State v. Pusztai

                                      95

Argued and submitted March 26, 2019; in Case No. 17CR32712, remanded for
entry of judgment omitting reference to “persistent involvement” enhancement
 factor on attempted first-degree burglary conviction, otherwise affirmed; in
    Case No. 17CR26632, affirmed February 3; petition for review denied
                           July 8, 2021 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    THOMAS DAVID PUSZTAI,
                        aka Thomas Pusztai,
                      aka Thomas D. Pusztai,
                        Defendant-Appellant.
                     Coos County Circuit Court
                      17CR26632, 17CR32712;
                    A165949 (Control), A165950
                                  

     In this consolidated criminal appeal, defendant appeals from a judgment of
conviction in Case No. 17CR32712 for criminal mischief in the second degree
and burglary in the first degree and, in Case No. 17CR26632, for burglary in
the second degree and theft in the third degree, which the court merged at sentencing. Defendant asserts that the trial court erred in denying his motion to
suppress, proffering two alternative points in his encounter with police where he
claims compelling circumstances required the giving of Miranda-like warnings.
Additionally, defendant challenges the court’s imposition of an upward departure sentence based, in part, on the unpleaded enhancement factor of persistent
involvement. Held: Even assuming the points identified by defendant constituted compelling circumstances, the Court of Appeals held that defendant did
not establish that admission of the unsuppressed statements was harmful. The
Court of Appeals concluded that the trial court would have imposed the upward
departure sentence based on the properly pleaded factor and remanded for entry
of judgment omitting the reference to the unpleaded factor.
    In Case No. 17CR32712, remanded for entry of judgment omitting reference
to “persistent involvement” enhancement factor on attempted first-degree burglary conviction; otherwise affirmed. In Case No. 17CR26632, affirmed.



    Richard L. Barron, Senior Judge.
   Matthew Blythe, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
96                                         State v. Pusztai

   Christopher A. Perdue, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
     JAMES, J.
   In Case No. 17CR32712, remanded for entry of judgment
omitting reference to “persistent involvement” enhancement
factor on attempted first-degree burglary conviction; otherwise affirmed. In Case No. 17CR26632, affirmed.
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        JAMES, J.
         This is a consolidated appeal of two cases, Case Nos.
17CR26632 (A165949 on appeal) and 17CR32712 (A165950
on appeal). In Case No. 17CR32712, the state charged
defendant with burglary in the first degree, ORS 164.225
(Count 1); criminal mischief in the second degree, ORS
164.354 (Count 2); and possession of a burglary tool or theft
device, ORS 164.235 (Count 3). In that case, defendant
waived a jury and the state tried its case against defendant
to the court, which found defendant guilty of Count 2. The
court also found defendant guilty of attempted first-degree
burglary as a lesser included offense of Count 1.
         In Case No. 17CR26632, the state charged defendant
with burglary in the second degree, ORS 164.215 (Count 1),
and theft in the third degree, ORS 164.043 (Count 2).
The state tried its case against defendant to a jury, which
found defendant guilty of both counts. The court merged the
guilty verdicts on those counts at sentencing.
         On appeal, defendant raises two assignments of
error and one supplemental assignment of error. Defendant’s
supplemental assignment of error challenges his conviction in Case No. 17CR26632. There, although the jury verdicts were unanimous, defendant challenges the giving of
a nonunanimous jury instruction by the trial court. That
argument is foreclosed by State v. Flores Ramos, 

, 

 (2020) (“[T]he trial court’s instruction to
the jury that it could return a nonunanimous verdict did not
amount to a structural error and was harmless beyond a
reasonable doubt.”).
          In defendant’s first assignment of error, he challenges the trial court’s denial of his motion to suppress
statements elicited, according to defendant, while he was
in compelling circumstances sufficient to require Miranda-like warnings under Article I, section 12, of the Oregon
Constitution. While the trial court did suppress statements
elicited after a certain point in the encounter, defendant proffers two alternative points earlier in the encounter where he
claims suppression was required. As we explain, we need
not determine if either of those alternative points constitute compelling circumstances under Article I, section 12,
98                                           State v. Pusztai

