                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0449
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERICK IVAN SORIANO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse,

Judge.



      Erick Soriano appeals the denial of his motion to suppress and the

sentences imposed upon his convictions for lascivious acts with a child and child

endangerment. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., Vogel, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MAHAN, Senior Judge.

          Erick Soriano appeals the denial of his motion to suppress and the

sentences imposed upon his convictions for lascivious acts with a child, in

violation of Iowa Code section 709.1, .8(1)(a), .8(2)(a), and child endangerment,

in violation of section 726.6(1)(a), .6(3), and .6(7).1 He contends the statements

he made to police were not voluntarily made. Soriano also asserts the trial court

abused its discretion in sentencing him to a term of imprisonment. We find no

reason to set aside either the denial of the motion to suppress or the sentences

imposed, and we therefore affirm.

          In December 2014, Soriano—who has been diagnosed with bipolar

disorder—was involuntarily hospitalized and found to be seriously mentally

impaired after a manic episode. A mental health court order required that he

receive inpatient treatment, including psychiatric medications. A December 18,

2014 report to the court indicated Soriano had been “medication compliant” since

intake and his symptoms were “beginning to stabilize,” and requested permission

to discharge Soriano to his home.

          Soriano was transferred to outpatient status on December 22, but soon

stopped taking his medications.           On January 8, 2015, Soriano had another

episode, ending in an emergency room intake and evaluation. On January 13, a

mental health order was filed in which the court stated Soriano stipulated to

treatment recommendations, including longer-lasting injectable medicines.

          J.B. was born in January 2007. On February 19, 2015, J.B. was visiting

her grandmother’s home. She used her aunt’s computer, and J.B. was found

1
    All citations are to the 2014 Iowa Code.
                                        3


watching a pornography website on the computer.            J.B. reported to her

grandmother and aunt that when she was seven years old, Soriano once had

made her watch pornography on a website and, on another day, had touched her

“private part.” The family informed J.B.’s mother, who confronted Soriano about

the allegations.

       On February 20, J.B.’s mother took her to the hospital emergency room

for a medical examination, and the department of human services (DHS) and the

police were informed of the child’s allegations. DHS Child Protective Worker

John Crouse was assigned the case on February 20. Crouse met with the child

and mother at the hospital. After speaking with them, Crouse contacted Soriano

by telephone to see if he would agree to a safety plan, which provided he would

have no contact with J.B. during the course of an investigation into a report that

Soriano had touched J.B. inappropriately.     In that conversation, Soriano told

Crouse he “was sorry” and he “only did it once.”

       Law enforcement searched Soriano’s home and seized a laptop computer,

which was connected to a television. The laptop was taken to the state crime lab

for analysis.   Links to pornography websites were located on the computer’s

internet history. The username under which most of the links were found was

“Erick.”

       At a March 6 mental health hearing, the court ordered continued

outpatient treatment for medication management.         The court also ordered

Soriano to be transported home “immediately” following the hearing. Soriano

remained and still remains subject to a mental health commitment.
                                        4


      Detective Sergeant Jerome Hill was investigating J.B.’s allegations and

was aware Soriano had a hearing at the courthouse on March 6. Detective Hill

testified that when Soriano “was released from that [hearing], he came over to

the sheriff’s office.” Detective Hill then met with Soriano in an interview room,

explained he needed to speak to Soriano about J.B., and read Soriano his

Miranda rights.   Soriano stated he understood his rights (“I understand very

well.”) and agreed to speak with the detective. Detective Hill asked Soriano to

provide his name, address, date of birth, social security number, and phone

number. Soriano provided appropriate answers to all of these questions and

corrected the detective a couple of times on misunderstandings. Soriano stated

he had two personalities and one of his personalities did “bad things” to J.B.

When asked to explain what bad things, Soriano stated, “[A]bout the sex.” He

denied having sex with J.B. He stated that when he was unemployed (starting

September 2014) he watched a sex video with J.B. from a website. He wrote the

website address for Detective Hill. Soriano said it was when J.B. was almost

eight years old. He also stated he touched J.B. on her “front” “personal parts”

while she had her clothes on. Soriano asked if the no-contact order in effect

restricted his contact with a daughter. He also stated he was talking to the police

by himself because he was trying to be a better person. The whole interview was

recorded and lasted less than twenty-five minutes.             Soriano was then

transported to his residence.

