[Cite as State v. Fowler, 2016-Ohio-5940.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2016AP040024
:
MICHAEL A. FOWLER :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2015
CR 03 0096
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 20, 2016
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
RYAN STYER MARK A. PERLAKY
TUSCARAWAS CO. PROSECUTOR 153 N. Broadway St.
R. SCOTT DEEDRICK New Philadelphia, OH 44663
125 E. High Ave.
New Philadelphia, OH 44663
Tuscarawas Cty., Case No. 2016AP040024 2
Delaney, J.
{¶1} Plaintiff-appellant state of Ohio appeals the April 20, 2016 judgment
entries of the Tuscarawas County Court of Common Pleas reaffirming its decision to
grant the motion to suppress of defendant-appellee Michael A. Fowler.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts and procedural history are taken in part from our
decision in State v. Fowler, 5th Dist. Tuscarawas No. 2015 AP 0054, 2016-Ohio-1209
[Fowler I]. The instant appeal arises from our remand order in Fowler I.
{¶3} Appellee was indicted upon one count of rape in violation of R.C.
2907.02(A)(1)(b) and (A)(2), felonies of the first degree, and one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree, on March 30,
2015. The indictment alleged appellee engaged in sexual activity with a minor female
relative from 2004 into 2007.
{¶4} On June 12, 2015, appellee filed a motion to suppress statements made
during an interview with the New Philadelphia Police Department on December 1, 2014.
Appellee alleged his statements were involuntary because Detective Nelson made
factual and legal misstatements that directly led to appellee’s confession. Specifically,
appellee argued law enforcement implied the victim said the sexual activity with
appellee was “consensual,” and that consensual sexual activity between family
members is not legally prohibited.
{¶5} An evidentiary hearing took place on August 13, 2015, and appellant
called one officer, Detective Shawn Nelson of the New Philadelphia Police Department.
Tuscarawas Cty., Case No. 2016AP040024 3
Testimony of Detective Shawn Nelson.
{¶6} On December 1, 2014, Detectives Nelson and Willett interviewed appellee
at the police department. The entire interview was recorded and entered into evidence.
See, Joint Exhibit A.
{¶7} Appellee was in custody at the time of the interview on an unrelated matter
and was released after the interview. The interview lasted one hour and fifteen minutes.
(T. Aug. 13, 2015 at 17). Nelson read appellee his Miranda rights prior to commencing
the interview. Appellee did not ask for the interview to stop. (T. Aug. 13, 2015 at 18).
Appellee never requested an attorney. (Id.). Nelson testified the interview would have
terminated if appellee made either request. (Id. at 19).
{¶8} Appellee told the officers he suffered two aneurisms that had affected his
memory. (Joint Exhibit A). Nelson testified he did not observe any indications appellee
did not understand his situation. (Id. at 20). Nelson characterized appellee as articulate
and responsive to the questioning. (Id.).
{¶9} By entry dated August 14, 2015, the trial court deferred a decision pending
the parties’ submission of post-hearing memoranda.
The trial court's decision of September 21, 2015.
{¶10} By judgment entry filed September 21, 2015, the trial court agreed Nelson
read appellee his Miranda rights prior to questioning. However, the trial court noted,
* * * *.
FINDS, however, that Defendant does not suggest either in
his Motion to Suppress Statements or in his Legal Memoranda in
Tuscarawas Cty., Case No. 2016AP040024 4
Support of the Motion, that the rights of the Defendant under
Miranda v. Arizona, 384 U.S. 436 (1966) have not been abrogated.
FINDS that in viewing the DVD (Joint Exhibit A)
memorializing the 12/1/2014 Interrogation of the Defendant by
agents of the New Philadelphia, Ohio Police Department at the New
Philadelphia, Ohio Police Station, it is graphically clear that the
following occurred:
Detective Shawn Nelson, prior to asking the Defendant any
questions, properly read the Defendant's constitutional rights vis a
vis Miranda, citation above.
