This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-95-2376

State of Minnesota,
Respondent,

vs.

Richard Lawrence Popp,
Appellant.

Filed August 6, 1996
Affirmed

Parker, Judge

Morrison County District Court
File No. L695253

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Conrad I. Freeberg, Morrison County Attorney, Government Center, 213 Southeast First Avenue, Little Falls, MN 56345 (for respondent)

Michael G. Blee, Blee & Reep, P.A., 101 Seventh Avenue South, Suite 110, St. Cloud, MN 56301 (for appellant)

Considered and decided by Norton, Presiding Judge, Parker, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Richard L. Popp appeals from a conviction for second-degree criminal sexual conduct, arguing the evidence was insufficient to support the conviction and the trial court erred in admitting his prior statement.

Popp was charged with one count of second-degree criminal sexual conduct. At an omnibus hearing, Popp argued that his confession should be suppressed because no Miranda warning was given and because Morrison County Sheriff's Deputy Motes coerced his confession. The trial court heard testimony only from Deputy Motes and concluded that the interview was not custodial and that even though there were indications of possible coercion, the confession was admissible. Popp waived his right to a jury trial. He did not testify and presented just one witness, a clinical psychologist who testified that the state's witnesses did not employ a scientific method in accumulating evidence and that the interviewing methods used on Popp and his daughter, A.P., the complainant, were flawed and caused invalid results.

The trial court found that Popp had intentionally touched A.P. with sexual intent on her breast and vagina area and found him guilty of second-degree criminal sexual conduct. Popp appeals, and we affirm.

D E C I S I O N

1. Popp argues that the evidence is insufficient to show that he touched A.P. with "sexual intent." We disagree.

In reviewing a challenge to the sufficiency of the evidence, our review must determine whether, based on the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The evidence must be viewed in the light most favorable to the verdict, and we must assume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The same standard of review applies in criminal cases whether the case was tried to a jury or to the court. State v. Ibarra, 355 N.W.2d 125, 130 (Minn. 1984).

A person is guilty of second-degree criminal sexual conduct if the "person who engages in sexual contact with [the complainant] * * * has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual contact." Minn. Stat. ' 609.343, subd. 1(g) (1994). "Sexual contact" includes the "intentional touching by the [person] of the complainant's intimate parts," including the "touching of the clothing covering the immediate area of the intimate parts," with sexual or aggressive intent. Minn. Stat. ' 609.341, subd. 11(b) (1994).

A.P. testified that she knew the difference between good and bad touches and that her dad gave her bad touches. A.P. testified that her father touched her on the breast and vagina area and that she pushed his fingers away and told him to stop. She testified that she was scared when he touched her and that she placed stuffed animals between her and her father so that he would not touch her. A.P.'s recitation of the facts was consistent.

Popp's argument that A.P. was misguided about some of his touches as sexual when they were really "hugs" is rebutted by her testimony that she knew the difference between "good" and "bad" touches and that good touches were "hugs." A.P. clearly testified that she thought the touches her father gave her were "bad" touches.

The other witnesses all testified to A.P.'s recital of the same events. The story did not vary as told to her teacher, Kelly Gangl; her school principal, Sharon Bichler; Sheriff's investigator Randy Simonson; and social worker Alan Larson. Each testified that A.P. told them that her father touched her breast and vagina area, that it happened a number of times, and that she did not like it.

Where the evidence is sufficient to sustain a conviction, corroboration is not required. State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984). A.P.'s testimony was fairly straightforward and consistent. Moreover, her testimony was corroborated by her father's own tape-recorded confession. Popp admitted that he touched A.P.'s breast and vagina area a number of times and that it was of a sexual nature.

Overall, the trial court was in the best position to evaluate the evidence and credibility of all the witnesses. Defense counsel had the opportunity to cross-examine A.P. and every other witness. Our review of the record leads us to conclude that there was sufficient evidence to support the conviction.

2. Popp argues the trial court erred in admitting into evidence his tape-recorded statement to Deputy Motes. [1]

Those accused of a crime have a constitutionally protected right to be free from self-incrimination. Minn. Const. art. I, ' 7. That right, however, attaches only when law enforcement has taken the accused into custody. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). To determine whether the suspect was "in custody" to require a Miranda warning, "the analysis begins with whether the suspect's freedom of action was restrained." State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995). If there is a question of "custody" when no arrest was made, the court must review the surrounding circumstances to determine "whether the restraints on the defendant's freedom were comparable to those associated with a formal arrest." Id. The test is whether "a reasonable person in the detainee's situation would have understood that he was in custody." Id.

