[Cite as State v. Gomez, 2017-Ohio-8681.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2017-03-035
Plaintiff-Appellee, :
OPINION
: 11/27/2017
- vs -
:
MIGUEL LESTER GOMEZ, :
Defendant-Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2016-06-0792
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant-
appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Miguel Lester Gomez, appeals from the decision of the
Butler County Court of Common Pleas denying his motion to suppress. Gomez was
sentenced to serve eight years in prison after a jury found him guilty of one count of
endangering children. For the reasons outlined below, we affirm.
{¶ 2} Gomez, who is originally from Guatemala, came to the United States when
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he was approximately 19 years old. Gomez is now 30 years old, having lived and worked
in the United States for over a decade. Being from Guatemala, Gomez's native language
is Kaqchikel, a language that was also referred to during the proceedings as K'iche' or
Qatzijob'al. Kaqchikel is a Mayan language spoken by the indigenous Kaqchikel people of
central Guatemala.
{¶ 3} On July 6, 2016, the Butler County Grand Jury returned an indictment
charging Gomez with one count of endangering children in violation of R.C. 2919.22(B)(1),
a second-degree felony. The charge arose after Gomez admitted to Detectives Mark
Henson and Mark Nichols of the Hamilton Police Department to violently shaking his infant
daughter causing her to suffer multiple skull fractures, bleeding and swelling of the brain,
as well as several fractured ribs. Gomez's confession occurred during an interview the
detectives had with Gomez during the early morning hours of May 30, 2016. It is undisputed
that the detectives' questioning of Gomez and Gomez's subsequent confession were video
recorded. It is also undisputed that prior to this incident, Gomez had been in a four-year
relationship with the child's biological mother, S.O., during which Gomez communicated
with S.O. almost exclusively in Spanish. This communication included Gomez writing
letters and text messages to S.O. in Spanish.
{¶ 4} On October 19, 2016, Gomez filed a motion to suppress the video recorded
confession he made to the detectives. In support of this motion, Gomez alleged he was
subject to a custodial interrogation by Detectives Henson and Nichols, during which he did
not knowingly, intelligently, and voluntarily waive his Miranda rights. On November 8, 2016,
the trial court held a hearing on Gomez's motion to suppress, wherein the trial court heard
testimony from Detective Henson, S.O., and the English-to-Spanish interpreter provided to
Gomez during the detectives' questioning.
{¶ 5} At the hearing, Detective Henson testified that he was called to the station
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during the early morning hours of May 30, 2016 on reports that a child had suffered
significant injuries and had to be airlifted from Cincinnati Children's Liberty Campus located
in Liberty Township to one of Cincinnati Children's downtown Cincinnati campuses. After
arriving at the station, Detective Henson met with Detective Nichols and another officer who
informed him that "the parents [S.O. and Gomez] were willing to come into headquarters to
talk with us. So the parents drove themselves into headquarters."
{¶ 6} Continuing, Detective Henson testified that once S.O. and Gomez arrived at
the station on their own volition, he and Detective Nichols spoke with S.O. first, followed by
S.O.'s two other children, ages seven and eight, respectively. After these interviews were
complete, Detectives Henson and Nichols spoke with Gomez with the assistance of an
English-to-Spanish interpreter. This interview began at approximately 2:30 a.m. Prior to
speaking with Gomez, the video recording indicates Detective Henson informed Gomez of
the following:
You are not under arrest. You are not in custody. I appreciate
that you have come here on your own. But you are in a building
that is locked. And because of that I want to make sure that you
understand that you can leave any time you want.
Detective Henson also testified that he told Gomez he "was free to leave at any time." The
video recording of the interview corroborates Detective Henson's testimony. Gomez was
then provided with a Miranda waiver card written in Spanish that Gomez signed after the
interpreter read it to him in Spanish.
{¶ 7} After signing the Miranda waiver card, and upon confirming with Gomez that
he understood his rights, Detectives Henson and Nichols questioned Gomez about the
cause of his daughter's injuries, questioning that eventually led to Gomez confessing to
violently shaking his infant daughter for approximately one minute after he became
frustrated that the child would not stop crying. Gomez then twice demonstrated on a doll
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how he shook his daughter, once with the interpreter present in the room and once without,
causing the doll's head to forcefully swing back and forth. In attempting to explain his
actions, Gomez told the detectives, "I was angry – my head – I lost my head." According
to Detective Henson, when possible, Gomez responded to his questions in English and that
those responses were appropriate to the questions asked.