Agents of the New Philadelphia Police Department did not
obtain a lawful waiver from the Defendant of his constitutional rights
under the Fifth Amendment of the United States Constitution
protecting the Defendant in this case from being compelled to self-
incriminate.
In explaining Defendant's constitutional rights Detective
Nelson did not place a printed copy of the constitutional rights form
from which he was reading before the Defendant notwithstanding
that he told the Defendant you can “follow along or not” or words to
that effect prior to reading the constitutional rights form to
Defendant. Additionally, upon completing the recitation of
Defendant's constitutional rights, Detective Nelson did not ask the
Defendant if he was willing to proceed to answer questions but,
Tuscarawas Cty., Case No. 2016AP040024 5
instead, simply placed what appears to be a document containing
the constitutional rights and a waiver form in front of the Defendant
and said “I need you to sign right here” (the waiver form on the
document) to which the Defendant says “I cannot see.” “I don't have
my glasses.” The Defendant then proceeded to sign the document
without his glasses at the location Detective Nelson told him to
sign”—“on the X.”; and without any verbal indication that he knew
what he was signing or had any understanding of the legal
significance of his signature.
* * * *.
{¶11} The trial court concluded, e.g., appellant failed to prove appellee made a
“knowing and intelligent” decision to waive his rights and granted appellee’s motion to
suppress all of the statements made during the interview.
Appellant’s First Appeal
{¶12} Appellant appealed the trial court’s decision and raised two assignments
of error: 1) the trial court committed reversible error by suppressing the statements sua
sponte on an issue not raised by the parties,1 and 2) appellee’s waiver of his Miranda
rights was knowing, voluntary, and intelligent under the circumstances. We found the
trial court incorrectly determined appellee was not properly informed of his Miranda
rights. Fowler I, supra, 2016-Ohio-1209 at ¶ 22. However, we also found the trial court
““never addressed whether [appellee] made a knowing, intelligent and voluntary waiver
1 Fowler I does not expressly address this assignment of error.
Tuscarawas Cty., Case No. 2016AP040024 6
of his rights under the Fifth and Fourteenth Amendments” and remanded the matter to
the trial court for determination of this issue. Id.
{¶13} On April 11, 2016, the trial court held a remand hearing at which the parties
agreed no additional evidence would be presented.
The trial court’s decisions of April 20, 2016.
{¶14} In a judgment entry dated April 20, 2016, the trial court revisited the findings
of fact from the decision of September 21, 2015 and emphasized the decision was not
premised upon whether the detectives provided a written Miranda waiver. Instead, upon
viewing the DVD of the interview, the trial court was firmly convinced appellee did not
understand the constitutional rights guaranteed by Miranda and did not knowingly,
intelligently, and voluntarily waive those rights.
{¶15} Thus, the trial court concluded, appellee did not understand his
constitutional rights provided by the 5th and 14th Amendments and did not knowingly,
intelligently, and voluntarily waive those rights. In a separate entry the trial court
reaffirmed the decision to suppress the statements made in the interview of appellee.
{¶16} Appellant now appeals from the trial court’s decision of April 20, 2016.
{¶17} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶18} “I. APPELLEE’S WAIVER OF HIS MIRANDA RIGHTS WAS KNOWING,
VOLUNTARY, AND INTELLIGENT IN THE TOTALITY OF THE CIRCUMSTANCES.”
{¶19} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
SUPPRESSING STATEMENTS SUA SPONTE ON AN ISSUES [sic] NOT RAISED BY
THE PARTIES OR COURT.”
Tuscarawas Cty., Case No. 2016AP040024 7
ANALYSIS
I., II.
{¶20} Appellant’s two assignments of error are related and will be considered
together. Appellant argues appellee’s waiver of his Miranda rights was knowing,
voluntary, and intelligent, and that the trial court committed reversible error in raising the
issue sua sponte. We disagree on both counts and for the following reasons affirm the
trial court’s decisions of April 20, 2016 sustaining appellee’s motion to suppress.
