State v. McClellan

[Cite as State v. McClellan, 2019-Ohio-4339.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 18CA11
:
vs. :
: DECISION AND JUDGMENT
BENJAMIN MCCLELLAN, : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Adam Burke and Eric E. Willison, Columbus, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________

Smith, P. J.

{¶1} On May 9, 2018, Benjamin McClellan entered a no contest plea

to one count of rape, R.C. 2907.02(A)(2), a first-degree felony. McClellan

appeals the trial court’s entry of March 21, 2018, in which the trial court

overruled McClellan’s motion to suppress his videotaped confession to

consensual sex with a minor victim. McClellan contends the trial court erred

when it denied his motion because his confession was obtained in

contravention of his Fifth Amendment rights under the United States

Constitution. Based upon our review, we find no coercive police activity
Highland App. No. 18CA11 2

occurred and thus, find no merit to McClellan’s argument. Accordingly, we

overrule the sole assignment of error and affirm the judgment of the trial

court.

FACTS

{¶2} Benjamin McClellan, (hereinafter “Appellant”), was indicted by

the Highland County Grand Jury on two counts of rape, violations of R.C.

2907.02(A)(1)(b) and R.C. 2907.02(A)(2). Both counts are felonies of the

first degree. Count One specified unlawful sexual conduct, on or about

April 15, 2017, with a person being less that thirteen years of age. Count

Two alleged sexual conduct, on or about August 28, 2017, compelled by

force or threat of force. On December 8, 2017, Appellant was arraigned,

entered pleas of not guilty, and was appointed counsel. Pretrial discovery

ensued.

{¶3} The counts arose as a result of a report made to Sergeant Aaron

Reynolds. The following facts have been obtained from Reynolds’ affidavit

filed in support of the criminal complaint. On August 31, 2017, A.E.

presented to the Hillsboro Police Department with Janet Fair, an employee

of the Scioto Paint Valley Mental Health Center. A.E. reported that
Highland App. No. 18CA11 3

Appellant and she resided in the same household1 and that sometime during

Easter break in 2017, Appellant followed her into her bedroom while she

was changing clothes. Appellant allegedly forced her to allow him to have

sex with her and threatened to hurt her if she told anyone. A.E. stated that

after this occurred, she stayed with other family members over the summer.

{¶4} A.E. also reported that when she returned home for the school

year in late August, 2017, “[I]t started again.” A.E. tried to avoid Appellant

but she woke up one time and Appellant was having sex with her. She was

unable to stop him.

{¶5} A.E. was sent to Cincinnati Children’s Hospital where a sexual

assault collection kit was obtained. Sergeant Reynolds obtained A.E.’s gym

shorts and tee shirt that she wore at the time of the most recently-alleged

crime. A.E.’s clothes were sent to the Ohio Bureau of Investigation’s (BCI)

crime lab.

{¶6} On September 1, 2017, Appellant presented to the Hillsboro

Police Department and spoke with Reynolds. Appellant was first advised of

his Miranda rights. Appellant denied raping A.E. or ever having sexual

intercourse with her. He explained while A.E. was out of town during the

1
The record is not clear as to the familial relationship between Appellant and A.E. Sergeant Reynolds later
testified that A.E. referred to Appellant as her cousin.
Highland App. No. 18CA11 4

summer he had slept in her bed, masturbated, and had intercourse there with

other females. Appellant stated his DNA “should not be” on her clothing.

{¶7} On September 15, 2017, results obtained from BCI indicated a

sperm cell was found on the inner crotch area of A.E.’s shorts. On

September 18, 2017, Appellant returned to the police department. A short

interview was conducted. Appellant was again advised of his Miranda

rights. Appellant consented to collection of his DNA for comparison.

{¶8} On October 27, 2017, BCI’s representative reported that the

sample collected from Appellant matched the sperm cell located on A.E.’s

shorts. On the same date, Sergeant Reynolds conducted a third interview

with Appellant at the police station. The interview was recorded. Reynolds

began the interview with Appellant by again explaining Appellant’s

Miranda rights.

