State v. Fox ( 2023 )

[Cite as State v. Fox, 2023-Ohio-4026.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
NOBLE COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MICHAEL K. FOX,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 NO 0503
Criminal Appeal from the
Court of Common Pleas of Noble County, Ohio
Case No. 222-2067
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Jordan C. Croucher, Noble County Prosecutor, for Plaintiff-Appellee and
Atty. Alison Roth, Assistant State Public Defender, Office of the Ohio Public Defender,
for Defendant-Appellant.
Dated: November 6, 2023
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D’APOLITO, P.J.
{¶1} Appellant, Michael K. Fox, appeals from the December 12, 2022 judgment
of the Noble County Court of Common Pleas convicting and consecutively sentencing
him to five years for felonious assault and ten years for aggravated arson for a total,
indefinite prison term of 15 years (minimum) to 20 years (maximum) following a trial by
jury.1 On appeal, Appellant asserts his right to a fair and impartial trial was violated,
alleges he was not properly Mirandized, and claims he was denied his constitutional right
to the effective assistance of trial counsel.2 Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} On August 8, 2022, Appellant was indicted by the Noble County Grand Jury
on three counts: count one, felonious assault, a felony of the second degree in violation
of R.C. 2903.11(A)(1) and (D)(1)(a); count two, kidnapping, a felony of the first degree in
violation of R.C. 2905.01(B)(2) and (C)(1); and count three, aggravated arson, a felony of
the first degree in violation of R.C. 2909.02(A)(1) and (B)(2). Appellant was appointed
counsel and pled not guilty at his arraignment.
{¶3} A trial by jury commenced on November 2, 2022.3
{¶4} Appellee, the State of Ohio, presented seven witnesses: (1) Sherri Moore,
a caseworker with Noble County Department of Job and Family Services; (2) Deputy Cory
Baker, with the Noble County Sheriff’s Department (“NCSD”); (3) Jane Walters, J.W.’s
grandmother; (4) Renee Walters, Appellant’s girlfriend and J.W.’s mother; (5) Dr.
McPherson, a physician at Akron Children’s Hospital; (6) Captain Brent McKee,
investigation commander with NCSD; and (7) Kenneth Nathan Johns, III, who testified he
is familiar with Appellant, Renee, and J.W. and denied any liability regarding this incident.
1 Am. Sub. S.B. No. 201, 2018 Ohio Laws 157, known as the “Reagan Tokes Law,” significantly altered the
sentencing structure for many of Ohio’s most serious felonies by implementing an indefinite sentencing
system for those non-life felonies of the first and second degree, committed on or after March 22, 2019.
2 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
3 The parties agreed to the following two stipulations: (1) The victim, J.W., (d.o.b. 5/18/2021), is a minor
child; and (2) Dr. Paul McPherson is an expert in the field of child abuse. See (11/4/2022 Agreed
Stipulations).
Case No. 22 NO 0503
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{¶5} On July 8, 2022, NCSD received a 911 call from an Out Post Road
residence requesting emergency medical assistance regarding a baby, later identified as
13-month-old J.W.4 (11/2/2022 Trial by Jury Tr., p. 244, 276). It was noted J.W. suffered
severe burns to his chest and leg initially believed to be caused from hot chicken strips.
(Id. at p. 274). J.W. was transported to the emergency room at Marietta Memorial
Hospital. (Id. at p. 276). At the hospital, it was discovered J.W. also suffered burns to his
stomach and scrotum. (Id. at p. 278). The hospital contacted NCSD revealing J.W.’s
burns were neither accidental nor self-inflicted and child abuse was suspected. (Id.) J.W.
was transferred to Akron Children’s Hospital Burn Unit for further treatment. (Id. at p.
280). An investigation into the source of J.W.’s injuries began.
{¶6} The investigation revealed J.W.’s mother, Renee, and his grandmother,
Jane, were home with J.W. and Appellant. (Id. at p. 239, 269). Appellant and Renee
were boyfriend and girlfriend. (Id. at p. 270). Renee had trusted Appellant with her son.
(Id. at p. 279). J.W. had taken a nap earlier in the day and was awake in a clean diaper
and onesie. (Id. at p. 271). The plumbing was not working at the trailer where they lived
so Renee and Jane went to a neighboring trailer to take showers. (Id. at p. 272). J.W.
was left home alone with Appellant. (Id.) Renee received a phone call from Appellant
telling her to come home as quickly as possible because J.W. had been burned. (Id. at
p. 274). Appellant claimed J.W. had gotten out of his highchair and burned himself by
accidently sitting on a hot plate of chicken strips. (Id.)
{¶7} Renee and Jane immediately returned home. (Id. at p. 275). They
observed J.W. no longer wearing his onesie but rather just his diaper. (Id.) They saw
serious burns on J.W.’s chest and leg. (Id.) J.W. began crying when he saw his mother.
(Id.) Appellant had a first aid kit out and had been applying burn cream to J.W.’s injuries.
(Id.) Renee and Jane called 911 for immediate medical assistance over Appellant’s
objection. (Id. at p. 275-276).
{¶8} An ambulance arrived and transported J.W. to Marietta Memorial Hospital.
(Id. at p. 276). Upon examination, children’s services and law enforcement were
contacted for an investigation because J.W.’s wounds were not found to be consistent
4 The call was placed by J.W.’s mother and grandmother.
Case No. 22 NO 0503
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with Appellant’s version of events. Due to the severity of his injuries, J.W. was transported
to Akron Children’s Hospital Burn Unit. (Id. at p. 276-280).
{¶9} Caseworker Moore went to the hospital to assess the situation. (Id. at p.
195). She interviewed Renee and Appellant together and took pictures of J.W.’s burns.
