IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-743
Filed 2 July 2024
New Hanover County, Nos. 18CRS54214 18CRS5870-75
STATE OF NORTH CAROLINA
v.
ALFREDO TRANSISTO DURAN-RIVAS
Appeal by defendant from judgment entered 27 October 2022 by Judge
Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of
Appeals 11 June 2024.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri Horner Lawrence, for the State.
Heaney Law Office, by Christopher J. Heaney, for the defendant-appellant.
TYSON, Judge.
Alfredo Transisto Duran-Rivas (“Defendant”) was found guilty by a jury of
three counts of statutory rape of a child by an adult, one count of statutory sexual
offense with a child by an adult, four counts of taking an indecent liberty with a child,
five counts of first-degree sexual exploitation of a minor, and five counts of third-
degree sexual exploitation of a minor. Judgment was entered thereon. Our review
discerns no prejudicial or reversible error.
I. Background STATE V. DURAN-RIVAS
Opinion of the Court
New Hanover County Sheriff’s Deputy Grant Gregory pulled Defendant’s
vehicle over for exceeding the speed limit on 29 May 2018. Deputy Gregory also
recognized Defendant’s vehicle matched the description of the “be on the lookout”
(“BOLO”) warning issued in response to allegations of child sexual abuse. Deputy
Gregory concluded the initial stop with a verbal warning to Defendant. Deputy
Gregory contacted the Sheriff’s office, prompting Jeff Cromer, a detective in general
investigations, to arrive on the scene.
Detective Cromer attempted to speak with Defendant. Learning Defendant’s
native language was Spanish, he used an English-to-Spanish translator program on
his cellular phone to communicate with him. Detective Cromer identified himself as
a New Hanover County Sheriff’s Deputy and stated he wanted to speak with
Defendant regarding “pornographic images” Defendant’s wife had reported finding
on Defendant’s old cellular phone, which was silver. Defendant had given the cellular
phone to their two-year-old so he could watch videos on the device.
Using the English-to-Spanish translator, Detective Cromer asked Defendant
to participate in a voluntary interview. Detective Cromer did not state Defendant’s
participation was mandatory, nor did he state Defendant was not free to leave.
Defendant drove himself to the New Hanover County Sheriff’s Office and was taken
into a separate room for questioning. Defendant was not restrained and used his
cellular phone prior to being questioned.
Sheriff’s Detective Justin Blevins initially questioned Defendant, but upon
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realizing Defendant primarily spoke Spanish, he brought in Sheriff’s Detective Jose
Lugo to lead the interview. Detective Lugo understands and speaks some Spanish.
Defendant informed the detectives he understood some English. Detective Lugo
confirmed Defendant had driven himself to the Sheriff’s office and had not been
handcuffed. Detective Lugo told Defendant his presence at the Sheriff’s office was
voluntary and confirmed Defendant understood what “voluntary” meant. Defendant
responded he understood the word “voluntary” to mean if he wanted to leave, he could
leave. Later in the interview, Detective Lugo again confirmed Defendant understood
the meaning of “voluntary” by using the English-to-Spanish translator application.
During the course of the interview, Defendant was: (1) offered food and water;
(2) left alone in the unlocked room with his cellular phone; and, (3) interviewed by
officers in plain clothes. At one point, Sheriff’s Lieutenant Swan entered the
questioning room and remained for approximately fifteen minutes. Lieutenant Swan
raised his voice and told Defendant to apologize to the victim and admit what he had
done, so that the victim would be able to begin the healing process. Lieutenant Swan
purportedly did not promise Defendant anything in return for his confession.
Later in the interview, Detective Lugo asked Defendant to see his current
cellular phone, which was black. Defendant agreed, but he maintained his grip on
the cellular phone as Detective Lugo scrolled through his photographs and videos.
Detective Lugo also asked Defendant if he could download its contents. Defendant
denied this request. Detective Lugo continued to scroll through Defendant’s cellular
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phone, and at a certain point, Defendant hastily pulled it away. Detective Lugo
warned Defendant not to delete any photos and placed the black cellular phone out
of Defendant’s reach.
Defendant told Detective Lugo he had touched the purported six-year-old
victim. Hearing this, Detective Lugo left the room and returned with two Miranda
forms, one in English and the other in Spanish. Detective Lugo asked Defendant to
read the Spanish version and to sign it. Detective Lugo again left the room and
returned with an interpreter. As Detective Lugo read Defendant his Miranda rights
in English, the interpreter translated his recitation into Spanish.
