State v. Thomas

560                 September 24, 2025              No. 829

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
            ROBERT MICHAEL THOMAS,
                 Defendant-Appellant.
            Washington County Circuit Court
                 21CR56337; A182102

  Oscar Garcia, Judge.
  Argued and submitted August 22, 2025.
   Joshua B. Crowther, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. On the brief were Dan Rayfield,
Attorney General, Benjamin Gutman, Solicitor General,
and Patrick M. Ebbett, Assistant Attorney General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  KAMINS, J.
   Conviction on Count 1 reversed and remanded; otherwise
affirmed.
Cite as 

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            KAMINS, J.
         Defendant was convicted of first-degree sexual
abuse, ORS 163.427, following a bench trial. He appeals the
judgment of conviction, raising three assignments of error;
we address the first because it is dispositive. In that assignment, defendant argues that certain statements he made to
police officers in compelling circumstances were obtained
in violation of his rights under Article I, section 12, of the
Oregon Constitution.1 We agree and, because the error was
not harmless, reverse and remand.
         “We state the historical facts consistently with the
trial court’s findings that are supported by sufficient evidence in the record; we presume that the trial court resolved
disputed facts consistently with its express factual findings
and its ruling.” State v. Grimm, 

, 

, rev den, 

 (2018). Whether the circumstances surrounding a police interview are compelling is
inherently fact dependent; we thus describe the facts here
in some detail.
         In 2021, a detective from the Hillsboro Police
Department, Schwartz, attempted to speak with defendant
regarding sexual abuse allegations that had been brought
against him by his adopted daughter, O. Schwartz first visited defendant’s home, where she was told by defendant’s
then-girlfriend that he was not there. Schwartz then contacted defendant by phone. Schwartz told defendant about
the sexual abuse allegations and said, “I’d like to set a time
for us to meet.” Defendant indicated that he was aware of
the allegations and agreed to meet at the Hillsboro Police
Department the next day.
        Defendant arrived on his own the next day and was
met in the parking lot by Schwartz and another police officer, Schriner. Defendant was asked—and agreed—to leave
his Leatherman in his car, then consented to a patdown to
ensure that no other weapons remained on his person. Due
to COVID-19 restrictions, the police department building
was locked from the outside and the detectives had to escort
defendant in. The detectives then led defendant inside the
   1
       Defendant does not pursue any argument under the federal constitution.
562                                             State v. Thomas

police station to an interview room where he was read his
Miranda rights. Defendant was notified that the interview
was being recorded by audio and video. Defendant was also
told that the exit doors were unlocked from the inside, and
that he could stop the interview and leave at any time.
Defendant acknowledged that he understood.
         Schwartz began the interview by asking defendant
what his understanding was about the allegations against
him. Defendant explained that he was aware that O accused
him of molesting her and vehemently denied that that had
occurred. Schwartz asked defendant why O would make
that up, and defendant shared that he believed that O was
jealous of the attention her sister, N, received. The conversation then turned to what another sister, K, might have seen
in the house, and defendant attempted to end that topic of
conversation:
      “DET. SCHWARTZ:         (Indiscernible) [K] might have
   seen something?
      “[DEFENDANT]: Maybe. You’d have to ask her what
   she saw.
      “DET. SCHWARTZ: Okay. Well, I’m asking you.
      “[DEFENDANT]: I don’t know what she saw.
     “So, what I’m getting at here is this is a parenting thing.
   And I’m not going to get hung out for what is deemed maybe
   unacceptable parenting.
      “And that’s all I’m going to say about that.
     “What I will tell you is the predator in the group is not
   me. The predator is [O].”
        Later in the interview, Schwartz tried to bring
up an email exchange between O and defendant. In that
exchange, O sent defendant an email in which O laid out
her allegations against him, and defendant made certain
admissions to touching O’s breasts. Defendant again tried
to end the conversation, but Schwartz persisted in asking
defendant about the emails:
      “DET. SCHWARTZ: So did you—so she sends you an
   e-mail. So, what does it say?
Cite as 

