adair, which she denied, and which
the recorded interview does not show any evidence of. The jury was shown
the video of the interview, given the instruction regarding the voluntariness
of statements, and instructed to disregard “any statements made by the
defendant to a law enforcement officer unless you determine beyond a
reasonable doubt that the defendant made the statements voluntarily.”
Adair’s claims do not supply an adequate basis to find reversible error.
II. Ineffective Assistance of Counsel
¶16 Adair argues his counsel failed to advise him of his rights
during the indictment or arraignment hearings. Because this is a claim for
ineffective assistance of counsel, which may not be raised on direct appeal,
we do not consider it. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20
(2007). Instead, Adair must present this claim to the superior court in a
post-conviction relief proceeding. Id.
III. Other Issues
¶17 We have read and considered counsel’s brief and fully
reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find
none. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, counsel
represented Adair at all stages of the proceedings, and the sentences
imposed were within the statutory guidelines. We decline to order briefing
and affirm Adair’s convictions and sentences.
¶18 Upon the filing of this decision, defense counsel shall inform
Adair of the status of the appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Adair shall have thirty days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.
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STATE v. ADAIR
Decision of the Court
CONCLUSION
¶19 For the foregoing reasons, we affirm Adair’s convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
7