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State v. Reigelsperger

Court of Appeals of Utah

June 22, 2017

State of Utah, Appellee,
v.
Donald R. Reigelsperger, Appellant.

         Third District Court, Silver Summit Department The Honorable Todd M. Shaughnessy No. 131500027

          Ann M. Taliaferro and John K. Johnson, Attorneys for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

          OPINION

          POHLMAN, Judge:

         ¶1 Donald R. Reigelsperger and his then-wife (Wife) were in the midst of divorce proceedings when he surprised her at her place of work, refused to allow her to leave, and engaged in sexual conduct with her without her consent. Following a jury trial, Reigelsperger was convicted of aggravated kidnapping and four sexual assault offenses. He appeals, asserting that the trial court should have suppressed the statements he made just prior to his arrest and that, in several respects, the jury instructions were plainly erroneous and resulted from ineffective assistance of counsel. We affirm.

         BACKGROUND

         The Restraint and the Assaults

         ¶2 Reigelsperger and Wife had been married for more than twenty-five years when, in October 2012, Wife informed him that she was ending their relationship.[1] Reigelsperger moved out, and from that time forward he and Wife had little contact. As a general rule they communicated only as necessary for purposes of their divorce proceedings and the property management business they owned, and they informed one another of the details of the business through text messages and voicemails.

         ¶3 In January 2013, Wife went to a client's home to complete projects that had occupied her time for the past several days. Reigelsperger had also worked at the home recently, but not during the preceding few weeks, as Wife preferred that they not be at a client's home at the same time. When Wife arrived and entered the home, she saw Reigelsperger. He was inside the home, standing a few feet from the entryway, and was holding a BB gun, which Wife mistook for a small handgun.[2]

         ¶4 Reigelsperger grabbed Wife's hand and tried to pull her into the house, saying, "[Y]ou are coming with me." Wife pulled back and grabbed the doorjamb. The door swung shut on her finger, she screamed, and Reigelsperger released his grip. Once her finger was free, Wife stood in the entryway, crying. She pleaded with Reigelsperger to let her go, but she did not attempt to open the door again. With the gun still in hand, Reigelsperger told Wife she had to stay, and if she tried to escape, he might hit her "over the head with the gun" or "push [her] to the ground and hurt [her]."

         ¶5 Reigelsperger directed Wife to move to the large living area, where Wife saw a ladder and "a rope hanging from the high wooden ceiling rafter with a noose on it." Reigelsperger told Wife that she "need[ed] to sit in a chair and watch [him] hang [himself]" and that he might rape her. Reigelsperger also directed Wife to undress and get into a hot tub, which was in the living area. Wife did so, removing all of her clothing except her underwear. Reigelsperger, also wearing his underwear, followed her into the water. Initially, Wife did not know where Reigelsperger had put the gun, but she subsequently saw it "several feet away on the deck."

         ¶6 Reigelsperger pulled Wife toward him and told her to kiss him, but she turned her head. Reigelsperger fondled Wife's breasts until he pinched them and Wife said, "[O]uch." Reigelsperger touched Wife's genitals and also penetrated her anus before moving Wife to a bench inside the hot tub and instructing her to perform oral sex on him. She complied. Wife did not attempt to grab the gun, which was currently out of her and Reigelsperger's reach.

         ¶7 After Wife performed oral sex on Reigelsperger, he became "very emotional" and told her she could leave. Wife dressed, unintentionally putting her clothes on "inside out and backwards, " and Reigelsperger commented, "[Y]ou had better hurry before I change my mind." Wife went to her car and left.

         ¶8 Once a short distance away, Wife called 911. Crying throughout the call, Wife reported that her "husband ha[d] a gun" and "want[ed] to kill himself." When asked to repeat the purpose of her call, Wife again said, "My husband[] . . . has a gun and he said he's going to kill himself or hang himself and he just held me at [gunpoint] for an hour." The call was brief, and Wife did not go into detail regarding what had occurred at the home nor did she report being sexually assaulted.