Detective Lugo asked Defendant if he would continue speaking to them
without an attorney present. Detective Lugo explained to Defendant he could request
an attorney at any time, but Defendant would have to tell him if he wanted to speak
to an attorney. Defendant continued to participate in the questioning without
requesting an attorney. After having been informed of his Miranda rights, Defendant
explained the extent of his sexual abuse of his minor step-daughter in further detail.
At this point, Detective Lugo asked Defendant to write an apology letter to the
victim. Detective Lugo neither promised anything in return nor threatened
Defendant if Defendant chose not to write the confession. Defendant spent
approximately forty-five minutes writing the letter.
Defendant’s former wife had provided the deputies with possession of
Defendant’s silver cellular phone. Deputies seized Defendant’s black cellular phone,
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which was in his possession during questioning. Detective Blevins received a search
warrant for the contents of both cellular phones. Three videos were found on
Defendant’s silver cellular phone, dated 24 July 2017, showing an adult male sexually
penetrating a female child. Two additional videos were uncovered on Defendant’s
black cellular phone, dated 24 May 2018 and 26 May 2018, also depicting an adult
male sexually penetrating a female child.
Defendant was indicted for: (1) three counts of statutory rape of a child by an
adult; (2), one count of statutory sexual offense with a child by an adult; (3) four
counts of taking an indecent liberty with a child; (4) five counts of first-degree sexual
exploitation of a minor; and, (5) five counts of third-degree sexual exploitation of a
minor.
On 30 August 2021, Defendant filed a motion to suppress the oral and written
statements he had made to law enforcement officers on 29 May 2018, along with all
evidence viewed or seized from Defendant’s two cellular phones. Senior Resident
Judge Gorham held an evidentiary hearing on 15 December 2021 and later denied
Defendant’s motions to suppress on 27 January 2022. Defendant filed a motion in
limine on 24 October 2022, renewing his motion to suppress evidence and further
claiming law enforcement officers had illegally detained him. Judge Jason C.
Disbrow denied Defendant’s motions.
The jury found Defendant guilty of all charges. Defendant was sentenced as a
prior record level I offender to four consecutive sentences of 300 to 420 months active
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terms and three consecutive sentences of 73-148 months of active terms. Defendant
entered oral notice of appeal in open court.
II. Jurisdiction
Jurisdiction lies with this court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and
15A-1444(a) (2023). “A defendant who has a entered a plea of not guilty to a criminal
charge, and who has been found guilty of a crime, is entitled to appeal as a matter of
right when final judgment has been entered.” N.C. Gen. Stat. § 15A-1444(a).
III. Issues
Defendant contends the trial court erred in denying his motion to suppress the
oral and written statements he had made to the New Hanover County Sheriff’s
Deputies, as well as the evidence seized from his newer, black cellular phone because:
(1) his statements were not made voluntarily; (2) he was in custody throughout the
entire duration of his discussions with New Hanover County Sheriff’s Deputies; (3)
he had incriminated himself prior to receiving Miranda warnings; (4) his cellular
phones were unconstitutionally searched and seized; and, (5) the trial court’s
admission of evidence retrieved from these devices constituted prejudicial error.
IV. Motion to Suppress
Defendant argues the trial court erred by denying his motion to suppress his
statements obtained by New Hanover County Sheriff’s Deputies because his
statements were involuntary.
A. Standard of Review
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In reviewing a motion to suppress, this Court considers “whether the trial
court’s findings of fact are supported by competent evidence. If competent evidence
exists, the findings of fact are binding on appeal.” State v. McKinney, 153 N.C. App.
369, 372, 570 S.E.2d 238, 242 (2002) (citation omitted). This Court assesses “whether
those findings of fact support the trial court’s conclusions of law.” Id. “Any
conclusions of law reached by the trial court in determining whether defendant was
in custody must be legally correct, reflecting a correct application of applicable legal
principles to the facts found.” State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108,
121 (2002) (citation and quotations omitted).
B. Voluntariness
“A confession is admissible if it was given voluntarily and understandingly.”
McKinney, 153 N.C. App. at 373, 570 S.E.2d at 242 (citation and quotations omitted).
