State v. Cundiff

[Cite as State v. Cundiff, 2011-Ohio-3414.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24171

vs. : T.C. CASE NO. 09CR3259

JAMES MARSHALL CUNDIFF : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 8th day of July, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst.
Pros. Attorney, Atty. Reg. No.0070162, P.O. Box 972, Dayton, OH
45422
Attorney for Plaintiff-Appellee

J. Allen Wilmes, 4428 North Dixie Drive, Dayton, OH 45414
Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, James Cundiff, appeals from his convictions

for multiple counts of aggravated robbery and felonious assault,

with repeat violent offender specifications, abduction, aggravated

menacing and aggravated trespass charges. These offenses arose

from Defendant’s separate attacks on three women.
 2

{¶ 2} On August 28, 2009, a man robbed Shannon George and

slashed her arm and breast with a knife at the rear of a building

next to Denny’s on South Main Street in Dayton. The assailant

was a tall African-American male, wearing a green shirt, black

pants, black shoes, and a yellow hospital mask over his nose and

mouth. The knife had a short blade and a ring on the handle.

After the attack, George ran toward Main Street in the direction

of Miami Valley Hospital where she obtained help. On October 28,

2009, George identified Defendant Cundiff from a photospread as

her assailant.

{¶ 3} On September 29, 2009, at 11:00 p.m,, Lillian Klosterman

was on the front porch of her home at 844 Belmont Park North in

Dayton, when a man in black clothing suddenly ran up onto her porch.

When Klosterman moved toward her front door, so did the man.

The man began asking Klosterman questions about whether she lived

alone and how many people were inside the house. When Klosterman

placed her hand on the handle of her front door, the man placed

her in a choke hold and forcibly restrained her. Klosterman was

able to pull the front door open and call her husband’s name.

When Klosterman’s dog came out the front door, the man ran off.

Klosterman went inside, locked the doors and called police.

{¶ 4} On October 1, 2009, at 7:50 p.m., Mary Beth Bozarth and

Peggy Haywood, both nurses in the intensive care unit at Miami
 3

Valley Hospital in Dayton, left work and walked to their cars in

the parking lot on the corner of Apple Street and South Main Street.

As the two women neared the entrance to the parking lot, Bozarth

noticed a tall, thin African-American male wearing dark clothes,

a black hooded sweatshirt with the hood pulled up, and green latex

hospital gloves. The man followed the two women into the parking

lot and then pulled out a knife and stabbed Bozarth in the neck.

When Bozarth fell to the ground, the man stood over her demanding

her purse, which he took off of Bozarth’s arm. Meanwhile, Haywood

fled the parking lot and ran out into the street, screaming for

help. Haywood stopped a woman in a passing car who called police.

When Haywood saw that the man was looking at her, she yelled at

him that the police were on their way. The man then ran off down

Apple Street.

{¶ 5} After the man left, Haywood assisted Bozarth in getting

back inside the hospital. Bozarth remained in the hospital for

two days for treatment of a six inch deep stab wound to her neck.

Bozarth experienced neck pain, headaches and numbness in her arm,

and she took medication and received physical therapy for two

months. Bozarth is in need of plastic surgery for her injuries.

{¶ 6} Dayton police officers Theodore Trupp and Thomas Cope

searched an area called Tent City, in Veterans’ Park, at South

Patterson Boulevard and West Stewart Street, not far from the
 4

hospital where many homeless people lived, but found no one matching

the assailant’s description. One half hour later, Officers Trupp

and Cope observed a man who matched the description of Bozarth’s

assailant near the hospital on Fairground Avenue. The man, later

identified as Defendant Cundiff, fled when the officers approached,

but was apprehended behind 124 Fairground Avenue. When stopped

by Officer Trupp, Defendant took off a pair of green latex gloves

and threw them down. While being placed in a police cruiser,

Defendant stated: “Man, I didn’t rob anybody. I did not stab

anybody.” Officer Trupp had not mentioned a robbery or a stabbing.