because we conclude that defendant has not established that
admission of the unsuppressed statements was harmful.
         In defendant’s second assignment of error, he challenges the trial court’s imposition of an upward departure
sentence in Case No. 17CR32712 on the count of attempted
first-degree burglary based on an unpleaded enhancement
factor, specifically “Persistent Involvement Unrelated to
Current Crime.” The state contends that even if the judgment reflects an unpleaded enhancement factor, any error
is harmless because the record reflects that the trial court
relied on another enhancement factor that was pleaded. The
state acknowledged at oral argument, however, that the
judgment should be corrected to eliminate reference to the
unpleaded enhancement factor. We agree and remand to the
trial court for entry of a judgment that omits that reference.
          Whether circumstances surrounding the questioning of a suspect are compelling so as to require Miranda-like
warnings under Article I, section 12, is a question of law,
reviewed for errors of law. See State v. Roble-Baker, 

, 

 (2006). In this case, because our
resolution of the case ultimately turns on whether any error
with respect to the admission of defendant’s statements was
prejudicial to him, our consideration of the record necessarily includes all pertinent portions. State v. Dowty, 

, 

 (2019).
         Officer George received a citizen’s report that “a
suspicious vehicle was parked” in a residential area, and the
vehicle’s occupants were knocking on doors. George found
the unoccupied vehicle in the neighborhood but was not able
to immediately locate the vehicle’s occupants. The citizen
called dispatch again and provided a description and location of one of the occupants. George went to the location and
found defendant, who matched the description provided by
the caller.
        George got out of his patrol car and walked over to
defendant. Defendant had been walking down the street but
stopped when he saw the officer coming toward him. George
asked whether defendant “came from a vehicle parked about
a block and a half away.” Defendant replied that he had.
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George’s demeanor at this point was “casual.” Defendant
identified himself, and George asked why defendant had
been knocking on doors. Defendant responded that he had
run out of gas and was checking to see if anyone in the
neighborhood would give him some gas. George ended the
contact.
         Officer Volin “advised [George] by radio that [he]
was working on a case where [defendant] was involved, and
[he] wanted to speak with him if he had a minute to answer
some questions.” George recontacted defendant, stating,
“Hey, Officer Volin needs to talk to you about a case of his.
Do you mind waiting here for him?” Defendant replied that
“it was okay, but just not take too long.” Volin arrived at the
scene five to 10 minutes later and recorded his conversation
with defendant using a body-mounted microphone:
     “[VOLIN]: I said, I’m Officer Volin from the Police
   Department.
      “[DEFENDANT]: (Inaudible response.)
      “[VOLIN]: Good. How are you today?
      “[DEFENDANT]: All right.
      “[VOLIN]: I’ll advise you our conversation is being
   recorded. Okay?
      “[DEFENDANT]: That’s fine.
      “[VOLIN]: So, the reason I’m here is about a theft from
   a house yesterday.
      “[DEFENDANT]: Okay.
      “[VOLIN]: Do you know anything about that?
      “[DEFENDANT]: What house?
      “[VOLIN]: Well, that’s why I’m asking you if you know
   anything about that. You have no idea? Where were you at
   yesterday?
       “[DEFENDANT]: Um, I was just at that A&B Storage,
   I believe.
      “[VOLIN]: A&B Storage?
      “[DEFENDANT]: (Simultaneously) (Not understandable.)
100                                             State v. Pusztai