 (2025)                           563

     “[DEFENDANT]: I told you. That’s—we’ll talk about
  that some other time.
     “DET. SCHWARTZ: Okay. So, what—you respond to
  the e-mail?
     “[DEFENDANT]: No. She said she didn’t want to talk
  to me.
     “DET. SCHWARTZ: You never responded to the
  e-mail?
     “[DEFENDANT]: No. Not right away.
     “DET. SCHWARTZ: Okay. (Indiscernible).
     “[DEFENDANT]:     Yeah.
     “DET. SCHWARTZ: Did you respond to the e-mail?
     “[DEFENDANT]: Yes.
     “DET. SCHWARTZ: Okay. What did you say?
     “[DEFENDANT]: So I’m not willing—I’m not going to
  answer that question.
     “DET. SCHWARTZ: Okay. But that’s why we’re here,
  though.”
         Defendant went on to talk about issues he and his
wife had with O living with them. Schwartz then changed
the subject and brought up the email again, saying she
wanted defendant to tell her why he “did the things that
[he] did.”
     “[DET. SCHWARTZ]: So, [O] is saying that you
  touched her. You’re saying no, that that’s not true, but
  you’re saying—I have the e-mail.
     “[DEFENDANT]: You have the e-mail?
     “DET. SCHWARTZ: Yes.
    “[DEFENDANT]: Okay. Well, then why did you ask
  me if I responded?
     “DET. SCHWARTZ: I want to know if you’re going to
  be truthful.
     “[DEFENDANT]: Oh, okay.
     “…
564                                            State v. Thomas

       “[DET. SCHWARTZ:] And so this is your opportunity
   to help us understand, like, I mean, why you did the things
   that you did.”
At points throughout the interview, the detectives would ask
a question and defendant would refuse to answer due to not
knowing the illegality of what he would be admitting to:
      “[DEFENDANT:] But—see, here’s the thing. I don’t
   know if how I touched her is illegal or not.
      “…
      “And I am not going to sit here and say I did anything without asking somebody who will tell me the truth
   whether or not that was illegal as a parent.
       “DET. SCHWARTZ: Okay. Well, how did you—I mean,
   I guess, she is saying that you touched her breasts on multiple times.
      “So, I guess, I would—we’d have to get into the nuts and
   bolts of, well, how did you touch her breast and in what way
   did you touch her breast, in what context. What’s going on
   for—would it be appropriate for an adoptive father to—
      “[DEFENDANT]:       Hm-mm.
      “DET. SCHWARTZ :—touch a young girl’s developed
   breast? So, that’s kind of—I mean, I can’t give you legal
   advice, but a detective is assigned to this case.
      “…
      “[S]o did you touch her breast over her clothes or under
   her clothes?
      “[DEFENDANT]: I can’t answer that until I know if
   I’m hanging myself or not.”
At no point did the police officers attempt to clarify whether
defendant was asking for a lawyer. After his initial refusals
to answer, defendant continued to participate in the interview where he ultimately admitted to touching O’s breasts
over and under her clothes seven times for the purposes of
teaching her when to say “no” to inappropriate touching.
Defendant was charged by indictment with two counts of
first-degree sexual abuse, one of which was later dismissed
on the state’s motion.
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 (2025)                                565

         Defendant waived his right to a trial by jury. At a
pre-trial hearing, the state, on its own initiative, brought
up the fact that defendant’s statements implicated Miranda
issues. Defendant did not make a motion to suppress the
statements, but argued, in essence, that defendant was in
compelling circumstances at the time the statements were
made. The court disagreed with defendant, stating, “It’s
pretty clear that [the interview] was non-custody, no compelling circumstances, and that’s the current case law.” The
court ultimately found defendant guilty.
         On appeal, defendant argues that the trial court
erred when it ruled that there were no compelling circumstances because the interview was police-dominated. He
contends that the moments during the interview where he
refused to answer questions without knowing the illegality
of his actions were, at minimum, equivocal invocations of
his right to counsel, and officers failed to ask follow-up questions to clarify his request, thus making any subsequent
statements inadmissible. The state, for its part, argues
that defendant was never under compelling circumstances
because the location, length of interview, and pressure
exerted from detectives did not amount to compelling circumstances. We recognize that this is a close case; however,
for the reasons that follow, we agree with defendant.
         We begin by explaining the relevant constitutional
framework. Article I, section 12, protects an individual’s right
against compelled self-incrimination. State v. Revette, 