      Soriano was subsequently charged with child endangerment and

lascivious acts with a child. He filed a motion to suppress the statements he

made to Crouse and to Detective Hill. He asserts those statements were not
                                        5


voluntarily made based upon his mental condition. He also challenges them,

arguing that because he is a native Spanish speaker, the statements were not

knowingly and intelligently given based upon his limited ability to speak and

understand English.

      After a hearing at which Crouse and Detective Hill testified, the district

court found Soriano’s statements to Detective Hill were made during a custodial

interrogation and pursuant to a valid waiver. The district court observed,

      Although the State concedes in its brief [Soriano] was under
      medication, the questioning was 25 minutes, the investigator’s tone
      was normal, Soriano appeared to understand his surroundings,
      Soriano hadn’t just experienced any sort of traumatic event, no
      deception was used, and no physical punishment was used.
      Soriano’s mental health commitment, by itself, cannot constitute an
      invalid waiver of his Miranda rights.

      The court used a different analysis concerning the statements made to

Crouse, however, concluding:

      [Soriano] was definitely not in a custodial situation when he talked
      to Mr. Crouse by telephone and he was not being interrogated.
      The sole purpose of the call was to see if he would agree to a
      safety plan. Mr. Crouse’s testimony is undisputed that defendant’s
      statement that he was sorry and that it only happened once was
      voluntary and not in response to any question asked by Crouse. It
      is the only evidence the court has to determine whether defendant’s
      mental condition affected his ability to understand the situation.

The court determined the statements were voluntarily given.

      The court then rejected Soriano’s claim that his statements were not

knowingly and intelligently give due to a language barrier. The court wrote,

      Both John Crouse and Detective Hill conducted their conversations
      with the defendant solely in English, with the exception that
      Detective Hill provided defendant with a written Miranda waiver that
      contained a Spanish translation. John Crouse testified in detail that
      he had no difficulty understanding [Soriano] and [Soriano] had no
      difficulty in understanding him during their telephone conversation
                                          6


       on February 2[0], 2015. There is no contrary evidence. It is clear
       from the audiotaped interview in this matter that the [Soriano] does,
       in fact, speak English. Although his English is heavily accented, it
       is clear that he understood what the officer was asking and was
       able to make himself understood to the officer. He appropriately
       responded to the detective’s questions, providing his name,
       address, date of birth, social security number, and phone number
       when asked. When he gave the officer his social security number,
       Detective Hill misunderstood his answer and [Soriano] corrected
       the officer to provide the correct information. [Soriano] was asked if
       he understood his Miranda rights as read to him in English and he
       responded, “I understand very well.” Soriano sufficiently
       comprehended the English language when he knowingly and
       intelligently made statements to Detective Hill.

The court thus denied Soriano’s motion to suppress.

       At trial, prior to Detective Hill testifying the court gave the jury a limiting

instruction that Soriano was

       not relying upon his mental condition at the time of the alleged
       crimes to diminish his responsibility; therefore, defendant’s mental
       state or condition at the time of the alleged crimes is not to be
       considered by you in determining whether defendant had the
       specific or general intent to commit the alleged crimes and/or
       whether he was consciously aware of his actions. You may
       consider it only for the purpose of determining the weight,
       credibility, and effect to be given to any incriminating statements
       alleged to have been made by the defendant.

       Soriano testified at trial. He denied making J.B. watch pornography and

denied touching her. When asked why he had made admissions to Detective

Hill, Soriano testified:

       Because my wife insisted, she insisted that I had done these things.
       She put it in my head that I had done these things, and I hadn’t
       done anything. She was upset and thought—and now she doesn’t
       think the same thing. She thought that I had done them, but now
       she doesn’t think that. She believed the girl and now she doesn’t
       think the same.
               ....
               Because they put that in my head. I haven’t done anything.
       And besides that, I wasn’t able to answer the questions that the
       detective asked me very well. I don’t speak English.
                                        7


              ....
              Q. You talked to [Detective Hill] about another personality.
      Why did you tell him that? A. Because when I’m sick, I’m not the
      same person. I’m not a nice person, a person who is attentive to
      my children and my wife. When I’m sick I don’t worry about them.
      I’m not the same person.
              Q. Do you have a second personality that did these things
      with [J.B.]? A. No.
              Q Why did you tell the detective that you did? A. Because at
      that time I wasn’t—I wasn’t well. I didn’t have my five senses
      together. I was taking medicine.

