State v. Phillips ( 2011 )


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  • [Cite as State v. Phillips, 
    2011-Ohio-6773
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    HIGHLAND COUNTY
    STATE OF OHIO,                                        :    Case No. 11CA11
    :
    Plaintiff-Appellee,                           :
    :    DECISION AND
    v.                                            :    JUDGMENT ENTRY
    :
    DARRELL PHILLIPS, JR.                                 :
    :    RELEASED 12/19/11
    Defendant-Appellant.             :
    ______________________________________________________________________
    APPEARANCES:
    Conrad A. Curren, Greenfield, Ohio, for appellant.
    Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for appellee.
    ______________________________________________________________________
    Harsha, P.J.
    {¶1}     After pleading no contest to gross sexual imposition, Darrell Phillips
    appeals the trial court’s denial of his motion to suppress. Phillips contends that his
    statements to children services employees must be suppressed because the employees
    were agents of law enforcement and improperly interrogated him after he invoked his
    Fifth Amendment rights. However, the employees fulfilled their statutory duty when they
    questioned Phillips and were not acting at the direction, control, or behest of law
    enforcement. Therefore, they were not agents of law enforcement and not bound to
    follow the dictates of Miranda v. Arizona (1966), 
    384 U.S. 436
    , 444, 
    86 S.Ct. 1602
    , 
    16 L.Ed.2d 694
     when they questioned Phillips. Because the interview by children services
    employees did not violate Phillips’ constitutional rights, the trial court properly denied the
    motion to suppress, and we affirm the judgment below
    I. Facts
    {¶2}     A grand jury indicted Phillips on one count of gross sexual imposition in
    Highland App. No. 11CA11                                                                       2
    violation of R.C. 2907.05(A)(4), a third-degree felony. Phillips filed a motion to suppress
    statements he made to Highland County Children Services employees. Phillips claimed
    they were agents of law enforcement and elicited incriminating statements from him in
    violation of his Fifth Amendment rights.
    {¶3}   At the hearing on the motion, Sergeant Dustin Malone of the Lynchburg
    Police Department testified that on September 8, 2010 he was dispatched to investigate
    allegations regarding sexual abuse. A girl told him that Phillips, her stepfather, touched
    her private areas since she was six or seven years old until she was nine. The child’s
    grandmother told Malone that Phillips had an outstanding warrant. Malone confirmed
    this information and arrested Phillips. Malone then Mirandized Phillips and questioned
    him about the child’s allegations. Phillips denied the allegations and “decided that he
    wanted an attorney and did not want to talk” to Malone anymore. Malone stopped the
    interrogation, completed a report, and turned it over to Detective Sergeant Denny Kirk.
    Malone never spoke to anyone from children services about the case until the day of the
    motion hearing.
    {¶4}   Breanne Perry, a children services employee, testified that on September
    9, 2010 her agency received an allegation involving Phillips. Perry could not reveal who
    the allegation came from because the information was confidential under the Revised
    Code. She did acknowledge that the agency received a fax from Kirk on September 10
    that contained a copy of Malone’s incident/offense report and interview notes. Perry
    thought she talked to Kirk briefly after receiving the fax but before interviewing Phillips.
    According to Perry, law enforcement did not tell the agency to interview Phillips or
    encourage it to do so. However, because Perry was “mandated in [her] job to speak
    with all parties involved[,]” she and her supervisor, Jeff Rulon, interviewed him on
    Highland App. No. 11CA11                                                                       3
    September 28, and he confessed to the sexual abuse. Perry testified that they did not
    Mirandize Phillips or record the conversation. Perry acknowledged that she reported
    the confession to law enforcement. She testified that she regularly contacts law
    enforcement about cases, particularly if they involve criminal matters like child sexual
    abuse.
    {¶5}    Jeff Rulon, an investigative supervisor for children services, testified that
    the agency received an allegation that Phillips had sexually touched a child. He testified
    that he did not interview Phillips at the direction of anyone other than children services.
    Rulon testified that he was required by law to investigate the allegation. When he and
    Perry questioned Phillips in an interview room at the jail, no one else was present.
    Rulon testified that the agency is required by law to give law enforcement information
    that has a “criminal element to it * * *.”
    {¶6}    After a hearing on the motion, the trial court made findings of fact and
    concluded that Perry and Rulon were not law enforcement officers or agents of law
    enforcement. The court found that they were “acting on their own duties to investigate
    child abuse reports made to them[,]” and there was “no evidence that [they] were acting
    as agents of the Sheriff’s Department in conducting their interview.” Therefore, the
    court found that Perry and Rulon did not obtain the confession from Phillips in violation
    of his constitutional rights and denied the motion to suppress. Phillips pleaded no
    contest to the charge, and the court found him guilty and sentenced him. This appeal
    followed.
    II. Assignment of Error
    {¶7}    Phillips assigns one error for our review:
    THE TRIAL COURT ERRED TO THE DETRIMENT OF THE
    DEFENDANT BY NOT SUPPRESSING STATEMENTS MADE TO
    Highland App. No. 11CA11                                                                       4
    CHILDREN’S SERVICES INVESTIGATORS WHEN THEY QUESTIONED
    HIM AFTER HE INVOKED HIS FIFTH AMENDMENT RIGHTS.
    III. Motion to Suppress
    A. Standard of Review
    {¶8}   In his sole assignment of error, Phillips contends that the trial court erred
    by denying his motion to suppress the statements he made to children services
    employees. Our review of a trial court’s decision on a motion to suppress presents a
    mixed question of law and fact. State v. Roberts, 
    110 Ohio St.3d 71
    , 
    2006-Ohio-3665
    ,
    
