State v. Prieto-Rubio

• Decision Date: 02 April 2014
• Docket Number: C11693CR, C112523CR; A152030 (Control) A152033.
• Citation: 324 P.3d 543,262 Or.App. 149
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jesus R. PRIETO–RUBIO, Defendant–Appellant.
• Court: Oregon Court of Appeals

262 Or.App. 149

324 P.3d 543

STATE of Oregon, Plaintiff–Respondent,

v.Jesus R. PRIETO–RUBIO, Defendant–Appellant.

C11693CR, C112523CR; A152030 (Control) A152033.

Court of Appeals of Oregon.

Argued and Submitted Nov. 8, 2013.

Decided April 2, 2014.

John J. Tyner III argued the cause and filed the briefs for appellant.

Michael R. Salvas, Assistant Attorney General, argued the cause for respondent. On the answering brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General. With him on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and GARRETT, Judge, and SCHUMAN, Senior Judge.^*

GARRETT, J.

This consolidated appeal concerns defendant's convictions for sexual offenses against three victims, AG, KM, and LP. In Case No. C11–2523CR, defendant was convicted of sexual abuse in the first degree based on his conduct with LP (Count 1) and KM (Count 2).¹ In Case No. C11–1693CR, he was convicted of two counts of attempted sexual abuse in the first degree based on his conduct with AG. On appeal, defendant makes two assignments of error. In the first, he “seeks reversal of his convictions [in Case No.] C11–2523CR.” Specifically, defendant contends that the trial court erred in denying his motion to suppress statements that he made during a police interview without counsel present. In the second assignment, defendant, in a supplemental brief, contends that the trial court erred in denying his motion for judgment of acquittal.² Because defendant's second assignment of error was not preserved, we address only the first assignment of error.

In that assignment, defendant argues that, as to the two counts of sexual abuse against KM and LP, the trial court erred in denying defendant's motion to suppress evidence obtained when a detective interviewed defendant without first notifying defendant's attorney. Whether the detective was required to contact defendant's attorney turns on whether the instances of sexual abuse in this case, involving the same defendant but different victims at different times, were “factually related” for purposes of Article I, section 11, of the Oregon Constitution. We conclude that the incidents were factually related, that defendant's attorney should have been notified, and that defendant's motion to suppress therefore should have been granted. Accordingly, we reverse and remand defendant's convictions on Counts 1 and 2 in Case No. C11–2523CR and remand that case for resentencing but otherwise affirm.

BACKGROUND

The parties do not dispute the relevant facts. The three girls, AG, KM, and LP, are members of defendant's extended family. On August 9, 2011, AG was evaluated at Child Abuse Response Evaluation Services Northwest (CARES) in connection with an allegation that she had been sexually abused the previous day. During her evaluation, AG said that she had spent time in defendant's home and that he had touched her breasts and vaginal area. AG also reported that KM and LP had spent time at defendant's home and might have been abused by defendant.

Detective Rookhuyzen attended and observed AG's evaluation at CARES. Later that day, Rookhuyzen traveled to defendant's home and interviewed him. At the conclusion of the interview, defendant was arrested and taken into custody. Rookhuyzen conducted a second interview later that day after defendant waived his Miranda rights. The second interview was primarily about AG, but Rookhuyzen also asked defendant about other children who had visited his house. During that interview, KM's name was specifically mentioned but LP's was not. Defendant was subsequently charged with first-degree sexual abuse of AG in Case No. C11–1693CR. He retained counsel.

Over the following several weeks, Rookhuyzen continued to investigate AG's references to other possible victims. In September 2011, KM and LP were both interviewed at ABC House, another child-advocacy center. Both KM and LP described instances in which they had separately visited defendant's home and he had touched their vaginal areas.

On October 5, 2011, Rookhuyzen interviewed defendant a third time at the Washington County Jail, where defendant was being held on the charges pertaining to AG. There is no dispute that Rookhuyzen was aware that defendant was represented by counsel in the case concerning AG, but Rookhuyzen did not contact defendant's counsel prior to the interview. During that interview, defendant made incriminating statements concerning KM and LP. He was subsequently charged with three counts of sexual abuse in the first degree, two counts regarding KM and one count regarding LP in Case No. 11–2523CR.