      “[VOLIN]: What time was that at?
     “[DEFENDANT]: Did it have—I don’t know. Did it have
  anything to do with Maggie (phonetic), my ex-girlfriend?
      “[VOLIN]: No, it doesn’t.
     “[DEFENDANT]: Great. Well, that’s what I’ve been
  going through. So—
      “[VOLIN]: (Interposing) Okay.
    “[DEFENDANT]: I don’t know anything about (not
  understandable).
     “[VOLIN]: So—so, I got a call yesterday about a guy in
  a black leather jacket—
     “[DEFENDANT]: (Interposing)        Yeah,    (not   understandable) jacket.
      “[VOLIN]: —like that on[e].
      “[VOLIN]: Yep. You were over on Lakeview. You were
  in someone’s—next to their house. You said you were going
  to ask them for gas.
      “[DEFENDANT]: Absolutely not. Absolutely not.
      “[VOLIN]:   No?
     “[DEFENDANT]: Absolutely not. That was—I was—I
  was in—I was in—let’s see. A&B—somebody said something about, they found somebody in a boat, or something.
      “[VOLIN]: Huh uh.
      “[DEFENDANT]: What?
      “[VOLIN]: Huh uh. I don’t know.
     “[DEFENDANT]: Somebody that—that’s what it was
  supposed to be.
      “[VOLIN]: Okay.
      “[DEFENDANT]: (Not understandable) in the boat.
      “[VOLIN]: Okay.
      “[DEFENDANT]: So, I—I—
     “[VOLIN]: (Interposing) So, I’m going to show you a
  picture. I want you to tell me who you think it is.”
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         On appeal, defendant contends that, at that point
in time—that is, when Volin asked defendant to identify
the person in the photograph—he was in compelling circumstances, and the trial court erred in not suppressing all
statements made after that point. Those statements were as
follows:
     “[DEFENDANT]: Show it to me.
     “[VOLIN]: Yep. Who’s that?
     “[DEFENDANT]: Not me.
     “[VOLIN]: Really?
     “[DEFENDANT]:        Nope.
     “[VOLIN]: Let me just show it to Officer George, here.
  Let’s see who he thinks—
    “[DEFENDANT]: (Simultaneously) Yeah. That’s not
  me. But, what does a picture got to do with anything?
     “[VOLIN]: Well, this is you right before you burglarized this guy’s side shop and stole a gas can.”
         Defendant alternatively argues that this point in
the encounter constitutes compelling circumstances, and
the trial court erred in failing to suppress all statements
elicited from this point onward. Those statements are as
follows:
     “[DEFENDANT]: (Simultaneously) (Not understandable.) I didn’t go—take nothing.
     “[VOLIN]: Well, there’s a gas can right here. You—
  you walking into this carport right here, and (not
  understandable).
     “[DEFENDANT]: (Interposing) That’s not me. I didn’t
  take nothing.
     “[VOLIN]: You just said this was you.
    “[DEFENDANT]: If that’s me, I didn’t take nothing.
  Okay?
     “[VOLIN]: So you just went into a shop and didn’t take
  anything?
     “[DEFENDANT]: I didn’t go in nobody’s shop. Show
  me where there’s a shop right there. I didn’t go into nothing.
102                                          State v. Pusztai

      “[VOLIN]: Okay, we said that was you. I watched
   the—the video of it.
      “[DEFENDANT]: Okay, that’s fine.
     “[VOLIN]: He’s got video inside the little shop, too,
   which is on the side of this garage.
      “[DEFENDANT]: I didn’t—
      “[VOLIN]: (Interposing) You walk in. You grab a gas
   can. And then, you leave.
       “[DEFENDANT]: No, I did not. I didn’t—are you going
   to arrest me?”
         It is at that point in the encounter that the trial
court found that compelling circumstances existed and
that the officers failed to give Miranda-like warnings.
Consequently, the trial court suppressed all further statements. As stated previously, on appeal, defendant contends
that officers should have advised defendant of his Miranda
rights at two alternative, earlier points in time: (1) when
officers showed defendant a picture from a surveillance
video of the burglary and asked who he thought was in the
picture and (2) when defendant asked what the picture had
to do with anything and the officer responded that the picture was defendant “right before [he] burglarized this guy’s
side shop and stole a gas can.”
          Article I, section 12, provides, in part, that “[n]o
person shall be … compelled in any criminal prosecution to testify against himself.” To protect a person’s right
against compelled self-incrimination under that section, we
have held that, before questioning, police must give Miranda
warnings in circumstances that create a “setting which
judges would, and officers should, recognize to be ‘compelling.’ ” State v. Smith, 

, 

 (1990) (quoting State v. Magee, 

, 

 (1987)).
         In determining whether compelling circumstances
exist, the overarching inquiry is whether the officers created the sort of police-dominated atmosphere that Miranda
warnings were intended to counteract. See Miranda v.
Arizona, 

, 

, 

(1966) (explaining that warnings are necessary to ensure
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that a person’s statement is truly the product of free choice
when that person is placed in an “incommunicado police-dominated atmosphere”); Magee, 

 (recognizing that the state Miranda requirement protects the
same interests as the federal requirement).
         In assessing that question, we consider the totality of the circumstances, including “(1) the location of the
encounter; (2) the length of the encounter; (3) the amount
of pressure exerted on the defendant; and (4) the defendant’s ability to terminate the encounter.” Roble-Baker, 

 (internal quotation marks and citation omitted). Those factors are nonexclusive, and we do not apply
them “mechanically.” 