    850 N.E.2d 1168
    , at ¶100, citing State v. Burnside, 
    100 Ohio St.3d 152
    , 2003-Ohio-
    5372, 
    797 N.E.2d 71
    , at ¶8. When considering a motion to suppress, the trial court acts
    as the trier of fact and is in the best position to resolve factual questions and evaluate
    witness credibility. 
    Id.
     Accordingly, we defer to the trial court’s findings of fact if they
    are supported by competent, credible evidence. State v. Landrum (2000), 
    137 Ohio App.3d 718
    , 722, 
    739 N.E.2d 1159
    . Accepting those facts as true, we must
    independently determine whether the trial court reached the correct legal conclusion in
    analyzing the facts of the case. Roberts at ¶100, citing Burnside at ¶8.
    B. Statements to Children Services Employees
    {¶9}   Phillips contends that the trial court erred by denying the motion to
    suppress because Perry and Rulon were agents of law enforcement and improperly
    interrogated him after he invoked his Fifth Amendment rights. In Miranda, 
    supra,
     at 444
    the United States Supreme Court held that statements made during custodial
    interrogation, i.e. “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,” are admissible only upon a showing that law enforcement officials followed certain
    procedural safeguards to secure the accused’s Fifth Amendment privilege against self-
    Highland App. No. 11CA11                                                                     5
    incrimination. (Emphasis added). In crafting this rule, the Court focused on the
    compulsion inherent in such interrogation by law enforcement, explaining that “[a]n
    individual swept from familiar surroundings into police custody, surrounded by
    antagonistic forces, and subjected to the techniques of persuasion” utilized by law
    enforcement “cannot be otherwise than under compulsion to speak.” 
    Id. at 461
    . Agents
    of law enforcement must also follow Miranda. State v. Watson (1971), 
    28 Ohio St.2d 15
    , 26, 
    275 N.E.2d 153
     (explaining that Miranda requirements do not apply to
    admissions to persons who are not officers of the law or their agents).
    {¶10} Under Miranda, law enforcement officials and their agents must inform a
    suspect that: 1.) he has the right to remain silent; 2.) his statements may be used
    against him at trial; 3.) he has the right to have an attorney present during questioning;
    and 4.) if he cannot afford an attorney, one will be appointed. State v. Foust, 
    105 Ohio St.3d 137
    , 
    2004-Ohio-7006
    , 
    823 N.E.2d 836
    , at ¶67, citing Miranda at 478-479. “Once
    an accused invokes his right to counsel, all further custodial interrogation must cease
    and may not be resumed in the absence of counsel unless the accused thereafter
    effects a valid waiver or himself renews communication with the police.” State v.
    Knuckles, 
    65 Ohio St.3d 494
    , 
    1992-Ohio-64
    , 
    605 N.E.2d 54
    , at paragraph one of the
    syllabus. See Miranda at 474.
    {¶11} Phillips claims that Rulon and Perry were acting as agents of law
    enforcement when they questioned him after he invoked his right to counsel. The State
    does not contend that Phillips waived his rights, initiated communication with the
    children services employees, or that Rulon and Perry questioned Phillips with counsel
    present. Rather, the State disagrees with Phillips’ characterization of Rulon and Perry
    as law enforcement agents.
    Highland App. No. 11CA11                                                                      6
    {¶12} As evidence of the agency relationship between Rulon and Perry and law
    enforcement, Phillips points to the fact that law enforcement notified children services
    about the allegation of child abuse via fax. He also highlights the fact that the interview
    occurred when he was incarcerated. Phillips additionally claims that Rulon and Perry
    had a “coercive advantage to get [him] to answer their questions as they could remove
    his children from his care indefinitely if he did not answer their questions.” (Appellant’s
    Br. 3). Finally, Phillips emphasizes the fact that children services reported his
