State v. Kozlov

• Decision Date: 12 April 2012
• Docket Number: No. 20090372–CA.,20090372–CA.
• Citation: 2012 UT App 114,706 Utah Adv. Rep. 25,276 P.3d 1207
• Parties: STATE of Utah, Plaintiff and Appellee, v. Konstantin KOZLOV, Defendant and Appellant.
• Court: Utah Court of Appeals

276 P.3d 1207
706 Utah Adv. Rep. 25
2012 UT App 114

STATE of Utah, Plaintiff and Appellee,
v.
Konstantin KOZLOV, Defendant and Appellant.

No. 20090372–CA.

Court of Appeals of Utah.

April 12, 2012.

[276 P.3d 1211]

Elizabeth Hunt, Salt Lake City, for Appellant.

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and CHRISTIANSEN.

OPINION
CHRISTIANSEN, Judge:

¶ 1 Defendant Konstantin Kozlov appeals his convictions following a jury trial for attempted rape, seeUtah Code Ann. § 76–5–402 (2008) (rape); id. § 76–4–101 (attempt); forcible sexual abuse, see id.§ 76–5–404; and domestic violence in the presence of a child, see id. § 76–5–109.1(2)(c). We affirm.

[276 P.3d 1212]

BACKGROUND ¹ I. Defendant and the Victim's Relationship ²

¶ 2 Defendant and his friend (the roommate) met the victim when they all worked together at McDonald's. Subsequently, they moved into the same house, along with the victim's children. Prior to this arrangement, the victim and her children did not have a permanent residence. Defendant paid the victim's portion of the rent while she lived with Defendant. Defendant also bought the victim and her children gifts, paid for some of her other expenses, and bought a plane ticket for one of the victim's children. Defendant developed a relationship with the victim's children, and according to the victim, her children loved Defendant. Defendant seemed to want a romantic relationship with the victim. Although the victim accepted his gifts and financial assistance, she was not and did not intend to be romantically involved with him. In fact, about a month after she moved in with Defendant, the victim married a man in another state though the victim continued to live with Defendant, and for some time she did not tell him that she had married.

¶ 3 After living with Defendant for approximately seven months, the victim decided that, despite her financial instability, she needed to move out of Defendant's residence because she had become increasingly concerned that Defendant would force her into a sexual relationship with him. According to the victim, Defendant became more aggressive toward her, and he began to follow her, call her bad names, listen to her phone calls, and appear at her workplace where he would remain for two or three hours.³ One night, Defendant entered the victim's room while she was sleeping, struggled with her, and would not leave when she asked. Thereafter, the victim and her children moved to a new apartment for which Defendant paid the deposit.

II. Events Leading to the Charges Against Defendant

¶ 4 On the night of June 28, 2008, Defendant and the victim argued while talking on the phone. Despite the victim telling Defendant not to come to her apartment, he insisted that he was coming over and that if she did not open her door for him, he would kick the door down. Defendant arrived at the victim's apartment around midnight, and when the victim said that she did not want to talk to him, he again told her that if she did not open the door he would kick it down or go through the window. The victim then let Defendant in but told him that she would talk with him for only five minutes.

¶ 5 While she and Defendant were sitting on the stairs talking, the victim heard her three-year-old child cry out. The victim went upstairs into her bedroom where her children were sleeping and lay in the bed next to her child to calm the child. Defendant followed the victim to the bedroom and refused to leave the room, despite the victim's request that he do so.

[276 P.3d 1213]

¶ 6 Instead of leaving, Defendant lay next to the victim on the bed and began touching her breast over her shirt. When she told him to stop, he said, “No,” and she slapped him.⁴ Defendant then grabbed her hands with one of his hands and touched the victim's genitals over her clothes with his other hand. The victim kept telling Defendant to stop, to leave, and that she was going to call the police. Defendant responded by saying that he did not care and that he did not believe she would call the police. The victim also tried to get Defendant to stop touching her by kicking him, hitting him, pulling his hair, pinching him, moving her legs, and struggling throughout the encounter. While holding her hands and partially lying on top of her, Defendant touched the victim's breasts under her clothing, pulled the victim's pajama pants down, and touched her genitals with his hand. When the victim again told Defendant to leave, he refused and told her he could “do whatever [he] want[ed].” While on top of and between the victim's legs, Defendant removed his pants and attempted to penetrate the victim's vagina with his penis. However, Defendant was unable to maintain an erection, so his attempt to have intercourse with the victim was unsuccessful. Defendant also grabbed the victim's jaw to try to kiss her and told her that he loved her, to which the victim responded that she did not care. Defendant then moved next to the victim, grabbed the victim's right hand, and forced her to touch his penis.

