State v. Miranda-Henriquez
| Decision Date | 26 May 2020 |
| Docket Number | No. A-19-641.,A-19-641. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. OSCAR A. MIRANDA-HENRIQUEZ, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Affirmed as modified.
Thomas C. Riley, Douglas County Public Defender, and Allyson A. Mendoza for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Oscar A. Miranda-Henriquez appeals his conviction for two counts of first degree sexual assault on a child and two counts of third degree sexual assault on a child. He contends that the district court erred in (1) denying his motion to suppress statements he made during a police interview, (2) failing to grant his motion for a directed verdict, and (3) imposing excessive sentences. For the reasons set forth here, we affirm Miranda-Henriquez' convictions and sentences as modified.
In March 2018, Omaha Police Detective Shannon Knuth interviewed Miranda-Henriquez after receiving a report alleging Miranda-Henriquez sexually assaulted his daughter, S.M., and his niece, E.R. Knuth conducted the interview in Spanish and began by asking Miranda-Henriquez biographical questions about members of his family. After establishing that Miranda-Henriquez could understand her, Knuth then told Miranda-Henriquez that she was going to read him his Miranda rights. Miranda-Henriquez responded his surname was Miranda, and Knuth asked if he knew what Miranda rights were, to which he replied, "no." Knuth then told Miranda-Henriquez that she was going to read his Miranda rights to him and that he needed to say yes or no. Knuth read the Miranda rights from an Omaha Police Department Rights Advisory Form which listed the rights in Spanish. After each right was read, Knuth asked if Miranda-Henriquez understood the right; he immediately responded "yes." Following that exchange, Knuth asked, "Do you want to talk to me right now?" and Miranda-Henriquez responded "yes."
As the interview continued, Miranda-Henriquez admitted to inappropriately touching S.M. and E.R. Concerning S.M., Miranda-Henriquez stated that when S.M. was around 11½ years old, he inserted his penis into S.M.'s vagina and ejaculated. Miranda-Henriquez also admitted that, on another occasion, he inappropriately touched S.M. by placing his hand under her clothing and touching her between the labia. Regarding E.R., Knuth told Miranda-Henriquez that E.R. had reported that he ejaculated on her and used a towel to clean her off. Miranda-Henriquez stated that he remembered the incident, even the towel, and admitted to attempting to penetrate E.R. with his penis but was unable to, so he placed his penis inside her labia and masturbated until he ejaculated on her.
During the interview, Miranda-Henriquez stated that his wife was aware of his conduct and that he knew his actions were "against the law." After Miranda-Henriquez admitted to inappropriately touching S.M. and E.R., Knuth asked Miranda-Henriquez if he had any questions for her, and Miranda-Henriquez inquired about his phone and his car. Later in the interview, Knuth asked if Miranda-Henriquez understood her and he nodded his head affirmatively. Throughout the interview, Miranda-Henriquez stated he would accept punishment for his actions.
In April 2018, Miranda-Henriquez was charged with two counts of first degree sexual assault on a child, Class IB felonies, and two counts of third degree sexual assault on a child, Class IIIA felonies. See, Neb. Rev. Stat. § 28-319.01(2) (Reissue 2008 and Reissue 2016); Neb. Rev. Stat. § 28-320.01(3) (Reissue 2016). The information was twice amended regarding the dates of the alleged offenses. The first degree sexual assault on a child offense regarding S.M. was alleged to have been committed on or about August 25, 2014, through March 8, 2018. The first degree sexual assault on a child offense regarding E.R. was alleged to have been committed on or about November 25, 2006, through November 25, 2011. The third degree sexual assault on a child offense regarding S.M. was alleged to have been committed on or about August 1, 2006, through August 26, 2010. The third degree sexual assault on a child offense regarding E.R. was alleged to have been committed on or about November 25, 2006, through November 25, 2011.
Miranda-Henriquez moved to suppress his statements to Knuth because, relevant to this appeal, he was not properly advised of his right to counsel and his right against compelled self-incrimination; he had not knowingly, voluntarily, or intelligently waived his right to counsel or his right against compulsory self-incrimination; and his statements were not voluntary. At the suppression hearing, Knuth testified and the court received into evidence the audio-video recording of Knuth's interview with Miranda-Henriquez. The district court later entered an order denying Miranda-Henriquez' motion finding Miranda-Henriquez knowingly and voluntarily waived his Miranda rights.