    confession to law enforcement and argues Rulon and Perry had a “self-imposed” duty to
    “either cooperate with law enforcement or to further the ongoing investigation.”
    (Appellant’s Br. 4).
    {¶13} However, under R.C. 2151.421(D)(1), “[w]hen a municipal or county peace
    officer receives a report concerning the possible abuse or neglect of a child * * *, upon
    receipt of the report, the municipal or county peace officer who receives the report shall
    refer the report to the appropriate public children services agency.” Moreover, children
    services must investigate “within twenty-four hours, each [referred] report of child abuse
    or child neglect that is known or reasonably suspected or believed to have occurred” to
    determine the circumstances surrounding the injuries, abuse, or neglect, the cause of
    the injuries, abuse, or neglect, and the person or persons responsible. R.C.
    2151.421(F)(1). Therefore, law enforcement had a statutory duty to notify children
    services about the allegation, and children services had a statutory duty to investigate.
    {¶14} We recognize that under the Revised Code, children services’
    investigation “shall be made in cooperation with the law enforcement agency” and the
    agency must “submit a report of its investigation, in writing, to the law enforcement
    agency.” 
    Id.
     And as Phillips points out, at least one district has noted that “a duty to
    Highland App. No. 11CA11                                                                   7
    report to law enforcement officials, or at least a solicitation or recruitment by law
    enforcement, [is] a predicate for holding that a questioner is an agent for purposes of
    giving a suspect the Miranda warnings.” State v. Evans (2001), 
    144 Ohio App.3d 539
    ,
    554-555, 
    760 N.E.2d 909
    . We construe this language to mean the duty to report is a
    relevant but not sufficient element at best. And in spite of this duty to cooperate with
    and submit a report to law enforcement, the evidence in this case falls short of
    demonstrating that Rulon and Perry acted as agents of law enforcement.
    {¶15} In State v. Coonrod, Fayette App. No. CA2009–08–013, 
    2010-Ohio-1102
    ,
    children services received a report of sexual abuse involving the defendant’s five year
    old daughter. Erica Haithcock, a children services inspector, and her supervisor
    interviewed Coonrod at the county jail, where he was incarcerated on unrelated
    charges. Id. at ¶2. The interview took place in a jailhouse conference room, where only
    Coonrod, Haithcock, and her supervisor were present. Id. Haithcock told Coonrod that
    he was not required to answer her questions but did not Mirandize him. Id. Coonrod
    “twice denied touching his daughter in a sexually inappropriate manner; however, when
    asked a third time, [he] put his head down, became ‘fidgety’ and responded that he
    ‘wanted his daughter to get some help.’” Id. The same day, Haithcock forwarded
    Coonrod’s statements and other evidence to the sheriff’s office. Id. at ¶3.
    {¶16} Coonrod argued that the trial court erred when it denied his motion to
    suppress the statements to the inspector. However, the Twelfth District agreed with the
    trial court that based on the facts in the record, the inspector was not acting as an agent
    of law enforcement during the interview, finding:
    Nothing in the record indicates that the purpose behind Haithcock’s
    interview was to assist the police in their investigation or that she was
    otherwise acting as an agent of law enforcement. Haithcock testified that
    the purpose of her interview was “to advise [appellant] that there was an
    Highland App. No. 11CA11                                                                8
    allegation of sexual abuse against him from his biological daughter and to
    ask him about the situation that was reported to [Children Services].” After
    the interview, Haithcock forwarded the evidence she gathered, including
    appellant’s statements, to the Fayette County Sheriff’s Office, where the
    police subsequently interviewed appellant as part of their own
    investigation.
    In interviewing appellant and reporting her findings to the police,