{¶ 7} Officer Cope and Defendant recognized each other.

Later, when Defendant spoke with Officer Cope, he told him: “I

didn’t stab nobody, I didn’t hurt nobody. I didn’t rob nobody.”

Officer Cope had not mentioned a stabbing or a robbery. The

officers transported Defendant to Miami Valley Hospital where Peggy

Haywood viewed him via a two way mirror. She identified

Defendant’s general build and clothing as the same as the man who

had stabbed and robbed Bozarth.

{¶ 8} The day after the attack on Bozarth, Detective Gaier

found Bozarth’s purse and the knife used in the attack in the woods

between the county fairgrounds and South Patterson Boulevard.

That same day, Detectives Beane and Elzholz interviewed Defendant,

who admitted being at the parking lot where Bozarth was attacked
 5

and that he wore green latex gloves while there. He disputed his

identification as Bozarth’s assailant. Defendant indicated no

one would have been able to identify him because he would have

put his hood up and pulled it tight around his face.

{¶ 9} A week after the attack on Bozarth, Lillian Klosterman

spoke to her sister by phone. Klosterman’s sister told her police

had arrested someone, and it was in the news and on the internet.

When Klosterman looked at the story on the internet there was

a picture of Defendant. She immediately recognized Defendant as

her attacker. Klosterman called police to report that she had

seen the man who attacked her.

{¶ 10} On October 8, 2009, Detective Beane showed Shannon George

a photospread. She immediately identified Defendant as the man

who had robbed her and slashed her with a knife. On October 15,

2009, Detective Beane met with Lillian Klosterman and showed her

a photospread. She identified Defendant as the man who ran up

on her porch and put her in a choke hold.

{¶ 11} Defendant was initially indicted on two counts of

aggravated robbery, two counts of felonious assault, and tampering

with evidence with respect to his attack on Bozarth. One month

later, a subsequent indictment was issued which added repeat

violent offender specifications to the robbery and felonious

assault counts involving Bozarth. The second indictment also
 6

included two counts of aggravated robbery and two counts of

felonious assault for the attack on Shannon George, all with repeat

violent offender specifications, and abduction, aggravated

menacing, and aggravated trespass charges for the attack on Lillian

Klosterman.

{¶ 12} Defendant filed a motion to suppress his statements to

police and the pretrial identifications of him, which the trial

court overruled following a hearing. Defendant was found guilty

following a jury trial of all aggravated robbery and felonious

assault charges involving Bozarth and George, but not guilty of

tampering with evidence. The repeat violent offender

specifications and the charges involving Klosterman were tried

separately to the court. The trial court found Defendant guilty

of all of those specifications and charges. The court sentenced

Defendant to prison terms totaling thirty-eight years.

{¶ 13} Defendant timely appealed to this court.

FIRST ASSIGNMENT OF ERROR

{¶ 14} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING

TO GRANT A MISTRIAL WHEN THE STATE FAILED TO PROVIDE DEFENSE WITH

INFORMATION ‘MATERIAL TO THE PREPARATION OF A DEFENSE’ PER

MONTGOMERY COUNTY LOCAL RULE OF PROCEDURE 16(A).”

{¶ 15} Mary Beth Bozarth was shown a police photospread

containing Defendant’s photograph while she was hospitalized.
 7

Bozarth was unable to identify her assailant from the photospread.

A copy of a police report containing that information was provided

to Defendant in discovery pursuant to Mont.Loc.R. 3.03(D)(2)(d).

{¶ 16} Bozarth testified at trial and identified Defendant in

open court as her assailant. In cross-examination, Bozarth stated

that she may have seen a photo of Defendant prior to trial, perhaps

on television or in a newspaper, and that she had told police or

prosecutors that she could identify Defendant as her assailant.

Defendant moved for a mistrial for the State’s failure to reveal

that information in discovery.

{¶ 17} Detective Beane testified that she had shown Bozarth

a photospread only once, while Bozarth was hospitalized, and that

she could not identify Defendant from the photos she was shown.