{¶9} According to the transcript of the suppression hearing and the

recorded interview, Sergeant Reynolds next explained that the DNA results

revealed Appellant’s sperm inside A.E.’s shorts. Sergeant Reynolds further

explained that the BCI scientist told him that it would have had to be in A.E.

or on her to fall onto the crotch area. Sergeant Reynolds stated, “So with

that being said, I think now is the time to be very forthcoming.”
Highland App. No. 18CA11 5

{¶10} Appellant immediately denied having any sexual conduct with

A.E. He informed that it was possible that he had masturbated in the

bathroom area, picked up some clothes to wipe himself, and the sperm

transferred in that manner to A.E.’s clothes. Sergeant Reynolds’ statements

during the interview, which Appellant challenges as coercive, are set forth

fully below. Ultimately, Appellant confessed as follows:

“Um so one night, I got really, really drunk. It was all - - I
had consensual sex with A. E., one time. I was really,
really drunk. I got up to go throw up in the bathroom.
She followed me in and it just kind of happened.”

Thereafter, Appellant was immediately placed under arrest.

{¶11} During the pretrial proceedings, Appellant’s counsel filed a

motion to suppress Appellant’s confession to consensual sex with A.E.

Appellant asserted that his statements were not voluntarily given. The thrust

of Appellant’s argument was that his confession was the byproduct of

coercive police activity. Appellant pointed out that Sergeant Reynolds

repeatedly misstated the legal consequences of admitting to consensual sex

rather than forcible sex. Thus, Appellant concluded that his statement was

obtained in violation of his Fifth Amendment right against self-incrimination

and must be suppressed.

{¶12} Appellee filed a response. At the March 19, 2018 suppression

hearing, the State introduced the third interview as State’s Exhibit 1. On
Highland App. No. 18CA11 6

March 21, 2018, the trial court filed its decision overruling Appellant’s

motion to suppress. The trial court’s ruling stated in pertinent part:

The Court finds that the actions of Sergeant Reynolds

were not objectively coercive. He clearly urged the

Defendant to tell the truth and pointed out to him

how the DNA results were evidence of his having

had sexual intercourse with the alleged victim. He

informed him that the alleged victim was claiming the

conduct was forcible which he described as rape while

he believed the conduct could have been consensual.

Sergeant Reynolds did not at any time indicate that if

there had been consensual sex rather than forcible sex

that the Defendant would be given any benefit such as

a lesser prison term. He did not promise not to arrest

him if he confessed. When Defendant asked what would

happen if there had been consensual sex the officer

responded that it depended upon the circumstances

and that he could not say what would happen. In short,

there was no coercion, no inducement, no promise made

to the Defendant that if he gave an incriminating statement
Highland App. No. 18CA11 7

that he would receive any benefit legal or otherwise.

{¶13} On May 9, 2018, Appellant pled no contest to Count Two.

Count One was dismissed. The trial court ordered a pre-sentence

investigation report. On June 7, 2018, the trial court imposed a prison

sentence of seven years. Appellant was ordered to register as a Tier III sex

offender. This timely appeal followed.

ASSIGNMENT OF ERROR

I. “THE TRIAL COURT ERRED WHEN IT DENIED
APPELLANT’S MOTION TO SUPPRESS HIS
CONFESSION.”

A. STANDARD OF REVIEW

{¶14} Appellate review of a motion to suppress presents a mixed

question of law and fact. State v. Leonard, 2017-Ohio-1541, 89 N.E.3d 58

(4th Dist.), at ¶ 15, citing, State v. Gurley, 2015-Ohio-5361, 54 N.E.3d 768,

¶ 16 (4th Dist.), citing State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665,

850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial court acts as the

trier of fact and is in the best position to resolve factual questions and

evaluate witness credibility. Id.; State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Thus, when reviewing a ruling on a

motion to suppress, we defer to the trial court's findings of fact if they are

supported by competent, credible evidence. Gurley at ¶ 16, citing State v.
Highland App. No. 18CA11 8

Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist. 2000).

However, “[a]ccepting those facts as true, we must independently determine

whether the trial court reached the correct legal conclusion in analyzing the

facts of the case.” Id., citing Roberts at ¶ 100.

B. LEGAL ANALYSIS

{¶15} In the sole assignment of error, Appellant contends that the trial

court erred by failing to suppress his confession to consensual sex with A.E.

Appellant argues that Sergeant Reynolds emphasized a false distinction

between forcible rape and consensual sex throughout the interview.

Appellant then connects this distinction to Reynolds’ statements suggesting

that in order for Appellant to be treated fairly, or perhaps receive more

lenient treatment, he would need to confess to having consensual sexual

contact. Appellant concludes that his confession was obtained as a result of

police coercion and therefore, his will was overborne, rendering his

confession involuntary. As such, Appellant requests this court find that his

confession was involuntary and to further find that the trial court’s decision

overruling his motion to suppress was in error.

