State v. Christopher M. Brimm

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 20, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP407-CR Cir. Ct. No. 2018CF348

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER M. BRIMM,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Washington
County: TODD K. MARTENS, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP407-CR

¶1 PER CURIAM. Christopher M. Brimm appeals from a judgment
convicting him of two counts of repeated sexual assault of a child. He contends that
statements he made to police before his arrest should have been suppressed because
they were not preceded by the warnings required under Miranda v. Arizona, 384
U.S. 436 (1966), and because the statements were not voluntary. For the reasons
explained below, we reject Brimm’s arguments and affirm his conviction.

BACKGROUND

¶2 West Bend police obtained information indicating that Brimm had
repeatedly sexually assaulted his daughters. On July 18, 2018, two West Bend
police officers, Lieutenant Eric Grinwald and Detective Brian McAndrews, arrived
at Brimm’s residence in Racine County to investigate these allegations. Brimm,
who was present along with his parents, agreed to talk with the officers and asked
that they speak in the back yard of the residence.

¶3 In the back yard, Grinwald advised Brimm that they were
investigating disclosures that Brimm’s children had made. Brimm asked whether
the disclosures were sexual in nature; Grinwald confirmed they were. At points
during their conversation, Brimm went inside by himself to get a pack of cigarettes,
a soda, and to use the restroom. Eventually, to avoid speaking about the disclosures
within earshot of his parents, Brimm asked Grinwald if they could continue the
conversation in the front yard and then at a park down the street. Grinwald went
with Brimm to the park while McAndrews stayed at the residence.1

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At some point while Grinwald and Brimm were speaking, a Racine deputy sheriff arrived
at the residence. McAndrews asked the deputy sheriff, who was dressed in police uniform, to keep
his distance because he was in a marked squad car. The deputy sheriff remained in his car down
the street from Brimm’s residence.

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No. 2023AP407-CR

¶4 At the park, Grinwald and Brimm continued to talk about the
allegations. At this point, Brimm began making incriminating admissions.
Specifically, he told Grinwald that his children were telling the truth about the
sexual assaults. Brimm also divulged that he knew the assaults happened but could
not remember any of the details because he was an alcoholic at that time. Brimm
eventually asked Grinwald, “[w]ell, what will happen next[?]” Grinwald replied
that he would like to continue their conversation and obtain a written statement.
Brimm agreed to continue talking with Grinwald and suggested that they go back to
the residence because his parents had left by then.

¶5 When they returned to the residence, Grinwald drafted a written
statement that summarized their discussion. While Grinwald was writing, Brimm
went outside to smoke a cigarette. When he finished writing the statement,
Grinwald read it to Brimm, who signed it. Before completing the written statement,
Grinwald had not told Brimm the specific allegations that his children made. After
Brimm signed the statement, Grinwald confronted him about some of those details.
Brimm admitted having had sexual contact with his children. Grinwald then
informed Brimm that he would be taken into custody, which ended the interview.
The entire interaction with Brimm lasted about two hours.

¶6 The State charged Brimm with six felonies, including three counts of
repeated sexual assault of a child. Brimm moved to suppress his statements to
police, arguing they were elicited in violation of his Miranda rights and were not
made voluntarily. The circuit court held a Miranda-Goodchild2 hearing at which
the officers present during Brimm’s questioning testified.

2
See State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

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No. 2023AP407-CR

¶7 After hearing the testimony, the circuit court denied Brimm’s motion
to suppress. As to the claimed Miranda violation, the court found that Brimm
initially agreed to speak to the officers, never asked to terminate the interview, was
not restrained in any way during his conversations with Grinwald, was not “told that
he wasn’t free to leave,” “was not directly confronted with the incriminating
evidence until late in the interrogation,” was not taken to the police station, and
chose three separate locations for the interview “to start, and continue, and
conclude.” In addition, the court found that the interview was not “particularly
long,” “[t]he tone of the questioning was not confrontational or accusatory,” “[t]here
was no physical contact” between Brimm and the officers, Brimm was allowed to
hold onto his cell phone, and he was not told that he was under arrest or handcuffed.
Based upon these findings, the circuit court concluded that “a reasonable person
would not consider himself in custody,” and thus the police did not violate Brimm’s
constitutional rights by not giving him Miranda warnings before questioning him.

¶8 The circuit court relied on many of the same findings in rejecting
Brimm’s voluntariness challenge. In the court’s view, the facts showed that the
officers’ conduct was not “improper in any way” and that the State had
demonstrated that Brimm’s statements were voluntary. Brimm subsequently
entered an Alford3 plea to two counts of repeated sexual assault of the same child.

DISCUSSION

¶9 In reviewing a circuit court’s order on a motion to suppress, we uphold
the court’s factual findings unless they are clearly erroneous. State v. Lonkoski,
2013 WI 30, ¶21, 346 Wis. 2d 523, 828 N.W.2d 552. However, “[w]e
independently review the circuit court’s application of constitutional principles to

3
See North Carolina v. Alford, 400 U.S. 25 (1970).

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No. 2023AP407-CR

those” findings. State v. Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629
N.W.2d 613.

¶10 Brimm takes issue with only one of the circuit court’s findings of fact.
He contends that he “was never left alone, and was accompanied by at least one
officer at all times.” This assertion is not supported by the record. Grinwald
testified that Brimm was allowed to smoke and use the restroom by himself at
various points during questioning. Brimm has not shown that the court clearly erred
in finding that he was allowed to be by himself at times.