Defendant then conditionally withdrew his motion for a mistrial,

if Bozarth “didn’t testify to that, that she had looked at a

photograph, then I withdraw my motion for mistrial. Does that

make any sense?” (T. 569).

{¶ 18} The trial court found that the State, in preparation

for trial, learned that Bozarth believed she could identify

Defendant, which she did in open court, and that Bozarth “did not

see the defendant until here in the courtroom or any pictures of

the defendant . . . under these circumstances there is nothing

that I have seen either in rule 16 or in the Montgomery County
 8

local court management plan that requires disclosure of information

of what a witness would say, unless it is a witness statement or

a written witness statement or police report.” (T. 570). The

court denied Defendant’s motion for a mistrial.

{¶ 19} The grant or denial of an order of mistrial lies within

the sound discretion of the trial court. State v. Glover (1988),

35 Ohio St.3d 18. Moreover, mistrials need be declared only when

the ends of justice so require and a fair trial is not longer

possible. State v. Franklin (1991), 62 Ohio St.3d 118.

{¶ 20} Defendant argues that he had assumed that Bozarth would

not identify him, based on the police report the State had provided

him, and was surprised at trial when she identified him.

Defendant’s contention, in relation to the motion for mistrial

he made, assumes a violation by the State of its duty to provide

discovery.

{¶ 21} The trial took place on May 27 and 28, 2010, prior to

the amendments to Crim.R. 16 that became effective on July 1, 2010.

Neither before nor after those amendments would either party have

a duty to reveal what its witness’s trial testimony will be. Mont.

Loc.R. 3.03(D)(2)(d)(i) requires the State to provide the accused

at arraignment an information packet containing copies of “[a]ll

police reports . . .” The State apparently did that. Unless Ms.

Bozarth made a separate “witness statement” that division (ii)
 9

of that local rule also requires the State to provide, no discovery

violation is demonstrated. There is no claim that Bozarth made

any such additional statement that had been reduced to writing.

A witness’s oral statements not reduced in some way to written

form are not within the coverage of the local rule.

{¶ 22} Lacking any demonstrated discovery violation, the trial

court did not abuse its discretion when it denied Defendant’s motion

for a mistrial. The first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 23} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ENTERING

FINDINGS OF GUILTY TO THE SUNDRY CHARGES OF FELONIOUS ASSAULT AND

AGGRAVATED ROBBERY WHEREIN MARY BETH BOZARTH WAS FOUND TO BE THE

VICTIM.”

{¶ 24} Defendant argues that with respect to his aggravated

robbery and felonious assault convictions where Bozarth was the

victim, those convictions are against the manifest weight of the

evidence because neither Bozarth nor the only other eyewitness

to the crime, Haywood, could identify Defendant, and there was

no blood on Defendant’s clothes or the knife used in the attack.

{¶ 25} A weight of the evidence argument challenges the

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App.
 10

No. 15563. The proper test to apply to that inquiry is the one

set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:

{¶ 26} “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the

evidence, the jury lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d

380, 1997-Ohio-52.

{¶ 27} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State

v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:

{¶ 28} “Because the factfinder . . . has the opportunity to

see and hear the witnesses, the cautious exercise of the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial deference be extended to the fact finder’s

determinations of credibility. The decision whether, and to what

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the fact finder, who has seen and heard

the witness.”

{¶ 29} This court will not substitute its judgment for that
 11

of the trier of facts on the issue of witness credibility unless

it is patently apparent that the trier of facts lost its way in

arriving at its verdict. State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

{¶ 30} The evidence presented by the State demonstrates that

after Defendant stabbed Bozarth and she fell to the ground, he

stood over her, looking at her. Bozarth testified that she

carefully studied Defendant because, if she lived, she wanted to

be able to describe him to police. She later did, accurately

describing Defendant as a dark-skinned black male, six feet tall,

thin, wearing a black hooded sweatshirt with the hood pulled up,

and green hospital gloves. Bozarth positively identified

Defendant at trial as her assailant. Furthermore, her

identification was not based upon seeing Defendant sitting at

counsel table. She testified: “I’m identifying him because I know

exactly what he looked like . . . He stood over me and stared.