To determine if a confession is voluntary, this Court evaluates the totality of the
circumstances to decide whether the confession was a “product of an essentially free
and unconstrained choice by its maker.” Schneckloth v. Bustamonte, 412 U.S. 218,
225-26, 36 L.Ed.2d 854, 862 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568,
602, 6 L.Ed.2d 1037, 1057-58 (1961)).
If “[the defendant’s] will has been overborne and his capacity for self-
determination critically impaired, the use of his confession offends due process.” Id.
The Supreme Court of the United States advanced factors to assess the voluntariness
of a confession: (1) age of the accused; (2) the accused’s “lack of education[;]” (3) “the
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length of detention[;]” (4) the “prolonged nature of the questioning[;]” and, (5) the
threat or “use of physical punishment such as the deprivation of food or sleep[.]” Id.
at 226, 36 L.Ed.2d at 862.
Our Supreme Court provided additional factors in evaluating voluntariness:
(1) whether defendant was in custody; (2) whether his Miranda rights were honored;
(3) whether he was deceived; (4) whether he was held incommunicado; (5) the length
of the interrogation; (6) whether there were physical threats or shows of violence; (7)
the declarant’s familiarity with the criminal justice system; (8) the mental condition
of the declarant; and, (9) whether promises were made to obtain the confession. State
v. Jackson, 308 N.C. 549, 582, 304 S.E.2d 134, 152-53 (1983).
1. Finding of Fact Number 16
Defendant challenges a portion of Finding of Fact Number 16: “Detective Lugo
asked Defendant if he understood what voluntary meant and Defendant responded
that he did and that it meant if he wanted to leave, he could go.” Defendant argues
this summary mischaracterizes Defendant’s responses to the deputies and is not
supported by competent evidence.
Finding of Fact 16 summarizes the multiple exchanges that had occurred
between the deputies and Defendant during which Defendant purportedly had
confirmed an understanding of how he had voluntarily arrived at the Sheriff’s Office
and that he was free to leave. Both the interview video, along with Detectives Lugo’s
and Blevin’s testimonies regarding this specific exchange, sufficiently support this
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finding.
Defendant alternatively claims Finding of Fact 16 is a conclusion of law and is
subject to de novo review. Defendant correctly states this Court reviews legal
conclusions de novo “regardless of the label applied by the trial court.” State v.
Jackson, 220 N.C. App. 1, 8, 727 S.E.2d 322, 329 (2012) (citation omitted).
Finding of Fact 16 is more accurately characterized by our Supreme Court’s
definition, which holds “a finding of fact [is] a determination made by a judge, jury,
or administrative agency of a fact supported by the evidence in the record, usually
presented at the trial or hearing.” State v. Bryant, 361 N.C. 100, 103 n.2, 637 S.E.2d
532, 535 n.2 (2006) (quoting Black’s Law Dictionary 664 (8th ed. 2004)). Finding of
Fact 16 is not a conclusion of law, but a finding of fact that is supported by substantial
evidence.
2. Finding of Fact Number 21
Defendant challenges Finding of Fact 21, claiming the statement “[Lieutenant
Swan] did not act in a way that rises to coercive pressures” is a conclusion of law
rather than a finding of fact. We agree.
“Facts are the basis for conclusions, and to call a ‘conclusion’ a ‘finding of fact’
does not make it one.” Peoples v. Peoples, 10 N.C. App. 402, 408, 179 S.E.2d 138, 142
(1971) (citation omitted). Although Finding of Fact 21 is more accurately
characterized as a conclusion of law, the conclusion was sufficiently supported by
findings of fact and is ultimately a correct statement of law. See id.; State v.
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Buchanan, 353 N.C. 332, 337, 543 S.E.2d 823, 827 (2001) (explaining “[a]ny interview
of one suspected of a crime by a police officer will have coercive aspects to it”).
In State v. Johnson, our Supreme Court held the defendant had voluntarily
confessed prior to Miranda warnings. 371 N.C. 870, 879, 821 S.E.2d 822, 829 (2018).
The defendant in Johnson was not restrained or handcuffed, had retained his cellular
phone, and was interviewed by officers in plain clothes. Id. Here, Defendant was
treated similarly, as he was offered food and water, was left alone in the unlocked
room with his cellular phone, and was interviewed by officers in plain clothes.
