State v. Kietzke

636 October 14, 2026 No. 973 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. STEVEN R. KIETZKE, Defendant-Appellant. Linn County Circuit Court 22CR11598; A183105 Thomas McHill, Judge. Submitted September 30, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appel- lant. Steven R. Kietzke filed the supplemental and reply briefs pro se. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Joyce, Judge, and Hellman, Judge. ORTEGA, P. J. Affirmed. Cite as 353 Or App 636 (2026) 637 638 State v. Kietzke ORTEGA, P. J. Defendant appeals a judgment of conviction for one count of first-degree sodomy and six counts of first-degree sexual abuse against his daughter, T, asserting two assign- ments of error through counsel and two pro se supplemen- tal assignments of error. Defendant first argues that the trial court erred in denying his motion to suppress because he was questioned by law enforcement in compelling cir- cumstances without first receiving Miranda warnings. In his second assignment of error, defendant challenges the admission of T’s hearsay statements under OEC 803(18a) (b) concerning acts of abuse she experienced as a child to which she testified as an adult. Defendant asserts that OEC 803(18a)(b) requires a child declarant to be under the age of 18 at the time of trial for such statements to be admissible. In defendant’s first pro se supplemental assignment of error, he asserts that the trial court plainly erred when it and the district attorney stated that certain Uniform Trial Court Rules (UTCRs) were not followed. Finally, in defendant’s second pro se supplemental assignment of error, he claims that the trial court plainly erred by engaging in ex parte communication with the jury. We conclude that defendant was not questioned under compelling circumstances requiring Miranda warn- ings, and his arguments about admission of T’s hearsay statements are foreclosed by State v. Akins, 373 Or 476, 568 P3d 174 (2025). Defendant’s supplemental assignments do not establish any plain error by the trial court. Accordingly, we affirm. We begin with defendant’s challenge to the denial of his motion to suppress. We review for legal error whether statements were made in compelling circumstances. State v. Esquivel, 288 Or App 755, 756, 407 P3d 879 (2017). We review the facts consistently with the trial court’s findings that are supported by sufficient evidence in the record and presume that the trial court resolved disputed facts consis- tently with its express factual findings and its ruling. State v. Love-Faust, 309 Or App 734, 736, 483 P3d 45, adh’d to as modified on recons, 311 Or App 756, 489 P3d 149 (2021). Cite as 353 Or App 636 (2026) 639 The following facts are drawn from testimony at defendant’s trial. When T was 17 years old, she disclosed to her mother, V, that defendant had sexually abused her several times when she was between 11 and 13 years old. V reported the abuse to local police in Iowa. Deputy Brett Wilson called defendant to schedule an interview about T’s allegations, and defendant agreed to meet at the sheriff’s office during the lunch hour. Defendant drove to the office, and when he arrived, Wilson led him to a small interview room with an unlocked door. Wilson was in full uniform and carried a firearm at his side. Wilson told defendant that he was “not under arrest by any stretch of the imagination,” and that he did not need to talk with Wilson and could leave the office at any point in time. Wilson also told defendant that no matter what he said in the interview, he would be able to leave and return to work. During the interview, defendant repeatedly said that he did not know if he had abused T because he was on several medications during that period. Wilson stated that he was having trouble believing defendant and the rea- sons for his hazy memory and that he was “just trying to get [defendant’s] side of the story.” Wilson eventually told defendant, “I can’t make you remember something you don’t remember,” and left the interview room to retrieve a business card for defendant in case defendant was able to “jar anything loose.” As the two were leaving the interview room, defendant asked Wilson to please arrest him away from his workplace, and Wilson agreed. Defendant then left the sheriff’s office. The state charged defendant with three counts of first-degree sodomy and seven counts of first-degree sexual abuse. At a pretrial hearing on defendant’s motion to sup- press, defendant argued that the statements he made during the interview with Wilson were made under compelling cir- cumstances and that he was entitled to Miranda warnings. The trial court denied defendant’s motion to suppress, con- cluding that defendant was not under compelling circum- stances when he spoke with Wilson because nothing Wilson did was overbearing, the questions asked were open-ended, and because defendant was not under arrest and could have 640 State v. Kietzke left the sheriff’s office whenever he wanted to. A jury found defendant guilty of one count of first-degree sodomy and six counts of first-degree sexual abuse. Article I, section 12, of the Oregon Constitution1 safeguards the right against compelled self-incrimination. State v. Thomas, 343 Or App 560, 565, 578 P3d 1275 (2025). One manifestation of that right is that police officers must provide Miranda warnings before interrogating someone in compelling