Scope of the Suppression Hearing
{¶21} First, the trial court did not impermissibly exceed the scope of the
suppression hearing or the remand order in determining whether appellee’s waiver of his
rights pursuant to Miranda (and by extension, the 5th and 14th Amendments) was
knowing, voluntary, and intelligent.
{¶22} Appellant is entitled to know the issues presented in advance of a
suppression hearing. In general, the state is not expected to anticipate specific legal and
factual grounds upon which a defendant relies in a motion to suppress. See, Xenia v.
Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). Under the general rule of
Crim.R. 47, a motion to suppress “shall state with particularity the grounds upon which it
is made,” and the state's burden of proof is limited to those contentions asserted with
sufficient particularity to place the prosecutor and court on notice of the issues to be
decided. State v. Todd, 5th Dist. Ashland No. 14 COA 005, 2014-Ohio-4489, ¶ 23, citing
Johnstown v. Jugan, 5th Dist. Licking No. 95CA90, 1996 WL 243805 (Apr. 24, 1996).
{¶23} The trial court is not required to sit on its proverbial hands if an issue
germane to the suppression argument arises. A trial court “is free to expand the scope
Tuscarawas Cty., Case No. 2016AP040024 8
of a suppression hearing beyond the issues specified in the motion to suppress ‘so long
as the matters within the expanded scope were material to the suppression sought, and
so long as the State had a reasonable opportunity to prepare itself for the hearing.’” State
v. Byrnes, 2nd Dist. Montgomery No. 25860, 2014-Ohio-1274, at ¶ 12, quoting State v.
Blackburn, 2d Dist. Clark No. 3084, 1994 WL 95224, *4 (Mar. 23, 1994). Conversely, “[a]
trial court's rogue detour at a suppression hearing does not put the State on notice of an
issue to be decided.” Byrnes, 2014-Ohio-1274 at ¶ 9, citing State v. Dabney, 99 Ohio
App.3d 32, 39, 649 N.E.2d 1271 (2d Dist.1994. The question of the voluntariness of
appellee’s waiver in the instant case is not a “rogue detour.”
{¶24} If a trial court grants a motion to suppress based on an issue that falls
outside the scope of the motion, the state may not have been provided with an opportunity
to adequately prepare arguments and present evidence on that issue and the trial court
would err in granting the motion to suppress on that basis. State v. Duke, 9th Dist. Lorain
No. 12CA10225, 2013-Ohio-743, ¶ 11. The question, therefore, is whether the trial court
indicated the issue it was considering, and whether the parties were given an opportunity
to prepare and present arguments on that issue. State v. Tyson, 3rd Dist. Marion No. 9-
14-49, 2015-Ohio-3530, 41 N.E.3d 450, ¶ 35.
{¶25} In the instant case, appellant was afforded sufficient opportunities to
adequately prepare arguments and to present evidence as to whether appellee’s waiver
of his right to remain silent was knowing, voluntary, and intelligent. Appellee’s
suppression motion went to whether he was deceived by police and what effect any
deception may have had on the voluntariness of the waiver. The sole witness at the
suppression hearing was Detective Nelson; the content of his testimony focused on the
Tuscarawas Cty., Case No. 2016AP040024 9
totality of the circumstances surrounding appellee’s statements; and the prosecutor
acknowledged calling Detective Willett would serve no purpose because he could only
reiterate Nelson’s testimony. The only exhibit admitted was Joint Exhibit 1, the DVD of
the interview, which was not played by either party during the hearing. The trial court
stated it would defer ruling on the motion to suppress pending review of the DVD and
gave the parties the opportunity to present post-hearing memoranda.
{¶26} Furthermore, upon our remand order for further consideration of the 5th and
14th Amendment issues, both parties agreed no additional evidence would be presented
and they relied upon the memoranda already filed. Appellant does not suggest, and we
will not speculate, what additional evidence or arguments appellant would have presented
to further illustrate the circumstances surrounding appellee’s interrogation.
