State v. Berg

• Decision Date: 29 October 2008
• Docket Number: A128653 (Control),A128652 (Control),040076CR,040062CR,040188CR,A128654.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Kevin Richard BERG, Defendant-Appellant.
• Court: Oregon Court of Appeals

196 P.3d 547

223 Or. App. 387

STATE of Oregon, Plaintiff-Respondent, v. Kevin Richard BERG, Defendant-Appellant.

040076CR

040062CR

040188CR

A128652 (Control)

A128653 (Control)

A128654.

Court of Appeals of Oregon.

Argued and Submitted May 7, 2008.

Decided October 29, 2008.

Jesse Wm. Barton, Salem, argued the cause and filed the brief for appellant.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

SCHUMAN, J.

In three consolidated cases, defendant was charged with various offenses involving the sexual and physical abuse of his two daughters, H and A. After a jury trial, he was convicted of first-degree rape, coercion, first-degree criminal mistreatment, fourth-degree assault, harassment, first-degree sodomy, and first- and third-degree sexual abuse of the victims. He appeals from those judgments of conviction and from the sentence imposed by the trial court, arguing that the court erred in admitting evidence obtained in an unlawful search; in admitting evidence of prior uncharged crimes; in refusing to use one of his requested jury instructions; and in imposing consecutive sentences based on facts that were not found by the jury or admitted by him. We remand for resentencing but otherwise affirm.

The Lake County Sheriff's Department received a report that H had been raped by defendant, her father. Deputy Sheriff Pore received the assignment to respond. He drove to the residence where H, her sister A, her mother, and defendant lived. He spoke with H privately and asked her if the report of rape was true. She indicated that it was. He then explained to her mother why he was there, and informed her that he would be transporting H to the police station to conduct an interview. Pore and H departed together for the police station. H's mother followed shortly thereafter.

H's mother was present during the first part of the interview, but, at H's request, she was asked to leave part way through it. During the interview, H stated that she had been sexually abused by defendant and that the abuse had occurred in several locations, including the shop adjacent to the family residence. She stated that, prior to each incident of abuse in the shop, defendant would place a light-colored cloth on the floor for her to sit on and that, after the abuse had ended, he would leave the cloth on a nearby bench. H told Pore that she had last seen some of those cloths approximately two days before the interview.

Based on that interview, Pore believed that he had probable cause that a crime had been committed and that evidence of that crime, including the cloths described by H, could be found at the family residence. Instead of applying for a warrant, however, he alerted other officers and requested their assistance, then returned to the residence with those officers and knocked on the front door. Receiving no response, he contacted the police station and requested that H's mother, who was still there, return to the family property. When H's mother arrived, Pore asked for her consent to search the property, informing her that "he had probable cause to believe a crime had occurred and that evidence of a crime was on the property and he wished to collect the evidence." She refused. He then told her that "he would be requesting a search warrant," and that, "while it was up to a judge to decide if a warrant would be issued, * * * in his experience, he had sufficient probable cause and he had never been denied a request for a search warrant." He further stated that, "during his request for the warrant[,] she would not have free roam of the property" and that "he would seal the property until he had obtained the warrant." That conversation lasted approximately 10 minutes and ended when H's mother consented to the search. Pore and another officer then found and seized the cloths that H had described inside the shop.

In his first assignment of error, defendant advances three interrelated arguments to support the contention that the trial court should have granted his motion to suppress evidence, including the cloths, seized during the officers' search of the family residence. First, he argues that H's mother's consent was invalid because it was derived from an unlawful seizure. Second, he argues that, even if the consent did not derive from a prior illegality, it was nonetheless involuntary because she merely acquiesced to the search. Third, he argues that her consent was involuntary because it was given in response to "a threat to take unauthorized action," i.e., a threat to seal the property.¹

The premise of defendant's first argument—that the seizure of the property led to H's mother's consent, and therefore occurred before it—cannot be reconciled with the court's findings of fact. Property is seized for purposes of Article I, section 9, of the Oregon Constitution, when there is significant interference with a person's possessory or ownership interests in the property. State v. Juarez-Godinez, 326 Or. 1, 6, 942 P.2d 772 (1997). Thus, in accordance with that principle, if Pore and the other officers had sealed the property, that sealing would have effected a seizure. In this case, however, the trial court found that interference was threatened, but never effected. Specifically, it found that Pore told H's mother that he "would be requesting a search warrant"; that "during [that] request for the warrant[,] she would not have free roam of the property"; and that, "in essence[,] he would seal the property until he [had] obtained a warrant." (Emphasis added.) Because those findings are supported by evidence in the record, we are bound by them. We agree with the state that no seizure of property occurred in this case; we therefore reject defendant's first argument that the consent derived from an unlawful seizure.