, 

, rev den, 

 (2022). Nestled
within that protection are the familiar rights “to remain silent
and a ‘derivative or adjunct right to have the advice of counsel
in responding to police questioning.’ ” State v. Ward, 

, 

 (2020) (quoting State v. Turnidge
(S059155), 

, 

 (2016)). “As part of the
constitutional guarantee, if a person in custody or other similarly compelling circumstances unequivocally invokes one of
the rights guaranteed by Article I, section 12, … then ‘police
must honor that request and stop questioning.’ ” 

 (quoting
State v. McAnulty, 

, 

 (2014)). In a
similar vein, if a person in compelling circumstances makes
an ambiguous or equivocal invocation of their Miranda rights,
566                                                       State v. Thomas

“the police are required to ask follow-up questions to clarify
what the person meant before proceeding with interrogation.”
State v. Avila-Nava, 

, 

 (2014) (citing State v. Charboneau, 

, 

 (1996)).
The remedy for a violation of Article I, section 12, is suppression. See State v. Vondehn, 

, 

(2010) (“When the police violate Article I, section 12, … the
state is precluded from using evidence derived from that violation to obtain a criminal conviction.”).
         The parties agree that the case turns on whether
defendant was in compelling circumstances during the interview because defendant made several equivocal invocations
over the course of his interview.2 “[W]hether the circumstances
were compelling does not turn on either the officer’s or the
suspect’s subjective belief or intent; rather, it turns on how a
reasonable person in the suspect’s position would have understood his or her situation.” State v. Shaff, 

,

 (2007). “We consider the following non-exclusive
factors in making that determination: (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.” State v. Andrews, 

, 67, 

 (2024) (citing State v. Roble-Baker, 

, 

 (2006)). In applying the factors, we
look at the totality of the circumstances and our “overarching inquiry is whether the officers created the sort of police-dominated atmosphere that Miranda warnings were intended
to counteract.” Roble-Baker, 

.3 We address each
of those factors in turn.
     2
       The state does not argue on appeal that defendant’s statements were not
equivocal invocations of his rights, and the state concedes that it did not make
that argument below. At oral argument before us, the state took the position that
we should “assume for purposes of its analysis” that defendant’s statements were
equivocal invocations. Given that framing, we assume for purposes of this opinion that defendant’s statements amounted to equivocal invocations of defendant’s
rights to counsel and to remain silent. Any statements that follow an invocation
must be suppressed. State v. Rose, 

, 

 (2019) (concluding that a trial court committed reversible error in not suppressing statements made after the defendant’s equivocal invocation when “detectives failed to
clarify [the] defendant’s statement before proceeding further”).
     3
       Typically, when determining whether circumstances are compelling, it
is due to the absence of Miranda warnings when police interrogate a suspect.
The police here, however, read Miranda warnings to defendant before interviewing him. In addition, when a suspect has invoked or attempted to invoke their
Cite as 

 (2025)                                          567

          Location. Defendant’s interview took place in an
interview room within a police station. Although defendant
appeared voluntarily and was told how to leave, the police
station remained locked to outsiders. Before entering the
facility, defendant was frisked and was required to remove
his Leatherman. The interview was conducted by two police
officers with firearms. This factor “slightly favors” defendant.
See Andrews, 335 Or App at 67 (noting that location of interview, a small office within a police station, made it “a police-dominated atmosphere” that “slightly favor[ed]” compelling
circumstances); Grimm, 

 (observing that
“the location of the encounter, the unfamiliar, police-station setting of the interview tended—necessarily—toward
a police-dominated atmosphere”); cf. Revette, 

 (2022) (no compelling circumstances when “building
itself looks like a normal office building, not a typical police
station”); State v. Bush, 

, 

(2006) (no compelling circumstances when record lacked
“evidence that defendant was physically restrained, frisked,
or even touched before or during the period in which he was
questioned”); but see Andrews, 335 Or App at 67 (noting that
“a defendant who voluntarily comes to a station for an interview on his own power ‘lessened somewhat’ the effect of the
police-dominated interview location” (quoting Grimm, 

)).
         In arguing otherwise, the state relies on State
v. Barber, 

, 

, rev den, 

 (2002), a police station interview case in which we
held that there were no compelling circumstances, in part,
because the defendant—a 19-year-old with intellectual disabilities—voluntarily came to the interview and did not
indicate that he wanted to leave. That case is unpersuasive for several reasons. First, the defendant in Barber was
accompanied to the police station by his father, who waited
outside the police interview room. 

