[Cite as State v. Jones, 2014-Ohio-1716.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13 COA 012
ELMER JONES, III
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 12 CRI 045
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 21, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS MELISSA M. PRENDERGAST
PROSECUTING ATTORNEY ASSISTANT STATE PUBLIC
PAUL T. LANGE DEFENDER
ASSISTANT PROSECUTOR 250 East Broad Street
110 Cottage Street, Third Floor Suite 1400
Ashland, Ohio 44805 Columbus, Ohio 43215
Ashland County, Case No. 13 COA 012 2
Wise, J.
{¶1} Appellant Elmer Jones, III appeals the decision of the Ashland Court of
Common Pleas denying his motion to suppress.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} In March, 2012, Officer Kim Mager, a child abuse investigator, began
investigating an allegation that a young boy, identified in this case as John Doe, was
sexually molested by Elmer Joseph Jones, the Appellant. (Supp. T. at 8).
{¶4} On March 28, 2012, Officer Mager went to Appellant's home to retrieve
some evidence in an unrelated case. (Id. at 11-12). At the start of this encounter, Officer
Mager told Appellant he was not under arrest, that he did not have to talk to her, and
that he could tell her to leave at any time. (Id. at 11). While Officer Mager and Appellant
discussed another individual accused of molesting children, Appellant asked Officer
Mager questions regarding the potential punishment for this other individual and the
investigative process. (Id. at 13-14).
{¶5} During this encounter, Officer Mager also told Appellant that the sexual
things that happened between him and John Doe and John Doe's siblings should not
have happened. (Id. at 15). Appellant responded: "I know, Kim, and I can tell you it's not
happening now, because I am staying away from them." Id.
{¶6} At the conclusion of this twenty-one minute encounter on March 28, 2012,
Appellant himself ended the encounter by telling Officer Mager that he had to leave. (Id.
at 18-19). Appellant told Officer Mager that if she wanted to speak with him again she
could come and talk to him at the Kroc Center where he was a volunteer. (Id. at 19).
Ashland County, Case No. 13 COA 12 3
{¶7} On April 24, 2012, Officer Mager went to the Kroc Center and met with
Appellant. (Id. at 20). She was dressed in plain clothes and used an unmarked law
enforcement vehicle. (Id. at 23). The Kroc Center is a community center located in
Ashland, Ohio. Officer Mager knew Appellant prior to this investigation and it was not
uncommon for her to stop by the Kroc Center. (Id. at 21-22).
{¶8} When Officer Mager first encountered Appellant at the Kroc Center, the
two briefly engaged in a casual conversation in a common area. (Id. at 21). Officer
Mager then asked Appellant if he would be comfortable talking to her in her car, which
was parked in close proximity to the Kroc Center, or if there was somewhere else he
would prefer. Id. Appellant said her car was fine. Id.
{¶9} During this interview, Officer Mager was seated in the driver's seat and
Appellant was seated in the front passenger seat. (Id. at 24). The doors to the vehicle
were unlocked. Id. Officer Mager advised Appellant that he was not under arrest, that he
did not have to talk to her, and that he could walk away at any time. (Id. at 26).
{¶10} Appellant replied that he believed Officer Mager and that if she was going
to arrest him, she would have done so inside of the Kroc Center. Id. Appellant further
stated that if he were under arrest, Officer Mager would have handcuffed him. Id.
{¶11} During her testimony at the suppression hearing, Officer Mager noted that
at one point in time towards the end of this interview, Appellant opened the car door and
went back to the building to smoke a cigarette. (Id. at 24-25).
{¶12} The interview at the Kroc Center lasted approximately one hour and
sixteen minutes. (Id. at 28). Officer Mager stated that Appellant made his first
incriminating statement within the first sixteen or seventeen minutes. (Id. at 29).
Ashland County, Case No. 13 COA 12 4
{¶13} Officer Mager testified that, in her experience, it is not uncommon for a
suspect to initially deny the allegations. (Id. at 30). In an attempt to obtain further
information, Officer Mager repeatedly asked Appellant to be honest with her. Id.
Appellant admitted to engaging in oral sex on two separate occasions with the young
child identified as John Doe. Appellant also acknowledged to Officer Mager that he had
the victim perform oral sex on him. (Id. at 17).
{¶14} Officer Mager did not arrest Appellant at the end of this interview at the
Kroc Center, allowing him to return to work. (Id. at.32). The decision to arrest Appellant
was made by Lieutenant Icenhour because of concerns that Appellant would be around
children, and law enforcement was not certain they would be able to locate Appellant in
the future. (Id. at 36-37).