And I looked at his clothes. I looked at everything about him.”

{¶ 31} Moreover, the record demonstrates why Bozarth was unable

to identify Defendant from the photospread while she was in the

hospital. Bozarth was taking Fentanyl, a powerful narcotic to

control pain which made her sleepy and affected her memory while

she was on that medication. Bozarth’s memory of what occurred

at the time Defendant stabbed and robbed her was unaffected,
 12

however.

{¶ 32} Peggy Haywood, the woman who was with Bozarth at the

time Defendant attacked her, could not identify Defendant because

she did not have the same opportunity to observe him that Bozarth

had. Haywood never saw Defendant’s face. When Haywood realized

that Defendant was behind her and Bozarth, she ran. Haywood only

observed Defendant from a distance, but she accurately described

his physical build and clothing, consistent with Bozarth’s

description.

{¶ 33} Although Bozarth’s blood was not found on Defendant’s

clothes or the knife he used to stab Bozarth, Mark Squibb of the

Miami Valley Regional Crime Lab testified that blood is not always

transferred from the victim to the attacker, especially if the

victim wore a lot of clothing that covered the wound. Bozarth

was wearing three layers of clothing, including a turtleneck that

was soaked in blood. Blood may not have remained on the knife

because Defendant abandoned it outdoors and it rained heavily that

night.

{¶ 34} Defendant’s weight of the evidence argument ignores the

fact that his convictions do not rest solely upon Bozarth’s

identification of him. Surveillance cameras captured someone

wearing the same dark clothing and green latex gloves as Defendant

following Bozarth and Haywood into the parking lot moments before
 13

Bozarth was stabbed and robbed. Police apprehended Defendant in

an area near Miami Valley Hospital one hour after the stabbing

wearing the same clothing and green gloves described by Haywood.

Defendant fled upon seeing the officers and jumped a six foot

privacy fence in an effort to escape. Defendant also made

statements to the officers implicating himself in the attack.

{¶ 35} The credibility of the witnesses and the weight to be

given to their testimony were matters for the trier of facts, the

jury, to decide. DeHass. The jury did not lose its way simply

because it chose to believe the State’s witnesses, which it had

a right to do. Id.

{¶ 36} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier

of facts lost its way in choosing to believe the State’s witnesses,

or that a manifest miscarriage of justice has occurred.

Defendant’s convictions are not against the manifest weight of

the evidence.

{¶ 37} Defendant’s second assignment of error is overruled.

THIRD ASSIGNMENT OF ERROR

{¶ 38} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FINDING

APPELLANT GUILTY OF ANY AND ALL OFFENSES AGAINST VICTIM, LILLIAN

KLOSTERMAN.”

{¶ 39} Defendant argues that his convictions for abduction,
 14

aggravated menacing and aggravated trespass, where Lillian

Klosterman was the victim, are against the manifest weight of the

evidence. Defendant contends that Klosterman’s pretrial

identification of him was unreliable because she saw Defendant’s

photograph in a news story on the internet before viewing the

photospread, and she later told Defendant Beane she was having

her doubts about her identification and wasn’t sure it was really

him.

{¶ 40} The evidence presented by the State demonstrates that

Klosterman had ample opportunity to observe Defendant as they

talked on Klosterman’s front porch. In talking to her sister about

this incident, Klosterman described Defendant’s dark skin,

wide-set eyes, and round face. Klosterman immediately recognized

and identified him from the photospread. Klosterman did see a

photograph of Defendant in a news story on the internet before

she viewed the photospread. That caused her to gasp and exclaim:

“My God, that’s him,” when she saw the photograph. Klosterman

explained at trial that her identification of Defendant from the

photospread was based upon recognizing him as the man who ran

up on her porch, and not seeing the photograph of him on the

internet.