¶11 We next consider Brimm’s contention that he was “in custody” for
Miranda purposes. “Custody means ‘a formal arrest or restraint on freedom of
movement of the degree associated with formal arrest.’” State v. Quigley, 2016 WI
App 53, ¶32, 370 Wis. 2d 702, 883 N.W.2d 139 (citation omitted). To determine
whether a person is in custody for Miranda purposes, courts look at the totality of
the circumstances and consider “whether a reasonable person in the suspect’s
position would have considered himself or herself to be in custody.” Lonkoski, 346
Wis. 2d 523, ¶27 (citation omitted). Specifically, courts consider “the degree of
restraint; the purpose, place, and length of the interrogation; and what has been
communicated by police officers.” State v. Bartelt, 2018 WI 16, ¶32, 379 Wis. 2d
588, 906 N.W.2d 684. With regard to the degree of restraint, “we consider: whether
the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed,
the manner in which the suspect is restrained, whether the suspect is moved to
another location, whether questioning took place in a police vehicle, and the number
of officers involved.” State v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602,
648 N.W.2d 23.

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No. 2023AP407-CR

¶12 Based on the facts as found by the circuit court, Brimm was not in
custody at the time he gave the challenged statements. Although Brimm was never
given Miranda warnings, he agreed to speak with police and was never told that he
was under arrest or that he was not free to leave. The questioning took place in
multiple locations near and inside his residence, not at a police station. At no point
during questioning did Brimm ask to stop the interview. The interrogation lasted
approximately two hours, during which he was allowed to smoke cigarettes, get a
soda, and use the restroom.

¶13 As to the degree of restraint, Brimm was not handcuffed or otherwise
physically restrained at any point before his arrest. He was not frisked, and the
police did not brandish their weapons. Brimm directed where questioning would
occur by requesting to move locations to continue the conversation. Although three
officers were present during the interrogation, Grinwald alone conducted the
questioning while the Racine deputy sheriff remained outside in his car. Given the
totality of the circumstances, the circuit court correctly concluded that Brimm was
not in custody at the time he made the incriminating statements.

¶14 Brimm’s arguments to the contrary are not persuasive. Brimm asserts
that he believed he was not free to leave and that the officers intended to arrest him
after the interview, but the subjective beliefs of the participants are irrelevant
because “[t]he test for custody is an objective one.” See State v. Goetz, 2001 WI
App 294, ¶11, 249 Wis. 2d 380, 638 N.W.2d 386. Brimm also argues that he was
surrounded by three officers from two jurisdictions, was never left alone, and was
followed by officers from location to location. However, Brimm only had contact
with two of the officers, and Grinwald alone conducted the questioning. In addition,
though Brimm was alone with the officers during questioning, this was largely due
to his requests to move around his property and to the park so that his parents would

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No. 2023AP407-CR

not overhear the discussion. Finally, Brimm’s argument that he was never left
unaccompanied is not supported by the record, and given the other facts surrounding
the police interaction, the officers’ presence does not compel a conclusion that he
was in custody.

¶15 Brimm’s argument that his statements to the police were involuntary
is similarly unpersuasive. “[S]tatements are voluntary if they are the product of a
free and unconstrained will, reflecting deliberateness of choice, as opposed to the
result of a conspicuously unequal confrontation in which the pressures brought to
bear on the defendant by … the State exceeded the defendant’s ability to resist.”
State v. Vice, 2021 WI 63, ¶29, 397 Wis. 2d 682, 961 N.W.2d 1 (citation omitted).
We evaluate voluntariness in light of all the circumstances surrounding the
interrogation. Id. at ¶30. First, we must determine whether there is affirmative
evidence of coercion or improper police practices. State v. Moore, 2015 WI 54,
¶56, 363 Wis. 2d 376, 864 N.W.2d 827. If such evidence exists, we weigh the police
conduct against the defendant’s personal characteristics. State v. Clappes, 136
Wis. 2d 222, 236, 401 N.W.2d 759 (1987).

¶16 In evaluating police conduct, we consider

the length of the questioning, … the general conditions under
which the statements took place, any excessive physical or
psychological pressure brought to bear on the defendant, any
inducements, threats, methods or strategies used by the
police to compel a response, and whether the defendant was
informed of the right to counsel and right against
self-incrimination.

State v. Hoppe, 2003 WI 43, ¶39, 261 Wis. 2d 294, 661 N.W.2d 407.

¶17 Although Brimm was not given Miranda warnings, the totality of the
circumstances does not show coercive or improper police conduct. The duration of

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No. 2023AP407-CR

questioning was approximately two hours. The tone of the conversation was not
threatening, and Brimm was allowed to smoke cigarettes, drink a soda, use the
restroom, and keep his cell phone. Brimm was not handcuffed, and there was no
evidence that the police used excessive physical or psychological pressures.
Although the allegations may have been upsetting to Brimm, confronting a suspect
with incriminating allegations is not improperly coercive. Brimm’s argument that
having one officer remain with him at all times was coercive is also unpersuasive.
As mentioned above, Brimm was unaccompanied at certain points in the interview,
and in any event, the mere presence of a police officer is not an improperly coercive
tactic. Because we conclude the police did not use coercive or improper police
conduct, we need not balance Brimm’s “personal characteristics and those
nonexistent pressures.” See Vice, 397 Wis. 2d 682, ¶31.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

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