District Court, Silver Summit Department The Honorable Todd
M. Shaughnessy No. 131500027
Taliaferro and John K. Johnson, Attorneys for Appellant
D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges
Gregory K. Orme and Michele M. Christiansen concurred.
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.
Restraint and the Assaults
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. 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.
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
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
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."
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.
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.
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.
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.
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."
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).
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."
Interview at UNI and Other Statements by Reigelsperger
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.
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.
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.
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.
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.
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."
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
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],
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.
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
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."
Charges and the Evidence at Trial
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. 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).
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.
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.
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.
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."
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."
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."
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.
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.
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