Argued and Submitted: November 8, 2013.
Washington County Circuit Court. C11693CR, C112523CR. Thomas W. Kohl, Judge.
John J. Tyner III argued the cause and filed the briefs for appellant.
Michael R. Salvas, Assistant Attorney General, argued the cause for respondent. On the answering brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General. With him on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.[*]
[262 Or.App. 151] GARRETT, J.
This consolidated appeal concerns defendant's convictions for sexual offenses against three victims, AG, KM, and LP. In Case No. C11-2523CR, defendant was convicted of sexual abuse in the first degree based on his conduct with LP (Count 1) and KM (Count 2). In Case No. C11-1693CR, he was convicted of two counts of attempted sexual abuse in the first degree based on his conduct with AG. On appeal, defendant makes two assignments of error. In the first, he " seeks reversal of his convictions [in Case No.] C11-2523CR." Specifically, defendant contends that the trial court erred in denying his motion to suppress statements that he made during a police interview without counsel present. In the second assignment, defendant, in a supplemental brief, contends that the trial court erred in denying his motion for judgment of acquittal. Because defendant's second assignment of error was not preserved, we address only the first assignment of error.
In that assignment, defendant argues that, as to the two counts of sexual abuse against KM and LP, the trial court erred in denying
defendant's motion to suppress evidence obtained when a detective interviewed defendant without first notifying defendant's attorney. Whether [262 Or.App. 152] the detective was required to contact defendant's attorney turns on whether the instances of sexual abuse in this case, involving the same defendant but different victims at different times, were " factually related" for purposes of Article I, section 11, of the Oregon Constitution. We conclude that the incidents were factually related, that defendant's attorney should have been notified, and that defendant's motion to suppress therefore should have been granted. Accordingly, we reverse and remand defendant's convictions on Counts 1 and 2 in Case No. C11-2523CR and remand that case for resentencing but otherwise affirm.
The parties do not dispute the relevant facts. The three girls, AG, KM, and LP, are members of defendant's extended family. On August 9, 2011, AG was evaluated at Child Abuse Response Evaluation Services Northwest (CARES) in connection with an allegation that she had been sexually abused the previous day. During her evaluation, AG said that she had spent time in defendant's home and that he had touched her breasts and vaginal area. AG also reported that KM and LP had spent time at defendant's home and might have been abused by defendant.
Detective Rookhuyzen attended and observed AG's evaluation at CARES. Later that day, Rookhuyzen traveled to defendant's home and interviewed him. At the conclusion of the interview, defendant was arrested and taken into custody. Rookhuyzen conducted a second interview later that day after defendant waived his Miranda rights. The second interview was primarily about AG, but Rookhuyzen also asked defendant about other children who had visited his house. During that interview, KM's name was specifically mentioned but LP's was not. Defendant was subsequently charged with first-degree sexual abuse of AG in Case No. C11-1693CR. He retained counsel.
Over the following several weeks, Rookhuyzen continued to investigate AG's references to other possible victims. In September 2011, KM and LP were both interviewed at ABC House, another child-advocacy center. Both KM and LP described instances in which they had ...