{¶27} The trial court permissibly expanded the scope of the suppression inquiry
beyond the alleged deception by police because the matters within the expanded scope
were material to suppression and appellant had a reasonable opportunity to prepare and
present arguments on the issue of the voluntariness of the waiver.
Appellee’s Waiver
{¶28} Next, turning to the substantive issue presented by our remand order and
the trial court’s decisions of April 20, 2016, we begin with the intersection of Miranda and
the rights of a criminal suspect pursuant to the Fifth and Fourteenth Amendments. The
5th Amendment to the United State Constitution provides that “[n]o person ... shall be
compelled in any criminal case to be a witness against himself.” The privilege against
self-incrimination prohibits the state from using any statement against a criminal
defendant “stemming from custodial interrogation of the defendant unless it demonstrates
Tuscarawas Cty., Case No. 2016AP040024 10
the use of procedural safeguards effective to secure the privilege against self-
incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). “[B]y
custodial interrogation, we mean 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.” Id. A person being questioned in a custodial interrogation must be
warned “that he has the right to remain silent, that any statement he does make may be
used as evidence against him, and that he has the right to the presence of an attorney,
either retained or appointed.” Id.
{¶29} The 14th Amendment Due Process guarantee is also implicated when a
criminal suspect is interrogated. “The issues of whether a confession is voluntary, and
whether a suspect has been subjected to custodial interrogation so as to require Miranda
warnings, are analytically separate issues. The due process clause continues to require
an inquiry, separate from custody considerations, concerning whether a defendant's will
was overborne by the circumstances surrounding the giving of his confession.” State v.
Jackson, 2d Dist. Greene No. 02CA0001, 2002–Ohio–4680, ¶ 19, citing Dickerson v.
United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). This due process
test takes into consideration the totality of all the surrounding facts and circumstances,
including the characteristics of the accused and the details of the interrogation. Factors
to be considered include 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 threats or inducements. State v.
Malone, 5th Dist. Licking No. 14CA89, 2015-Ohio-3436, ¶ 31, citing State v. Edwards, 49
Ohio St.2d 31, 358 N.E .2d 1051 (1976).
Tuscarawas Cty., Case No. 2016AP040024 11
{¶30} As the Ohio Supreme Court succinctly summarized, “Miranda rights arise
from the Fifth Amendment to the United States Constitution, whereas the necessity that
a suspect's statement to police is voluntary implicates the guarantee of due process under
the Fourteenth Amendment.” State v. Baker, Slip Opinion No. 2016-Ohio-2708, ---
N.E.3d ----, ¶ 20, citing Colorado v. Connelly, 479 U.S. 157, 169–170, 107 S.Ct. 515, 93
L.Ed.2d 473 (1986).
{¶31} Our remand for consideration of whether “[appellee] made a knowing,
intelligent and voluntary waiver of his rights under the Fifth and Fourteenth Amendments”
is not an implied rebuke of the trial court’s decision to grant the motion to suppress on the
basis of Miranda when Miranda itself was never invoked. Instead, we ordered the trial
court to consider whether appellee’s statement was knowing, voluntary, and intelligent
with regard to the 5th and 14th Amendment guarantees. The trial court did exactly that
in finding appellee neither understood those rights nor knowingly, intelligently, and
voluntarily waived them.
{¶32} It is axiomatic that we are bound to accept the trial court’s findings of fact if
they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d
142, 145, 675 N.E.2d 1268 (4th Dist.1996). 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, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on
other grounds.
{¶33} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
Tuscarawas Cty., Case No. 2016AP040024 12
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, 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). 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. See, Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court’s conclusion,
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶34} In Fowler I, appellant challenged the trial court’s decision upon the ultimate
issue, to wit, whether appellee’s Miranda waiver was knowing, voluntary, and intelligent.
