Dora Hilda Chevez v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DORA HILDA CHEVEZ

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-274

December 15, 2004

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR-2002-4241]

HON. GARY RAY COTTRELL,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Crawford County jury found Dora Hilda Chevez guilty of residential burglary and theft of property. She was sentenced to serve ten years in prison with eight years suspended. She raises three points on appeal: (1) the trial court erred by denying her motion to suppress because she did not understand English well enough to have made a voluntary, knowing consent to search and because she was not advised that she was not required to consent to the search before the search began; (2) the trial court erred by denying her motion to suppress because she did not understand English well enough at the time the police officer read her Miranda rights to have knowingly and intelligently waived them; (3) the trial court erred by denying her motion for a directed verdict. We affirm.

At the suppression hearing, Sergeant Daniel Perry with the Van Buren Police Department testified that he investigated a burglary of several pieces of jewelry from Ana Renderos's residence. Approximately a month later, Sergeant Perry was contacted again because Ms. Renderos had found a pharmacy bag that had been cut and had rubber bands

around it on the side-view mirror of her vehicle. Several of the stolen pieces of jewelry were inside the bag. Ms. Renderos told Sergeant Perry that she had begun to suspect her next-door neighbor, appellant, of having stolen the jewelry because of the way she had been acting. Sergeant Perry went to appellant's residence, identified himself as a police officer, and told appellant that he was there to investigate the theft of Ms. Renderos's jewelry. Sergeant Perry stated that appellant invited him inside. He asked appellant whether she knew anything about the theft, and she told him that she suspected some maintenance men. Sergeant Perry then asked appellant whether she was taking any medication and whether she would mind if he looked at it. Appellant stated that she was on medication and took the officer to her bathroom medicine cabinet. Upon examining the medicine bottles, Sergeant Perry ascertained the pharmacy used by appellant. Sergeant Perry stated that he then asked appellant whether he could search her apartment, and he said that she told him she did not mind. Sergeant Perry got a consent to search form and went over it with appellant. Appellant said that she understood her rights and signed the form. Sergeant Perry then went to appellant's trash can and found the top piece of the pharmacy bag that had been cut from the rest of the bag containing Ms. Renderos's jewelry. Sergeant Perry advised appellant of her Miranda rights and asked her whether she understood her rights, which she said she did. Appellant admitted that she had cut the bag. When Sergeant Perry asked her why she stole the jewelry, he stated that she dropped her head and said she did not know. She also said that Ms. Renderos's door was open so she went inside and took the jewelry. Sergeant Perry testified that appellant was not speaking perfect English but that she was responding to his questions. Next, Detective Steve Weaver testified that he fingerprinted appellant when she was brought to the station. He said that he was not interrogating her but that she began talking and told him that she had done something stupid by going into the house. Detective Weaver stated that appellant was speaking to him in English. He asked her if she would like to make a statement, and she said she would. Detective Weaver took her to an interview room with a video recorder. He said that they spoke for about five minutes during which time appellant told him that she was taking medication for a joint disease and that she had lived in America for twenty-two years. Detective Weaver testified that, when he got the Miranda form to go over her rights with her on camera, appellant suddenly told him she did not understand. Because she had been speaking perfectly with him before, Detective Weaver told her that he was not going to play games and ended the interview.

Appellant testified that she was born in El Salvador and went to school through the fifth grade. She said that since coming to America she worked cleaning houses and had learned very little English. Appellant stated that when Sergeant Perry came to her residence, a friend opened the door, and Sergeant Perry asked to speak to her. She said that, as she was introducing herself, Sergeant Perry walked inside and went straight to her trash can. Appellant said he picked up a piece of bag from her trash can and then asked her if she took any medication. She showed him her medication, and he went outside and returned with a piece of paper that he asked her to sign. Appellant testified that she could not read the English language on the paper. She stated that Sergeant Perry spoke to her in English about her Miranda rights and that she did not understand everything he said. Appellant testified that she told Detective Weaver that she needed someone who spoke Spanish and that she tried to tell Detective Weaver that she did not steal the jewelry and that she would not be so stupid. The court denied appellant's motion to suppress and specifically found that she could substantially speak English and, at the time her rights were given to her, she understood those. The court found that, in reviewing the videotape, appellant spoke quite well with Detective Weaver for the first few minutes. The court pointed out that, if appellant had not understood, she had an opportunity to tell the officers that she did not. The court concluded that the officers made every effort to make sure that appellant understood what they were saying.

At trial, much of the same testimony from the suppression hearing was reiterated. In addition, the victim, Ms. Renderos, testified using an interpreter. She stated that she and appellant were friends and would visit each other. She testified that her two daughters would play at appellant's house. Ms. Renderos said that she had heard appellant speak only a few words of English. She stated that she never thought appellant would steal from her but that appellant spoke to her on more than one occasion about the stolen jewelry. According to Ms. Renderos, appellant asked her to sign something that would "set her free." Ms. Renderos did not sign the paper. Also, Ms. Renderos said that appellant told her that she did not steal the jewelry but that she would pay for it. Ms. Renderos testified that she spoke only Spanish to appellant and her daughters and that her daughters, who spoke English very well, interpreted for her and had even interpreted for appellant.

