State v. Pusztai, A165949 (Control)

CourtCourt of Appeals of Oregon
Writing for the CourtJAMES, J.
Citation481 P.3d 946,309 Or.App. 95
Parties STATE of Oregon, Plaintiff-Respondent, v. Thomas David PUSZTAI, aka Thomas Pusztai, aka Thomas D. Pusztai, Defendant-Appellant.
Docket NumberA165950,A165949 (Control)
Decision Date03 February 2021

309 Or.App. 95
481 P.3d 946

STATE of Oregon, Plaintiff-Respondent,
Thomas David PUSZTAI, aka Thomas Pusztai, aka Thomas D. Pusztai, Defendant-Appellant.

A165949 (Control)

Court of Appeals of Oregon.

Argued and submitted March 26, 2019.
February 3, 2021

Matthew Blythe, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.


309 Or.App. 97

This is a consolidated appeal of two cases, Case Nos. 17CR26632 (A165949 on appeal) and 17CR32712 (A165950 on appeal). In Case No. 17CR32712, the state charged defendant with burglary in the first degree, ORS 164.225 (Count 1); criminal mischief in the second degree, ORS 164.354 (Count 2); and possession of a burglary tool or theft device, ORS 164.235 (Count 3). In that case, defendant waived a jury and the state tried its case against defendant to the court, which found defendant guilty of Count 2. The court found also found defendant guilty of attempted first-degree burglary as a lesser included offense of Count 1.

In Case No. 17CR26632, the state charged defendant with burglary in the second degree, ORS 164.215 (Count 1), and theft in the third degree, ORS 164.043 (Count 2). The state tried its case against defendant to a jury, which found defendant guilty of both counts. The court merged the guilty verdicts on those counts at sentencing.

On appeal, defendant raises two assignments of error and one supplemental assignment of error. Defendant's supplemental assignment of error challenges his conviction in Case No. 17CR26632. There, although the jury verdicts were unanimous, defendant challenges the giving of a nonunanimous jury instruction by the trial court. That argument is foreclosed by State v. Flores Ramos , 367 Or. 292, 334, 478 P.3d 515 (2020) ("[T]he trial court's instruction to the jury that it could return a nonunanimous verdict did not amount to a structural error and was harmless beyond a reasonable doubt.").

In defendant's first assignment of error, he challenges the trial court's denial of his motion to suppress statements elicited, according to defendant, while he was in compelling circumstances sufficient to require Miranda -like warnings under Article I, section 12, of the Oregon Constitution. While the trial court did suppress statements elicited after a certain point in the encounter, defendant proffers two alternative points earlier in the encounter where he claims suppression was required. As we explain, we need not determine if either of those alternative points constitute compelling circumstances under Article I, section 12,

309 Or.App. 98

because we conclude that defendant has not established that admission of the unsuppressed statements was harmful.

In defendant's second assignment of error, he challenges the trial court's imposition of an upward departure sentence in Case No. 17CR32712 on the count of attempted first-degree burglary based on an unpleaded enhancement factor, specifically "Persistent Involvement Unrelated to Current Crime." The state contends that even if the judgment reflects an unpleaded enhancement factor, any error is harmless because the record reflects that the trial court relied on another

481 P.3d 949

enhancement factor that was pleaded. The state acknowledged at oral argument, however, that the judgment should be corrected to eliminate reference to the unpleaded enhancement factor. We agree and remand to the trial court for entry of a judgment that omits that reference.

Whether circumstances surrounding the questioning of a suspect are compelling so as to require Miranda -like warnings under Article I, section 12, is a question of law, reviewed for errors of law. See State v. Roble-Baker , 340 Or. 631, 640-41, 136 P.3d 22 (2006). In this case, because our resolution of the case ultimately turns on whether any error with respect to the admission of defendant's statements was prejudicial to him, our consideration of the record necessarily includes all pertinent portions. State v. Dowty , 299 Or. App. 762, 763-64, 452 P.3d 983 (2019).

Officer George received a citizen's report that "a suspicious vehicle was parked" in a residential area, and the vehicle's occupants were knocking on doors. George found the unoccupied vehicle in the neighborhood but was not able to immediately locate the vehicle's occupants. The citizen called dispatch again and provided a description and location of one of the occupants. George went to the location and found defendant, who matched the description provided by the caller.