{¶ 8} Following Detective Henson's testimony, S.O. testified she took her injured
daughter, as well as Gomez and her two other children, to the Cincinnati Children's Liberty
Campus during the late evening hours of May 29, 2016. Once there, S.O. testified she met
with a police officer who asked her if she, Gomez, and her other two children would be
willing to go to the Hamilton Police Department to answer a few questions about how her
daughter was injured. Concerned about leaving her car behind at the hospital, S.O. testified
that she drove to the station with Gomez and her two children while "one of the officers
followed us." S.O. then testified that neither she nor Gomez were ever told that they were
under arrest, only that they "were just going for questions."
{¶ 9} Finally, the English-to-Spanish interpreter testified. The interpreter, a certified
interpreter with the Ohio Supreme Court, testified that she was asked by the Hamilton Police
Department to assist Detectives Henson and Nichols in interviewing Gomez during the early
morning hours of May 30, 2016. As part of these duties, the interpreter testified that she
read the Miranda waiver card (written in Spanish) to Gomez in Spanish. The interpreter
was then asked to translate the Miranda waiver card (written in Spanish) into English for
the trial court, which she did and testified as follows:
It says, "I," and then the Defendant wrote his name, "have been
informed of my rights as they are written in this card and I wish
to answer the questions without the presence of a lawyer."
Date, May 30th, 2016. Time 2:34 a.m. Witness and a signature.
Warning.
"I am a police officer. I am informing you that you have the right
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to keep silence [sic]. Everything that you say can and it will be
used against you in a court of law. You have the right to consult
with a lawyer before and during any questioning, and to have a
lawyer present while you're being questioned.
"If you cannot afford to pay for a lawyer, one will be assigned
without a cost to you before we proceed with any interrogation.
During the interrogation, you can stop answering my questions,
or the questions of any other officer, police officer, when you
wish to do so.
"Did you understand the rights as I have read them to you? After
knowing your rights, do you wish to continue with me without the
presence of a lawyer? * * * "
{¶ 10} The interpreter was then asked if she recalled reading that specifically to
Gomez, to which the interpreter responded "Yes, I do." The interpreter also specifically
testified that she asked Gomez if he understood Spanish, to which he responded "yes."
The record indicates that Gomez never complained that he could not understand the
interpreter. In fact, just as Detective Henson had testified previously, the record indicates
Gomez would oftentimes answer the detectives' questions in English before the interpreter
had finished her Spanish translation.
{¶ 11} In addition to the testimony from Detective Henson, S.O., and the interpreter,
as part of the evidence introduced by the state at the suppression hearing, the trial court
viewed the video recording of the May 30 interview of Gomez by Detectives Henson and
Nichols. The testimony elicited from Detective Henson and the interpreter present during
this interview is confirmed by the video recording, which this court has also viewed in its
entirety.
{¶ 12} After both parties rested, the trial court issued its decision from the bench
denying Gomez's motion to suppress. In so holding, the trial court initially noted that Gomez
had executed a written waiver of his Miranda rights, which created a strong presumption
that his waiver was valid. The trial court then stated:
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The Court has heard testimony today about the Defendant's
ability to understand the Miranda rights as read to him. The
Court notes that the Miranda rights were read to the Defendant
in Spanish. And while the Defendant, there was testimony that
the Defendant's first language is not Spanish or English, there
was ample testimony that he speaks the Spanish language and
some of the English language.
The trial court further stated:
The Court notes that at no time during the interview that was
conducted in Spanish and English did the Defendant indicate
that he could not understand either the interpreter or the law
enforcement officers. In fact, to the contrary, the Defendant
would, when asked a question by the police officer, not hesitate
to correct or clarify his answer even when it was contrary to the
officer's question.
The Court finds that the Defendant offered relevant and
appropriate responses to the questions that were asked of him,
and the Court knows that there were times when the Defendant
answered in English the English question that was posed to him.
And the Court also recollects the testimony of [the interpreter]
where she indicated that sometimes the Defendant would
answer in English before she had finished interpreting in
Spanish.
The Court finds that the interpreter took great lengths to make
sure that the Defendant was able to understand what she was
advising him. She stopped the interview to make sure that he
understood what she [was] asking, and [the interpreter]
indicated that when she could not understand the Defendant, it
could be because of his accent, or because he was mumbling.
Concluding, the trial court again noted that the interpreter "directly asked the Defendant if
he understood her Spanish, and he said yes" and that "the Defendant affirmatively waived
his Miranda rights in writing after they were read to him in Spanish."
{¶ 13} After denying Gomez's motion to suppress, the matter proceeded to a three-
day jury trial that ultimately concluded on January 11, 2017. Following deliberations, the
jury returned a verdict finding Gomez guilty as charged. Thereafter, on March 8, 2017, the
trial court sentenced Gomez to serve eight years in prison and imposed a mandatory period
of three years of postrelease control.
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{¶ 14} Gomez now appeals from the trial court's decision denying his motion to
suppress, raising a single assignment of error for review.