. Defendant here
came to his interview alone, making him more susceptible
to a police-dominated environment. In addition, Barber was
decided prior to Roble-Baker, using a different analytical

Miranda rights, our role typically has been to determine whether their words
amounted to an invocation—not whether the circumstances under which they
invoked was compelling or not.
568                                         State v. Thomas

framework, and failed to analyze several of the relevant
factors, including the amount of pressure exerted on the
defendant. 

. Finally, the fact that the defendant
in Barber was intellectually disabled did not weigh heavily in the analysis, suggesting that the outcome might have
been different if that case were decided today. See State v.
Jackson, 

, 

 (2018) (noting that, in
the context of voluntariness of confessions, “a defendant’s
mental condition is a factor that must be considered, as part
of the totality of the circumstances” (emphasis added)).
         Length. The length of the interview was approximately 50 minutes, with defendant’s attempted invocations
occurring approximately 13 minutes into the conversation.
That factor favors the state. See Grimm, 

(one and one-half hour interview “would not, considered in
isolation, compel a conclusion” of compelling circumstances).
         Pressure Exerted. With regard to the amount of
pressure exerted on defendant, this factor also leans toward
defendant. Defendant told officers that he did not want to
talk about the emails between him and O that discussed his
conduct when O was living in his house, in what the state
conceded below was an equivocal invocation of his right to
remain silent as to that subject. In the face of that request,
Schwartz immediately pressed on with her questioning and
continued to ask defendant, repeatedly, if he had responded
to O’s email. After defendant responded that he was “not
going to answer” questions about the email and its contents,
Schwartz continued applying pressure on defendant to
speak, by saying, “Okay. But that’s why we’re here, though.”
Similarly, when defendant later made statements that could
be interpreted as an invocation of his right to speak with
an attorney, Schwartz did not attempt to clarify defendant’s
request, but instead responded that a detective was assigned
to defendant’s case.
        This was not a situation where the police merely
“asked defendant for his side of the story,” Grimm, 

; rather, Schwartz said to defendant, “[S]o this
is your opportunity to help us understand, like, I mean,
why you did the things that you did.” (Emphases added.)
By framing the question in that way—assuming that
Cite as 

 (2025)                            569

defendant did those acts—Schwartz was pressuring defendant for more information in a way that already “implicitly
assumed” that he was guilty of the act—i.e., that defendant
had committed the acts in question. See id. at 184 (police
tactics that “implicitly assumed” the defendant’s guilt went
beyond a “brief and noncoercive use of incriminating evidence … and instead were calculated to contradict defendant’s repeated assertions of innocence and pressure him
to continue talking”); State v. Courville, 

, 

 (2016) (police questioning that “projects
an ‘aura of confidence’ in the suspect’s guilt—‘undermines
[the suspect’s] will to resist’ answering questions” (quoting
Miranda v. Arizona, 

, 

, 

 (1966) (brackets in Courville))). Police officers here
implied that defendant was the subject of a criminal investigation, took him to a room in a police station where he was
recorded, pressured him repeatedly to talk about subjects
he did not want to talk about, and asked him questions that
assumed his guilt.
         In addition, Schwartz later revealing to defendant
that she had been testing his honesty increased the pressure
exerted. At first, Schwartz asked defendant if he responded
to the email and what he said in his response, which implied
that she did not know the answer to those questions. As
later revealed, Schwartz had defendant’s email all along,
and was merely asking those questions to, as she put it, see
if defendant would be truthful. Schwartz explained that
was “kind of how” the interrogation was going to go, and
that she had “a lot of information” that she would not readily
reveal to defendant. That “testing” of defendant’s honesty
is a tactic designed to compel a reasonable person in defendant’s position to continue to answer the officer’s questions.
See State v. Vasquez-Santiago, 

, 

 (2019) (noting “subtler techniques of interrogation that
can be equally, if not more, effective at eroding the will”).
Accordingly, this factor leans in favor of defendant.
        The state, for its part, argues that the state may
confront a suspect with evidence in a noncoercive and nonaggressive manner, and, in doing so, it does not create circumstances that are compelling. True enough. However,
570                                          State v. Thomas

the cases cited by the state undercut its point by emphasizing the heightened levels of coercion here. For example, in
Courville, 

, one of the cases the state relies
on, the defendant and police officer already knew each other
and began their conversation in the defendant’s backyard,
discussing different yard projects. The police then explained
the specific allegations to the defendant and asked the defendant if those allegations were true. 

