State v. Moore

[Cite as State v. Moore, 2018-Ohio-1778.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2017-07-110

: OPINION
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:

ALLISON ELIZABETH MOORE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 17CR32701

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Kim Bui, 8080 Beckett Center Drive, Suite 112, West Chester, Ohio 45069, for defendant-
appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Allison Elizabeth Moore, appeals from a decision of the

Warren County Court of Common Pleas denying her motion to suppress evidence. Appellant

further appeals the trial court's imposition of a 36-month prison sentence for her conviction

for tampering with evidence. For the reasons detailed below, we affirm appellant's conviction

and sentence.
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{¶ 2} On December 25, 2016, a dead body was found in the middle of Montgomery

Avenue in Warren County, Ohio. An investigation by the Warren County Sheriff's Office

(WCSO) revealed that Jeremy Foxx had been shot in the back of the head by Zachary

Wilson while inside of a vehicle. Appellant was also inside the vehicle when the shooting

occurred. Appellant attempted to clean up the blood in the vehicle before helping to burn or

depose of the items used to clean the vehicle. Appellant and Wilson then drove to Kentucky,

where the vehicle they were driving was painted and disguised.

{¶ 3} On December 27, 2016, a warrant was issued for Wilson's arrest. Detectives

with the WCSO contacted Wilson's mother to notify her of the warrant, as she had been

aiding the officers in their effort to track down Wilson. Wilson's mother informed the

detectives that she had picked up Wilson and appellant in Kentucky and was bringing them

to the sheriff's office. After Wilson and appellant arrived at the WCSO around 5:30 p.m. on

December 27, 2016, Wilson was arrested. Appellant took a nap at the WCSO before being

interviewed by detectives. Following this interview, appellant left the sheriff's office with her

mother.

{¶ 4} Appellant was subsequently indicted on one count of tampering with evidence

in violation of R.C. 2921.12(A)(1), a felony of the third degree. She filed a motion to

suppress her December 27, 2016 statement to law enforcement, arguing the statement was

obtained in violation of her constitutional rights as the detectives failed to advise her of her

Miranda rights prior to the interrogation. She also claimed her statement was not voluntary

as she was under the influence of narcotics at the time of the interview.

{¶ 5} A hearing on appellant's motion to suppress was held on April 20, 2017. The

state introduced, and the trial court accepted into evidence, an audio and video recording of

appellant's December 27, 2016 interview, which lasted approximately 55 minutes. The state

called Detective Paul Barger as its sole witness. Barger explained that at the time Wilson's
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mother brought Wilson and appellant to the WCSO on December 27, 2016, only an arrest

warrant for Wilson had been issued. Neither he nor any other detective asked Wilson's

mother to bring appellant to the sheriff's office.

{¶ 6} Once Wilson and appellant arrived at the sheriff's office, they were both placed

in handcuffs for officer safety. After appellant was patted down, she was taken into the front

training room of the WCSO and the handcuffs were removed. While Wilson was being

interviewed for approximately two hours, appellant was left in the training room. Appellant

was given a can of soda and a blanket, and she fell asleep.

{¶ 7} Once Wilson's interview was over, appellant was brought into the interview

room to be questioned by Barger and Detective Wyatt. Appellant was not provided with

Miranda warnings at this time. Barger informed appellant that she was not under arrest and

was free to leave. Appellant was asked numerous times if she was "okay" to talk with the

detectives and whether she wanted to talk to them. Appellant told Barger and Wyatt that she

wanted to talk to them and "wanted to get the information out there that it was self-defense."

Barger testified that although the door to the interview room was closed for privacy,

appellant's path to the door was free and clear.

{¶ 8} Appellant was not in handcuffs or otherwise restrained during the interview.

Barger testified appellant gave "very specific, very precise" details about the events

surrounding the shooting. Although it took appellant "a little bit to answer some of the

questions because she wanted to make sure she had them correct," she was able to provide

information "as to where they had gone, what gas stations they had stopped at, how they had

gotten lost, whose houses they went to, [and] people she talked to." Appellant did not act in

a manner that gave Barger concern that she was under the influence of any substance.