A bench trial was held in April 2019 during which Miranda-Henriquez renewed his motion to suppress his statements, and the district court again denied his motion but granted him a continuing objection. The evidence at trial established that Miranda-Henriquez was born in May 1978; S.M., a victim and daughter of Miranda-Henriquez, was born in August 2004; and E.R., a victim and niece of Miranda-Henriquez, was born in November 2000. At trial, testimony was adduced from Kelly Varguez, a court-certified interpreter; Knuth; E.R.; S.M.; and Sarah Cleaver, a pediatric nurse practitioner at Project Harmony Child Advocacy Center.
The district court received into evidence the audio-video recording of Knuth's police interview of Miranda-Henriquez over Miranda-Henriquez' objection and renewal of his motion to suppress. Varguez, a certified Spanish court interpreter, testified that she viewed the recorded interview between Knuth and Miranda-Henriquez and provided a transcript, which was also received into evidence. The transcript included a Spanish-to-English translation of the interview. When asked if she believed Miranda-Henriquez had difficulty understanding Knuth, Varguez testified that there were "a couple of instances where she may have asked one question and he answered with information that she wasn't anticipating" but that Knuth clarified those misunderstandings.
Knuth testified that she received an assignment to interview Miranda-Henriquez because he only spoke Spanish and she is fluent in Spanish and holds a Limited English Proficiency certification through the City of Omaha. Although Knuth did not ask Miranda-Henriquez if his native language was Spanish, she began the interview by asking some biographical questions to see whether Miranda-Henriquez understood her and testified that she believed Miranda-Henriquez understood her. Additionally, toward the beginning of the interview, Knuth read Miranda-Henriquez his Miranda rights, and Knuth testified that, in her opinion, Miranda-Henriquez understood the rights she read to him and willingly waived his rights and agreed to speak with her. The interview with Miranda-Henriquez lasted a little over an hour, including two breaks, and Miranda-Henriquez never stated that he had any difficulty understanding Knuth. Knuth further testified that she did not make any promises, coerce, or threaten Miranda-Henriquez to get him to answer her questions. Finally, Knuth testified that, as part of theinvestigation, she took photographs of the 37th Street house where some of the alleged incidents occurred and testified that all the events she testified to occurred in Douglas County, Nebraska.
S.M. testified she lived with her family at a house on South 37th Street and that she had previously lived in a house on Vinton Street. S.M. testified that the first time Miranda-Henriquez touched her inappropriately occurred in 2012 at the house on Vinton Street. At that time, S.M. stated that she was 8 years old, in the first grade, and Miranda-Henriquez used his hand to touch her vagina over her clothing.
S.M. testified Miranda-Henriquez also inappropriately touched her twice at the 37th Street house. S.M. stated the first incident at the 37th Street house occurred when she was 12 years old when Miranda-Henriquez put his hand down her skirt and began rubbing her vagina, then later penetrated her vagina with his penis. S.M. testified that after this incident, Miranda-Henriquez told her that if she ever reported what happened, he would get divorced from her mother. S.M. also testified that, when she was 13 years old, a second incident took place at the 37th Street house during which Miranda-Henriquez penetrated her vagina with his penis and tried to kiss her on the mouth. S.M. testified that she did not tell anyone about Miranda-Henriquez' conduct because, on more than one occasion, he had threatened her to not tell anyone. However, S.M. testified that sometimes Miranda-Henriquez would initiate physical contact, such as a hug or kiss, with S.M. before he would leave to go somewhere, and S.M.'s mother would see S.M. push him away, which upset S.M.'s mother. This prompted S.M. to disclose the abuse to E.R. and eventually report to the police that Miranda-Henriquez had abused S.M.
After reporting Miranda-Henriquez' conduct, S.M. spoke with a nurse at Project Harmony but only disclosed the first two incidents and called one incident an "accident." S.M. testified that she did not discuss everything that happened because "I'm not used to telling them everything because I don't trust them" and was afraid something would happen to her.
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