In the Matter of the Welfare of J. A. S.

In the Matter of the Welfare of J. A. S. A04-521, Court of Appeals Unpublished, January 11, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-521

 

 

In the Matter of the Welfare of J. A. S.

 

 

Filed January 11, 2005

Affirmed

Robert H. Schumacher, Judge

Concurring specially, Minge, Judge

 

Meeker County District Court

File No. J10350352

Wright County District Court

File No. J90350462

 

John M. Stuart, State Public Defender, Ann B. McCaughan, Sharon E. Jacks, Assistant Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant child)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Thomas N. Kelly, Wright County Attorney, Scott M. Sandberg, Assistant County Attorney, Wright County Government Center, 10 Second Street Northwest, Buffalo, MN 55313; and

 

Michael J. Thompson, Meeker County Attorney, 325 Sibley Avenue North, Litchfield, MN 55355 (for respondent state)

 

            Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant J.A.S. challenges his adjudication of delinquency for second-degree criminal sexual conduct, arguing (1) his conviction was based upon evidence obtained in violation of his Miranda rights, and (2) the evidence was insufficient to support the adjudication of delinquency.  We affirm.

FACTS

            On March 10, 2003, T.M.J. reported to the Buffalo Police Department that her five-year-old son, D.J., had told her that his 13-year-old half-brother J.A.S. the boys have the same father had touched D.J.'s "private parts" on two different occasions while the boys were at their father's home. 

            On March 12, the police had T.M.J. bring D.J. to Wright County Human Services in Buffalo to be interviewed by a social worker about the touching; a Buffalo Police Department detective observed the interview and concluded J.A.S. had engaged in criminal sexual contact with D.J. 

            The detective contacted the boys' father, with whom J.A.S. resided at the time, told him the police intended to interview J.A.S. regarding the allegations, asked and received his permission to conduct the interview, and invited him to attend the interview.  The father declined to attend the interview. 

The detective and the social worker then contacted the Buffalo school resource officer (SRO) a police officer assigned to the school system who arranged an interview with J.A.S. in the SRO's office at the Buffalo Middle School.  The SRO escorted J.A.S. to his office, where the detective informed J.A.S. he was not under arrest and did not have to speak with the detective.  The detective asked J.A.S. if he would consent to an interview at another location; J.A.S. consented, and declined the detective's offer to have a parent present during the interview.  The detective did not give J.A.S. a Miranda warning because the youth was not under arrest. 

            The detective, the social worker, and J.A.S. then drove in an unlocked, unmarked police car to the "soft interview" room in the Wright County Human Services building.  The detective and J.A.S. entered the interview room.  At the beginning of the interview, which was tape-recorded, the detective again asked J.A.S. if he understood that he was not under arrest and that he did not have to participate in the interview.  J.A.S. indicated he understood.  The detective told J.A.S. he could leave and return to school if he wished, but the child indicated he wished to remain for the interview.  J.A.S. also stated he understood his right to have his father present and indicated he did not want his father present.  During the first ten minutes of the interview, the detective again confirmed that J.A.S. wished to speak with him and again told him he was not under arrest and that he would be returned to school when the interview was completed. 

            When asked about the incident involving D.J., J.A.S. explained that in May 2002, he had been sitting on the living room couch with D.J. at their father's house while their father was outside.  J.A.S. said that D.J. had told him his "butt hurt," and that D.J. had pulled down his own pants so J.A.S. could examine his buttocks.  J.A.S. stated his pants were unzipped at the time because he had recently gone to the bathroom and forgotten to zip up his fly.  J.A.S. told the detective that at this point, the boys' father had entered the room.  The detective did not believe J.A.S.'s denial that any improper sexual conduct had taken place, and continued questioning him.  The detective asked J.A.S. what he believed would happen were he to admit to improper contact; J.A.S. responded he would likely be charged, receive a violation of his current probation, be sent to Prairie Lakes Detention Center, then sent to a group home, and be prohibited from having contact with other children. 

After approximately 45 minutes, J.A.S. told the detective he wished to stop the interview, but the detective continued questioning the boy for another 15 minutes, during which time he admitted to having digitally penetrated D.J.'s anus. 

            By delinquency petition, the state charged J.A.S. with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2002), and second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2002).