. The answer to that question “turns on how a reasonable person in the suspect’s
position would have understood his or her situation.” State
v. Shaff, 

, 

 (2007); see also
State v. Courville, 

, 

 (2016)
(“ ‘Compelling circumstances’ exist when the circumstances
are such that an objectively reasonable person would feel
compelled to answer the officer’s questions.”).
         Defendant asserts that compelling circumstances
existed, emphasizing the third Roble-Baker factor: the pressure officers exerted on defendant. In contrast with “general
conversation” and “small talk” that precedes questioning
under noncompelling circumstances, defendant contends
that Volin’s interaction with defendant began with a thinly
veiled accusation about a “theft from a house yesterday”
and pointed questions about defendant’s whereabouts on the
date the burglary occurred, followed by the coercive use of
incriminating photographic evidence.
         Expressly confronting a suspect with evidence of
probable cause to arrest may create circumstances that
are sufficiently compelling to require Miranda warnings, if
the officers use that evidence in a coercive manner. State v.
McMillan, 

, 

 (2002), rev den, 

 (2003); see also State v. Werowinski, 

,

, rev den, 

 (2002). An officer commenting on an evident result of a crime, asserting that a victim
reported a crime, or asking questions that merely suggest
that the officer is concerned about possible illegal activity,
104                                            State v. Pusztai

is not sufficiently coercive to create compelling circumstances. State v. Stone, 

, 

(2015). Conversely, repeated accusations that the defendant
is guilty, despite the defendant’s unequivocal and repeated
denials, can give rise to compelling circumstances. State v.
Heise-Fay, 

, 

 (2015).
         However, the admission of statements elicited in violation of Article I, section 12, will not constitute reversable
error on appeal when those statements are determined to be
harmless. Article VII, section 3, of the Oregon Constitution
provides, in part:
   “If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment
   of the court appealed from was such as should have been
   rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial[.]”
“It is defendant’s burden, as the party seeking reversal based
on a claim of evidentiary error, to show some likelihood that
the challenged evidence affected the verdict.” State v. Jones,

, 

, rev den, 

(2019) (internal quotation marks and citation omitted). In
determining whether to affirm a judgment under that constitutional provision, we review the record to decide whether
there was “little likelihood” that the error affected the jury’s
verdict. State v. Davis, 

, 

 (2003); see
also State v. Lopez-Minjarez, 

, 

(2011). The focus of that inquiry “is on the possible influence of the error on the verdict rendered, not whether this
court, sitting as a factfinder, would regard the evidence of
guilt as substantial and compelling.” Davis, 

.
Evidence that is duplicative or unhelpful is harmless. State
v. McAnulty, 

, 

 (2014), cert den,

 (2015). Evidence that is “qualitatively different
than the evidence that the jury heard,” however, may be
harmful. Davis, 

.
         We begin by “determin[ing] the particular evidentiary issue that is subject to harmless error analysis.” State
v. Maiden, 

