State v. Sanchez-Chavez

• Decision Date: 30 June 2021
• Docket Number: A170028
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Apolinar SANCHEZ-CHAVEZ, Defendant-Appellant.
• Court: Oregon Court of Appeals

312 Or.App. 701

495 P.3d 197

STATE of Oregon, Plaintiff-Respondent,

v.Apolinar SANCHEZ-CHAVEZ, Defendant-Appellant.

A170028

Court of Appeals of Oregon.

Argued and submitted October 27, 2020.

June 30, 2021

Kali Montague, 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.

Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

Defendant was convicted of one count of first-degree rape, ORS 163.375, and one count of first-degree sexual abuse, ORS 163.427. On appeal, he raises two assignments of error. First, he challenges the denial of his motion to suppress statements made in a police interview, asserting that the police violated his constitutional right to counsel. Second, he challenges the trial court's imposition of consecutive sentences, arguing that the legal standard for consecutive sentencing was not met. For the following reasons, we affirm defendant's convictions but remand for resentencing.

FACTS

Defendant met O, a 29-year-old woman who is developmentally delayed, at a dance party. Defendant called himself on O's cell phone so that they would have each other's phone numbers. O and defendant had several phone calls in subsequent days, with O calling defendant 29 times.

A few days after the party, defendant told O that he wanted to speak face-to-face and asked her for her address, which she gave him. He then met O outside the apartment where she lived with her mother and brother. Defendant kissed O in front of some of O's relatives, which embarrassed O, and O said "no" and pushed him away. After that event, O's mother took the phone while O was talking to defendant and told defendant that O had never dated anyone and that she needed to meet him to decide if they could date. O's mother did not mention O's developmental delay, because she wanted to do it in person.

The next day, defendant and O talked on the phone, and defendant came to visit again. O was home alone. O had never had a boyfriend or learned about sex and thought that defendant just wanted to talk. Upon arrival, defendant asked O where they could have intercourse and began looking for a bedroom. In the bedroom, defendant began to kiss O, who pushed him away and told him to stop. Defendant asked O for oral sex, which she refused. Defendant then had sexual intercourse with O, during which O told defendant to leave her alone because it hurt, pushed him away, and told him to stop. When O said that her mother and brother would be home soon, defendant stopped and left. At some point during the incident, defendant sucked on O's breasts, causing a hickey.

When O's mother got home around 9:30 p.m., she could see that O had been crying. O told her what had happened. O's mother spoke to defendant on O's phone, reminding him that she had wanted to meet him before anything further happened, asking him why he had done that to O, and telling him that he needed to come over to discuss what happened. Defendant initially said that he did not know what she was talking about, and O's mother falsely told him that there was a camera in O's bedroom. Defendant arrived about 20 minutes later to talk to O's mother with O present. Defendant did not deny what had happened, telling her that "what happened needed to happen," and he asked O's mother to "give" O to him and that he would take care of her. O's mother asked O if she wanted to go with defendant, and O said, "No, I don't want to see him again." At some point, O told her mother in front of defendant that "he hurt me" or "he forced me," to which defendant had no reaction at all. At another point, defendant said to O's mother that he was not going to deny what he did and that he knew it was wrong but still did it. Defendant initially told O's mother not to make a police report, because he was afraid and could go to jail for many years, but he later offered to go to the police station with her, which she declined, telling him that she was not going to report it. When O's mother questioned whether he was giving her his real name (he was), defendant showed her his identification, and she took a photograph of it.

The next morning, O's mother made a police report. O went to the hospital, where a nurse examined her, finding two vaginal tears and one suction injury (the hickey) in the center of O's chest. The nurse later testified that it was not possible to tell whether O's injuries resulted from consensual or nonconsensual sex. The nurse also took swabs of O's vagina and chest. The vaginal swabs came back negative for male DNA, while the chest swab came back positive for both O's DNA and male DNA. Meanwhile, O also was examined at CARES Northwest, where the doctor noted a "complete transection" of the hymenal tissue and bleeding into the hymen and adjacent tissues, which was indicative of penetration and "likely force," although not conclusive of force.

