and Submitted January 30, 2019
Washington County Circuit Court C153062CR Oscar Garcia,
Meredith Allen, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Patrick M. Ebbett, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals from a judgment of conviction for
rape in the second degree, sexual abuse in the first degree,
and sodomy in the second degree. Defendant assigns error to
the trial court's denial of his motion to suppress
statements that defendant made to police, contending that the
statements were not made voluntarily. Defendant argues that
statements that police made to defendant during an
interrogation amounted to promises of leniency. The state
argues that the detectives' statements were not promises
of leniency and that defendant's statements were made
voluntarily. Held: In light of the totality of
circumstances of the interrogation, the state met its burden
to demonstrate that defendant's statements to the police
were made voluntarily and that his will was not overborne.
The trial court did not err in denying defendant's motion
Or.App. 374] SHORR, J.
appeals from a judgment of conviction for one count of
second-degree rape, one count of first-degree sexual abuse,
and one count of second-degree sodomy. Defendant raises four
assignments of error. We write only to address
defendant's second assignment of error, that the trial
court erred in denying his motion to suppress statements that
defendant had made to the police. We conclude that the state
met its burden to demonstrate that defendant's statements
to the police were made voluntarily, and we therefore affirm
the trial court's denial of defendant's motion to
review a trial court's denial of a motion to suppress in
"we accept the court's findings of fact if there is
any evidence to support them. If findings are not made on all
such facts, and there is evidence from which such facts could
be decided more than one way, we will presume that the facts
were decided in a manner consistent with the ultimate
conclusion, e.g., voluntariness or lack thereof,
made by the trial court. Whether the facts found by the trial
court are sufficient to sustain the trial court's
ultimate conclusion regarding voluntariness is a question of
law that we review for legal error."
State v. Ruiz-Piza, 262 Or.App. 563, 564, 325 P.3d
802 (2014) (citations, internal quotation marks, and ellipses
omitted). We state the facts in a manner consistent with that
12-year-old victim in this case, A, disclosed to a
representative of a child abuse assessment center that she
had been raped. A told investigators that a "Hispanic
guy" raped her in the back of his car, a black
Mitsubishi, at a park in Hillsboro. Later, A told
investigators that she had connected with the man on
Livelinks, a telephone dating service. A gave the man's
phone number to Detective Townsend of the Hillsboro Police
Department, who discovered that that [301 Or.App. 375] phone
number was registered to defendant. A's phone records
showed approximately 170 contacts with that phone number. A
also identified defendant in a photographic laydown. When A
saw defendant's photo, she said, "That's him.
That's the guy," and that she was "a hundred
A's identification, Townsend contacted defendant and
asked him to meet for an interview. Defendant agreed.
Defendant arrived "on his own volition" at the
Hillsboro Police Department and met with Townsend and another
detective, Hahn. At the beginning of the interview, Townsend
told defendant that he was "not going to jail,
you're not under arrest, you're free to leave here at
any point." Townsend advised defendant of his
Miranda rights and then began asking defendant
questions about his home life and his and his family's
phone and internet habits. Defendant provided information
about his wife and children, their phone numbers, their
internet habits, and other general background information,
such as how long he and his wife had been married and what
she did for a living. Townsend and Hahn also inquired about
defendant's vehicles and his familiarity with Livelinks.
showed defendant A's photograph and told him that A had
identified him in a photographic lineup as the man who had
sexually assaulted her. Defendant said that he did not
recognize A, and he denied having sex with her. Townsend
asked defendant if he would take a polygraph test and provide
a DNA sample. Defendant agreed, and said he was "pretty
sure" he would pass. Then the following colloquy ensued
between Townsend and defendant:
"DET. TOWNSEND: So-so what I'm looking for is some
honesty about what happened.
"DET. TOWNSEND: -what happened. And if you just made
a mistake, it's not like I'm going to call your wife
and ruin your life, okay?
"[DEFENDANT]: No, no, no.