         ¶9 Wife went to the police station where she reported being sexually assaulted, was interviewed, and was then escorted to a local hospital. At the hospital Wife underwent a physical exam, which included a swab of the inside of her mouth. Wife struggled to "really communicate" with the examining nurse, but again reported what had occurred between herself and Reigelsperger.

         ¶10 Meanwhile, back at the house, Reigelsperger had been attempting to reach Wife. Almost immediately after she left, Reigelsperger called Wife and left a voicemail message, saying, "[Y]ou're already on the phone. I hope [you're] not calling someone to make this situation escalated. I just committed a felony."

         ¶11 Shortly thereafter, police officers arrived at the house and took Reigelsperger into custody, not under suspicion of committing a crime, but based on the risk that he was "going to harm himself or someone else." Reigelsperger was taken in an ambulance to a nearby hospital. A police officer followed and, upon arriving at the hospital, filled out forms regarding Reigelsperger's involuntary admittance. The officer reported a substantial risk that Reigelsperger would harm himself unless taken into protective custody, and the officer indicated that he "wanted to be notified prior to the patient's discharge." Reigelsperger was subsequently transferred to the University Neuropsychiatric Institute (UNI).

         ¶12 That night Reigelsperger left another voicemail message for Wife, stating, "I'm sorry for my actions, " "I treated you so poorly, " and "I'm so very sorry for offending you and intruding on your sexuality." Reigelsperger also sent a text message to another family member, stating, "I made [Wife] get in the hot tub with me, and I made her kiss me, " and "I acted inappropriately towards her."

         The Interview at UNI and Other Statements by Reigelsperger

         ¶13 Reigelsperger spent several days at UNI. Five days after he was admitted, two police detectives went to UNI to ask Reigelsperger for a DNA sample. One of the detectives (Detective) had been in "daily contact" with a UNI staff member, "hop[ing]" to be "told when [Reigelsperger] was going to be released" so she could arrest him at that time. Detective apparently believed, based on her communications with UNI staff, that Reigelsperger would be released the following day.

         ¶14 Although Detective brought a warrant for Reigelsperger's arrest, UNI staff initially refused to provide access to Reigelsperger or even to acknowledge his presence there. But the detectives were persistent and told UNI staff that they would be taking Reigelsperger into custody that day. They reached an understanding with UNI staff that they would obtain a DNA sample from Reigelsperger if he consented, and they would then arrest Reigelsperger and remove him from UNI.

         ¶15 The detectives were escorted to a fairly large room with a couch flanked by two chairs. The detectives sat down in the chairs and waited until UNI staff brought Reigelsperger to the room. Detective was not in uniform and her badge was not visible. The detective who accompanied her was wearing his informal police uniform and his badge and was carrying handcuffs. Both were unarmed.

         ¶16 Reigelsperger arrived and sat down on the couch. He was not restrained by the detectives or by UNI staff, and he was not "hooked up to any sort of medical equipment." Reigelsperger was not told that he was under arrest, that the detectives had a warrant for his arrest, or that the detectives planned to remove him from UNI. Reigelsperger also was not told that he was a suspect in a crime, although he had learned from other sources that Wife had contacted the police and reported what had occurred.

         ¶17 Detective asked if Reigelsperger would provide a DNA sample, and he provided one. Reigelsperger then began talking as though he "wanted to get his side of the story out." Detective stopped him and informed him of at least some of his Miranda rights, but the recitation and explanation of Reigelsperger's Miranda rights were not recorded because the detectives' audio recorder had not yet been turned on.

         ¶18 Detective also provided Reigelsperger with a form entitled "Miranda Waiver." The form provided: "You have the right to remain silent. Anything you say may be used against you in court. You have the right [to] an attorney. If you cannot afford an attorney, one will be appointed free of charge." The form contained the additional language, "Do you understand these rights? Will you explain your side of the story? If so, please sign."