The police contacted defendant, who agreed to come to the police station for an interview. At the station, defendant met with Detective Gay, who was assigned to investigate the case, and Officer Astorga, who served as a Spanish-English translator. Gay does not speak Spanish, and defendant does not speak English. At the outset of the interview, Astorga read defendant his Miranda rights. After some back-and-forth about why defendant had been summoned to the police station, defendant said, "[I]f I am being accused then I would really need a lawyer." A lengthy exchange ensued, complicated by inexact translation, about why defendant was there and whether he wanted a lawyer present. The interview ultimately proceeded without a lawyer.

Gay interviewed defendant for more than two hours. Defendant made several incriminating statements, including admitting that he had sexual intercourse with O; that he saw O's hips and legs trembling, which caused him to stop, but O told him to keep going; that O's facial expression made him think that O thought he was taking advantage of her, even though she did not say it; and that O pulled away and told him that it hurt, which caused him to lose his erection and stop having sex with her. Defendant also consented to a DNA swab, the results of which were inconclusive, in that defendant was not ruled in or out as the source of the male DNA found on O's chest.

The state charged defendant with two counts of first-degree sexual abuse, ORS 163.427, based on the parking-lot kiss; two counts of first-degree rape, ORS 163.375, based on the sexual intercourse; two counts of first-degree sexual abuse, ORS 163.427, based on defendant kissing O's breasts; and two counts of attempted first-degree sodomy, ORS 163.405, based on defendant's request for oral sex. Each pair of crimes was charged with one alleging that defendant used forcible compulsion and one alleging that O lacked the capacity to consent due to a mental defect.

Before trial, defendant moved to suppress his police interview statements, arguing that he unequivocally invoked his right to counsel and that the police improperly continued the interrogation. The trial court denied the motion, concluding that the invocation was equivocal and that defendant reinitiated the conversation.

Defendant waived jury and was tried to the court. After hearing the evidence, the trial court acquitted defendant of the four charges that were based on O's lack of capacity to consent, finding that the state had failed to prove lack of capacity, and it acquitted him of two other charges for lack of evidence. However, the court found defendant guilty of one count of first-degree rape by forcible compulsion (Count 3) and one count of first-degree sexual abuse by forcible compulsion (Count 4). The court explained that, "based on the facts in this case, specifically the physical evidence, as well as the testimony of the mother and of the victim, as to Counts 3 and 4, I do believe that there was a rape and I do believe that there was a sexual abuse as alleged in Count 4."

MOTION TO SUPPRESS

Under Article I, section 12, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, a defendant has rights against self-incrimination, which include the right to assistance of counsel during custodial interrogation. State v. Fink , 285 Or. App. 302, 309, 395 P.3d 934 (2017). In his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress incriminating statements from his police interview, because that right was violated. We review the denial of a motion to suppress for legal error. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's factual findings if there is constitutionally sufficient evidence to support them. Id.

The state argues that the trial court correctly denied defendant's motion to suppress or, alternatively, that any error was harmless. We need not resolve the former issue, because we agree that any error was harmless. See State v. Davis , 336 Or. 19, 28, 77 P.3d 1111 (2003) (recognizing that, under the Oregon Constitution, we must affirm, notwithstanding an error by the trial court, if the error was harmless); State v. Beaman , 216 Or. App. 181, 182, 171 P.3d 402 (2007), rev. den. , 344 Or. 109, 178 P.3d 249 (2008) (recognizing that, under the federal constitution, a conviction is to be affirmed despite a trial court error if the error was harmless beyond a reasonable doubt).

The Oregon constitutional test for whether an error was harmless is whether there is little likelihood that it affected the verdict. Davis , 336 Or. at 32, 77 P.3d 1111. To make that determination, we review all pertinent portions of the record. State v. Reed , 299 Or. App. 675, 677, 452 P.3d 995 (2019), rev....