{¶ 41} After Klosterman had identified Defendant from the

photospread, she called Detective Beane and said she wasn’t sure
 15

she wanted to testify, that she was having doubts about her

identification of Defendant and wasn’t sure. Klosterman explained

at trial however that what she said to Detective Beane about being

unsure of her identification wasn’t true, that she was simply having

second thoughts about being involved, and she was trying to get

out of it because she lost her confidence. It had nothing to do

with the validity of her identification of Defendant.

{¶ 42} The credibility of the witnesses and the weight to be

given to their testimony were matters for the trier of facts, the

trial court in this case, to decide. DeHass. The trial court

did not lose its way simply because it chose to believe Klosterman’s

testimony and identification, which it had a right to do. Id.

{¶ 43} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier

of facts lost its way in choosing to believe the State’s witnesses,

or that a manifest miscarriage of justice has occurred.

Defendant’s convictions are not against the manifest weight of

the evidence.

{¶ 44} Defendant’s third assignment of error is overruled.

FOURTH ASSIGNMENT OF ERROR

{¶ 45} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING

TO SUPPRESS DEFENDANT’S COMMENTS OBTAINED BY ILLEGAL POLICE

QUESTIONING.”
 16

{¶ 46} Defendant argues that the trial court erred when it

overruled his motion to suppress statements he made to the police

at the time police seized him because the police interrogated him

while he was in custody without first informing him of his rights

under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694.

{¶ 47} In State v. Retherford (1994), 93 Ohio App.3d 586, 592,

we noted:

{¶ 48} “In a motion to suppress, the trial court assumes the

role of the trier of fact, and, as such, is in the best position

to resolve questions of fact and evaluate the credibility of the

witnesses. State v. Clay (1972), 34 Ohio St.2d 250. Accordingly,

in our review, we are bound to accept the trial court’s findings

of fact if they are supported by competent, credible evidence.

Accepting those facts as true, we must independently determine

as a matter of law, without deference to the trial court’s

conclusion, whether they meet the applicable legal standard.”

{¶ 49} The facts found by the trial court relative to this issue

are as follows:

{¶ 50} “On October 1, 2009, Officer Theodore Trupp was a police

officer for the City of Dayton working with his partner Officer

Thomas Cope. They were patrolling in a marked police cruiser in

the vicinity of Miami Valley Hospital on a report of an Aggravated
 17

Robbery where the suspect had been described as a tall black male

wearing black clothing. The officers were proceeding through a

parking lot approaching Fairgrounds Avenue. Trupp was driving.

He observed the shadow of a subject smoking a cigarette standing

to his left. Trupp turned left onto Fairgrounds Avenue to approach

the subject and, when he did so, the subject ran and jumped over

a privacy fence into the yard at 122 Fairgrounds Avenue. Trupp

dropped off Cope and then Trupp proceeded to the next intersection,

turned left and then turned left again in the alley which proceeds

behind 122 Fairgrounds Avenue. He saw the subject jump over the

back privacy fence into the alley. It was the Defendant. The

Defendant fit the description of the robbery suspect.

{¶ 51} “Trupp ordered the Defendant to stop at gunpoint. The

Defendant ripped off a pair green rubber gloves that he had been

wearing. Trupp placed the Defendant in handcuffs for his safety

and Trupp specifically informed the Defendant that he was not under

arrest. The Defendant repeatedly asked Trupp ‘What did I do?’

Trupp asked the Defendant what was he doing in the alley and what

was he doing jumping the fence. The Defendant responded ‘I was

taking a shortcut.’ At sometime during the detention, Officer

Cope arrived. The Defendant recognized Cope and said to him ‘Cope

you know me, I’m Warlock.’ One of the officers asked the Defendant

why he was wearing gloves and the Defendant stated that his hands
 18

were cold. Cope specifically told the Defendant that he was not

going to jail. Cope told him this a couple of times. The Defendant

was not advised of his Miranda rights because the officers did

not believe the Defendant was under arrest. Nevertheless, the

officers acknowledged that the Defendant was not free to leave.