         ¶19 After Detective provided Reigelsperger with the form and discussed it with him, the audio recorder was turned on. Detective asked Reigelsperger if he wanted to keep talking with her, and Reigelsperger immediately indicated that he did and signed the form. He began telling the detectives about the day in question. Detective asked Reigelsperger several questions, which were largely about his divorce and living situation, his intent in going to the client's home on the day in question, and the events that occurred there. Reigelsperger talked at length without indicating any desire to cease speaking with the detectives or to stop answering their questions. The recorded interview lasted less than thirty minutes.

         ¶20 During the interview, Reigelsperger said his plan was to harm himself and for Wife to find him, but he had "no idea" Wife would be at the house that day. He recounted that when Wife arrived, she "freaked out, " and he "[g]rabbed her by [the] arm." When asked if Wife had said "she wanted to leave, like leave the house" or "[g]et away from [him], " Reigelsperger replied, "I think she might [have], yes."

         ¶21 Reigelsperger also recalled telling Wife that he wanted her to get into the hot tub, but she said, "No, I'm not going to, " and he responded, "Oh yes, you are." Reigelsperger said he asked Wife for a kiss and "one last jacuzzi, " but she said, "I don't feel like doing it and you're not going to make me, " and he replied, "Oh yes you are." Reigelsperger reported that he "grabbed [Wife] and held her and kissed her" while they were in the hot tub, and she "pushed [him] away and went and [cried] in the corner." When asked whether further sexual contact occurred, Reigelsperger stated that Wife did not perform oral sex on him.

         ¶22 At the conclusion of the interview, Detective informed Reigelsperger that he was going to be arrested. The detectives then handcuffed Reigelsperger and removed him from UNI.

         ¶23 During the weeks following his arrest, Reigelsperger spoke with a neighbor several times. In those conversations, which were recorded, Reigelsperger said he had held Wife "against her will . . . [s]o . . . [he was] definitely going to get something, " and he "held [Wife] and . . . kissed her" but "[t]hat[] [was] it."

         The Charges and the Evidence at Trial

         ¶24 Reigelsperger was charged with five first degree felonies: one count of aggravated kidnapping, see Utah Code Ann. § 76-5- 302 (LexisNexis 2012), and four counts of aggravated sexual assault, see id. § 76-5-405.[3] The charges were framed in the statutory language defining aggravated kidnapping and aggravated sexual assault, and every type of conduct identified in those statutes was alleged, as well as a brief statement of facts. The prosecution proceeded under the theory that four separate sexual assaults had occurred: (1) nonconsensual penetration of Wife's genital or anal opening (object rape, count II); (2) nonconsensual genital-to-mouth sexual act (forcible sodomy, count III); (3) nonconsensual touching of Wife's breast (forcible sexual abuse, count IV); and (4) nonconsensual touching of Wife's genitals (forcible sexual abuse, count V).

         ¶25 Before the case went to trial, Reigelsperger moved to suppress the statements he had made during his interview at UNI, asserting that the statements were elicited during custodial interrogation without a valid waiver of Reigelsperger's Miranda rights. The trial court denied the motion, concluding that Reigelsperger had not been in custody for Miranda purposes at that time. The court found that Reigelsperger was not in police custody in the days leading up to his interview, and after considering the site of the interrogation, whether the investigation focused on Reigelsperger, whether objective indicia of arrest were present, and the length and form of the interrogation, the court concluded that the attendant circumstances did not render the interview a custodial interrogation.

         ¶26 In support of its ruling, the trial court found, among other things, that the detectives did not misstate the facts, did not misrepresent the "state of the investigation, " and did not mislead Reigelsperger "in any way"; and that Reigelsperger "voluntarily participated, " "seemed rather eager to tell his side of the story, " was asked "very open ended" questions, and was not "coerced in any way to make the statements that he did." The court also found that the recorded portion of the interview constituted "the entire substance" of the interrogation, and the detectives' failure to record their earlier interactions with Reigelsperger appeared to be accidental rather than intentional.