            J.A.S. filed a motion to suppress the statements made during the interview with the detective, arguing the interview constituted a custodial interrogation and he was never given his Miranda rights.  The district court concluded the interview became custodial at the moment J.A.S. informed the detective he wanted to terminate the interview, and that any statements made after that point must be suppressed.  The court held admissible all statements made before that point. 

            At trial, D.J. testified that J.A.S. had pulled down D.J.'s pants, touched his penis in their father's living room, and then told him not to tell anyone about the touching.  D.J.'s mother testified that D.J. had told her about the contact.  D.J. and J.A.S.'s father testified that one afternoon he had left the boys at his home and returned to discover D.J. with his pants and underwear pulled down around his ankles; J.A.S. told his father D.J. had complained about a sore butt and J.A.S. was examining it for him.  The father also testified that following J.A.S.'s interview with the detective, J.A.S. had told him that he had digitally penetrated D.J.'s rectum.  The district court adjudicated J.A.S. delinquent of second-degree criminal sexual conduct.

D E C I S I O N

1.         J.A.S. argues the district court erred by denying his motion to suppress statements he made in the March 12 interview prior to his request that the interview be terminated.  He contends that because the interview constituted a custodial interrogation, the detective's failure to give him a Miranda warning rendered the entire interview inadmissible.  When reviewing a pretrial order on a motion to suppress evidence, this court may independently review the facts and determine whether, as a matter of law, the district court erred in suppressing the evidence.  State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004).

            No defendant in a criminal case can be compelled by the state to be a witness against himself.  U.S. Const. amends. V, XIV; Minn. Const. art. I, § 7.  To safeguard this constitutional right, an uncounseled individual, subject to custodial interrogation, must be informed of his rights under Miranda.  In re G.S.P., 610 N.W.2d 651, 656 (Minn. App. 2000).  Interrogation is custodial if the person has been placed under arrest or had his freedom of movement restrained to a "degree associated with a formal arrest."  Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995) (quotation omitted).  Juveniles and adults are entitled to be informed of their constitutional rights.  State v. Loyd, 297 Minn. 442, 445, 212 N.W.2d 671, 674 (1973).

"The first prong of inquiry in determining whether police conduct constitutes custodial interrogation so as to trigger the Miranda requirements is to determine whether a suspect was in custody."  State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998).  Although there is no "bright-line rule" to apply in making this determination, "whether a person is in custody for Miranda purposes is a mixed question of law and fact." G.S.P., 610 N.W.2d at 657. The ultimate issue is whether a reasonable person, given the circumstances surrounding the interrogation, would "believe they were in police custody of the degree associated with formal arrest."  Id.  Once it has been determined that an individual was in custody, the nature of the questioning must be analyzed to determine if the individual was subject to "custodial interrogation."  Id. at 656, 657.

Circumstances to consider in determining whether a juvenile is in custody include: the age and intelligence and education of the child, the child's prior experience with law-enforcement, the surroundings during questioning, the presence of one or more uniformed officers, whether the child was given the option of having a parent or an attorney present, and whether the interview was tape-recorded.  In re D.B.X., 638 N.W.2d 449, 453, 456 (Minn. App. 2002).  We review the district court's factual determinations of the circumstances surrounding an interview under the clearly erroneous standard, but independently review the district court's determination of custody.  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).

Here, the district court found that the detective repeatedly informed J.A.S. that he was not under arrest and that he was free to leave the interview and return to school at any time; that J.A.S. repeatedly assented to the interview and chose not to leave; that the detective offered to have J.A.S.'s father his custodial parent present at the interview; that J.A.S. had some experience with law enforcement, as demonstrated by his knowledgeable answer to the detective's question concerning the legal consequences of a confession; and that J.A.S. had no knowledge the interview was being tape recorded.  These findings are all supported by the record. 

As to the surroundings, although J.A.S. was transported to the interview in a police car, the car was unmarked, and the interview took place at a social services facility, not a police station.  The officer present at the interview was not in uniform, but was wearing a gun and a badge.  Based upon these circumstances, the district court properly concluded J.A.S. was not in custody until the questioning detective denied his request to leave and suppressed only that portion of the interview occurring after the request. 

