State v. Reyes

• Decision Date: 22 February 2011
• Docket Number: Nos. A–10–391,A–10–392.,s. A–10–391
• Citation: 794 N.W.2d 886,18 Neb.App. 897
• Parties: STATE of Nebraska, appellee,v.Kapier R. REYES, appellant.
• Court: Nebraska Court of Appeals

18 Neb.App. 897

794 N.W.2d 886

STATE of Nebraska, appellee,

v.Kapier R. REYES, appellant.

Nos. A–10–391

A–10–392.

Court of Appeals of Nebraska.

Feb. 22, 2011.

Syllabus by the Court

1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. With regard to historical facts, an appellate court reviews the trial court's findings for clear error. Whether those facts suffice to meet the constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court's determination.

2. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

3. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence.

4. Evidence: Appeal and Error. Any conflicts in the evidence or questions concerning the credibility of witnesses are for the finder of fact to resolve.

5. Convictions: Evidence: Appeal and Error. A conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

6. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion.

7. Miranda Rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored.

8. Miranda Rights: Waiver. Miranda rights can be waived if the suspect does so knowingly and voluntarily.

9. Miranda Rights: Waiver. A valid Miranda waiver must be voluntary in the sense that it was the product of a free and deliberate choice and made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

10. Miranda Rights: Waiver. In determining whether a Miranda waiver is knowingly and voluntarily made, a court applies a totality of the circumstances test. Factors to be considered include the suspect's age, education, intelligence, prior contact with authorities, and conduct.

11. Miranda Rights: Waiver. A defendant's limited command of the English language does not bar a finding of a knowing, intelligent, and voluntary waiver of Miranda rights; instead, it should be considered as a factor in the totality of the circumstances to determine whether or not that understanding is sufficient to permit the defendant to waive his or her Miranda rights.

12. Appeal and Error. Absent plain error, assignments of error not discussed in the briefs will not be addressed by an appellate court.

13. Sexual Assault: Testimony: Corroboration. The State is not required to corroborate victims' testimony in order to convict the defendant of first degree sexual assault, provided that the testimony alone is believed by the finder of fact.

14. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

15. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

16. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.

Thomas C. Riley, Douglas County Public Defender, and Kelly M. Steenbock for appellant.Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.IRWIN, SIEVERS, and MOORE, Judges.MOORE, Judge.

INTRODUCTION

Kapier R. Reyes was found guilty by a jury of two counts of first degree sexual assault on a child, a Class II felony, in Douglas County District Court. The district court sentenced Reyes to 14 to 30 years' imprisonment on each count, with the sentences to run consecutively. Reyes has timely appealed both convictions and sentences to this court. For the following reasons, we affirm.

STATEMENT OF FACTS

In two separate cases which were eventually consolidated for trial, Reyes was charged by information with two counts of first degree sexual assault on a child at least 12 years old, but less than 16 years old. The informations in those cases alleged that Reyes had subjected M.R., his daughter, and D.M., his stepdaughter, to sexual penetration and that the crimes took place in Omaha, Douglas County, Nebraska. Reyes pled not guilty to both counts.

In each case, Reyes filed a motion to suppress to exclude any statements made by himself to Tom Rummel, a detective with the Omaha Police Department's special victims unit, alleging that the statements were obtained in violation of his 4th, 5th, and 14th Amendment rights.

At the suppression hearing, Rummel testified that on April 29, 2009, he investigated allegations of sexual assault made by M.R. after receiving a call from a school resource officer indicating that M.R. had made allegations of sexual abuse by her father, Reyes. Rummel first contacted Reyes at Reyes' home and asked Reyes to come to the police department to discuss the allegations of sexual abuse. Reyes agreed to accompany Rummel to the police department for an interview and rode with Rummel in his unmarked vehicle, in the front seat with no handcuffs.

At the beginning of the interview, Reyes indicated to Rummel that he was originally from Micronesia and had lived in the United States for approximately 9 1/2 years. Rummel testified that Reyes spoke “understandable” English and that during the interview, he appeared to understand Rummel and answered most of his questions appropriately. Rummel explained that throughout the interview, Reyes would ask him to explain if there was something he did not understand.

Rummel testified that once he gathered some background information from Reyes, approximately 2 to 3 minutes into the interview, he advised Reyes of his Miranda rights. Rummel utilized an “Omaha Police Department Rights Advisory Form” to go through those rights with Reyes. The advisory form is in English. Rummel testified that he read each section to Reyes and that Reyes indicated in the affirmative that he understood each statement. Rummel testified that the interview continued and that Reyes was responsive to his questions and appeared to understand where he was and what was happening.

The videotape recording of the interview was received into evidence with no objection. The videotape reveals that Reyes' English was somewhat broken, but was understandable. Reyes also appeared to comprehend Rummel's questions and answer them appropriately. The entire interview was conducted in English, and Reyes did not indicate that he was having difficulty understanding Rummel and did not ask for an interpreter. Reyes appeared to understand his Miranda rights as explained by Rummel and answered each question in the affirmative, thus waiving those rights. Throughout the interview, if Rummel asked a question which Reyes did not understand, Reyes would ask for clarification. Reyes admitted that the allegations made by M.R. were true. Reyes told Rummel that he had been drinking and, after the incident, had felt bad and apologized to M.R. Reyes admitted that he had had sexual intercourse with M.R. two times and had also used his fingers to penetrate her vagina. Reyes also admitted that he had had sexual intercourse with D.M. four or five times and had also performed oral sex on her. Reyes told Rummel that each incident had occurred at the family home in Omaha and that the girls were both younger at those times.

Reyes adduced no evidence in support of the motions to suppress. The district court denied the motions to suppress, finding that there was no merit to the motions.

A jury trial was held, during which Reyes renewed his motions to suppress. D.M., Reyes' stepdaughter, testified that she was 24 years old and had lived in Omaha for 12 years. D.M. was born in 1985 in Micronesia. D.M. testified that her mother married Reyes when D.M. was 4 or 5 years old. D.M. explained that the sexual abuse began in Micronesia when she was 7 years old and continued when the family moved to Omaha. D.M. testified that early on, while she and her family were in Micronesia, she told a relative about the abuse and her mother subsequently confronted Reyes, who then threatened to kill D.M. D.M. testified that shortly after the family relocated to Omaha, when she was approximately 14 years old, Reyes began touching her again and the touching escalated to Reyes' having sexual intercourse with...