{¶15} Following the arrest, Appellant was taken to the Ashland County Jail
where he was interviewed for a second time by Officer Mager. (Id. at 37-38). At the start
of the interview at the jail, Officer Mager advised Appellant of the Miranda warnings. (Id.
at 38). Initially, Appellant retracted his prior admissions, but ultimately he confessed to
engaging in anal sex and oral sex with the young victim. (Id. at 11).
{¶16} The total time for both interviews was less than two hours. (Supp.T. at 47-
48).
{¶17} On April 27, 2012, the Ashland County Grand Jury indicted Appellant on
three counts of rape, all felonies of the first degree, and one count of Gross Sexual
Imposition, a third degree felony.
{¶18} On July 20, 2012, Appellant filed a motion to suppress.
Ashland County, Case No. 13 COA 12 5
{¶19} On September 5, 2012, following a hearing on Appellant’s suppression
motion, the trial court denied Appellant’s motion.
{¶20} In October, 2012, a jury trial commenced in this matter.
{¶21} On October 24, 2012, the jury found Appellant guilty of all three rape
charges and the charge of gross sexual imposition.
{¶22} On January 16, 2013, the trial court sentenced Appellant to an aggregate
prison term of thirty (30) years to life.
{¶23} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶24} “I. THE TRIAL COURT ERRED WHEN IT DENIED MR. JONES'
MOTION TO SUPPRESS. MR. JONES' STATEMENTS WERE OBTAINED
THROUGH THE USE OF A COERCIVE SUCCESSIVE INTERROGATION
TECHNIQUE, AND THE MID-INTERROGATION MIRANDA WARNINGS WERE
INEFFECTIVE. MR. JONES' PRE- AND POST-MIRANDA STATEMENTS
SHOULD HAVE BEEN SUPPRESSED. FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTION 10,
ARTICLE I OF THE OHIO CONSTITUTION.
{¶25} “II. MR. JONES WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF
TRIAL COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION.”
Ashland County, Case No. 13 COA 12 6
I.
{¶26} In his First Assignment of Error, Appellant argues that the trial court erred
in denying his motion to suppress. We disagree.
{¶27} Appellate review of a trial court's decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328,
713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of
fact and, as such, is in the best position to resolve questions of fact and to evaluate
witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A
reviewing court is bound to accept the trial court's findings of fact if they are supported
by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d 142, 675
N.E.2d 1268. Accepting these facts as true, the appellate court must independently
determine as a matter of law, without deference to the trial court's conclusion, whether
the trial court's decision meets the applicable legal standard. State v. Williams (1993),
86 Ohio App.3d 37, 619 N.E.2d 1141.
{¶28} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141
(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th
Dist.1993). Second, an appellant may argue the trial court failed to apply the
appropriate test or correct law to the findings of fact. In that case, an appellate court can
reverse the trial court for committing an error of law. State v. Williams, 86 Ohio App.3d
Ashland County, Case No. 13 COA 12 7
37, 619 N.E.2d 1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact
are not against the manifest weight of the evidence and it has properly identified the law
to be applied, an appellant may argue the trial court has incorrectly decided the ultimate
or final issue raised in the motion to suppress. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as
a general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.”
{¶29} In the instant case, Appellant argues the trial court erred in not finding that
the interview at the Kroc Center was a custodial interrogation and that the Miranda
warnings were ineffective, having been read after Appellant’s confession.
{¶30} Initially, we note that police are not required to give Miranda warnings to
everyone they question, even when that questioning takes place in a police station, and
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 only required for custodial
interrogations. Id. “The ultimate inquiry is simply whether there is a formal arrest or
restraint on freedom of movement of the degree associated with formal arrest.” Id. An
interrogation is noncustodial if a reasonable person in the suspect’s position would
believe that he or she was free to leave. State v. Gumm, 73 Ohio St.3d 413 (1995),
quoting United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980). In making
such a determination, courts have considered the following factors:
{¶31} “(1) What was the location where the questioning took place-i.e., was the
defendant comfortable and in a place a person would normally feel free to leave? * * *;
Ashland County, Case No. 13 COA 12 8
{¶32} “(2) Was the defendant a suspect at the time the interview began (bearing
in mind that Miranda warnings are not required simply because the investigation has
focused);
{¶33} “(3) Was the defendant's freedom to leave restricted in any way;
{¶34} “(4) Was the defendant handcuffed or told he was under arrest;
{¶35} “(5) Were threats made during the interrogation;
{¶36} “(6) Was the defendant physically intimidated during the interrogation;
{¶37} “(7) Did the police verbally dominate the interrogation;
{¶38} “(8) What was the defendant's purpose for being at the place where the
questioning took place? * * *;
{¶39} “(9) Were neutral parties present at any point during the questioning;
{¶40} “(10) Did police take any action to overpower, trick, or coerce the
defendant into making a statement.” State v. Estepp (Nov. 26, 1997), Montgomery App.