{¶16} The Fifth Amendment to the United States Constitution and

Article I, Section 10 of the Ohio Constitution guarantee that no person in

any criminal case shall be compelled to be a witness against himself. The
Highland App. No. 18CA11 9

Fifth Amendment, as well as the Due Process Clause of the Fourteenth

Amendment, protects against the concern that coerced confessions are

inherently untrustworthy. Leonard, supra, at ¶ 17, citing Dickerson v.

United States, 530 U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

“A free and voluntary confession is deserving of the highest credit, because

it is presumed to flow from the strongest sense of guilt * * * but a confession

forced from the mind by the flattery of hope, or by the torture of fear, comes

in so questionable a shape * * * that no credit ought to be given to it.”

(Quotation omitted.) Id.

{¶17} “Voluntariness of a confession is determined based on the

totality of the circumstances.” Leonard, supra, at ¶ 18, quoting, State v.

Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 71, citing

State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two

of the syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57

L.E.2d 1158 (1978). “However, the use of an inherently coercive tactic by

police is a prerequisite to a finding of involuntariness.” Id., citing Colorado

v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed. 2d 473 (1986). This

court has observed that we need not assess the totality of the circumstances

unless we first find that law enforcement officers or other agents of the state
Highland App. No. 18CA11 10

used a coercive tactic. Leonard, supra, citing Connelly, 107 S. Ct. 515, 93

L.Ed.2d 473.

{¶18} “ ‘To support a determination that a confession was coerced,

the evidence must establish that: (1) the police activity was objectively

coercive; (2) the coercion in question was sufficient to overbear defendant's

will; and (3) defendant's will was, in fact, overborne as a result of the

coercive police activity.’ ” Leonard, supra, at ¶ 19, quoting, State v.

Humphrey, 4th Dist. Ross No. 10CA3150, 2010-Ohio-5950, at ¶ 18, vacated

on other grounds, 128 Ohio St.3d 397, 2011-Ohio-1426, 944 N.E.2d 1172,

quoting United States v. Rigsby, 943 F.2d 631, 635 (6th Cir.1991).

The line to be drawn between permissible police

conduct and conduct deemed to induce or tend to

induce an involuntary statement does not depend

upon the bare language of inducement but rather

upon the nature of the benefit to be derived by a

defendant if he speaks the truth, as represented by

the police. People v. Hill, 66 Cal.2d 536, 549, 58

Cal.Rptr. 340, 426 P.2d 908; see also State v. Arrington,

14 Ohio App.3d 111, 115, 470 N.E.2d 211 (6th Dist.1984).

{¶19} As further explained in Hill,
Highland App. No. 18CA11 11

When the benefit pointed out by the police to a

suspect is merely that which flows naturally from

a truthful and honest course of conduct, we can

perceive nothing improper in such police activity.

On the other hand, if in addition to the foregoing

benefit, or in the place thereof, the defendant is

given to understand that he might reasonably expect

benefits in the nature of more lenient treatment at the

hands of the police, prosecution or court in consideration

of making a statement, even a truthful one, such motivation

is deemed to render the statement involuntary and inadmissible.

The offer or promise of such benefit need not be expressed,

but may be implied from equivocal language not

otherwise made clear. Hill at 549-550, citing People v. Ditson,

57 Cal.2d 415, 432, fn. 5, 20 Cal.Rptr. 165, 173, 369 P.2d 714,

722 (petition for writ of cert. dismissed, Cisneros v. California,

371 U.S. 937, 83 S.Ct. 311, 9 L.Ed.2d 273) and

People v. Nelson, 224 Cal.App.2d 238, 245, fn. 3, 36 Cal.Rptr.

385; see also State v. Arrington, supra, at 115.

{¶20} This court has also acknowledged that “ ‘ “a promise of lenient
Highland App. No. 18CA11 12

treatment or of immediate release may be so attractive as to render a

confession involuntary.” ’ ” Leonard, supra, at ¶ 20, quoting Humphrey at

¶ 20, quoting United States v. Wrice, 954 F.2d 406, 411 (6th Cir.1992).