When questioned by Barger and Wyatt as to whether she was under the influence, appellant

stated, "no."
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{¶ 9} Barger testified appellant was not threatened or coerced at any time during the

interview. Barger explained that the interview was stopped after about 55 minutes, once the

detectives sensed appellant was getting tired. Prior to leaving the sheriff's office with her

mother, appellant told the detectives that if they needed anything else, they could contact her

and she would be willing to talk to them some more.

{¶ 10} Following Barger's testimony, appellant took the stand and admitted she

voluntarily went to the sheriff's office with Wilson and his mother. She stated that she knew

there was an arrest warrant for Wilson and she believed the detectives wanted to speak with

her. Appellant estimated that she was in handcuffs for approximately 10 to 15 minutes upon

her arrival of WCSO, but stated she was uncuffed after she was "patted * * * down and [they]

made sure I didn't have anything on me."

{¶ 11} Appellant testified that at the time of the interview, she was so tired, sick, and

traumatized that she barely understood what she was saying and it took her a long time to

process what she was being asked by the detectives. Appellant stated she had taken a

Xanax and was "coming off of meth" at the time she arrived at the sheriff's office. She

claimed she informed an officer of her drug use while waiting in the training room. Although

she was told by Barger and Wyatt that she could stop the interview and leave at any time,

appellant stated she felt like she could not leave until she gave a statement because she had

been placed in handcuffs when entering the building and "was a witness." She felt if she did

not give a statement she would be arrested.

{¶ 12} Appellant testified that at the time of the interview, she was 23 years old, had

no prior contact with law enforcement, had never been read her Miranda rights, and did not

understand that she had the right to remain silent and a right to speak with an attorney. She

then admitted she had previously been arrested and booked into the Hamilton County Jail for

"obstruction." Appellant testified that, had she known she had the right to remain silent, she
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would have done so.

{¶ 13} After considering the foregoing testimony and evidence, the trial court denied

appellant's motion to suppress. The court concluded that Miranda warnings were not

required as "a reasonable person in [appellant's] position would have understood * * * her

situation and known that she was free to leave. No formal arrest or restraint on [appellant's]

freedom of movement occurred in this case." The court further found appellant's statement

was voluntary, nothing that "[t]hough [appellant] now indicates she was under the influence of

narcotics, she told the officers at the time that she was not under the influence of any

substances and she answered the officers' questions clearly, coherently, and without any

indication she was not coherent."

{¶ 14} Following the denial of her motion to suppress, appellant entered a no contest

plea to the tampering with evidence charge. The court accepted her plea, ordered that a

presentence investigation report ("PSI") be prepared, and set the matter for sentencing. On

July 11, 2017, appellant appeared before the court and was sentenced to 36 months in

prison, with jail-time credit for 72 days.

{¶ 15} Appellant timely appealed, raising two assignments of error for our review.

{¶ 16} Assignment of Error No. 1:

{¶ 17} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

SUPPRESS.

{¶ 18} In her first assignment of error, appellant argues the trial court erred in denying

the motion to suppress her December 27, 2016 statement to law enforcement. Appellant

maintains that she was in custody on December 27, 2016, and that her constitutional rights

were violated by the detectives' failure to advise her of her Miranda rights before conducting

the custodial interrogation. She further argues that the evidence presented at the motion to

suppress hearing demonstrated that she "was [not] of sound mind during the interview" and
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that her statement should have been suppressed as it was not voluntarily made.

{¶ 19} Our review of a trial court's denial of a motion to suppress presents a mixed

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial

of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.

CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Cochran at ¶ 12.

{¶ 20} "It is well established the 'prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the

use of procedural safeguards effective to secure the privilege against self-incrimination.'"