    Haithcock was not acting under police direction, but performing her
    customary duties as a Children Services investigator. As an investigator
    for Children Services, Haithcock had a legal duty to investigate any
    complaint concerning child abuse and to report all known or suspected
    abuse to law enforcement. Further, Haithcock testified that no law
    enforcement officers participated in her interview with appellant on May
    13, 2009. In fact, law enforcement did not become involved in the case
    until Haithcock forwarded her findings to the Fayette County Sheriff’s
    Office after her interview.
    In sum, the record reflects that in interviewing appellant, Haithcock
    was performing her duties as an investigator for Children Services and
    nothing more. In conducting the interview, Haithcock did not act at the
    direction, behest or control of * * * any * * * law enforcement official.
    Further, Haithcock was neither invested with the power to arrest, nor did
    her duty to enforce Ohio law exceed her statutory duty to report alleged
    child abuse to the police. Because Haithcock was neither a “law
    enforcement official” nor an agent thereof, she (1) could not have
    subjected appellant to “custodial interrogation,” as contemplated by
    Miranda, and (2) was not required to advise appellant of his Miranda rights
    prior to the interview on May 13, 2009. * * *
    Id. at ¶¶11-13 (internal citations and footnote omitted). See, also, State v. Simpson
    (Feb. 21, 1992), Ross App. No. 1706, 
    1992 WL 37793
     (finding children services
    employee was not an agent of law enforcement where employee was performing her
    customary duties, did not act at the direction, control or behest of law enforcement, had
    no statutory duty to enforce state law, and had no power to arrest).
    {¶17} Unlike the interview in Coonrod, the interview in this case occurred after a
    member of law enforcement questioned the defendant about the allegations of child
    abuse and he invoked his Fifth Amendment rights. But as in Coonrod, no evidence
    suggests that the children services employees who conducted the interview acted at the
    Highland App. No. 11CA11                                                                  9
    direction, behest, or control of law enforcement. Like the employees in Coonrod, Rulon
    and Perry interviewed the defendant while he was incarcerated, but nothing suggests
    the purpose behind their interview was to assist the police. As in Coonrod, no members
    of law enforcement participated in the interview. Rulon and Perry were simply
    executing their duty to investigate allegations of child abuse. Contrary to Phillips’
    suggestion, nothing in the record indicates Rulon or Perry told him they would take his
    stepdaughter away from him if he did not cooperate. In fact, no evidence suggests they
    used any techniques of persuasion akin to those the Miranda Court was concerned with
    law enforcement using to compel suspects to speak. Moreover, Phillips does not
    contend that they had any power to arrest him or had any specific duty to enforce Ohio
    law.
    {¶18} In the absence of any evidence that the Rulon and Perry acted at the
    direction, control, or behest of law enforcement, we agree with the trial court’s
    conclusion that they were not agents of law enforcement. Therefore, they did not
    violate Phillips’ constitutional rights by questioning him without an attorney after he
    invoked his Fifth Amendment rights. Accordingly, we overrule the sole assignment of
    error and affirm the trial court’s judgment.
    JUDGMENT AFFIRMED.
    Highland App. No. 11CA11                                                                    10
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
    costs.
    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 Court of Common Pleas 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. Exceptions.
    Abele, J. & Kline, J.: Concur in Judgment and Opinion.
    For the Court
    BY: ________________________
    William H. Harsha
    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.
    

Document Info

Docket Number: 11CA11

Judges: Harsha

Filed Date: 12/19/2011

Precedential Status: Precedential

Modified Date: 2/19/2016