circumstances. State v. Reed, 371 Or 478, 483-84, 538 P3d 195 (2023) (“The Article I, section 12, requirement that police officers inform individuals of their rights prior to certain interrogations is similar to, but broader than, the requirement under the federal constitution established in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966).”). Miranda warnings serve to “inform individu- als of their right to remain silent and their right to counsel” and are intended to “counter the coercive effects inherent in custodial interrogations.” Id. at 484. “Compelling circumstances exist when, taking into account the totality of the circumstances, a reasonable person in the defendant’s position would feel compelled to answer a police officer’s questions.” State v. Dunlap, 215 Or App 46, 57, 168 P3d 295 (2007). The analysis does not turn on the subjective beliefs or intentions of the officer or suspect but, rather, “how a reasonable person in the [defen- dant’s] position would have understood his or her situation.” Thomas, 343 Or App at 566. Four nonexclusive factors are relevant in deter- mining whether compelling circumstances existed: “(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, 335 Or App 59, 67, 557 P3d 165 (2024). The total- ity of the circumstances must be considered, however, with the “overarching inquiry” being “whether the officers cre- ated the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.” State v. Roble-Baker, 340 Or 631, 641, 136 P3d 22 (2006). It is the state’s burden 1 Article I, section 12, provides, in relevant part, “No person shall * * * be compelled in any criminal prosecution to testify against himself.” Cite as 353 Or App 636 (2026) 641 to prove that a person’s unwarned statements were made under non-compelling circumstances. Id. at 639. “Whether the circumstances were compelling is a question of law that we review for legal error, and we are bound by the trial court’s findings of historical fact if there is any evidence in the record to support them.” Reed, 371 Or at 488. Here, we conclude that the circumstances sur- rounding defendant’s encounter with Deputy Wilson did not rise to the level of compelling circumstances for purposes of Article I, section 12. Although the first factor slightly weighs in favor of finding the circumstances compelling, the other factors weigh against the circumstances being compelling. First, the location of the interview, in a small room at a sheriff’s office, necessarily tended toward a “police- dominated atmosphere.” State v. Grimm, 290 Or App 173, 180, 414 P3d 435, rev den, 363 Or 283 (2018). However, such an effect is lessened when a defendant voluntarily goes to the police station under their own power and at a time of their own choosing. Id.; see also State v. Barber, 179 Or App 674, 679, 41 P3d 455, rev den, 334 Or 632 (2002) (location did not weigh toward compelling circumstances where the defendant was asked to come to the police station, agreed to an interview, set an appointment time then arrived late, and never asked to leave during the encounter). Here, defen- dant drove to the sheriff’s office on his own power, met with Wilson during the lunch hour so that defendant would not have to miss work, and defendant never asked to leave the interview room during the encounter. Nevertheless, the interview took place in a small interview room at a police station, with Wilson in full uniform and a holstered firearm at his side, which tends to make the overall encounter more compelling than not. Accordingly, this factor slightly weighs in favor of a conclusion that defendant was in compelling circumstances during the interview. Second, the short length of the interview—less than 20 minutes—weighs against a compelling circumstances determination. State v. Acuna, 264 Or App 158, 172, 331 P3d 1040, rev den, 356 Or 400 (2014) (an encounter with an officer lasting roughly 20 minutes did not weigh toward finding compelling circumstances); State v. Shaff, 343 Or 642 State v. Kietzke 639, 647, 175 P3d 454 (2007) (a 10-minute conversation with the defendant did not indicate compelling circum- stances). Indeed, encounters roughly four times as long as defendant’s interview have been found not to indicate com- pelling circumstances. See Andrews, 335 Or App at 68 (not- ing that an encounter lasting for one-and-a-half hours was not, by itself, indicative of compelling circumstances); State v. Northcutt, 246 Or App 239, 249-50, 268 P3d 154 (2011) (same). Moreover, except in “otherwise close case[s]” where the duration of an encounter serves as a “tie-breaker, the principal emphasis is properly on the qualitative dynamics addressed in the third and fourth of the [compelling cir- cumstances] factors.” Northcutt, 246 Or App at 250. Thus, although the short length of defendant’s interview would weigh against a conclusion that defendant was in compel- ling circumstances, we move to the final two factors of the compelling circumstances analysis to reach our conclusion. The third factor, the amount of pressure exerted on the defendant, does not indicate compelling circumstances in this case. Here, Wilson questioned defendant in a con- versational tone, and, although he expressed doubt as to defendant’s ability to remember events from the relevant time period, he did not exert unreasonable pressure on defendant. Indeed, Wilson did not comment on defendant’s supposed guilt