After the State rested its case, appellant moved for a directed verdict, arguing that the State had not proven that a burglary had taken place, much less connected appellant to a burglary. The trial court denied her motion, and appellant then presented her case-in-chief.

Dr. Robert Teitelbaum testified that appellant had been a patient of his for nine months and that he had seen her approximately three times. He stated that, although he spoke both Spanish and English, he spoke only Spanish to appellant. Dr. Teitelbaum stated that appellant had brought an interpreter with her the week prior to trial but that he did not recall if she had an interpreter with her on the other visits.

Ampara Ayala, appellant's friend who lived with her at the time of the burglary, testified that she and appellant spoke only Spanish to each other and that neither of them spoke much English. Ayala corroborated appellant's version of events that took place when Sergeant Perry came to their door.

Appellant then took the stand in her own defense. In addition to the testimony she gave at the suppression hearing, appellant testified that she tried to explain to Sergeant Perry about the jewelry but could not because of her limited English. Appellant testified that on or about August 8, 2002, she was leaving her residence around 1:30 a.m. to pick up Ms. Ayala from work when she saw a light. It was then that she found Ms. Renderos's jewelry between two doors and right next to the carpet Ms. Renderos had inside her front door. Appellant stated that she went back inside her place to find a bag to put the jewelry in so that Ms. Renderos would find it early in the morning. She again stated that some maintenance men had been around near the time Ms. Renderos's jewelry was stolen and that they had been in Ms. Renderos's place to repair something. Appellant testified that Sergeant Perry did not read the consent form to her but only told her to sign by the "X." According to her, she did not admit that she had stolen Ms. Renderos's jewelry. She also denied speaking with Detective Weaver but testified that she told him she needed an interpreter and said she was stupid for going inside her place to get the bag when she found the jewelry. Appellant stated that it was not her who offered to pay for Ms. Renderos's jewelry, but rather it was Ms. Ayala. Also, she stated that her lawyer had written a release and had instructed her to give it to Ms. Renderos. Appellant testified that she had been to Dr. Teitelbaum four times and that she had always taken an interpreter with her.

In rebuttal, the State called Jennie Langston, a nurse for Dr. Teitelbaum, who testified that on the three or four times she had seen appellant, they had conversed in English and that appellant did not bring an interpreter. Ms. Langston testified that she and appellant spoke at length about her past medical problems and her medications. She stated that appellant had a long list of medicines and that they would go over them in detail as far as how often the medicine was taken, in what strength, and whether a refill was needed. Ms. Langston stated that three-quarters of Dr. Teitelbaum's patients were Hispanic and that they had a secretary who spoke fluent Spanish in case a patient did not understand.

Appellant renewed her motion for a directed verdict on the basis that the State had failed to prove beyond a reasonable doubt the elements of the offense. Her motion was denied.

The right against double jeopardy requires that we consider a challenge to the sufficiency of the evidence before we consider alleged trial error even where the issue was not presented as the first issue on appeal. Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. See id.

Appellant argues that the trial court erred in denying her directed-verdict motion because the only evidence connecting her to the stolen jewelry was the bag that she put the jewelry in when she found it. Appellant points out that her roommate corroborated her version of events and that her version is consistent with the possibility that someone else stole the jewelry. Appellant further contends that the police officers took advantage of the situation in that she was uneducated and had difficulty with the English language and that they likely misconstrued her statement about being "stupid" as a confession.

Contrary to appellant's assertion, the bag was not the only piece of evidence that connected her to the stolen jewelry. Appellant admitted to Sergeant Perry that she had gone into Ms. Renderos's house and stolen the jewelry. In addition, Ms. Renderos testified that appellant offered to pay for the jewelry and that appellant asked her to sign a document purporting to exonerate herself. A confession to a crime, coupled with proof that the crimes occurred, amounts to substantial evidence of guilt. See Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999). The remainder of appellant's argument presents issues of credibility, which are determined by the fact-finder and not the reviewing court. See Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002). It was the jury's province to resolve questions of conflicting testimony and inconsistent evidence, and the jury was entitled to believe the State's account of the facts and not appellant's. See id. While appellant's comment to Detective Weaver about something or someone being "stupid" could have been misconstrued as a confession, appellant told Sergeant Perry that she went inside Ms. Renderos's house and stole the jewelry. Her confession to Sergeant Perry could not have been clearer.

Next, appellant argues that the trial court erred in denying her motion to suppress because she did not understand English well enough to have given voluntary and knowing consent to search. She argues that, although she signed the consent to search form, she did not do so until after Sergeant Perry had already begun his warrantless search. She also argues that Sergeant Perry never informed her that she did not have to consent to the search.