“ ‘But we also recognize that promises of leniency may be coercive only if

they are broken or illusory.’ ” (Emphasis sic.) Leonard, supra, quoting,

State v. Elliott, 4th Dist. Washington No. 10CA21, 2011-Ohio-1746, at ¶ 47,

citing Humphrey at ¶ 20, in turn citing United States v. Johnson, 351 F.3d

254, 262 (6th Cir.2003). “ ‘ “[F]alse promises made by police to a criminal

suspect that he can obtain lenient treatment in exchange for waiving his Fifth

Amendment privilege so undermines the suspect's capacity for self-

determination that his election to waive the right and incriminate himself in

criminal conduct is fatally impaired. * * * The simple result is that officers

must avoid such promises, which are not proper tools of investigation.” ’ ”

Leonard, supra, quoting, State v. Jackson, 2d Dist. Greene No. 02CA0001,

2002-Ohio-4680, at ¶ 40, quoting State v. Petitjean, 140 Ohio App.3d 517,

534, 748 N.E.2d 133 (2d Dist. 2000).

{¶21} In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16

Led. 2 694 (1966), the United States Supreme Court applied the protection

of the Fifth Amendment right against self-incrimination to police

interrogations of individuals in custody. In this case, Appellant
Highland App. No. 18CA11 13

acknowledged and waived his Miranda rights before Sergeant Reynolds

engaged in a third interview with him. The voluntariness of a confession

presents “ ‘an issue analytically separate from those issues surrounding

custodial interrogations and Miranda warnings.’ ” State v. Scholl, 10th Dist.

Franklin No. 12AP-309, 2012-Ohio-6233, at ¶ 7, quoting, State v. Walker,

10th Dist. No. 04AP–1107, 2005–Ohio–3540, citing State v. Kelly, 2d Dist.

No.2004–CA–20, 2005–Ohio–305. See also State v. Martinez, 8th Dist.

Cuyahoga Nos. 103572, 103573, 2016-Ohio-5515, at ¶ 29. As evidenced by

the recorded interview, Appellant was apprised of his Miranda rights and

signed a waiver. Thus, Miranda is not implicated in this case. We next

proceed to analysis of the voluntariness of Appellant’s confession.

{¶22} The voluntariness of a confession is a question of law subject to

de novo review. Martinez, supra; State v. Fouts, 4th Dist. Washington No.

15CA25, 2016-Ohio-1104, at ¶ 35; State v. Bohanon, 8th Dist. Cuyahoga

No. 89443, 2008–Ohio–1087, ¶ 9, citing Arizona v. Fulminate, 499 U.S.

279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). As we have set forth

above, unless Sergeant Reynolds used a coercive tactic, we need not assess

the totality of the circumstances. See Martinez, supra, at ¶ 30; State v.

Treesh, 90 Ohio St.3d 460, 472, 2001 Ohio 4, 739 N.E.2d 749 (2001); State

v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179, 920 N.E.2d 104, at ¶ 71.
Highland App. No. 18CA11 14

“Evidence of use by the interrogators of an inherently coercive tactic (e.g.,

physical abuse, threats, deprivation of food, medical treatment, or sleep) will

trigger the totality of the circumstances analysis.” State v. Clark, 38 Ohio

St.3d 252, 261, 527 N.E.2d 844 (1988).

{¶23} The trial court found that Sergeant Reynolds: (1) urged

Appellant to tell the truth; (2) pointed out the DNA evidence; (3) advised

Appellant that the victim was claiming force; (4) informed Appellant he

could not give him legal advice; (5) at no time indicated that if Appellant

admitted consensual sex that he would receive a benefit of a lesser prison

term; and (6) at no time promised Appellant that he would not arrest him if

admitted to consensual sex. Appellant has limited his argument to

essentially challenging the finding that he was not promised a benefit if he

admitted to consensual sex. Appellant asserts Sergeant Reynolds obtained

his confession to consensual sex by suggesting that he must do so in order to

be treated fairly. Therefore, we must independently review the trial court’s

findings to see if they are supported by competent credible evidence.

{¶24} At the outset, we have identified and numbered all of Sergeant

Reynolds’ statements preceding Appellant’s confession which are arguably

deceptive and/or coercive. The statements are set forth in the order in which

they occurred in the interview and transcript as follows:
Highland App. No. 18CA11 15

1. “I believe it was probably consensual, and it was just
something where you guys were fooling around, and that
she was okay with it, and then now she wasn’t. I don’t know.”