      The jury found Soriano guilty of lascivious acts with a child and child

endangerment. The district court sentenced him to terms of imprisonment on

both counts the sentences were to be served concurrently. Soriano appeals.

      A. Motion to Suppress. Soriano moved to suppress his statements (1)

made on the telephone to Crouse and (2) in the interview with Detective Hill at

the police station after he acknowledged his Miranda rights and waived them. He

claims that his statements were not voluntarily made, noting he was subject to a

mental health treatment order.

      “The burden of proof is on the State to prove by a preponderance of the

evidence that [a] defendant’s waiver and confession were made knowingly,

voluntarily, and intelligently.” State v. Davidson, 340 N.W.2d 770, 771 (Iowa

1983) (internal citations omitted); accord State v. Payton, 481 N.W.2d 325, 328

(Iowa 1992). “The burden must be met by a preponderance of the evidence, not

beyond a reasonable doubt. We give considerable weight to the findings of the

trial court on the question of voluntariness.” Payton, 481 N.W.2d at 328 (citations

omitted).

             A number of factors help in determining voluntariness.
      Among them are: defendant’s age, whether defendant had prior
      experience in the criminal justice system, whether defendant was
                                         8

       under the influence of drugs, whether Miranda warnings were
       given, whether defendant was mentally “subnormal,” whether
       deception was used, whether defendant showed an ability to
       understand the questions and respond, the length of time
       defendant was detained and interrogated, defendant’s physical and
       emotional reaction to interrogation, whether physical punishment,
       including deprivation of food and sleep, was used.

Id. at 328-29 (citations omitted).

       Upon our de novo review and evaluation of the totality of the

circumstances present here, see State v. Pals, 805 N.W.2d 767, 771 (Iowa

2011), we conclude Soriano’s statements were voluntarily, knowingly, and

intelligently given. We adopt the trial court’s comprehensive analysis and well-

reasoned conclusions (some language of which we have quoted above).

Soriano’s mental health hospitalization, while relevant to the analysis, was but

one factor to be considered. See Davidson, 340 N.W.2d at 773 (finding that

“mental subnormality does not itself deprive a waiver or confession of

voluntariness”). We also observe his ability to understand the questions and

respond while on psychiatric medication was evidenced by the audio recording of

the interview with Detective Hill. The short interview was conducted politely and

efficiently. Detective Hill was not threatening. Despite Soriano’s later assertions,

the interview was not hindered by a language barrier.           We note, too, that

Soriano’s wife testified both English and Spanish were spoken in their home.

       B. Sentencing.      Soriano contends the court should have followed the

recommendation contained in the presentence investigation report—that is, order

that he be placed on probation subject to a plan of treatment and given

approximately three months to accept full responsibility for the offenses, and if he

failed to take responsibility for the offenses or failed in any way to follow through
                                         9


on his treatment, the department of corrections would have the opportunity to file

a report of probation violation.

       Sentencing decisions are reviewed for an “abuse of discretion or defect in

the sentencing procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).

“An abuse of discretion will only be found when a court acts on grounds clearly

untenable or to an extent clearly unreasonable.” Id. (citation omitted).

       We cannot say the district court abused its discretion here. The State

recommended a term of imprisonment, pointing out Soriano was no longer

acknowledging his actions against the child. The court carefully considered the

relevant factors in imposing sentence, including Soriano’s refusal to accept

responsibility for his actions, which was of great import to the presentence

investigation preparer’s recommendation.      In fact, the court took a break to

consider the sentencing options. We find no abuse of the court’s discretion here.

We therefore affirm.

       AFFIRMED.