regarding T’s abuse but rather reiterated the fact that he was having trouble believing defendant’s explanations. See Shaff, 343 Or at 650 (“[W]hat matters is not whether evidence of guilt was apparent to the sus- pect; rather, it is whether the officers used that evidence in a coercive manner.”). The “gravamen of the third [compel- ling circumstances] factor is the use of aggressive and coer- cive police interrogation practices, especially including, but not limited to, those explicitly predicated on assumptions of a suspect’s guilt or calculated to contradict a suspect’s assertions of innocence.” Northcutt, 246 Or App at 250. Because any pressure exerted on defendant stemmed solely from Wilson repeatedly commenting on the hard-to-believe nature of defendant’s answers, and not from assumptions of defendant’s guilt nor other coercive tactics, this factor does not weigh in favor of a conclusion that defendant was in compelling circumstances. State v. Revette, 318 Or App 749, Cite as 353 Or App 636 (2026) 643 762, 508 P3d 985, rev den, 370 Or 214 (2022) (“[R]epeatedly expressing disbelief about a defendant’s story, expressing belief that the victim or complainant was telling the truth, and encouraging the defendant to be truthful does not, with- out more, create compelling circumstances.”). The fourth and final compelling circumstances fac- tor—the defendant’s ability to terminate the encounter— weighs against finding that defendant was in compelling cir- cumstances. At the outset of defendant’s interview, Wilson stated that defendant was “not under arrest by any stretch of the imagination,” and that he could stop talking with Wilson and leave the sheriff’s office at any point. Wilson also told defendant that no matter what he said during the inter- view, he would be able to leave and return to work. Further, defendant was not constrained, and the doorway to exit the interview room was not blocked. See Revette, 318 Or App at 763 (finding that the defendant was able to terminate the encounter because the officer told the defendant at the out- set that he was free to leave and was not under arrest, that the door was unlocked, and that no matter what the defen- dant said, he would be free to leave). Thus, the fourth factor does not weigh in favor of a conclusion that defendant was in compelling circumstances. Considering the four nonexclusive factors and the totality of the circumstances, we agree with the trial court and the state that defendant was not questioned in compel- ling circumstances that required Miranda warnings. It fol- lows that the trial court did not err in denying defendant’s motion to suppress. In his second assignment of error, defendant argues that the trial court plainly erred in admitting T’s hearsay statements under OEC 803(18a)(b) because T was over the age of 18 at the time of trial, which no longer rendered her a “child declarant” under OEC 803(18a)(b). Defendant’s argu- ment is foreclosed by Akins, which was decided after the briefs were submitted in this case. In Akins, the Supreme Court held that OEC 803(18a)(b) was “intended to apply to out-of-court statements made by a person who was a child when she made the statements and who testifies and is available for cross-examination at trial, even if the person 644 State v. Kietzke is no longer a child when she testifies.” Id. at 503. The court reasoned that “[t]he legislative history [of OEC 803(18a)(b)] does not establish that the legislature intended a narrower scope that would make the rule applicable only if the vic- tim is still a child when testifying at trial, and such a lim- itation would be inconsistent with the text of the rule.” Id. Accordingly, Akins controls, and we conclude that the trial court did not plainly err when it admitted T’s hearsay state- ments at defendant’s trial. We proceed to address defendant’s supplemental assignments of error. In the first, he argues that the trial court plainly erred when it and the district attorney stated that certain UTCRs were not followed. But defendant does not explain how the rules he identified were not followed, how they applied to his case, or how he was prejudiced. Thus, any error is not apparent, and thus, not plain. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (citing State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990) (stating that plain error must be one of law that is not reasonably in dispute, that it must appear on the face of the record, meaning that the reviewing court “must not need to go outside the record to identify the error or choose between competing inferences,” and that “the facts constituting the error must be irrefutable”)). We therefore conclude that the trial court did not plainly err. Finally, defendant asserts that the trial court plainly erred by engaging in ex parte communication with the jury when it asked the jury to correct the verdict form, which was missing checkboxes for one of the charges. But the trial court stated on the record that those checkboxes had been inadvertently omitted and that it had asked the jury to insert them, and there is no evidence that that conversation occurred without the knowledge of the parties. The jury also affirmed that the corrected verdict form reflected their ver- dict. Thus, any error was harmless, and we therefore have no discretion to correct it. State v. Horton, 327 Or App 256, 262, 535 P3d 338 (2023). Affirmed.