In his remaining arguments, defendant contends that, even if the consent did not derive from a prior illegality, it was nonetheless invalid because it was not voluntary. It is axiomatic that, although a warrantless search is lawful if consented to, the consent must be voluntary, and the state bears the burden of proving voluntariness by a preponderance of the evidence. State v. Weaver, 319 Or. 212, 219, 874 P.2d 1322 (1994); State v. Stevens, 311 Or. 119, 137, 806 P.2d 92 (1991). The relevant inquiry guiding our analysis of that issue is whether, under the totality of the circumstances, the consent was given by an act of free will, as opposed to resulting from coercion, express or implied. State v. Hall, 339 Or. 7, 20, 115 P.3d 908 (2005). In making that determination, we are bound by the trial court's findings of historical fact if they are supported by evidence. State v. Charlesworth/Parks, 151 Or. App. 100, 113, 951 P.2d 153 (1997), rev. den., 327 Or. 82, 961 P.2d 216 (1998). Whether those facts establish that the consent was voluntary, however, is a legal issue that we review independently. Id.

Defendant advances two arguments in support of his contention that H's mother's consent was involuntary. He first argues that she merely acquiesced to the search. We agree that "mere acquiescence" to police authority is not voluntary consent. State v. Little, 249 Or. 297, 302, 431 P.2d 810 (1967), cert. den., 390 U.S. 955, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968); State v. Davis, 133 Or.App. 467, 474, 891 P.2d 1373, rev. den., 321 Or. 429, 899 P.2d 1197 (1995). Such acquiescence occurs when an individual is not given a reasonable opportunity to choose to consent or when he or she is informed that a search will occur regardless of whether consent is given. State v. Guzman, 164 Or.App. 90, 99, 990 P.2d 370 (1999), rev. den., 331 Or. 191, 18 P.3d 1098 (2000).

State v. Freund, 102 Or.App. 647, 796 P.2d 656 (1990), is illustrative. In that case, a police officer told the defendant that he was at her residence "to pick up the marijuana plants that she was growing." Id. at 649, 796 P.2d 656 (internal quotation marks omitted). When the defendant did not respond, the officer repeated that he was there to pick up the plants and that he "wanted to do it as calmly [and] efficiently as possible." Id. (internal quotation marks omitted; brackets in original). We held that the officer's statement could not be characterized as a request for consent:

"The officer stated that `he was there' to pick up the marijuana and `he wanted' to do it calmly. The words used in the first phrase are unconditional; they do not invite a response other than acquiescence. In contrast, the words in the second phrase are supplicatory and do invite a response. Read together, the officer's statement told defendant that she had no choice whether a search would occur; her only option was whether the search and seizure was to be `calm and efficient.' Defendant merely chose the option favoring calmness and efficiency * * *."

Id. at 652, 796 P.2d 656; accord State v. Lowe, 144 Or.App. 313, 318, 926 P.2d 332 (1996) (no voluntary consent to field sobriety tests where officer "`had' [the] defendant get out of the car" because "[t]hat is the language of a command"); State v. Will, 131 Or.App. 498, 506, 885 P.2d 715 (1994) (the defendant's failure to object to officer's reentry into premises, after officer stated that "`he would be seizing the narcotic paraphernalia,'" was mere acquiescence).

In contrast, in State v. Ry/Guinto, 211 Or.App. 298, 305-07, 154 P.3d 724, rev. den., 343 Or. 224, 168 P.3d 1155 (2007), we held that the defendant had voluntarily consented where an officer, over the course of approximately one minute, repeatedly, and with "dogged persistence," expressed his desire to search the defendant's car for weapons and sought his consent to do so. During that period, the officer told the defendant seven times "either that he would `like to' or `want[ed] to'...