The indictment in Case No. 11–1693CR alleged, with regard to the first count, that defendant abused AG “on or between August 7, 2011 to August 8, 2011.” With regard to the second count, the indictment alleged that defendant abused AG “on or about August 7, 2011.” The indictment in Case No. 11–2523CR alleged that defendant abused LP “on or between January 1, 2010 and January 1, 2011” and abused KM “on or between August 31, 2009 and January 1, 2011.” Thus, the time period in which the three victims were alleged to have been abused was potentially as long as two years, August 1, 2009 to August 8, 2011.

On the state's motion, the two cases were consolidated for trial. In support of its motion, the state informed the trial court that “the crimes alleged against * * * defendant involve many of the same witnesses and arise from the same investigation.” The state asserted further that “the crimes alleged against * * * defendant are of the same or similar character and show a common scheme or plan.”

Prior to trial, defendant moved to suppress evidence of the statements that he had given about KM and LP in the third interview. Defendant argued that the interview was conducted in violation of his right to counsel under Article I, section 11, because Rookhuyzen,who knew that defendant was represented by counsel, failed to notify defendant's counsel before the interview. At the hearing on defendant's motion to suppress, Rookhuyzen agreed with defense counsel that, during all three of his interviews with defendant, he and defendant had “talked about the universe of kids who came to [defendant's] house during a two-year period of time.” Rookhuyzen also testified that, during the second interview, he learned some information about KM that led Rookhuyzen to believe that KM may have been sexually abused by defendant. He testified further that, in the third interview, “the focus is on the new victims. They were the ones that I lacked any statement from the defendant about. That was—that was the focus, yeah, [LP] and [KM]. That was the focus of that third interview in the jail.” Rookhuyzen also explained, regarding the third interview, that

“I think it's impossible to have a conversation with [defendant] and not have some overlap. These are family members. So I mean, I think that it's fair to say, you know, a name might have come up.

“But at this point, he'd been charged on the first victim, and I was completely focused on victims two and three.”

The trial court denied defendant's motion to suppress the statements, reasoning as follows:

“And the fact that the cases appear to be related, because, of course, first of all, they're—the allegations are against [defendant]; that they're from minors; and that they involve his house is sufficiently similar to say that they are the same. And that the representation of counsel is to the offense charged, which would have been the offenses charged initially, not the ones related to by the officer that were charged after that, because they involved a different time frame and different victims and result in the allegations of different crimes.

“So the statements would then be admissible against the defendant as not in violation of Miranda and not involuntary. And that would be my order on that.”

A bench trial was held; defendant renewed his suppression arguments unsuccessfully in a motion for judgment of acquittal. In Case No. C11–2523CR, defendant was convicted on one count of sexual abuse in the first degree as to LP (Count 1) and one count of sexual abuse in the first degree as to KM (Count 2). Defendant was also convicted of two counts of attempted sexual abuse in the first degree in Case No. C11–1693CR. The trial court sentenced defendant to 19 months in prison on each attempt conviction, to be served concurrently, and to the mandatory minimum term of 75 months on both counts of sexual abuse, also to be served concurrently. The court ordered that 15 months of the 19–month sentences in Case No. C11–1693CR be served consecutively with the 75–month sentences in Case No. C11–2523CR, for a total term of 90 months.

DISCUSSION

On appeal, defendant contends that the trial court erred in denying defendant's motion to suppress the evidence of the statements that defendant gave to Rookhuyzen about KM and LP in the third interview. Defendant contends that that interview violated his constitutional right to counsel.

We review the trial court's denial of defendant's motion for errors of law. State v. Ehly, 317 Or. 66, 74, 854 P.2d 421 (1993). In so doing, we consult the record as it existed at the time of the alleged error and not “as it may have developed at some later point.” State v. Pitt, 352 Or. 566, 575, 293 P.3d 1002 (2012). We consider all pertinent portions of the record, however, when determining whether an error was harmless. State v. Cunningham, 179 Or.App. 359, 362 n. 2, 40 P.3d 1065 (2002), rev'd on other grounds,337 Or. 528, 99 P.3d 271 (2004).

Article I, section 11, provides, in part, that, in “all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel[.]” That provision means, among other things, that “once a person is charged with a crime he or she is entitled to...