State v. Durham, 12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 15, quoting

State v. Huysman, 12th Dist. Warren No. CA2005-09-107, 2006-Ohio-2245, ¶ 13. However,

the police are not required to administer the warnings set forth in Miranda v. Arizona, 384

U.S. 436, 86 S.Ct. 1602 (1966), to every individual they question. 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); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711

(1977). Rather, the "duty to advise a suspect of constitutional rights pursuant to Miranda is

only required when the police subject a person to a custodial interrogation." State v. Fridley,

12th Dist. Clermont No. CA2016-05-030, 2017-Ohio-4368, ¶ 35.

{¶ 21} "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
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freedom of any action in any significant way.'" State v. Matthews, 12th Dist. Butler No.

CA2012-09-175, 2013-Ohio-3482, ¶ 10, quoting Miranda, 384 U.S. at 444. "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. Gomez,

12th Dist. Butler No. CA2017-03-035, 2017-Ohio-8681, ¶ 20, citing State v. Robinson, 12th

Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶ 12. "[A] person is not in custody merely

because [s]he is questioned at the police station or because [s]he is considered a suspect" to

a crime. State v. Smith, 12th Dist. Fayette No. CA2006-08-030, 2009-Ohio-197, ¶ 12, citing

Mathiason, 429 U.S. at 495. Rather, a person is in custody if she is formally placed under

arrest prior to a police interrogation or, if not formally arrested, when there is a significant

restraint placed on her freedom of movement. Gomez at ¶ 20, citing Smith at ¶ 11. The

determination of whether a custodial interrogation has occurred "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. Coleman, 12th Dist. Butler

No. CA2001-10-241, 2002-Ohio-2068, ¶ 24, citing Stansbury v. California, 511 U.S. 318,

323-324, 114 S.Ct. 1526 (1994). 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).

{¶ 22} After examining the totality of the circumstances surrounding appellant's

December 27, 2016 interview, we find that appellant was not in custody at the time of the

interview. Appellant voluntarily went to the sheriff's office with Wilson and Wilson's mother.

No warrant had been issued for her arrest and law enforcement had not requested an

interview with her. Although appellant was briefly placed in handcuffs upon her arrival at the
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sheriff's office, this was done only for officer safety and she was released from the handcuffs

after being patted down.

{¶ 23} Appellant was left in the training room while detectives interviewed Wilson.

She was given a soda and a blanket, and she took about a two-hour nap. After the

detectives finished interviewing Wilson, Moore was brought into an interview room. The door

to the interview room was closed for privacy, but was not locked and was accessible by

appellant. Appellant was told by the detectives that she was not under arrest and was free to

leave whenever she wanted. Appellant was asked whether she wanted to talk to the

detectives, and she said "yes" as she "wanted to tell [them] what happened * * * at the

incident because she wanted to get the information out there that it was self-defense."

Appellant was not restrained in any way during the interview.

{¶ 24} Given the foregoing circumstances, we find that appellant was not in custody

at the time of December 27, 2016 interview. See, e.g., Coleman, 2002-Ohio-2068 at ¶ 27;

Gomez, 2017-Ohio-8681 at ¶ 21-22; Mathiason, 429 U.S. at 495. As appellant was not

under arrest or a significant restraint placed on her movement at the time of the interview,

Miranda warnings were not required.

{¶ 25} Appellant argues that even if she was not in custody at the time of her

December 27, 2016 statement, the statement should nonetheless be suppressed as it was

not voluntary. Appellant contends she felt coerced into speaking with the detectives and her

capacity for self-determination was critically impaired and overborne at the time of the

interview as she was ill, coming down off meth, and had recently taken a Xanax.

{¶ 26} In determining whether a statement was made voluntarily, courts should

consider the totality of the circumstances, including "the age, mentality, and prior criminal

experience of the accused; the length intensity, and frequency of the interrogation; the

existence of physical deprivation or mistreatment; and the existence of threat or inducement."
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State v. Edwards, 49 Ohio St.2d 31 (1976), paragraph two of the syllabus, vacated on other

grounds, 438 U.S. 911, 98 S.Ct. 3147 (1978). "A suspect's decision to waive [her] privilege

against self-incrimination is made voluntarily absent evidence that [her] will was overborne

and [her] capacity for self-determination was critically impaired because of police conduct."