         ¶27 At trial the prosecution relied on Wife's testimony; expert testimony that the swab from Wife's mouth contained DNA from seminal fluid that matched Reigelsperger's DNA; and the examining nurse's observations and interactions with Wife, from which the nurse concluded that Wife had experienced a traumatic event. The prosecution also introduced, among other evidence, the recording of Wife's 911 call; testimony from family members regarding Wife's appearance, conduct, and mental and emotional state following her encounter with Reigelsperger; statements Reigelsperger made to the detectives at UNI; Reigelsperger's conversations with his neighbor; and Reigelsperger's voicemail and text messages to Wife and another family member.

         ¶28 Defense counsel attempted to discredit Wife by, for example, pointing out inconsistencies between Wife's trial testimony and her earlier statements, including inconsistencies as to whether she and Reigelsperger removed all of their clothing before stepping into the hot tub, inconsistencies as to whether Reigelsperger attempted to have sexual intercourse with her, and the omission in Wife's earlier statements of Reigelsperger's threat to harm her if she tried to escape. Defense counsel also attempted to discredit Wife's testimony that she mistook the BB gun for a handgun and that she was "completely cooperative" with Reigelsperger because "the fact that there was a gun kept [her] from doing any kind of resisting, any kind of provoking."

         ¶29 In addition, Reigelsperger testified and presented a different account of the events in question. He testified that he went to the client's home to gather and put away tools. He brought the BB gun to the home to shoot rodents, and he placed the BB gun and extra ammunition on the pool table. He then began crying and decided to end his life. He brought in a ladder, set up the noose, and put it around his neck. At that instant, his dog went to the entryway and started barking. Reigelsperger saw Wife's car and watched as she made her way to the entrance, opened the door, and caught her finger in it. Knowing "there[] [was] no way that [Wife] would want to see [him], " Reigelsperger nevertheless went to the entryway, and she "freaked" upon seeing him. He "push[ed] the door harder on [Wife's] finger so it would" unlatch, and when her finger was free, she "went berserk."

         ¶30 According to Reigelsperger, Wife said "things that weren't really nice" but never told him to leave. He tried to hug her but she pushed him away, indicating that she wanted him to "get away from [her]." Wife saw the gun on the pool table, and Reigelsperger explained that it was a BB gun he had brought to kill rodents. Wife then saw the noose and ladder, and she began screaming. Wife indicated that she wanted to leave, but Reigelsperger told her, "no, [she] ha[d] to come in" and answer questions, such as whether she left him "for another man."

         ¶31 Reigelsperger asked Wife if she would get into the hot tub, and she said she did not want to, but Reigelsperger pleaded with her to do so. Wife stepped into the hot tub wearing only her underwear. Reigelsperger left to use the restroom, then returned and joined Wife in the hot tub. The BB gun was still on the pool table, where it remained until after Wife had left the house.

         ¶32 Reigelsperger asked if he could have "one last kiss and hug, " and Wife responded, "[N]o, " but when Reigelsperger walked toward her, Wife wrapped her legs around him and sat in his lap. Reigelsperger tried to kiss her, but she turned her head. He touched Wife "between her legs" and penetrated her anus, but stopped when Wife said, "[O]uch." Reigelsperger kissed Wife, and she briefly kissed him back. He felt Wife's breasts until she said, "[S]top." Reigelsperger stood up, and Wife reached down and squeezed his penis. He turned toward her, putting his penis "toward[] her mouth" without saying anything. Wife performed oral sex on him, and afterward Reigelsperger told her she "probably should go." Wife then dressed and left.

         ¶33 Reigelsperger dressed and waited for the police to arrive. When they did, an officer escorted him to an ambulance, stating that the police were there to take care of him. The officer handcuffed Reigelsperger, "just for [Reigelsperger's] safety, " and told Reigelsperger ...


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