, 

 (2008), rev den, 

 (2009). Here, the disputed statements, which defendant contends are harmful pertaining to both his cases,
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are relatively brief, comprising roughly 10 sentences that
defendant uttered between when Volin said, “So, I’m going
to show you a picture,” and the point at which defendant
asked if he was going to be arrested. All other statements
by defendant either were suppressed by the trial court or
occurred prior to compelling circumstances existing, even
accepting defendant’s argument.
          Viewing the specific statements given by defendant
during this window of time in the context of the record as
a whole, we conclude that there is little likelihood that the
verdicts were affected by the un-Mirandized statements
that were admitted over defendant’s objection. Many of
defendant’s statements were outright denials and protestations of innocence, such as “That’s not me” and “I didn’t take
anything.” Those statements, far from being harmful, were
supportive of defendant’s position at trial.
         The most troublesome statement comes when defendant states, “if that’s me, I didn’t take nothing.” However,
even if one interprets that as an admission of defendant’s
possible presence at the location, that statement does not
qualitatively differ from other evidence presented to the
jury, specifically the photograph itself. Here, photographs
from the surveillance footage were admitted into evidence
for the fact finders’ consideration. The fact finders were
tasked, ultimately, with making the factual determination of whether the person in the photograph was defendant. Defendant’s statement, “if that’s me,” which implies
the opposite, that it also might not be him, added little to
the fact finders’ consideration beyond framing the question
already before it: Was the person in the photograph defendant? Further, that statement was immediately followed by
another protestation of innocence when defendant stated, “I
didn’t take nothing.” We cannot conclude that those statements, viewed against the record as a whole, which included
the surveillance photographs, had any likelihood of affecting the verdicts. We therefore need not determine if those
statements were elicited in violation of Article I, section 12.
       Finally, we turn to the judgment entered in Case
No. 17CR32712. Defendant challenges the inclusion of an
unpleaded enhancement factor—persistent involvement—in
106                                           State v. Pusztai

his judgment of conviction for attempted first-degree burglary. The state concedes that the trial court erred in including that unpleaded enhancement factor but asserts that the
error is harmless because the trial court relied on another,
properly pleaded, enhancement factor in imposing the sentence. We agree.
       Before trial, the state gave notice of its intent to
enhance defendant’s sentence based on three factors:
      “1. The defendant lacks empathy or sympathy for the
   victim and/or his criminal conduct;
      “2. Future efforts to rehabilitate the defendant will
   not be successful and there exists a need to ensure the
   safety and security of the public; and
       “3. The defendant is unwilling to conform his conduct
   to the requirements of the law.”
         Defendant waived his right to have a jury find the
enhancement facts. After receiving the jury’s verdicts in
Case No. 17CR26632 and finding defendant guilty of seconddegree criminal mischief and attempted burglary in Case
No. 17CR32712, the trial court considered the enhancement
factors. The trial court rejected the first two factors and considered only the third. It then found that the state had proved
the “unwillingness to conform” factor and concluded that it
was not duplicative of the guidelines or “Repeat Property
Offender” statutes, because its rationale was not the same
as that captured in those sources of law. Defendant does not
challenge that ruling on appeal.
         After the trial court made its ruling, the court
instructed the court clerk to create the judgment. It told
the clerk that it departed upward on the sentence because
“[h]e didn’t conform his conduct to the law. And, his—and,
his record doesn’t truly reflect his—reflect his criminal history.” When the court looked at the judgment, it noticed that
the clerk had put “persistent involvement unrelated to the
current crime” instead of “unwilling to conform.” The court
noted, in open court, that “it should be ‘Doesn’t conform his
conduct to the law,’ instead of, ‘Persistent involvement unrelated to the current crime.’ I mean, you could put that. But,
the other one is he failed to conform his conduct with the
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law—the requirements of the law.” Ultimately, the judgment
included two factors: “Persistent Involvement Unrelated to
Current Crime” and “Guidelines don’t reflect his criminal
history and failure to conform to requirements of law.”
         Generally, we will affirm a judgment, even after
concluding that a trial court erred in sentencing, when the
record shows that the trial court could have imposed the
same total sentence without the error, and we are “completely confident” that the trial court would impose the
same sentence if the case were remanded for resentencing.
State v. Ortega-Gonsalez, 

, 

(2017) (quoting State v. Calderon-Ortiz, 

,

 (2008), rev den, 

 (2009)). That is the
case here. Based on this record, we are completely confident
that the trial court imposed the upward departure sentence
based on the third, pleaded factor independently, and that
the inclusion of the persistent involvement factor was more
akin to a clerical error than reflective of an additional basis
of consideration.
         However, both parties agree that, should we conclude that the inclusion of the persistent involvement factor in the judgment is harmless, which we do, the judgment
should be corrected to remove that factor. Accordingly, we
remand the judgment in Case No. 17CR32712 to the trial
court for entry of a judgment eliminating the “persistent
involvement” enhancement factor on defendant’s conviction
for attempted first-degree burglary.
         In Case No. 17CR32712, remanded for entry of
judgment omitting reference to “persistent involvement”
enhancement factor on attempted first-degree burglary
conviction; otherwise affirmed. In Case No. 17CR26632,
affirmed.