State v. Otte, 74 Ohio St.3d 555, 562 (1996), citing Colorado v. Connelly, 479 U.S. 157, 167,

107 S.Ct. 515 (1986).

{¶ 27} At the time of the interview, appellant was 23 years old and she had prior

experience with the criminal justice system as she was arrested in July 2016 for obstruction.

Prior to the interview, appellant had taken a two-hour nap. Upon waking, she agreed to

speak to Detective Barger and Detective Wyatt. When questioned by the detectives, she

denied being under the influence of any substance. Despite being advised that she was not

under arrest and could leave at any time, appellant chose to answer the detectives' questions

in an interview that lasted approximately 55 minutes. No promises or threats were made to

induce appellant into giving a statement. In fact, appellant was specifically advised by the

detectives that the decision on whether or not she would be charged with any crimes would

be left to the discretion of the prosecutor.

{¶ 28} During the interview, appellant was able to provide "very specific, very precise"

details about the shooting, including information as to where she and Wilson had gone, what

gas stations they had stopped at, how they had gotten lost, what houses they went to, and

who they had talked to. The manner in which appellant answered the detectives' questions

did not cause Barger concern that appellant was under the influence of any substance, as he

believed appellant sometimes paused or took "a little bit to answer * * * because she wanted

to make sure she had them correct."

{¶ 29} Accordingly, after looking at the totality of the circumstances, we conclude that

appellant's will was not overborne by any police conduct and that her statement was
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voluntary. See, e.g., State v. Klapka, 11th Dist. Lake No. 2003-L-044, 2004-Ohio-2291, ¶ 16-

24. Appellant's motion to suppress was properly denied by the trial court, and appellant's first

assignment of error is therefore overruled.

{¶ 30} Assignment of Error No. 2:

{¶ 31} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING

THE MAXIMUM SENTENCE UPON THE DEFENDANT.

{¶ 32} In her second assignment of error, appellant contends the trial court erred

when it imposed a 36-month prison term without "mak[ing] the proper findings to support

issuing the maximum sentence."

{¶ 33} We review the imposed sentence under the standard of review set forth in R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-

3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's

decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an

appellate court to modify or vacate a sentence only if the appellate court finds by clear and

convincing evidence that "the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. A sentence is not

clearly and convincingly contrary to law where the trial court "considers the principles and

purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes

postrelease control, and sentences the defendant within the permissible statutory range."

State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious,

12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this court may "increase,

reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the

sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146

Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7.
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{¶ 34} As appellant was convicted of a third-degree felony, the trial court was

authorized by R.C. 2929.14(B)(3)(b) to impose a prison term of "nine, twelve, eighteen,

twenty-four, thirty, or thirty-six months." Contrary to appellant's assertions, when the trial

court imposed the 36-month prison term, it was not required to make any specific findings to

support its imposition of the maximum sentence. See State v. Mathis, 109 Ohio St.3d 54,

2006-Ohio-855, ¶ 37 (noting that since the court's decision in State v. Foster, 109 Ohio St.3d

1, 2006-Ohio-856, trial courts are no longer required to make findings or give their reasons

for imposing maximum sentences); State v. Scott, 12th Dist. Madison No. CA2010-06-012,

2010-Ohio-5065, ¶ 17; State v. West, 8th Dist. Cuyahoga No. 105568, 2018-Ohio-956, ¶ 9.1

{¶ 35} Rather, in imposing appellant's sentence, the trial court was required to

consider the principles and purposes of felony sentencing. Pursuant to R.C. 2929.11(A), the

purposes of felony sentencing are to protect the public from future crime by the offender and

to punish the offender. A felony sentence must be reasonably calculated to achieve the

purposes set forth in R.C. 2929.11(A) "commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B). In

sentencing a defendant, a trial court is not required to consider each sentencing factor, but

rather to exercise its discretion in determining whether the sentence satisfies the overriding

purpose of Ohio's sentencing structure. State v. Littleton, 12th Dist. Butler No. CA2016-03-

060, 2016-Ohio-7544, ¶ 12. The factors set forth in R.C. 2929.12 are nonexclusive, and R.C.