2. “My job is to find the truth, man. And if you’re not honest
with me, if you’re not honest with yourself and upfront,
it - - you’re letting whoever tell all the truth or what their
version of the truth is. * * * Right now it looks like A.E.’s
telling the whole truth and you’re just lying. You know
what I mean?”

3. “Right now, I’m worried about A.E. claiming you raped
her and you guys probably having consensual sex,
whatever it was.”

4 “So I just need you to be honest about what happened. Okay?
And honesty is not absolute what happened, but honesty - - well,
I’m sorry. That—it can’t—it doesn’t absolve what happened.
However, honesty goes a long way. And if you’re not honest,
we’re left to believe only what one side of the story is telling us.”

5. “If we have the truth from both sides, we can see what happened
clearly, and then we can make a good decision. And you can
even rest easy knowing that you’re being treated fairly - - which
you’re being treated fairly anyway. But, you know, if you
know what that (sic.) what happened wasn’t what she says
happened exactly, but you know something did happen but
you’re not letting us know that, you’re laying - - you’re laying
your fate in the hopes that we just don’t believe her, when
you’re giving us nothing to believe. You know what I mean?”

6. “I don’t want you telling me what I want to hear. I don’t want
I don’t want you to tell me what you think I want to hear. I just
want- - I’m just - - I’m a truth seeker. Like I said before, my job
is to find the truth of what happened. * * * [B]ecause, at the end
of the day, I’m just trying to do my job fair and finding the truth.”

7. “[R]ape is you told her if she didn’t do it, you were going to hurt
her, or you forcibly held her down and did it against her will or
you got her intoxicated to the point where she couldn’t know
Highland App. No. 18CA11 16

what was going on, and you took advantage of her - - which
that’s sexual battery. But certain definitions could be rape.”

8. “So I think that something happened consensual. I think that you
both had consensual intercourse together. * * * I think that
something happened.”

9. “Right now, I’m still trying to figure out whether you and A.E
had sex or not. Not if you raped her, just if you guys had sex.
Because I don’t believe that rape happened. I believe that there
was sex. That’s what I believe. But I can’t go anywhere until
we know what happened. Do you know what I mean?”

10. “I can’t give legal advice. * * * But, I mean, it could be
anything from whatever the judge decides from - - you know,
it depends on the- - it just depends on the circumstances. * * * You
could go to jail. You could just have to go to court. You could go
to court. You could get - - you know, the judge has the full
discretion. * * * So to be honest with you, I don’t know. I
don’t know. * * * I don’t know what we’re looking at
here. * * * I don’t think we’re looking at a forcible rape.
I don’t think that. You know what I mean? So that
makes a difference.”

11. “So like I said, honesty doesn’t change what happened,
but honesty definitely goes a long way. So I just need
to know what happened, man.”

12. “[D]efinitely the evidence that exists here says something
happened. I don’t want you to feel like I’m pressuring you
or anything. So I’m going to actually step out of the room.
I’m going to give you a few minutes just to think by yourself
for a minute. And I’ll be back in and ask you some questions. * * *I
want you to think about the evidence we have. * * * I can’t
begin to take the next path in my investigation if you’re not
100 percent honest with me. And I don’t think you’re being
100 percent honest with me. So like I said, I’ll give you a
minute to breathe, think about it for a minute. * * * Unless you
just want to get this done - - you know what I mean? - - move forward.”
Highland App. No. 18CA11 17

{¶25} We begin with Appellant’s “false distinction” argument and

find it to be similar to a “minimization” argument, which was made on

appeal in State v. Fouts, supra. Fouts was convicted of gross sexual

imposition and attempted unlawful sexual conduct with a minor.

{¶26} Fouts picked up a 15-year-old family friend in his car to take her

back to his house to spend the night with his own 15-year-old daughter.

Fouts and his victim had a close relationship and the victim often spent time

at the Fouts’ home. She even called Mr. and Mrs. Fouts “mom” and “dad.”

However, instead of taking the victim directly to his home, Fouts drove her

to a secluded wooded area of a high school parking lot and started talking

about pornography and his marital problems. Fouts put the victim on his lap

and kissed her neck. The victim texted Fouts’ daughter during and after the

incident.