No. 16279, citations omitted.
{¶41} Upon review, we find that the only factors in this list that weigh in favor of
suppression are that Appellant was a suspect and that no neutral parties were present
during the interview. However, those two factors alone are not enough to classify the
interview as custodial. See, e.g., Biros, supra, at 440-41, 678 N.E.2d 891. See, also,
State v. Reeves, Greene App. No. 2002-CA-4810, 2002-Ohio-4810; State v. Abner,
Montgomery App. No. 20661, 2006-Ohio-4510. The remaining factors weigh in favor of
a finding that the confessions in this case were knowingly, intelligently, and voluntarily
given.
Ashland County, Case No. 13 COA 12 9
{¶42} Contrary to Appellant's claims, we do not find that Officer Mager created a
situation in which Appellant felt that he was not free to leave. Appellant willingly agreed
to speak with Officer Mager and had previously invited her to come to the Kroc Center
and speak with him. Appellant willingly accompanied her to her vehicle, which was an
unmarked car. Officer Mager was in plain clothes. Appellant was not handcuffed or
otherwise restrained and was advised that he was not under arrest and was free to
leave at any time. Appellant did, in fact, eventually leave Officer Mager’s vehicle and
return to work.
{¶43} For these reasons, we conclude that a reasonable person in Appellant's
position would have understood he was not in custody. Therefore, Miranda warnings
were not necessary, and his statements made during this interview were admissible.
{¶44} Additionally, we find that the statements made by Appellant in the second
April 24, 2012, interview were also admissible.
{¶45} Appellant relies on Missouri v. Seibert (2004), 542 U.S. 600, 124 S.Ct.
2601, 159, 159 L.Ed.2d 643 L.Ed.3d 643, in arguing that his second confession was not
admissible because it was tainted by the un-Mirandized first confession. However, we
find this case is distinguishable from Seibert. Seibert challenged a police practice of not
advising a suspect who is being interrogated of his Miranda rights, until after a
confession is made and then promptly Mirandizing the suspect and questioning him
again. The expectation is that the suspect will repeat his confession, and that this
second confession, having been preceded by a recitation of the suspect's Miranda
rights, will be admissible.
Ashland County, Case No. 13 COA 12 10
{¶46} As set forth above, Appellant was not in custody when he made his initial
confession at the Kroc Center interview, and therefore, Miranda warnings were not
necessary. More importantly, he returned to work following the interview rather than
immediately being Mirandized and questioned a second time. Appellant's second
confession came after Appellant was arrested, transported to the Ashland County Jail
and interviewed a second time, not just minutes later as in Seibert.
{¶47} In this second interview, Appellant admitted to engaging in additional
sexual acts with the victim in this case. During the Kroc Center interview, Appellant
repeatedly denied engaging in anal sex with the victim, however confessed to same
during the interview at the jail.
{¶48} Again, because Officer Mager was not obliged to read Appellant his
Miranda warnings prior to the first confession, the absence of such warnings does not
affect the voluntariness of the second confession.
{¶49} Based on the facts as presented in this case, we find that trial court did not
err in denying Appellant's motion to suppress.
{¶50} Based on the foregoing, we find Appellant’s First Assignment of Error not
well-taken and overrule same.
II.
{¶51} In his Second Assignment of Error, Appellant argues that he was denied
the effective assistance of counsel. We disagree.
{¶52} Appellant insists that his counsel was ineffective for failing to cite Missouri
v. Seibert, supra, in support of his motion to suppress.
Ashland County, Case No. 13 COA 12 11
{¶53} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to Appellant. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989). The second prong is whether Appellant was prejudiced by counsel's
ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). “The benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Id.
{¶54} Based on our disposition of Appellant’s First Assignment of Error, we do
not find that counsel was ineffective for failing to cite Missouri v. Seibert in support of
the motion to dismiss in this case. We further find that even if such was error, Appellant
was not prejudiced by same.
{¶55} Appellant’s Second Assignment of Error is overruled.
{¶56} For the foregoing reasons, the judgment of the Court of Common Pleas of
Ashland County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/d 040
Ashland County, Case No. 13 COA 012 12