Aрpellant Francisco Godinas Barcenas appeals from a judgment of conviction for sexual misconduct, which is a Class A misdemeanor, and from a fine of $1,000. The basis for his appeal is that a language barrier existed which hampered his ability to voluntarily, knowingly, and intelligently give an inculpatory statement to police officers. Thus, he contends that the trial court erred in denying his motion to suppress that statement. We agree with Barcenas that his Mirаnda rights were not knowingly and intelligently waived, and we reverse the judgment and remand.
The facts of this matter occurred in Mena during the late evening hours ofjune 13, 1998. Earlier the same evening, Barcenas, age 25, and his wife, Arlita, had attended a family pool party with Arlita’s cousin, N.W, who was age 14, and others. The group returnеd to Barcenas’s home and played cards and ate pizza. There was conflicting testimony about the extent to which Barcenas had been drinking, although N.W. testified that Barcenas had been drinking beer since about 9:30 p.m.
At about 12:30 a.m., while Arlita was asleep on a roll-a-way bed in the living area, Barcеnas and N.W. were playing cards. 1 At that time, Barcenas put his hand up N.W.’s shorts and under her underwear and digitally penetrated her vagina. This occurred, according to NW, for ten or fifteen minutes. Barcenas’s young child, Lorenzo, then awoke and asked Barcenas for popcorn. N.W. went to the kitchen to miсrowave popcorn, and there Barcenas again, according to NW, digitally penetrated her. He also reached under her shirt and touched her on top of her bra. When Arlita entered the kitchen, this activity ceased.
On June 26, 1998, N.W. went to the Mena Police Department and complainеd about what Barcenas had done to her. Mena police officers went to Barcenas’s house on June 27, 1998, and asked him to come down to the police station for an interview. According to Sergeant Cecil Knox, Barcenas was initially given his Miranda warnings and admitted that he had “touched” N.W. The police officers then decided to videotape Barcenas’s statement.
Barcenas does not read or write English and speaks broken English. His native language is Spanish, and he is not an American citizen. No other Spanish-speaking person was available to assist Barcenas during the custodial interrogation. The questioning began with Sergeant Cecil Knox and Sergeant Bill Head in attendance, neither of whom spoke Spanish. The Miranda warnings were repeated in English several times and explained in different words, when it was clear that Barcenas had not initially grasped their meaning. During the statement, Bаrcenas pointed to his crotch and admitted that he had touched N.W. there. The videotaped interview lasted about fifteen to twenty minutes.
On July 1, 1998, Barcеnas was charged with first-degree violation of a minor, which is a Class C felony. On February 17, 1999, he pled guilty to violation of a minor in the second degree, a Class D fеlony, and was sentenced to a suspended sentence of seventy-two months. The next day, on February 18, 1999, the trial court permitted Barcenas to withdraw his plea for good cause shown due to the language barrier. Specifically, the trial court said that Barcenas “did not knowingly and intelligently enter a plea of Guilty to the aforesaid charge due to a language barrier.”
On February 24, 1999, the trial court held a hearing on Barcenas’s motion to supprеss the statement made to Mena police officers. The basis for the suppression motion was the language barrier and the fact that the statement was involuntary and not knowingly and intelligently made. On March 11, 1999, the motion was denied, and Barcenas was tried by a jury for first-degree violation of a minor. He was found guilty of the lesser offense of sexual misconduct and sentenced to pay a fine of $1,000.
The issue before us in this appeal is whether the trial court erred in denying Barcenas’s motion to suppress which included whether the Mena police officers obtained Barcenas’s statement in violation of his Miranda rights in that the statement was involuntary and not knowingly and intelligently made.
The standards for examining custodial statements have been made clear by this cоurt. We review a trial court’s ruling on a motion to suppress by making an “independent determination based upon the totality of the circumstances, viewing thе evidence in a light most favorable to the State.” Wright v. State,
Initially, the State argues that Barcenas’s appeal must fail for procedural reasons. According to the State, Barcenas’s abstract reveals no ruling by the trial court on the suppression motion. We disagree. The abstract and record reflect the trial court’s docket which contains this entry in connection with the suppression motion, “Motion to suppress denied.” Moreover, the trial court allowed the State to play the videotape of the statement to the jury, after a renewed motion to suppress by defense counsel. We hold that the issue is preserved for our review.
On the merits, we follow our standards and make an independent determination based on the totality of the circumstances. Here, after reviewing the videotape, it is clear to this court that Barcenas was not fully aware of his Miranda rights when he made his statement. That, of course, is the critical test. As this court said in Smith v. State, supra, a “full awareness of both the nature of the right being abandoned and the consequences of the decisiоn to abandon it” as well as whether the accused made the choice uncoerced by the police officers to waive his rights are the еssential focal points in determining whether a waiver was knowingly and intelligently made. Smith,
We, therefore, reverse the trial court’s order denying suppression of the videotaped statement. Becausе unfair prejudice to Barcenas resulted from playing the videotaped statement to the jury, we also reverse the judgment of conviction and rеmand for further proceedings.
Reversed and remanded.