George got out of his patrol car and walked over to defendant. Defendant had been walking down the street but stopped when he saw the officer coming toward him. George asked whether defendant "came from a vehicle parked about a block and a half away." Defendant replied that he had.

309 Or.App. 99

George's demeanor at this point was "casual." Defendant identified himself, and George asked why defendant had been knocking on doors. Defendant responded that he had run out of gas and was checking to see if anyone in the neighborhood would give him some gas. George ended the contact.

Officer Volin "advised [George] by radio that [he] was working on a case where [defendant] was involved, and [he] wanted to speak with him if he had a minute to answer some questions." George recontacted defendant, stating, "Hey, Officer Volin needs to talk to you about a case of his. Do you mind waiting here for him?" Defendant replied that "it was okay, but just not take too long." Volin arrived at the scene five to 10 minutes later and recorded his conversation with defendant using a body-mounted microphone:

"[VOLIN]: I said, I'm Officer Volin from the Police Department.

"[DEFENDANT]: (Inaudible response.)

"[VOLIN]: Good. How are you today?

"[DEFENDANT]: All right.

"[VOLIN]: I'll advise you our conversation is being recorded. Okay?

"[DEFENDANT]: That's fine.

"[VOLIN]: So, the reason I'm here is about a theft from a house yesterday.


"[VOLIN]: Do you know anything about that?

"[DEFENDANT]: What house?

"[VOLIN]: Well, that's why I'm asking you if you know anything about that. You have no idea? Where were you at yesterday?

"[DEFENDANT]: Um, I was just at that A&B Storage, I believe.

"[VOLIN]: A&B Storage?

"[DEFENDANT]: (Simultaneously) (Not understandable.)
309 Or.App. 100
"[VOLIN]: What time was that at?

"[DEFENDANT]: Did it thave—I don't know. Did it have anything to do with Maggie (phonetic), my ex-girlfriend?

"[VOLIN]: No, it doesn't.

"[DEFENDANT]: Great. Well, that's what I've been going through. So—

"[VOLIN]: (Interposing) Okay.

"[DEFENDANT]: I don't know anything about (not understandable).

"[VOLIN]: So—so, I got a call yesterday about a guy in a black leather jacket—

"[DEFENDANT]: (Interposing) Yeah, (not understandable) jacket.

"[VOLIN]: —like that on[e].

"[VOLIN]: Yep. You were over on Lakeview. You were in someone's—next to their house. You said you were going to ask them for gas.
481 P.3d 950
"[DEFENDANT]: Absolutely not. Absolutely not.

"[VOLIN]: No?

"[DEFENDANT]: Absolutely not. That was—I was—I was in—I was in—let's see. A&B—somebody said something about, they found somebody in a boat, or something.

"[VOLIN]: Huh uh.


"[VOLIN]: Huh uh. I don't know.

"[DEFENDANT]: Somebody that—that's what it was supposed to be.

"[VOLIN]: Okay.

"[DEFENDANT]: (Not understandable) in the boat.

"[VOLIN]: Okay.


"[VOLIN]: (Interposing) So, I'm going to show you a picture. I want you to tell me who you think it is."
309 Or.App. 101

On appeal, defendant contends that, at that point in time—that is, when Volin asked defendant to identify the person in the photograph—he was in compelling circumstances, and the trial court erred in not suppressing all statements made after that point. Those statements were as follows:

"[DEFENDANT]: Show it to me.

"[VOLIN]: Yep. Who's that?

"[DEFENDANT]: Not me.

"[VOLIN]: Really?


"[VOLIN]: Let me just show it to Officer George, here. Let's see who he thinks—

"[DEFENDANT]: (Simultaneously) Yeah. That's not me. But, what does a picture got to do with anything?

"[VOLIN]: Well, this is you right before you burglarized this guy's side shop and stole a gas can."

Defendant alternatively argues that this point in the encounter constitutes compelling circumstances, and the trial court erred in failing to suppress all statements elicited from this point onward. Those statements are as follows:

"[DEFENDANT]: (Simultaneously) (Not understandable.) I

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