¶ 7 The victim's seven-year-old child, who was asleep in the same bed until that point, then woke up and said, “Mommy, are you okay?” When Defendant released the victim upon hearing the child, the victim grabbed her phone, which had previously been out of her reach, and called the police. Defendant put his pants back on, went downstairs, and waited for the police. The victim followed him and stood in the door frame of her house until the police arrived.

III. Defendant's Interrogation ⁵

¶ 8 Officers Stuart Fore and Shauna Lee Greening responded to the victim's complaint to the dispatcher that Defendant would not leave her residence. After speaking with the victim, Officer Fore approached Defendant, who had been waiting with Officer Greening. Officer Fore then advised Defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stopping after each right to ask Defendant if he understood. Officer Fore also answered Defendant's question about the role of an attorney. After Defendant acknowledged that he understood his rights, Defendant communicated with and responded to Officer Fore's questions in English. Specifically, the officer asked about Defendant's relationship with the victim and about his version of what had happened earlier that night. Officer Fore then drove Defendant to the police station, which took approximately two minutes.

¶ 9 At the police station, Defendant was placed in an interrogation room where he remained in total for approximately ninety minutes, including approximately thirty minutes when he was left in the room alone. At the beginning of the interrogation, Officer Tami Kogianes asked Defendant if he could write in English, to which Defendant responded, “Yes.” Officer Kogianes gave Defendant an opportunity to provide a written explanation of what happened, but Defendant refused to do so. After leaving Defendant alone for approximately twenty-five minutes, Officers Kogianes and Fore reentered the interrogation room. As the interrogation began, Officer Kogianes asked Defendant if his rights had previously been read to him. Though Defendant told the officer that he

[276 P.3d 1214]

had previously been advised of his Miranda rights, Officer Kogianes again advised Defendant of his rights—albeit in a fairly quick manner. Officer Kogianes then asked, “Do you wish to speak to me?” Defendant responded in the affirmative.

¶ 10 Both officers were present throughout the interrogation, but Officer Kogianes did the majority of the questioning. Because of the sexual nature of the questions, Officer Kogianes asked Defendant if he would be more comfortable speaking with a male officer, such as Officer Fore. Defendant responded, “No, I can speak to you.” The officers told Defendant that they wanted him to explain his side of the story. During the interrogation, the officers asked questions in English. For the most part, Defendant appeared to understand the officers' use of the English language and responded appropriately to the officers' questions.

¶ 11 In response to questions, Defendant stated that he had not touched the victim's genitals, had not touched her breasts under her shirt, and had not removed either his or her pants. However, he stated that he had touched the victim's breasts on top of her shirt, touched her shoulders, tried to kiss her, and grabbed her hand when she tried to slap him. Defendant did not answer when Officer Kogianes asked him if he had an erection. When Officer Kogianes finally told him the specifics of the victim's allegations, Defendant did not change any of the details of the story he reported to the officers. Defendant also told the officers that he had not previously had a sexual relationship with the victim and that she was angry with him. Following the interrogation, the State charged Defendant with attempted rape, forcible sexual abuse, sexual battery, and domestic violence in the presence of a child.

IV. Motion to Suppress

¶ 12 Before trial, Defendant moved to suppress the statements he made to the officers, alleging that the officers failed to properly advise him of his Miranda rights in the Russian language and failed to ensure that Defendant had knowingly and voluntarily waived his Miranda rights before questioning him. Both the written motion and Defendant's trial counsel's arguments during the suppression hearing focused on whether Defendant sufficiently understood the Miranda rights that were given to him in English. In granting Defendant's motion, the court stated,

Noting the record in this matter, as a whole, the [c]ourt is unpersuaded that the State has met its burden in establishing that [D]efendant knowingly and voluntarily waived his Miranda rights before questioning by officers, and particularly the legal significance of such rights as to an uninformed alien and, therefore, the [c]ourt grants the defendant's...