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In re D. P.

Court of Appeals of Oregon

October 30, 2013

In the Matter of D. P., a Youth.
D. P., Appellant. STATE OF OREGON, Respondent,

Argued and submitted on August 13, 2013.

Multnomah County Circuit Court 2010814711, Petition Number 101104019 Paula J. Kurshner, Judge.

Christa Obold-Eshleman argued the cause and filed the brief for appellant.

Anna M. Joyce, Solicitor General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Justice J. Rillera, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


Youth appeals a juvenile court delinquency judgment in which he entered a conditional admission to conduct that, if committed by an adult, would constitute second-degree rape, assigning error to the trial court's denial of his motion to suppress evidence of statements he made to police in the course of an interview.[1] He argues that the circumstances of the interview were custodial or compelling, thus requiring that the evidence be suppressed. We agree with youth and, accordingly, reverse and remand.

We review the denial of a motion to suppress for errors of law. State v. Hall, 339 Or 7, 10, 115 P.3d 908 (2005). We defer to the trial court's factual findings if there is evidence in the record to support those findings. Id. If the trial court did not make express factual findings, we presume that the trial court found the facts in a manner consistent with its ultimate conclusion. Id.

This case involves charges that youth, a 12-year-old, committed acts which, if done by an adult, would constitute rape in the first degree and sodomy in the first degree. In the process of investigating a report that youth allegedly had sexual intercourse and oral sex with a 10-year-old girl, Detectives Smith and Grose went to youth's school to interview youth as a suspect. Youth, a sixth grader, attended an alternative middle school. After inquiring about youth from school staff members, the detectives learned that youth attended that school in part due to past behavioral problems. Youth was escorted to the school's office by the principal and led into a room in the administrative area of the school.

The interview began at 9:18 a.m. Youth was seated at a table nearest to the door, with his back facing the door, which was closed. Detectives Smith and Grose sat at the table opposite youth. The detectives told youth that he was free to leave if he wanted, and youth acknowledged that he understood. The detectives asked youth if they could record the conversation and youth declined. Youth was not informed that he was being interviewed as a suspect.

The detectives kept their voices down, asked youth specific questions using plain and simple language, tried to avoid asking leading questions, and gave youth time to think and answer each question. The detectives wore plain clothes, did not display their badges or firearms, and shook hands with youth when he entered the room. The detectives did not call youth's parents prior to the interview.

At the beginning of the interview, the detectives explained to youth that he was not going to be arrested that day. The detectives began discussing the difference between truth and lies, to ensure that youth understood what they said and why the interview was being conducted.

Early on, youth denied any wrongdoing, stating that he and the victim had a boyfriend/girlfriend relationship and that they had kissed a few times. As the interview progressed, Detective Smith explained to youth that a CARES[2] evaluation had been performed on the victim, and a sexual assault kit had been prepared. The detective explained DNA to youth in relatively simple terms, noting that DNA can transfer from one person to another through physical contact and on clothing. The detective explained that DNA would be evidence, and if youth's DNA was present "it could have shown up" in the rape kit. Following that explanation, Smith asked youth to tell them what had happened. Youth then told the detectives that he and the victim were playing together and listening to music.

Smith told youth that if he did not tell the detectives what had happened he would have to write a report, and that the "person who was deciding what would happen next, would have to make assumptions[.]" Youth thought for a moment and then asked if he would get a reward ...

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