In the instant appeal, appellant argues appellee’s waiver of his Miranda rights was
knowing, voluntary, and intelligent under the circumstances. We are required to accept
the trial court’s findings of fact if they are supported by competent, credible evidence. To
that end, we have again reviewed the DVD of appellee’s interview and find that the trial
court’s findings of fact are supported by competent, credible evidence, to wit:
* * * *.
In explaining [appellee’s] Constitutional Rights, Detective
Nelson did not place a printed copy of the Constitution Rights Form
from which he was reading before [appellee], notwithstanding that he
told [appellee] you can “follow along or not” or words to that effect
Tuscarawas Cty., Case No. 2016AP040024 13
prior to reading the Constitutional Rights Form to [appellee].
Additionally, upon completing the recitation of [appellee’s]
Constitutional Rights, Detective Nelson did not ask [appellee] if he
was willing to proceed to answer questions but, instead, simply
placed what appears to be a document containing the Constitutional
Rights and a Waiver Form in front of [appellee] and said “I need you
to sign right here” (the Waiver Form on the document) to which
[appellee] said “I cannot see.” “I don’t have my glasses.” [Appellee]
then proceeded to sign the document without his glasses at the
location Detective Nelson told him to sign—“on the X;” and without
any verbal indication that he knew what he was signing or had any
understanding of the legal significance of his signature. [Emphasis
in original.]
* * * *.
In this case there simply was never any lawful Waiver by
[appellee] of his Constitutional Rights, for the reasons mentioned
above, and consequently, all of the statements of [appellee] taken at
the interrogation on 12/1/2014 must be suppressed. [Emphasis in
original.]
* * * *.
* * * [Appellee], at no time, was ever asked by Detective
Nelson on 12/1/2014 if [appellee] understood the just completed,
rapid-fire reading of the Miranda rights. To the contrary, [appellee]
Tuscarawas Cty., Case No. 2016AP040024 14
was agitated and distracted about his residence being unlocked and
unsecured and the fact that his elderly mother was being kept waiting
at the Police State [sic] when he was supposed to be released on
another matter. [Emphasis in original.]
It is overwhelmingly clear that it was never established, by
words or conduct, that [appellee] understood the Miranda rights or
that he knowingly, voluntarily, or intelligently waived them.
[Emphasis in original]. * * * *.
[Appellee] was forced to sign the purported waiver by
Detective Nelson. If one watches the DVD, it is abundantly clear that
[appellee] was given no choice other than to sign the waiver.
[Emphasis in original.] * * * *.
* * * *.
Decision on Remand from Court of Appeals for Tuscarawas
County, Ohio Issued 3/22/2016 in Appellate Case No. 2015 AP 09
0054, April 20, 2016.
{¶35} We find appellant failed to meet its burden to show that appellee’s waiver
of his rights was knowing, intelligent, and voluntary. “[E]ven if Miranda warnings were
required and given, a defendant's statements may be deemed involuntary and thus, be
subject to exclusion.” State v. Marshall, 4th Dist. Lawrence No. 06CA23, 2007–Ohio–
6298, 2007 WL 4180806, ¶ 42, citing State v. Kelly, 2nd Dist. Greene No. 2004–CA–20,
2005–Ohio–305, 2005 WL 182900, ¶ 11. We agree the evidence does not show
appellee’s decision “not to rely on his rights was uncoerced, that he at all times knew he
Tuscarawas Cty., Case No. 2016AP040024 15
could stand mute and request a lawyer, and that he was aware of the State's intention to
use his statements to secure a conviction[.]” See, State v. Dailey, 53 Ohio St.3d 88, 91,
559 N.E.2d 459 (1990).
{¶36} We thus overrule appellant’s two assignments of error and affirm the trial
court's decision granting the motion to suppress.
CONCLUSION
{¶37} Appellant’s two assignments of error are overruled and the judgment of the
Tuscarawas County Court of Common Pleas is affirmed.
By: Delaney, J. and
Wise, P.J.
Baldwin, J., concur.
State v. Fowler
Combined Opinion