{¶ 15} THE TRIAL COURT ERRED IN OVERRULING MR. GOMEZ'S MOTION TO
SUPPRESS HIS STATEMENTS TO DETECTIVES WITH THE HAMILTON POLICE
DEPARTMENT.
{¶ 16} In his single assignment of error, Gomez argues the trial court erred by
denying his motion to suppress. We disagree.
Standard of Review
{¶ 17} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-
4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When
considering a motion to suppress, the trial court, as the trier of fact, is in the best position
to weigh the evidence in order to resolve factual questions and evaluate witness credibility.
State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. In turn, this
court is bound to accept the trial court's findings of fact if they are supported by competent,
credible evidence. State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447,
¶ 10. "'Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts satisfy
the applicable legal standard.'" State v. Runyon, 12th Dist. Clermont No. CA2010-05-032,
2011-Ohio-263, ¶ 12, quoting Burnside.
Custodial Interrogation
{¶ 18} Gomez initially argues that he was subject to custodial interrogation, thereby
requiring the waiver of his Miranda rights to be knowingly, intelligently, and voluntarily made.
It is well-established that the "'prosecution may not use statements, whether exculpatory or
inculpatory, stemming from a custodial interrogation unless it demonstrates the use of
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procedural safeguards effective to secure the privilege against self-incrimination.'" State v.
Huysman, 12th Dist. Warren No. CA2005-09-107, 2006-Ohio-2245, ¶ 13, quoting Miranda
v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). As a result, this necessarily begs the
question of whether Gomez was, in fact, subject to a custodial interrogation. That is
because "the duty to advise a suspect of constitutional rights pursuant to Miranda is only
required when the police subject a person to custodial interrogation." State v. Byrne, 12th
Dist. Butler Nos. CA2007-11-268 and CA2007-11-269, 2008-Ohio-4311, ¶ 10, citing State
v. Biros, 78 Ohio St.3d 426, 440 (1997).
{¶ 19} "Miranda defines custodial interrogation as any 'questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.'" State v. Vansickle, 12th Dist. Fayette No.
CA2013-03-005, 2014-Ohio-1324, ¶ 54, quoting State v. Matthews, 12th Dist. Butler No.
CA2012-09-175, 2013-Ohio-3482, ¶ 10. "Encompassed in this definition are two distinct
concepts: custody and interrogation." State v. Staley, 12th Dist. Madison No. CA99-08-
019, 2000 Ohio App. LEXIS 1939, *8 (May 8, 2000). In this case, however, it is undisputed
that Gomez was questioned by police regarding the significant injuries to his infant
daughter, thereby subjecting him to an interrogation by the police. See State v. Knuckles,
65 Ohio St.3d 494 (1992), paragraph two of the syllabus ("when a statement, question or
remark by a police officer is reasonably likely to elicit an incriminating response from a
suspect, it is an interrogation"). The relevant issue, therefore, is whether Gomez was in
custody at the time he was interrogated by the police.
{¶ 20} In determining whether an individual was in custody during an interrogation
by the police, the court must examine the totality of the circumstances surrounding the
interrogation. State v. Robinson, 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶
12. As this court has stated previously, a person is in custody if he is formally placed under
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arrest prior to a police interrogation, or, if not formally arrested, when there is a significant
restraint on his freedom of movement. State v. Smith, 12th Dist. Fayette No. CA2006-08-
030, 2009-Ohio-197, ¶ 11. This determination "depends on the objective circumstances of
the interrogation, not on the subjective views harbored by either the interrogating officers or
the person being questioned." State v. Henry, 12th Dist. Preble No. CA2008-04-006, 2009-
Ohio-434, ¶ 13. Therefore, "[i]n judging whether an individual has been placed into custody
the test is whether, under the totality of the circumstances, a 'reasonable person would have
believed that he was not free to leave.'" State v. Gumm, 73 Ohio St.3d 413, 429 (1995),
quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870 (1980).
{¶ 21} Gomez claims he was subject to a custodial interrogation by the police since
he was "escorted" to the police station by a police cruiser for questioning, where, upon his
arrival with S.O. and her two children, he was immediately separated from S.O. and placed
in a "small locked room for approximately an hour before his interrogation started."
However, while this may very well be true, Gomez conveniently ignores the fact that he
went to the station for questioning voluntarily and that Detective Henson specifically told
him prior to the start of the interview that he was not under arrest, that he was not in custody,
and that he could leave at any time he wanted. The record makes it clear that Gomez never
once asked to leave the interview in question after arriving at the police station voluntarily.
{¶ 22} "[A] person is not in custody merely because he is questioned at the police
station or because he is considered a suspect." State v. Smith, 12th Dist. Fayette No.
