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State v. Osborn

Court of Appeals of Iowa

October 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
ROGER OSBORN, Defendant-Appellant.

          Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.

         The defendant challenges his convictions for possession of a visual depiction of a minor engaging in a prohibited sexual act.

          Philip B. Mears of Mears Law Office, Iowa City, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Heard by Danilson, C.J., McDonald, J., and Scott, S.J. [*]

          MCDONALD, JUDGE.

         Roger Osborn was convicted of twenty-six counts of possession of a visual depiction of a minor engaging in a prohibited sexual act, in violation of Iowa Code section 728.12(3) (2014). The district court ordered Osborn to serve an indeterminate term of incarceration not to exceed six years. In this appeal, Osborn challenges his convictions and sentences. In his first claim of error, he argues the district court erred in denying his motion to suppress his interview with police allegedly obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). At issue is whether the defendant was "in custody" within the meaning of the Miranda doctrine and whether the police were thus required to administer the Miranda advisories prior to interviewing him. In his second claim of error, Osborn challenges the sufficiency of the evidence supporting his convictions. In his third claim of error, he contends the district court abused its discretion in imposing sentence.


         In late 2014, Bryan Martin of the Missouri Cyber Crime Task Force and Internet Crimes Against Children Task Force conducted a search for unlawful content on a peer-to-peer file sharing network, ARES. Martin found six files containing visual depictions of a minor engaging in a prohibited sexual act on a computer in the network. The computer was associated with an IP (Internet Protocol) address linked to a house in Burlington. The house belonged to Carla Osborn, the defendant's mother. Martin alerted the Burlington Police Department to the potential child-exploitation offenses.

         The Burlington Police Department obtained a search warrant for the house. The search warrant authorized the seizure of computers, media storage devices, and anything else that could obtain prohibited depictions. Detective Moret of the Burlington Police Department and five other law enforcement personnel executed the search warrant at the house. The officers were in plain clothes. They arrived at the Osborn residence at approximately ten o'clock in the morning and knocked on the front door. Robert Osborn ("Robert"), the defendant's father, answered the front door. One or two of the officers entered the front room while the remainder stayed outside, primarly for security reasons and because of the lack of space in the small home. At the time the officers entered the residence, Osborn was asleep. One of the officers asked Robert to wake Osborn, and Robert did so. Osborn came into the front room and spoke with the officers. Moret explained to the Osborns that the police were executing a search warrant to obtain items related to the possession of "child pornography."[1] She explained she wanted to interview them at the police station.

         The parties dispute the exact language Moret used regarding the interview. At the suppression hearing, Detective Moret testified she asked Osborn if he was "willing" to come to the police station for the interview. Moret testified it was her standard practice to use this phrase. She testified Osborn did not have to agree to an interview but he did have to leave the residence while the police executed the search warrant. Moret testified it was necessary to use the police station for the interviews because Osborn's house was too small to separate Robert and Osborn for individualized interviews. She testified the Osborns stated they were willing to be interviewed at the police station. In contrast, at the suppression hearing, Osborn testified Moret did not ask him to come to the police station for an interview but rather told him he had to come to the police station for an interview. Robert was more evasive than Osborn when pressed on the issue during the suppression hearing, but he ultimately conceded Moret may have used the word "willing" when speaking with them.

         While some of the officers remained at the house to execute the search warrant, Moret drove the Osborns in her unmarked car, a regular sedan, to the police station for an interview. The Osborns sat in the back of the car. They were not handcuffed. The parties do not dispute Moret drove the Osborns to the police station, but they do dispute the circumstances under which Moret drove the Osborns to the police station. The Osborns testified they wanted to drive Robert's van to the station. Robert testified, "I said I can drive us down there, and [Moret] said, no, we will take you down in the police car." Osborn testified Moret did not give him the choice to drive. In contrast, Moret testified Robert did not want to drive to the police station because he was feeling ill. According to Moret, Robert requested she drive them to the station. Moret testified, "I told them that I would be more than willing to bring them to the police department and back to the house or anywhere else he wanted to go at that point."

         Moret interviewed Osborn in a small room on the second floor of the Burlington police station while another officer interviewed Robert. The second floor was a secured floor. Moret had to use her keycard to enter and exit the floor. Moret discussed this directly with Osborn, stating, "It is a secure floor, you saw me have to use my key, so I'd have to walk you out, but whenever we're done, we're done. Remember that, at any time." Throughout the course of the interview, the interview room was unlocked. Osborn had the freedom to leave the room at any time. At one point during the interview, Moret left the room for a few minutes, and Osborn walked out of the interview room to use the restroom. He returned to the interview room on his own.

         At the beginning of the interview, Moret repeatedly told Osborn he had the right to terminate the interview and leave. Moret began the interview by explaining:

You definitely have a choice as to whether or not you want to talk to me, ok? I do have some questions for you. If you don't want to answer any of them, or some of them, you just let me know.

         In response, Osborn started to discuss his history of downloading adult pornography. Moret stopped Osborn and explained:

Before we get into any of that, though, I just, I want to make sure you understand . . . you do not have to talk to me. If at any time during this interview you decide you don't want to talk to me anymore, you let me know and we're out of here.

         Osborn confirmed that he understood he could terminate the interview at any time. At that point, Moret commenced with the substance of the interview.

         The interview was investigatory in nature. Moret conducted the interview alone. She was dressed in plain clothes and unarmed. The video recording of the interview shows Moret sat in front of a desk diagonally from Osborn, who sat adjacent to the desk. Osborn had an unobstructed path to the door. Moret was calm and asked, primarily, open-ended questions. At one point during the interview, Osborn had a coughing spell. Moret left Osborn alone in the interview room for several minutes. The video shows Osborn vomited into a trash can in her absence. When Moret returned to the room, Osborn told Moret he was nervous. He did not request to discontinue the interview. In total, the interview lasted approximately one and one-half hours. During the interview, Osborn confessed to viewing "child pornography" multiple times on his computer.

         At the conclusion of the interview, Osborn was not arrested. Instead, officers drove him and his father back to their residence. From there, the Osborns drove themselves to the hospital to seek medical attention because they were not feeling well.

         While Moret interviewed Osborn, the remaining officers completed their search of the Osborns' residence. During the search of the home, the officers seized a computer located in Osborn's bedroom. Detective Schmitz of the Cedar Rapids Police Department created a bit-for-bit forensic image of the two hard drives contained in the computer. Schmitz conducted a forensic analysis of the hard drives and found twenty-eight video and image files depicting a minor engaging in a prohibited sexual act. In addition, search history information showed the computer's user searched for files with the search term "PTHC," which is commonly understood by persons who create, disseminate, and seek depictions of minors engaging in prohibited sexual acts to mean "preteen hard core."

         The State charged Osborn with twenty-eight counts of possession of a visual depiction of a minor engaging in a prohibited sexual act or simulation of a prohibited sexual act, in violation of Iowa Code section 728.12(3). Before trial, Osborn moved to suppress his interview with Moret on the ground the interview was obtained in violation of his Miranda rights. The district court found Moret more credible on the disputed issues and denied the motion on the ground Osborn was not in custody within the meaning of Miranda doctrine. The matter was tried to the bench. The State voluntarily dismissed two counts due to uncertainty regarding the ages of the ...

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