In Johnson, law enforcement officers did not make physical threats, but raised
their voices at various points during the pre-Miranda, five-hour portion of the
interview. Id. Here, Lieutenant Swan was present in the interview room for
approximately fifteen minutes and raised his voice, imploring him to apologize to the
victim, while questioning Defendant. From his voluntary arrival until his arrest,
twenty-nine-year-old Defendant was voluntarily interviewed at the Sheriff’s Office
for approximately one and a half hours. Defendant was offered food and drink, was
not denied access to the restroom, and stated he understood he was free to leave.
In Johnson, the defendant was “told, contradictorily and repeatedly, that
officers both could not promise him anything and that the district attorney would
‘work with him’ and would ‘go easier on him’ if he cooperated and gave them truthful
information.” Id. at 879-80, 821 S.E.2d at 830. Here, Defendant offers no evidence of
promises made in exchange for his voluntary statements. See id.
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3. Apology Letter
The deputies’ suggestions and requests for Defendant to confess in the form of
a written apology letter to the victim to aid in her healing process, if leniency or
forgiveness therefrom is promised or insinuated, may constitute illegal or coercive
promises. Defendant’s “apology letter” was written after the administration of
Miranda warnings, which Defendant read in Spanish, and which were read to him
by a certified Spanish language translator.
Miranda warnings are not required during non-custodial interrogations and
need only be administered “where there has been such a restriction on a person’s
freedom as to render him in custody.” State v. Portillo, 247 N.C. App. 834, 841, 787
S.E.2d 822, 828 (2016) (citation and quotations omitted).
To decide whether and when Miranda warnings should have been
administered, “a court must initially determine whether a defendant was in custody
at the time of questioning.” Id. (citation and internal quotation marks omitted). Such
determination is “based on the totality of the circumstances and is necessarily
dependent upon the unique facts surrounding each incriminating statement.” Id. at
842, 787 S.E.2d at 828 (citation and quotations omitted). The court “must examine
whether a reasonable person in defendant’s position, under the totality of [the]
circumstances, would have believed that he was under arrest or was restrained in his
movement to the degree associated with a formal arrest.” Barden, 356 N.C. at 337,
572 S.E.2d at 123 (citation and quotations omitted).
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In State v. Barden, the defendant “voluntarily drove his own car to meet with
police for questioning, [and] was repeatedly informed both before he agreed to talk
with the investigators and after he arrived for questioning that he was not under
arrest and was free to leave at any time.” Id. at 337, 572 S.E.2d at 123-24. Our
Supreme Court held the defendant was not subject to a custodial interrogation. Id.
at 338-39, 572 S.E.2d at 124.
Here, and in addition to those facts, deputies offered Defendant food and water,
left Defendant alone in the unlocked room with his cellular phone, interviewed
Defendant in plain clothes, and Defendant’s voluntary interview was less than two
hours. Defendant had been convicted of second-degree assault less than a year
earlier, and he had prior exposure to law enforcement officers and to the criminal
justice system. Defendant’s former wife testified no significant language barriers
existed between them over the course of their three-year marriage.
Based upon the totality of the circumstances, Defendant has failed to show
reversible error in the trial courts’ rulings, orders, and judgments regarding denial of
Defendant’s motions to suppress oral and written statements made on 29 May 2018.
The trial court properly concluded Defendant was not in custody when he first
voluntarily admitted he had inappropriately touched the victim.
His subsequent oral and written statements providing further details
regarding Defendant’s actions were made after the proper administration of Miranda
warnings and without a request for counsel. Because this Court holds Defendant was
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not in custody prior to the administration of Miranda warnings, it is unnecessary to
address the second and third issues of whether Defendant incriminated himself prior
to receiving Miranda warnings. Id.
C. Cellular Phone Seizure
1. Riley v. California
Defendant argues the trial court erred by denying his motion to suppress
evidence obtained from his cellular phones because the cellular phones were
unconstitutionally searched and seized.
Generally, “[a] governmental search and seizure of property unaccompanied by
prior judicial approval in the form of a warrant is per se unreasonable unless the
search falls within a well-delineated exception to the warrant requirement.” Id. at
340, 572 S.E.2d at 125 (alteration in original) (citation and quotations omitted).
Exceptions exist to searching and seizing cellular phones. Riley v. California, 573
U.S. 373, 401-02, 189 L.Ed.2d 430, 451 (2014).