 Here, by contrast,
Schwartz did not explain the allegations or incriminating
evidence to defendant until several minutes into the interview, in a “gotcha” attempt to see if defendant was “going to
be truthful.” A reasonable person, in that situation, would
feel compelled to try and explain themselves.
         Ability to Leave. As mentioned, defendant had the
ability to terminate the encounter and leave the police station. Thus, this factor leans in favor of the state. Cf. Roble-Baker, 

 (the defendant had no practical ability
to terminate police station interview when detectives had
driven the defendant to the station, and she was “dependent
upon them for leaving”).
         Finally, we are mindful that our “overarching
inquiry is whether the officers created the sort of police-dominated atmosphere that Miranda warnings were
intended to counteract.” 

. Those warnings are not
empty fluff: They are “intended to inform individuals of their
right to remain silent, assure them a continuous opportunity
to exercise that right, and warn them of the consequences
of waiving it.” State v. Reed, 

, 485, 

(2023) (emphasis added). To that end, it is significant that
the officers informed defendant of his rights by reading him
Miranda warnings, but then failed to follow through on the
promise of those warnings when they did not respond at
all to defendant’s possible invocation of his rights. In such
a case, the circumstances have become more compelling
“because, even though defendant was informed of his right
to counsel, his later attempt to invoke that right was not
honored[.]” State v. Dodge, 

, 

, rev den, 

 (2019); see also 

 (explaining how
that may be the case); State v. Koch, 

,

 (2014) (when officers continued questioning the
Cite as 

 (2025)                             571

defendant following an unequivocal invocation of the right
to counsel, they likely created the impression that assertion of the right was meaningless); cf. State v. Sparklin, 

, 

 (1983) (observing that “[w]hen the
police honor” a suspect’s invocation of their rights during
interrogation, “the coercive atmosphere of police interrogation is to some degree dispelled”). It is not enough that a
suspect merely understand that they possess those rights.
See Turnidge (S059155), 

 n 24 (“The reading of
Miranda rights is a factor that weighs in favor of concluding
that a defendant subject to police interrogation understands
his or her ability to terminate questioning and to otherwise
seek counsel rather than cooperate with law enforcement.”).
Those rights must actually be honored for their purpose to
be fulfilled. See State v. Mendacino, 

, 

 (1979) (when detectives “persist[ ] in questioning”
after adequate Miranda warnings and obtain confessions,
those confessions “partake more of actual coercion” and can
affect voluntariness); Ward, 

 (to ensure that
any waiver is both knowing and voluntary, “officers must
provide a person with the so-called Miranda warnings …
in part ‘[b]ecause a custodial interrogation is inherently
compelling’ ” (quoting Vondehn, 

 (brackets in
Ward))).
         On balance, the police officers here “created the
sort of police-dominated atmosphere that Miranda warnings were intended to counteract”: They used coercive interview tactics, conducted their interview inside a police station, and read Miranda warnings to defendant but failed
to comply with its requirements. Defendant was placed in
compelling circumstances based on the totality of the circumstances, including the location and level of coercion. The
trial court erred in concluding otherwise. In addition, the
error was not harmless. The primary dispute at trial was
defendant’s intent and O’s age. During its closing, the state
used defendant’s statements against him to prove both disputed elements. In fact, the state emphasized defendant’s
statements at the beginning and throughout its closing
argument. Thus, the statements had more than a little likelihood of affecting the verdict. See State v. Davis, 

, 

 (2003) (explaining that a trial court error is
572                                         State v. Thomas

deemed harmless if there is little likelihood that it affected
the verdict); State v. Roller, 

, 

 (2005) (“If erroneously admitted evidence relates to a
central factual issue to the case, it is more likely to have
affected the determination than if it dealt with a tangential
issue.” (Internal quotation marks omitted.)).
        Conviction on Count 1 reversed and remanded;
otherwise affirmed.