"DET. TOWNSEND: I just want to know what happened and I
want to have some honesty that we can pass along to the court
instead of all denials.
[301 Or.App. 376] "[DEFENDANT]: Yeah.
"DET. TOWNSEND: You know?
"DET. TOWNSEND: And if it happened, it happened, it was
a mistake, we'll move on.
"DET. TOWNSEND: But what I'm saying is for the
outcome of this case, for the district attorney or the judge
or whoever that's going to be reviewing this case,
they have the one side of this story that the victim
"DET. TOWNSEND: Which is very clear and accurate. And
then we have your side of the story that you're giving,
which is all denial about what happened. And so I'm just
saying, it would be better for you to tell us what really
happened so we can-we can consider both sides of the
story. And right now I only have one side of the story.
"[DEFENDANT]: About what really happened about what?
"DET. TOWNSEND: With this gal, because I know that you
met up with her and something happened. If what she's
saying actually didn't happen, then you need to tell me
that. Just say, 'I met with her and nothing
happened,' or something. But by you saying you don't
know her, you've never seen her, met her, anything, I
don't-I don't believe that.
"[DEFENDANT]: Like I already told you, I mean, I'm
telling you the truth."
Hahn then began to interrogate defendant about why he
expressed doubt about passing a polygraph test. Defendant
explained that sometimes his English was not "a hundred
"DET. HAHN: But that doesn't have anything to do
with a lie detector test, right? That's not what
she's asking you. This is about your confidence in
whether or not you would pass it. And you-your answer was
that you're not confident you're going to pass it.
Which is why-why Detective Townsend is telling you that you
need to be [301 Or.App. 377] honest, because it's very
apparent that something happened and you're just not
coming clean about it. And again, I think that now is
probably the best time for you to just say like, 'This is
what happened.' I mean, she already told you you're
going to walk out of here today.
"[DEFENDANT]: Yeah, but I mean-
"DET. HAHN: And it doesn't matter-
"DET. HAHN: -that you have a daughter who is thirteen,
fourteen years old. Sometimes people have urges that they
can't control. And even if they have a wife and kids,
like, they can't control it and they go beyond that.
"[DEFENDANT]: No. That's not okay. And I'm being
honest to you guys. I mean-
"DET. TOWNSEND: And like she's saying, this is the
time for you to tell us what happened. And, you know, this
gal is saying, [defendant], that you raped her. Okay? If
you didn't rape her and it was just you guys made out or
there was just a little bit of this and a little bit of that
and not the full thing that she's saying, we need to know
that information because it does make a difference.
"DET. TOWNSEND: Okay? And so that's why this- this
is the time, you know, because you're not going to jail.
You came here yourself to tell us.
"DET. HAHN: To meet with us today. And so that's- we
gave you this opportunity to talk about what really, really
"DET. TOWNSEND: And this girl, she's not just going
to randomly pick some dude and magically know, 'I should
tell them this phone number and I should tell them this
description of the car and I should tell them this
description of the person and, gee, I sure hope that all the
stars align and everything is exactly right,' because it
just doesn't work that way.
"I mean, she's given enough detail to-that it all
goes together. So she is describing exactly your car, she is
describing exactly your phone number, she is describing [301
Or.App. 378] exactly you and she picked you out of a lineup.
And there's no way-
"-that she's just randomly doing that and guessing
correctly on all that information.
"Which, again, tells us, we're trained
investigators, that something happened. That you met up with
her and maybe, like Detective Townsend said, maybe you
didn't rape her, but there was some contact. I-the
evidence is very-
"DET TOWNSEND: -obvious, there was some contact between
the two of you. And it will look better for you in the
future if you are honest about that contact now than if you
don't come clean about it now.
"DET. HAHN: And it's probably really hard for you to
talk about. We totally get that. But you-it will be better
for you to get it off your chest and just let it out. It
appears to me that you're struggling. I can see it in
your face that this is hard for you.
"[DEFENDANT]: You know, if somebody told you the same
thing to you, something you didn't do, do you ...