The evidence shows that Popp voluntarily went to the police station after receiving a phone call from Deputy Motes. He arrived with his wife approximately an hour after the phone call. The interview took place in a room designated for interviews in the police station near the office area. Popp's wife waited for him outside the interview room. Popp was not placed under arrest or threatened with arrest; he was free to leave at any time and did so after the interview, which lasted 15 to 20 minutes. The evidence supports the trial court's finding that Popp was not in custody in such sense as to require a Miranda warning.

The next issue is whether Popp's statement was voluntary. Voluntariness is an element of Miranda and must be shown by a preponderance of the evidence. State v. Andrews, 388 N.W.2d 723, 730 (Minn. 1986). Whether a confession is voluntary depends upon the totality of the circumstances. State v. Thaggard, 527 N.W.2d 804, 808 (Minn. 1995). On appeal, this court must "independently determine, on the basis of all factual findings that are not clearly erroneous, whether or not the confession was voluntary." State v. Anderson, 396 N.W.2d 564, 565 (Minn. 1986).

The test of voluntariness is whether police actions,

together with other circumstances surrounding the interrogation, were so coercive, so manipulative, so overpowering that [the defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak as he did.

State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). In conducting this inquiry, the court considers the defendant's

age, maturity, intelligence, education, experience and ability to comprehend; the lack of or adequacy of warnings; the length and legality of the detention; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends.

Id.

Popp argues that his low intelligence and illiteracy lend credence to his claim that Deputy Motes' statements about his belief in the truth of A.P.'s complaint and a promise of leniency coerced him into confessing. [2] We are troubled about the possible coercive effects of Deputy Motes' interview techniques on someone with such low intelligence, in particular the lengthy leading questions. We conclude the confession was voluntary, however, because there were no other indicia of coerciveness. See State v. Davis, 381 N.W.2d 86, 88 (Minn. App. 1986) (holding that confession was not voluntary based on the totality of the circumstances, including implied truth of event, ethnic insults, and pre-prepared confession).

The record indicates that Popp questioned whether the girls would be taken from him and said that he wanted them to have a good life. He responded candidly to a number of questions about how many touches were of a "sexual nature" and how many were not. Deputy Motes did not know of Popp's low intelligence or illiteracy during the interview, and knew him only as a successful dairy farmer with a family. Popp was free to leave at any time, the interview lasted only 15 to 20 minutes, and his wife was immediately outside the interview room.

While we express some misgivings, we conclude that Deputy Motes' actions would not have overborne the will of most persons of normal intellectual capacity. Unless we are to establish a different standard, and we do not attempt to do so given the limitations of this court's authority, we conclude the trial court's decision was not clearly erroneous, and the conviction must be upheld.

Affirmed.


Footnotes

[1] Popp argues that the lack of any tape-recorded statement by A.P. denied him his constitutional right to confrontation. This argument is without merit because A.P. testified at trial and was cross-examined.

Popp argues that his due process rights were violated because A.P.'s statements were not tape-recorded. See State v. Scales, 518 N.W.2d 587 (Minn. 1994) (requiring tape-recording of interrogation of criminal suspects). This argument also must fail because tape-recorded statements of child abuse victims were not required at the time of these incidents. See Minn. Stat. ' 626.556, subd. 10(j)(2) (Supp. 1995) (requiring audio-video recordings of statements of child abuse victims effective May 18, 1995). Popp argues that Deputy Motes engaged in misconduct during the omnibus hearing by not disclosing that he took courses at the John Reid School of Interrogation. At the hearing, Deputy Motes was asked only about training he received on when to give a Miranda warning. At trial he was asked only about training he received on interrogation techniques. Popp did not ask Deputy Motes about his interrogation training at the omnibus hearing. It is clear the two answers went to two different lines of questioning and demonstrate that Deputy Motes did not willfully withhold information.

[2] The presentence investigation indicated that Popp tested at I.Q. 60. Deputy Motes told Popp he did not want to "string anybody up" or "nail anyone to the wall."