State v. Phillips ( 2011 )

[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.