2929.12 explicitly allows a trial court to consider any relevant factors in imposing a sentence.

1. In her appellate brief, appellant relies on State v. Davis, 2d Dist. Clark No. 2002-CA-43, 2003-Ohio-4839, for
the proposition that R.C. 2929.14(C) prohibits a trial court from imposing a maximum sentence unless the court
finds that the offender (1) committed the worst form of the offense, (2) poses the greatest likelihood of
committing future crimes, (3) committed certain major drug offenses, or (4) was a repeat violent offender.
Appellant's reliance on this case is misplaced as R.C. 2929.14(C) has been revised, and the version of the
statute referenced by the Davis court is no longer in effect.
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Id.; State v. Birt, 12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 64.

{¶ 36} After a thorough review of the record, we find no error in the trial court's

decision to sentence appellant to a 36-month prison term. The record plainly reveals that

appellant's sentence is not clearly and convincingly contrary to law and is supported by the

record. In imposing appellant's 36-month prison sentence, the trial court properly considered

the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12.

"The fact that the trial court did not expressly cite to R.C. 2929.11 and 2929.12 during the

sentencing hearing is immaterial, considering it specifically cited to both statutes within its

sentencing entry." Julious, 2016-Ohio-4822 at ¶ 11. The court's sentencing entry provides

as follows:

The Court has considered the record, oral statements, any victim
impact statement and presentence report prepared, as well as
the principles and purposes of sentencing under R.C. §2929.11.
The Court has balanced the seriousness and recidivism factors
under R.C. §2929.12 and considered the factors under R.C.
§2929.13. The Court inquired if the Defendant had anything to
say in mitigation regarding the sentence.

***

The Court finds the Defendant is not amenable to an available
community control sanction and that prison is consistent with the
purposes and principles of R.C. §2929.11.

{¶ 37} Further, at sentencing the court stated, "I've considered all the relevant

sentencing factors in determining the sentence and the length of it mindful of the

requirements of the Revised Code." The court discussed the seriousness of the offense,

noting that appellant had tampered with evidence by covering up evidence of a murder. The

court noted it was not a "spur of the moment" decision, as appellant's criminal conduct

extended into the day after the murder. The court found that "probation would not

adequately punish [appellant] and it would seriously demean what happened in this case."

{¶ 38} The court also considered factors relevant to the likelihood of recidivism.
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Although appellant expressed remorse for her actions and had no prior felony convictions,

appellant had an ongoing drug problem that she attributed to the commission of the

tampering offense. While the case was pending, appellant continued to use drugs, failing

multiple drug screenings and violating the terms of her bond. The court reasoned that

appellant could only be rehabilitated if she got help for her addiction, which she had not yet

done on her own, and stated it strongly felt that a necessary part of her recovery was "facing

the consequences of [her] acts" and "paying the price" for what she had done.

{¶ 39} Though appellant disagrees with the trial court's analysis and balancing of the

seriousness and recidivism factors set forth in R.C. 2929.12, it is "[t]he trial court [that], in

imposing a sentence, determines the weight afforded to any particular statutory factors,

mitigating grounds, or other relevant circumstances." State v. Steger, 12th Dist. Butler No.

CA2016-03-059, 2016-Ohio-7908, ¶ 18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP-

810, 2014-Ohio-3696, ¶ 16. The fact that the trial court chose to weigh various sentencing

factors differently than the manner in which appellant would have weighed them does not

mean the trial court erred in imposing appellant's sentence. See State v. Abrams, 12th Dist.

Clermont Nos. CA2017-03-018 and CA2017-03-019, 2017-Ohio-8536, ¶ 17. The record

supports the trial court's imposition of the 36-month prison term.

{¶ 40} As appellant's prison sentence is not clearly and convincingly contrary to law

and is supported by the record, her second assignment of error is overruled.

{¶ 41} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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