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State v. Huether

December 2, 2010

STATE
v.
HUETHER



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Douglas L. Mattson, Judge. AFFIRMED.

The opinion of the court was delivered by: Sandstrom, Justice.

2010 ND 233

State of North Dakota, Plaintiff and Appellee v. Ray Leon Huether, Defendant and Appellant

No. 20100018

[¶1] Ray Huether appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition. We hold the district court's denial of Huether's motion to suppress is supported by sufficient competent evidence and is not contrary to the manifest weight of the evidence. We also conclude the court did not rely upon an impermissible factor in sentencing Huether. We affirm.

I

[¶2] The State charged Huether with possession of child pornography and with gross sexual imposition for allegedly engaging in sexual acts with a child less than six years of age between April 2006 and August 2007. During that time, Huether lived with the child's mother, the child, and the child's brother in Huether's house in Minot. Huether subsequently began working in Fargo and moved there in 2007, but returned to Minot on weekends for several months. According to the child's mother, she ended her relationship with Huether in February 2008, but he continued to allow the child's family to live in his Minot house.

[¶3] In June 2008, the child's mother reported to Minot police the child had revealed that Huether had engaged in oral sex with the child on several occasions. During an interview at the Northern Plains Children's Advocacy Center, the child stated Huether had engaged in oral sex with her on several occasions in "Ray's office" in the basement of Huether's Minot house. On June 23, 2008, Minot Police Officer David Goodman went to Huether's Minot house without a warrant to meet with the child's mother and entered Huether's basement office to see where the child said the sexual acts had occurred. According to the officer, he initially believed the house belonged to the child's family and the mother had access to the whole house. The officer testified he observed some pornography and computer and video equipment in "Ray's office," and while in the office, he saw a utility bill in Huether's name and then learned Huether owned the house. The officer testified the child's mother then informed him that while Huether lived in the house, the office was "basically off limits" to the child's family. According to the officer, he then left Huether's basement office. Partly on the basis of the officer's entry into Huether's basement office, Minot police officers subsequently obtained and executed a warrant to search Huether's Minot house, resulting in the seizure of some evidence.

[¶4] Five weeks later, at about 7:45 in the morning, six law enforcement officers executed a search warrant for a house in Fargo where Huether rented a basement bedroom. The owner of the house let the officers into the house and led Officer Goodman to a main floor bedroom where Huether was lying in bed. According to Officer Goodman, Huether was told he was not under arrest, he was free to leave, and he did not have to answer any questions, and Huether stated he understood. While the other officers executed the search warrant, Officer Goodman interviewed Huether in the main floor bedroom regarding the child's allegations. Huether was not given a warning under Miranda v. Arizona, 384 U.S. 436 (1966), before he was interviewed. The entire interview lasted approximately two hours, and during a recorded part of the interview, Huether made several incriminating statements about engaging in oral sex with the child. Shortly after the interview and completion of the search, Huether was arrested and charged with gross sexual imposition and with possession of child pornography.

[¶5] Huether moved to suppress all evidence seized after the warrantless entry into his office in the Minot house and the incriminating statements he made to police at the Fargo house. Huether claimed Officer Goodman failed to obtain valid consent to enter his office in his Minot house. Huether also claimed the incriminating statements to police at the Fargo house were made before he received a Miranda warning and violated his right against self-incrimination.

[¶6] After hearing, the district court denied Huether's motion to suppress evidence obtained after the entry into his office in his Minot house, ruling that when the officer initially entered the office, he reasonably believed the child's mother had common authority and control over the premises and thus obtained valid third-party consent from the child's mother to enter the office. The court denied Huether's motion to suppress some incriminating statements made to law enforcement officers at the Fargo house, ruling he was free to leave the area and was not under arrest or in custody when he made those statements. The court ultimately severed the two criminal charges, and a jury found Huether guilty of gross sexual imposition.

[¶7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Huether's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[ΒΆ8] In City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D. 1994), we established the standard of review of a district court's ...


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