CA2006-08-030, 2009-Ohio-197, ¶ 12. In fact, "[e]ven a clear statement from an officer that
the person under interrogation is a prime suspect, is not, in itself, dispositive of the custody
issue, for some suspects are free to come and go until the police decide to make an arrest."
Huysman, 2006-Ohio-2245 at ¶ 16, quoting Stansbury v. California, 511 U.S. 318, 324, 114
S.Ct. 1526 (1994). Moreover, the fact that a police cruiser followed S.O.'s car as she drove
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to the police station is of little significance considering it is well-established that a person is
not in custody even where "they are transported to the police station by a police officer."
Smith, 2009-Ohio-197 at ¶ 12, citing State v. Warren, 2d Dist. Montgomery No. 15202, 1996
Ohio App. LEXIS 4648 (Jan. 20, 2009). This is especially true when the person being
questioned is free to leave at any time, as was Gomez. Therefore, although Gomez was
advised of his Miranda rights, because Gomez was not subject to a custodial interrogation
by Detectives Henson and Nichols, neither Miranda warnings nor a waiver of those rights
were required for Gomez's confession to be admissible. Again, "Miranda warnings are not
required simply because questioning takes place in a courthouse or police station." State
v. Tate, 7th Dist. Mahoning No. 07 MA 130, 2008-Ohio-3245, ¶ 44. Accordingly, Gomez's
first argument is without merit.
Knowing, Intelligent, and Voluntary Waiver of Miranda Rights
{¶ 23} Even assuming Gomez was subject to a custodial interrogation by the police,
which we have determined he was not, the record nevertheless firmly establishes that
Gomez was properly advised of his Miranda rights and that he knowingly, intelligently, and
voluntarily waived those rights.
{¶ 24} "A suspect may waive his Miranda rights provided his waiver is knowing,
intelligent and voluntary." State v. Linnik, 12th Dist. Madison No. CA2004-06-015, 2006-
Ohio-880, ¶ 11, citing Edwards v. Arizona, 451 U.S. 477, 483, 101 S.Ct. 1880 (1981). To
determine whether a valid waiver occurred, we "'consider the totality of the circumstances,
including the age, mentality, and prior criminal experience of the accused; the length,
intensity, and frequency of interrogation; the existence of physical deprivation or
mistreatment; and the existence of threat or inducement.'" State v. Wesson, 137 Ohio St.3d
309, 2013-Ohio-4575, ¶ 35, quoting State v. Edwards, 49 Ohio St.2d 31 (1976), paragraph
two of the syllabus. In considering whether a waiver is involuntary, the Ohio Supreme Court
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has held that "a waiver is not involuntary unless there is evidence of police coercion, such
as physical abuse, threats, or deprivation of food, medical treatment, or sleep." (Emphasis
sic.) Wesson, citing State v. Cooey, 46 Ohio St.3d 20, 28 (1989). The burden is upon the
state to prove a knowing, intelligent, and voluntary waiver of Miranda by a preponderance
of the evidence. State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, ¶ 107.
{¶ 25} As noted above, in ruling on Gomez's motion to suppress, the trial court
stated:
The Court has heard testimony today about the Defendant's
ability to understand the Miranda rights as read to him. The
Court notes that the Miranda rights were read to the Defendant
in Spanish. And while the Defendant, there was testimony that
the Defendant's first language is not Spanish or English, there
was ample testimony that he speaks the Spanish language and
some of the English language.
The trial court also stated:
[T]he interpreter] directly asked the Defendant if he understood
her Spanish, and he said yes. Likewise, the Defendant
affirmatively waived his Miranda rights in writing after they were
read to him in Spanish.
{¶ 26} After a thorough review of the record, we find no error in the trial court's
decision finding Gomez was properly advised of his Miranda rights and that he knowingly,
intelligently, and voluntarily waived those rights. The fact that his native language is
Kaqchikel, as opposed to either Spanish or English, is immaterial when considering the
overwhelming evidence that he communicated with S.O., his then girlfriend, almost
exclusively in Spanish during their four-year relationship. This included evidence that
Gomez sent S.O. letters and text messages in Spanish. The video recording of the
interview further supports the trial court's decision finding Gomez understood the Miranda
rights read to him in Spanish before signing a Miranda waiver card written in Spanish.
Again, when directly asked if he understood the interpreter's Spanish provided to him during
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this interview, Gomez specifically stated that he could. Therefore, finding no error in the
trial court's decision finding Gomez was properly advised of his Miranda rights and that he
knowingly, intelligently, and voluntarily waived those rights, Gomez's second argument is
likewise without merit.
{¶ 27} In light of the foregoing, finding no merit to either of Gomez's arguments raised
herein, we find no error in the trial court's decision denying Gomez's motion to suppress.
Accordingly, Gomez's single assignment of error is without merit and overruled.
{¶ 28} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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