{¶27} At trial, the prosecution introduced screen shots of the victim’s

text messages. The jury also watched a 30-minute videotaped interview

Fouts had with an officer. In the interview, Fouts initially lied about the

incident but changed his story after he was told that security cameras on the

high school parking lot showed his car. On appeal, Fouts argued that the

trial court erred in denying his motion to suppress incriminating statements

he made to police. Fouts argued his statements were involuntary because the
Highland App. No. 18CA11 18

police engaged in deceptive practices by minimizing the seriousness of the

offense.

{¶28} In our decision, we observed that deception is a factor that

bears on the voluntariness of a defendant's confession, but “ ‘this factor,

standing alone, is not dispositive of the issue.’ ” Fouts, supra, at ¶ 36,

quoting State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d 97 (1991).

“[V]ague and indefinite” statements do not render a confession involuntary.

Fouts, supra; State v. Osie, 140 Ohio St.3d 131, 149, 2014–Ohio–2966, 16

N.E.3d 588, ¶ 100 reconsideration denied, 140 Ohio St.3d 1455, 2014–

Ohio–4414, 17 N.E.3d 600, ¶ 100 and cert. denied, 135 S.Ct. 1562, 191

L.Ed.2d 649 (2015). Fouts argued that the investigating officer deceptively

minimized his offense by telling him she did not believe he committed rape.

Regarding this argument, we stated at ¶ 39:

We find nothing deceptive about this statement; the
officer testified that the minor's factual allegations did
not include rape. The other possible statements in the
record that arguably minimized Fouts's offense were the
officer's statement that she believed he “made a mistake”
and “mistakes can be fixed”, and her characterization of
what might have happened the night before as “iffy.”
However, we find nothing about those vague and indefinite
statements that would render his confession involuntary.

{¶29} We further noted at ¶ 40:

Nothing in the officer's interview approaches the level
of conduct necessary to overcome Fouts's will to remain
Highland App. No. 18CA11 19

silent, or otherwise resulted in a coerced confession. There
was no “badgering” or threatening by the officer. The
entire tone of the questioning was casual, conversational,
and cooperative. There was no hint of coercion or duress
during the interview. Nor was there anything improper in
the officer's efforts to create a favorable environment for
a confession. There was nothing false, deceptive or coercing
about her tactic of minimizing the offense by labelling it a
“mistake” and his behavior as “iffy”.

{¶30} Our decision in Fouts was cited in the Eighth Appellate

District’s decision in Martinez, supra. Martinez appealed a conviction for

importuning in violation of R.C. 2901.07(B)(1). Martinez, a 66 year-old hall

monitor at Parma High School was investigated and indicted after a 15-year-

old female student reported that he had placed his arm around her shoulder

and made several inappropriate sexual comments to her while escorting her

to class. Martinez gave incriminating statements to law enforcement officers

at his home and later at the Parma Police Department.

{¶31} After reviewing the student’s allegations, Detective Sheridan

discussed the matter with Sergeant Zarzeczny, who offered to accompany

him to Martinez’s home. Sergeant Zareczny was familiar with Martinez and

thought Martinez would feel more comfortable answering questions if the

sergeant was present. Detective Sheridan secretly recorded the interview

which took place at Martinez’s kitchen table. For a time, Martinez’s wife

was present as well. Detective Sheridan informed Martinez of the
Highland App. No. 18CA11 20

allegations against him. Martinez acknowledged he knew the student but

initially denied putting his arm around her or making sexual comments.

Approximately 11 minutes into the interview, Mrs. Martinez left the room.

{¶32} After Mrs. Martinez left, Detective Sheridan told Martinez

“man to man” that he knew he was not being truthful. They told him he was

not under arrest because Zareczny knew he was a “good guy,” and they did

not want to arrest him. They continued to urge him to “man up,” and tell

them “what really happened.” Martinez’ body language during this portion

of the interview was described as “head down in hands,” “pale as a ghost,”

“sweating,” “hard time maintaining eye contact,” and “trembling.”

{¶33} The detectives continued the interrogation, informing Martinez

that the student was prepared to testify in court, that there was video

surveillance of the incident, and that there was “other evidence” which they

declined to disclose. Approximately 15 minutes into the interview, Martinez

admitted putting his arm around the student and making the alleged

inappropriate sexual comments. Martinez was not informed of his Miranda

rights.