J.A.S. also argues the incriminating statement must be suppressed because he did not make it voluntarily.  "[T]he state . . . must show the voluntariness of a confession by a preponderance of the evidence."  State v. Jones, 566 N.W.2d 317, 326 (Minn. 1997).  "The test of voluntariness is whether the actions of the police, together with other circumstances surrounding the interrogation were so coercive, so manipulative, so overpowering that [the defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak as he did."  Id. (quotation omitted) (alteration in original). 

We disagree.  First, the district court specifically found that prior to the moment J.A.S. asked to leave the police's actions, combined with the circumstances surrounding the interview, were not so coercive and intimidating that the child's will was overpowered.  This finding is supported by the record.  Second, the portion of J.A.S.'s interview that was admitted into evidence contains no confession or other incriminating statement; the only statement remaining after J.A.S.'s suppression motion was his explanation about why his brother had his pants off when the boys' father arrived home. 

Because the interview as admitted contains no admission of criminal activity, any error committed by the admission of the interview was harmless:  "[i]f the verdict rendered is "surely unattributable" to the error, then the error is harmless beyond a reasonable doubt and the conviction stands."  State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).  Here, the district court heard unchallenged testimony from the victim concerning J.A.S.'s conduct and from the victim's parents concerning what the victim had told them about the conduct.  The verdict is surely unattributable to the portion of the interview admitted into evidence, which lent little if any weight to the case against J.A.S.

2.         J.A.S. argues the evidence was insufficient to support his adjudication for second-degree criminal sexual conduct.  In considering a sufficiency of the evidence challenge, we take the evidence in the light most favorable to the state and assume that the jury believed the state's witnesses and disbelieved any contradictory evidence.  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002).  Appellate review is limited to ascertaining whether a finder of fact, giving due regard to the presumption of innocence and to the states burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom. State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).  Deciding witness credibility is generally the exclusive province of the fact finder.  State v.  Doppler, 590 N.W.2d 627, 635 (Minn. 1999).

            J.A.S. argues the state failed to prove he acted with sexual or aggressive intent.  The finder of fact must infer intent from all the objective facts and circumstantial evidence surrounding an act, including the defendant's conduct and statements.  State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983). 

Here, the district court heard testimony from the victim that J.A.S. pulled down the boy's pants and touched his penis.  The victim's (and J.A.S.'s) father testified about entering his living room to find D.J. with his pants down and about J.A.S.'s statement at the time that he was "checking out" his brother's "butt" because the boy had complained that it "hurt."  The father also testified that weeks after the incident, J.A.S. told him that he had in fact penetrated his brother's rectum digitally.  The court also heard testimony from the detective who interviewed J.A.S. concerning the explanation about why his brother was pantsless in the living room. 

            The district court properly rejected J.A.S.'s explanation that his conduct toward D.J. was motivated by a desire to help the boy and finding that J.A.S. acted with sufficient aggressive or sexual intent to satisfy the final element of the charged offense.  The evidence presented at trial was sufficient to support the adjudication of delinquency.

            Affirmed.

MINGE, Judge (concurring specially)

 

            I join in the opinion and result, but I respectfully disagree with the majority's holding that the district court properly concluded that J.A.S. was not in custody until the questioning detective denied his request to leave.  J.A.S. was suspected of a criminal sexual offense.  A police liaison officer who worked in the middle school escorted J.A.S. to the officer's office in the school building.  J.A.S. knew the officer was a member of the police department.  They met with a detective who transported J.A.S. to the county social services building.  Although the detective was not in uniform and the car was not a marked police car, the detective wore a badge, had a gun and the car's interior was apparently equipped as a police car.  J.A.S. was aware he was with a police officer in a police car and at a government building remote from the school.  Despite what the detective may have said about returning to school, J.A.S. was in a confined setting.  The detective's refusal to stop questioning confirms the custodial nature of the arrangement and belies the representations that J.A.S. could end the session at any time.  Under these circumstances, the detective should have given J.A.S. the Miranda warning and because of failure to do so, the entire statement should have been suppressed.  See In re Welfare of G.S.P., 610 N.W.2d 651, 659 (Minn. App. 2000) (holding that where a peace officer conducts a custodial interrogation of a juvenile student in a manner likely to elicit criminally incriminating responses, the student must be afforded Fifth Amendment protection).

            However, I agree that since that admitted statement did not contain incriminating material, the error was harmless, that there was sufficient other evidence to support the finding of guilt, and that the verdict should stand.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.