{¶ 52} “At the point that Officer Trupp asked the Defendant

to be seated in the police cruiser, with the handcuffs still

applied, the Defendant stated ‘I didn’t rob anybody, I didn’t stab

anybody.’ These statements were not made in response to any

questions from either officer. Trupp testified that he had not

said anything about a robbery before these statements were made

and that those statements were volunteered by the Defendant.

{¶ 53} “Eventually, the Defendant was taken to the Security

Office at Miami Valley Hospital where a witness was to observe

him through a two-way mirror. At some point it was learned that

the robbery suspect had been wearing green surgical gloves. At

the hospital, the officers were instructed to arrest the Defendant

for the robbery that was being investigated.”

{¶ 54} Defendant argues that at the time he told Officer Trupp,

“I didn’t rob anybody. I didn’t stab anybody,” he was in custody

and being questioned by police, and therefore was entitled to

Miranda warnings which police failed to give him. The trial court

concluded that at that time Defendant was not being subjected to
 19

custodial interrogation and therefore Miranda warnings were not

required. We agree.

{¶ 55} In State v. Hatten, 186 Oho App.3d 286, 2010-Ohio-499,

at ¶49-50, we wrote:

{¶ 56} “Police are not required to give warnings pursuant to

Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694, to every person they question, even if the person being

questioned is a suspect. State v. Biros (1997), 78 Ohio St.3d 426,

440, 678 N.E.2d 891. Instead, Miranda warnings are required only

for custodial interrogations. Id. ‘The determination of whether

a custodial interrogation has occurred requires an inquiry into

“how a reasonable man in the suspect's position would have

understood his situation.” [Berkemer v. McCarty (1984), 468 U.S.

420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317.] “ ‘[T]he ultimate inquiry

is simply whether there is a “formal arrest or restraint on freedom

of movement” of the degree associated with formal arrest.’ ” ’

Estepp, 1997 WL 736501, *4, quoting Biros, 78 Ohio St.3d at 440,

678 N.E.2d 891, in turn quoting California v. Beheler (1983), 463

U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275.

{¶ 57} “In reaching this determination, neither the subjective

intent of the officer, nor the subjective belief of the defendant

is relevant. Estepp, 1997 WL 736501, *4, citing State v. Hopfer

(1996), 112 Ohio App.3d 521, 546, 679 N.E.2d 321, discretionary
 20

appeal not allowed, 77 Ohio St.3d 1488, 673 N.E.2d 146. Instead,

we have considered factors such as the location of the interview

and the defendant's reason for being there, whether the defendant

was a suspect, whether the defendant was handcuffed or told he

was under arrest or whether his freedom to leave was restricted

in any other way, whether there were threats or intimidation,

whether the police verbally dominated the interrogation or tricked

or coerced the confession, and the presence of neutral parties.

Estepp at *4.”

{¶ 58} In State v. Keggan, Greene App. No. 2006CA9,

2006-Ohio-6663, at ¶30-31, we observed:

{¶ 59} “Not all seizures rise to the level of a formal arrest.

Under Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889, police officers may briefly stop and/or temporarily detain

individuals in order to investigate possible criminal activity

if the officers have a reasonable, articulable suspicion that

criminal activity has occurred or is about to occur. State v..

Martin, Montgomery App. No. 20270, 2004-Ohio-2738, at ¶ 10, citing

Terry, supra; State v. Molette, Montgomery App. No. 19694,

2003-Ohio-5965, at ¶ 10. This investigatory detention, or ‘Terry

stop’, is more intrusive than a consensual encounter, but less

intrusive than a formal custodial arrest. An investigatory

detention is limited in duration and purpose and can only last
 21

as long as it takes a police officer to confirm or to dispel his

suspicions. Terry, supra. An individual is subject to an

investigatory detention when, in view of all the circumstances

surrounding the incident, by means of physical force or show of

authority, a reasonable person would have believed that he was

not free to leave or is compelled to respond to questions. United

States v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870,

64 L.Ed.2d 497; Terry, 392 U.S. at 16, 19. The test for determining

if a seizure is an arrest rather than a Terry-type detention is

if a reasonable person in the suspect's position would have

understood the situation to constitute a restraint on freedom of

movement of the degree which the law associates with formal arrest.

