Argued and Submitted: June 19, 2013.
Washington County Circuit Court. C101100CR. Marco Hernandez, Judge.
Ingrid A. MacFarlane, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Douglas F. Zier, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan[*], Presiding Judge, and Tookey, Judge, and Schuman*,
[262 Or.App. 458] TOOKEY, J.
Defendant challenges a judgment of conviction for one count of second-degree sodomy, ORS 163.395, and two counts of first-degree sexual abuse, ORS 163.427, contending that the trial court erred when it denied his motion to suppress statements that he made during a custodial interview at the Washington County Jail. Defendant argues that the investigating detectives violated his right to remain silent and right to counsel under Article I, section 12, of the Oregon Constitution 
and the Fifth Amendment to the United States Constitution, and that those Miranda  violations affected the validity of his subsequent waiver of his constitutional rights at the jail. Defendant also argues that the statements that he made at the jail were based on an implied promise of leniency and were involuntary. We affirm.
This court reviews a trial court's denial of a motion to suppress for legal error. State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010). We are bound by the trial court's findings of fact if there is sufficient evidence in the record [262 Or.App. 459] to support them. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993). The following facts are taken from or are consistent with the trial court's findings.
After 13-year-old W reported that defendant, then age 18, had engaged in sexual contact with W in defendant's bedroom, Tigard Police Detectives Hockin and Lee interviewed defendant on the porch of defendant's house. Almost immediately after arriving at defendant's house, Hockin read defendant Miranda warnings, and defendant acknowledged that he understood his rights. Defendant denied that he had engaged in sexual contact with W and denied that W had ever been at defendant's house. Hockin told defendant that the detectives had seen approximately 155 text messages between defendant and W and that some of those messages corroborated W's allegation. The following exchange then took place:
" DETECTIVE LEE: I think what Detective Hockin is trying to say is that, you know, we want to give you this opportunity. The reality is--I understand. You get a free pass because here it is. We understand that when we come to your door, everybody has a self-preservation instinct. You know what I mean? Everybody initially lies to the police. You have an instinct to preserve yourself, but the reality is--
" THE DEFENDANT: Well, you see, I've done this before, okay, a long time ago, okay? And I obviously know how this works. I mean I--I'm telling the truth right now. He never came over to my house, okay? And if--nothing ever happened."
The detectives stated that they could track W's cell phone and collect DNA evidence to prove that W had been in defendant's bedroom. Defendant then stated, " I would like to have an attorney or something here present." Hockin told defendant that the conversation would end if defendant wanted an attorney. After some discussion about whether defendant wanted to call an attorney, Hockin added that the detectives knew " 89 percent of what there [was] to know about the case" and that they did not " even really need" defendant's statement, but " in fairness" to defendant,
defendant had " the right to tell [the detectives his] side." Hockin further added that defendant could " stick with" his [262 Or.App. 460] earlier statements regarding W and that they would give defendant " a few more seconds to digest that[.]" Defendant asked if his probation officer knew what was happening, and Hockin told defendant that the probation officer knew about the allegation and had read the initial report. Hockin offered defendant a " [l]ast chance" to add anything, defendant declined, and the detectives concluded the interview at 6:50 p.m. Defendant was arrested on a parole violation, and at approximately 7:00 p.m., was transported to the Washington County Jail. The drive lasted 30 to 40 minutes. During transport, the detectives did not ask defendant any questions.
When Hockin, Lee, and defendant arrived at the jail, they pulled into the sally port. The detectives went behind the car, where they stood with the trunk open, engaging in " small talk" and " rummaging through the trunk" while defendant remained in the back seat of the car with the windows rolled up. Hockin expressed surprise to Lee that defendant did not " admit to something [that they] could obviously prove, the fact that [W] was over at [defendant's] house." As the detectives escorted defendant from the car to the door of the intake room, defendant, who had overheard the detectives' conversation, asked, " Can we talk?" Hockin responded that they could talk again after defendant was booked and after they had " another conversation about Miranda * * *."
After defendant was booked, Hockin, Lee, and defendant met inside the jail in a room that was adjacent to the intake room. It was 8:00 p.m. Hockin read defendant Miranda warnings a second time, and defendant again acknowledged that he understood them. The detectives then began a second interview. Hockin first described the events that had earlier taken place--that the detectives had interviewed defendant on the porch of defendant's house, that defendant had mentioned an attorney, and that the detectives had " pretty much shut down the interview" and transported defendant to jail, where defendant asked the detectives if they could talk again. The following exchange then took place:
" DETECTIVE HOCKIN: You still have a right to an attorney. Just because you're--you mentioned one earlier, we terminated the interview, and now you're saying you [262 Or.App. 461] want to talk. You can talk, but you can also talk with an attorney.
" THE DEFENDANT: I don't see (inaudible) be any better, to telling tell the truth right away, so--
" DETECTIVE HOCKIN: Okay. It's completely up ...