{¶34} After Martinez confessed, he was informed they needed to go

to the police station where he could make a more formal confession. There,

Martinez repeated his incriminating statements. While Martinez raised
Highland App. No. 18CA11 21

issues during a suppression hearing with both interrogations, the trial court

denied Martinez’ motion to suppress. For our purposes, we are concerned

with only analysis of the voluntariness of his at-home interrogation. The

appellate court in Martinez wrote at ¶ 39:

We have carefully reviewed both the transcript from the suppression
hearing and the audio recording of Martinez’s at-home interrogation.
While the recording demonstrates that officers used various
interrogation tactics to encourage Martinez to “tell the truth” during
the interrogation, including minimizing the conduct involved,
acknowledging what a “good guy” he is, discussing the “evidence”
supporting the victim’s story, urging him to be honest because it could
help him and reminding Martinez that “people make mistakes” and
that he had the love and support of his wife and family who would
“forgive him,” there is nothing to suggest that Martinez was subjected
to any kind of ‘‘inherently coercive tactic’’ that might have made his
statements involuntary and thus excludable.

{¶35} The appellate court also noted, as we have above, that

admonitions to tell the truth are not coercive in nature. Id. at ¶ 32.

“Likewise, a police officer’s statement to a suspect that a confession ‘will be

helpful’ * * * does not invalidate an otherwise legal confession.” Id.,

quoting State v. Jones, 2014-Ohio-4116, 43 N.E. 3d 833, (2nd Dist.), at ¶ 19.

The trial court also noted at ¶ 33:

Moreover, the “totality of the circumstances” does not support the
conclusion that Martinez’s will was overborne. * * * The record
reflects that Martinez was 66 at the time of his confession, was a high
school graduate. * * * Martinez makes no claim that he suffered from
any type of physical disability or mental impairment that impacted the
voluntariness of his confession. * * * [T]he at-home interrogation,
from the moment the officers entered Martinez’s home until they left
Highland App. No. 18CA11 22

the home, lasted less than 30 minutes. * * * At all times during the
interrogation, the officers were calm and respectful towards Martinez
and the tone of their conversation was cooperative. There was no
yelling or screaming by the officers. There was no evidence that
Martinez was physically or verbally abused or threatened, was tricked
or coerced into confessing, was made any promises that induced his
confession or was subjected to any physical deprivation or
mistreatment at any time during the interrogation.

{¶36} Likewise, in this case, after careful review of the transcript of

the recorded interview, the transcript of the suppression hearing, and the

recorded interview itself, we find no wrong doing by Sergeant Reynolds.

While the evidence at the suppression hearing demonstrates Sergeant

Reynolds utilized various interrogation tactics, including deception, we

agree with the trial court’s finding that there was no police coercion nor

promise of a benefit. For the reasons which follow, we hold the trial court’s

finding is supported by competent credible evidence in the record.

Appellant’s will was not overborne and we find his confession was

voluntarily made.

{¶37} In Appellant’s case, Sergeant Reynolds had two prior

interviews with Appellant, which appear to have established a groundwork

of trust between Appellant and the officer. In the third interview, Appellant

appears comfortable and engaged in a back and forth exchange with

Sergeant Reynolds. Also, in the third interview, Sergeant Reynolds almost

immediately informs Appellant about the DNA evidence and A.E.’s claim of
Highland App. No. 18CA11 23

force. Thereafter, Sergeant Reynolds does utilize deceptive, vague, and

indefinite statements in order to elicit Appellant’s incriminating statements.

{¶38} In the third interview, Sergeant Reynolds, early on, sets the

stage for the “false distinction” by telling Appellant that he believes that

Appellant engaged in consensual conduct. Quickly following are multiple

instances where Sergeant Reynolds urged Appellant to tell the truth.

Reynolds repeatedly emphasizes the importance of honesty in Statements 1,

4, 5, 6, 11, and 12. In Statement 6, Reynolds refers to himself as a truth-

seeker. In State v. Adkins, 4th Dist. Scioto No. 2010CA3367, 2011-Ohio-

5360, we observed that “ ‘[A]n admonition to tell the truth’ ” is neither a

promise nor a threat, and is completely permissible during an interrogation.

Id at 48, quoting, State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895

(1989)(superseded on other grounds). See also State v. Wiles, 59 Ohio St.3d

71, 80–81, 571 N.E.2d 97 (1991) (following Cooey and holding that

“admonitions to tell the truth directed at a suspect by police officers are not

coercive in nature.”).

{¶39} The record also reflects multiple instances in which Sergeant

Reynolds persists in making the not fully defined distinction between rape

and consensual sex. He alludes to a distinction in Statements 1, 3, and 9.