In reviewing a trial court's ruling on a motion to suppress evidence, we make an independent determination based on the totality of the circumstances, give respectful consideration to the findings of the trial court, and reverse the trial court's decision only if it is clearly erroneous. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). All searches without a valid warrant are unreasonable, unless shown to be within one of the exceptions to the rule. Lobania v. State, 60 Ark. App. 135, 959 S.W.2d 72 (1998). Consent is a justification for a warrantless search. Id. This court has established that the State has a heavy burden to prove by clear and positive testimony that consent to search was freely and voluntarily given. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002).

Because appellant, in her brief on appeal, places so much emphasis on her allegation that Sergeant Perry did not inform her of her right to refuse consent, we will address it first. The Arkansas Supreme Court recently held that law enforcement officers must advise homeowners that they have the right to refuse consent to search and that failure to do so renders a purportedly consensual search involuntary under our constitution. See State v. Brown, ___ Ark. ___, ___ S.W. 3d ___ (Mar. 25, 2004). However, appellant did not make this particular argument to the trial court. It is well settled that this court will not address arguments-even constitutional ones-if they are presented for the first time on appeal. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). In any event, the consent to search form provides, "I have been advised by these officers of my constitutional rights to refuse or stop the search at any time." In Brown, supra, the court pointed out that it did not hold that the Arkansas Constitution requires execution of a written consent form that contains a statement that the home dweller has the right to refuse consent but that it would undoubtedly be the better practice for law enforcement to follow. Accordingly, Sergeant Perry not only advised appellant of her right to refuse consent, he followed the better practice in doing so. According to Sergeant Perry's testimony, appellant was not speaking perfect English but they were able to carry on a "perfect" conversation. Sergeant Perry stated that appellant never asked for assistance with the language and that there was nothing in the communication that led him to believe that appellant did not understand. Sergeant Perry testified that when he asked appellant whether he could see her prescription bottles, she said she did not mind and then escorted him to the bathroom, opened the medicine cabinet, and showed him the prescription bottles for medicine she was taking. Sergeant Perry stated that he then asked appellant whether he could search the rest of her apartment and that she again said that she did not mind. Sergeant Perry stated that he obtained a consent to search form at that time and that he read and explained her rights to her. He testified that appellant told him she understood and then signed the form. Under these circumstances, we cannot say that the trial court clearly erred in its finding that appellant knowingly and voluntarily gave Sergeant Perry her consent to search.

Finally, appellant argues that the trial court erred in denying her motion to suppress her statement to Sergeant Perry because she did not understand English well enough to have knowingly and intelligently waived her Miranda rights. Appellant contends that the videotape demonstrates that she was able to answer only rudimentary questions, that she had difficulty answering in complete sentences, and that much of what she said was unintelligible. She maintains that Spanish is her primary language and that neither of the officers made any effort to get an interpreter.

A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice ratherthan intimidation, coercion, or deception. Jones v. State, 344 Ark. 362, 42 S.W.3d 536 (2001).

Appellant likens the facts in her case to those in Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000). In that case, the court relied on Barcenas's videotaped interview with police to establish whether Barcenas, who spoke Spanish as his primary language, understood his Miranda rights well enough to have knowingly and intelligently waived them. In reversing the trial court's denial of Barcenas's motion to suppress, our supreme court stated:

Here, after reviewing the videotape, it is clear to this court that Barcenas was not fully aware of his Miranda rights when he made his statement. That, of course, is the critical test. As this court said in Smith v. State, a "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it" as well as whether the accused made the choice uncoerced by the police officers to waive his rights are the essential focal points in determining whether a waiver was knowingly and intelligently made. Barcenas, however, appeared perplexed in the videotape by the Miranda warnings, which had to be repeated and explained in different ways in a language not his own. Furthermore, his answers to the Miranda warnings appear at times unintelligible, and there is no transcript of the videotape prepared by the court reporter, apparently because of the difficulty in doing so.

Barcenas, 343 Ark. 181, 185, 33 S.W.3d 136, 139 (overruled on other grounds by Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003)).

The videotape of appellant's custodial interview is likewise instructive, but Barcenas, supra, is otherwise distinguishable. Here, after reviewing the videotape, we agree with Detective Weaver's estimation that appellant was "playing games" with him. The videotape shows that appellant understood English until the point at which Detective Weaver got a Miranda rights form, informed her that she was being videotaped, and began to explain each of her rights. Moreover, Sergeant Perry testified that, reading from a card that set forth the Miranda rights, he verbally advised appellant of those rights. According to Sergeant Perry, appellant said that she understood her rights. Nevertheless, appellant gave an incriminating statement to Sergeant Perry. Again, we cannot say that the trial court clearly erred in findingthat appellant understood English well enough to have voluntarily, knowingly, and intelligently waived her Miranda rights.

Affirmed.

Stroud, C.J., and Neal, J., agree.