Yarborough v. Alvarado (2004), 541 U.S. 652, 124 S.Ct. 2140, 158

L.Ed.2d 938; State v. Castro (Sept. 20, 1995), Montgomery App.

No. 14398.

{¶ 60} “In a typical investigatory detention, such as a routine

traffic stop, individuals are not ‘in custody’ for purposes of

Miranda. Berkemer v. McCarty (1984), 468 U.S. 420, 440, 104 S.Ct.

3138, 82 L.Ed.2d 317; State v. Martin, Montgomery App. No. 19186,

2002-Ohio-2621; State v. Healy (Aug. 4, 2000), Montgomery App.

No. 18232. However, if the individual is, during the course of

the detention, ‘subjected to treatment that renders him “in

custody” for practical purposes, he will be entitled to the full
 22

panoply of protections prescribed by Miranda.’ Berkemer, 368 U

.S. at 440; State v. Salyer (Apr. 10, 1998), Miami App. No.

97-CA-39.”

{¶ 61} In Keggan, we concluded that the defendant’s detention

was not custodial and that he was merely subject to investigatory

detention, and therefore Miranda warnings were not required, where

police stopped his vehicle, ordered him out, patted him down for

weapons, told him he was not under arrest but was being placed

in a police cruiser for safety reasons while they investigated,

and was subsequently handcuffed while he accompanied police inside

a home to look for a weapon. Although Keggan had been seized and

clearly was not free to leave during the investigatory detention,

his freedom of action was not restrained to a degree associated

with a formal arrest. Id., at ¶33-41.

{¶ 62} Here, Officers Trupp and Cope were investigating a

stabbing and robbery of a woman at Miami Valley Hospital when they

saw Defendant, who matched the suspect’s general description in

the area near where the attack had just occurred. As the officers

approached, Defendant fled but was quickly apprehended. Police

had sufficient, reasonable suspicion to initiate an investigatory

stop of Defendant to determine whether he was the person who

committed the stabbing and robbery. Terry v. Ohio (1968), 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Upon apprehending
 23

Defendant, the officers patted him down for weapons. That action

was reasonable and lawful as the officers had reasonable grounds

to believe Defendant might be armed and dangerous, based upon the

fact that the suspect in the stabbing and robbery was armed with

a knife. Id; State v. Jordan, Clark App. No. 05CA4,

2006-Ohio-1813. Although Defendant was handcuffed and placed in

a police cruiser while police investigated, he was explicitly told

by the officers that this was being done for safety reasons, that

he was not under arrest, and he was not going to jail. Defendant

was not arrested until when police transported him to Miami Valley

Hospital and Peggy Haywood had identified his physical build and

clothing as being the same as the man who stabbed and robbed Bozarth.

{¶ 63} Although Defendant was clearly not free to leave and

was subject to investigatory detention, those facts and

circumstances do not demonstrate that Defendant’s freedom of action

was restrained to a degree associated with a formal arrest when

police first seized him. We agree with the trial court that

Defendant was not in custody for Miranda purposes at that time,

and was not entitled to Miranda warnings.

{¶ 64} In any event, this record demonstrates that Defendant’s

statements to Officers Trupp and Cope that he didn’t stab anybody

and didn’t rob anybody were not made in response to any questioning

or interrogation by the officers, but rather were “volunteered”
 24

statements that are admissible. State v. Johnson, Montgomery App.

No. 20624, 2005-Ohio-1367, at ¶25.

{¶ 65} Defendant’s fourth assignment of error is overruled.

The judgment of the trial court will be Affirmed.

DONOVAN, J. And FROELICH, J., concur.

Copies mailed to:

Kirsten A. Brandt, Esq.
J. Allen Wilmes, Esq.
Hon. Dennis J. Adkins