This Court “recognizes consent searches as an exception to the general warrant
requirement.” State v. Hagin, 203 N.C. App. 561, 564, 691 S.E.2d 429, 432 (2010)
(citation omitted). In State v. Kellam, this Court held “permission may ‘be obtained
from a third party who possessed common authority or other sufficient relationship
to the premises or effects sought to be inspected.’ ” State v. Kellam, 48 N.C. App. 391,
397, 269 S.E.2d 197, 200 (1980) (emphasis supplied) (quoting United States v.
Matlock, 415 U.S. 164, 171, 39 L.Ed.2d. 242, 250 (1974)).
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Defendant’s former wife delivered the silver cellular phone and granted
permission for deputies to search its contents. “[N.C. Gen. Stat. §15A-222 (2023)]
places no express restriction on the authority of a wife to consent to a search of the
premises she shares with her husband.” State v. Worsley, 336 N.C. 268, 283, 443
S.E.2d 68, 75 (1994). Defendant purportedly had purposely left the older, silver
cellular phone in the possession of his minor two-year-old son, so he could watch
videos on YouTube Kids. Defendant’s son purportedly brought the cellular phone to
his mother, i.e., Defendant’s wife, because the cellular phone had stopped working,
whereupon she discovered the incriminating videos.
Defendant’s wife was “clearly a person who by ownership or otherwise is
reasonably apparently entitled to give or withhold consent to a search of [the]
premises she shares with her husband.” Id. at 283, 443 S.E.2d at 76 (alteration in
original). Later, Detective Blevins sought and received a search warrant to search
the contents of the silver cellular phone and retrieved incriminating videos created
on 24 July 2017, purportedly showing an adult male sexually abusing a female child.
The video images recovered from the silver cellular phone left in his wife’s and minor
son’s possession were relevant and admissible.
2. Prevent the Imminent Destruction of Evidence
Another exception to the prohibited warrantless seizure of a cellular phone
includes “when the exigencies of the situation make the needs of law enforcement so
compelling that [a] warrantless search is objectively reasonably under the Fourth
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Amendment.” Riley, 573 U.S. at 401-02, 189 L.Ed.2d at 451 (citation and quotations
omitted) (alteration in original). The prevention of the imminent destruction of
evidence is one of the primary incidents of exigent circumstances justifying a
warrantless seizure. Id. at 402, 189 L.Ed.2d at 451.
To determine whether exigent circumstances justify a warrantless seizure, this
Court evaluates objective standards of conduct and looks “at the whole record to
determine if there were factors reasonably supporting the immediate seizure . . . .”
State v. Grice, 367 N.C. 753, 763, 767 S.E.2d 312, 320 (2015).
During the interview, Defendant had voluntarily permitted Detective Lugo to
scroll through Defendant’s photographs and videos while Defendant maintained his
grip on the cellular phone. While Lugo was scrolling with Defendant’s permission,
Defendant pulled his cellular phone away. Detective Lugo testified this action
occurred when he attempted to view Defendant’s deleted files.
At this point, Detective Lugo warned Defendant not to remove files and images
and placed the black cellular phone out of Defendant’s reach. Detective Lugo testified
this action was to prevent Defendant from permanently deleting the files. Whether
evidence could be destroyed with relative ease has been noted by our Supreme Court
as ample justification for warrantless seizure under the exigent circumstances
exception. Id. at 764, 767 S.E.2d at 321 (“[T]he individual could easily have moved
or destroyed the plants if they were left on the property.”).
This warrantless seizure falls squarely in the exigent circumstances exception.
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Detective Blevins later received a search warrant to search the contents of the black
cellular phone and retrieved incriminating videos created on 24 May 2018 and 26
May 2018 purportedly showing an adult male sexually abusing a female child.
Defendant’s arguments are overruled.
V. Conclusion
The trial courts’ orders and judgments denying Defendant’s motions to
suppress evidence retrieved from both of his cellular phones are affirmed.
Defendant’s constitutional rights were not violated, as the searches and seizures fell
within well-defined exceptions to the requirement for a warrant and the search of his
black cellular phone was conducted after a search warrant was obtained.
Defendant received a fair trial, free from prejudicial errors he preserved and
argued on appeal. Defendant failed to show prejudicial or reversible error: in the
obtainment or the admission of the evidence, in the jury’s verdicts, or in the
judgments entered thereon. It is so ordered.
NO ERROR.
Judges ZACHARY and GRIFFIN concur.
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