Statement 7 is extremely deceptive in its vagueness and incompleteness.
Highland App. No. 18CA11 24

Reynolds describes two factual scenarios in which rape or battery would

occur, concluding “[b]ut certain definitions could be rape.” Reynolds does

not include the definition of rape when it involves consensual sex with a

minor person., R.C. 2907.02(A)(2), which provides that “[n]o person shall

engage in sexual conduct with another who is not the spouse of the offender

* * * when * * * [t]he other person is less than thirteen years of age, whether

or not the offender knows the age of the other person.”

{¶40} Statement 10 is deceptive in its vagueness. Reynolds states: “I

don’t think we’re looking at a forcible rape. I don’t think that. You know

what I mean? So that makes a difference.” Reynolds does not explain the

difference nor does Appellant ask for an explanation.

{¶41} After setting up the “consensual sexual conduct” scenario,

Sergeant Reynolds urges Appellant to confess to consensual sex. In

Statements 2, 3, 4, and 5, Sergeant Reynolds suggests that if Appellant

doesn’t tell his side of the story, A.E.’s story will automatically be believed.

Reynolds urges Appellant to “get [his]version of the truth” out because by

failing to do so, Appellant is “laying his fate in the hopes that we just don’t

believe her, when you’re giving us nothing to believe.” These statements

are deceptive in the sense that there was no reason that Appellant had to tell

his side of the story on that date. If Appellant was charged and arrested, he
Highland App. No. 18CA11 25

could always arrange to give a statement at a later date. However, in Adkins,

supra, at ¶ 49, we have also observed that deception is not “per se” coercive.

{¶42} Appellant has also directed us to Statement 5, where he was

exhorted to tell his story so that he could even “rest easy knowing that

you’re being treated fairly- - which you’re being treated fairly anyway.”

While Statement 10 is extremely deceptive and Statement 5 is deceptive in

its vague reassurance, we agree with the trial court that the record is devoid

of any promises of leniency in the event Appellant confessed to consensual

sex.

{¶43} The only statement which alludes to any outcome in Appellant’s

case is Statement 10, where Sergeant Reynolds delineates potential

outcomes. Reynolds describes the open-ended nature of the outcome as

follows:

I mean, it could be anything from whatever the judge
decides * * * you know it just depends on the
circumstances. * * * You could go to jail. You could
just have to go to court.

It is clear Reynolds makes no promise of leniency when he acknowledges:

“[T]he judge has the full discretion.* * * I don’t know, I don’t know. * * * I

don’t know what we’re looking at here.” Appellant also asked, “Like what

happens if we did have sex?” In Statement 10, Sergeant Reynolds

responded that he could not give legal advice.
Highland App. No. 18CA11 26

{¶44} In Scholl, supra, at ¶ 15, the appellate court held, “Admissions

[sic] to tell the truth are not coercive; the use of deceitful tactics is not

dispositive but only a factor; and suggestions of leniency, promises that

cooperation will be considered, and statements that confessions will be

helpful do not invalidate an otherwise legal confession.” See also State v.

Carovillano, 1st Dist. No. C–060658, 2007–Ohio–5459, ¶ 25; (internal

citations omitted.) Similarly, on the record before us, we find only

exhortations to tell the truth; deception in the form of vague or indefinite

statements; and suggestions that “honesty goes a long way.” We agree with

the trial court’s finding and do not find Sergeant Reynolds’ conduct was

coercive.

{¶45} Moreover, the evidence demonstrates that Appellant was a 19-

year-old high school graduate. Appellant confessed approximately 15-20

minutes into the interview with Sergeant Reynolds, after engaging in back

and forth questions and answers. The evidence does not demonstrate

Appellant was physically deprived or mistreated. Sergeant Reynolds did not

yell or scream at Appellant. The recorded interview shows a young adult

man, not a juvenile, who could have ended the interview or requested an

attorney early on. Despite his young age and unsophisticated manner, we
Highland App. No. 18CA11 27

cannot say that Appellant’s confession was obtained in an illegal or coercive

manner.

{¶46} For the foregoing reasons, we find no merit to Appellant’s

argument that his confession was the product of coercive police conduct and

therefore, not voluntarily made. Accordingly, we overrule the sole

assignment of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED.
Highland App. No. 18CA11 28

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court,

BY: __________________________________
Jason P. Smith, Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.