(Id. at p. 199). Deputy Baker also went to the hospital and spoke with Renee and
Appellant separately. (Id. at p. 221). Deputy Baker was skeptical that a 13-month-old
child could get out of a highchair on his own, but Renee thought it was possible. (Id. at
p. 223).
{¶10} Dr. McPherson, a child abuse specialist, testified to the characteristics and
potential causes of J.W.’s burns. (Id. at p. 377-378). J.W.’s injuries were diagnosed as
third-degree burns including contact burns, some of which included characteristics of
directed flame burns, on approximately three percent of his body. (Id. at p. 399-402).
The official diagnosis included a determination that J.W.’s burns were not self-inflicted
and were not the result of an accident. (Id. at p. 398).
{¶11} Renee and Appellant consented to a search of their residence. (Id. at p.
225, 282). Deputy Baker, Captain McKee, and Caseworker Moore were all present. (Id.
at p. 282). They observed several butane lighters in the bedroom. (Id. at p. 226). Renee,
Jane, and Appellant were asked to come to the police station for interviews. (Id. at p.
427). Renee’s and Jane’s interviews were recorded. (Id. at p. 428); (Exhibit I). However,
due to an oversight, Appellant’s interview was not recorded. (11/2/2022 Trial by Jury Tr.,
p. 430-431). Officers did not notice this until the interview had ended, at which time they
activated a camera for a short video recapping the end of their interview with Appellant.
(Id.); (Exhibit F). Appellant admitted to intentionally using hot chicken strips to inflict burns
on J.W. (11/2/2022 Trial by Jury Tr., p. 435); (Exhibit F). Appellant was arrested that
day.
{¶12} However, over two months later, on September 28, 2022, Appellant
changed his story. (Id. at p. 443); (Exhibit G). Jail employees informed Captain McKee
that Appellant wanted to speak to him. (11/2/2022 Trial by Jury Tr., p. 443). Appellant
complained about the quality of the food in the jail. Appellant also voluntarily claimed the
home was invaded by three men and that Kenneth Nathan Johns III was the one
responsible for burning J.W. with a torch lighter. (Id. at p. 447); (Exhibit G).
Case No. 22 NO 0503
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{¶13} Appellant’s story was inconsistent with the evidence and scene at the
residence. Also, investigating further into Appellant’s claim, it was determined that Johns
had a well-documented alibi making it impossible for him to be at the residence on the
day at issue. (11/2/2022 Trial by Jury Tr., p. 482-485). Specifically, Johns provided
photographic evidence that he was in Cleveland at the time J.W. was injured. (Id.) Thus,
Appellant was left as the prime individual with the access and ability to inflict burns on
J.W. with hot chicken strips and butane lighters. Renee revealed she no longer trusts
Appellant and believes he was responsible for injuring her son. (Id. at p. 364).
{¶14} At the conclusion of the State’s case, Appellant moved for an acquittal
pursuant to Crim.R. 29 as to counts two (kidnapping) and three (aggravated arson). The
trial court granted the motion as to count two.
{¶15} Appellant did not testify and presented no witnesses.
{¶16} The jury found Appellant guilty on counts one (felonious assault) and three
(aggravated arson).
{¶17} On December 12, 2022, the trial court convicted and consecutively
sentenced Appellant to five years on count one and ten years on count three for a total,
indefinite prison term of 15 years (minimum) to 20 years (maximum). Appellant was
granted 150 days of jail-time credit. The court further notified Appellant that he is subject
to a mandatory minimum term of two years up to a maximum term of five years of post-
release control. The court also advised Appellant of his duty to register as an Arson
Offender.
{¶18} Appellant filed a timely appeal and raises two assignments of error.5
ASSIGNMENT OF ERROR NO. 1
FOX WAS UNDULY PREJUDICED WHEN THE JURY WAS
REPEATEDLY MADE AWARE OF THE FACT THAT HE WAS IN JAIL AT
THE TIME OF TRIAL AND SHOWN A VIDEO WHERE HE APPEARED IN
JAIL CLOTHES, AND HE WAS DENIED EFFECTIVE ASSISTANCE OF
5 The State incorrectly asserts that Appellant raises four assignments of error.(5/24/2023 Appellee’s Brief,
p. 5). Rather, Appellant raises two assignments of error, each containing two issues. (4/3/2023 Appellant’s
Brief, p. i-ii); (6/2/2023 Appellant’s Reply Brief, p. 1, fn. 1, p. 5).
Case No. 22 NO 0503
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COUNSEL WHEN HIS ATTORNEY FAILED TO REQUEST A MISTRIAL
OR, AT A MINIMUM, OBJECT OR FILE A MOTION IN LIMINE TO
MINIMIZE THE PREJUDICE CAUSED BY THE JURY REPEATEDLY
BEING REMINDED THAT FOX WAS IN JAIL.
{¶19} Under his first assignment of error, Appellant raises two issues: (1) “When
the jury is told that defendant is in jail five separate times throughout the course of the
trial and shown video of the defendant in jail attire, is his right to a fair and impartial trial
violated, due to the erosion of the presumption of innocence?”; and (2) “Is counsel
ineffective for failing to request a mistrial or, at a minimum, object or file a motion in limine
when the jury is repeatedly inundated with the knowledge that the defendant is
incarcerated?” (4/3/2023 Appellant’s Brief, p. i).
{¶20} Regarding his first issue, Appellant contends he was unduly prejudiced by
references to the fact that he was held in jail at the time of trial. Specifically, Appellant
asserts his alleged prejudice stems from the following: (1) statements made by a
prospective juror during voir dire referencing her work in the county jail; (2) a statement
by the victim’s mother that Appellant was in jail on the day of the investigation; and (3) a
statement by Captain McKee regarding how he came to speak with Appellant, including
a videotaped conversation between the two.
{¶21} Appellant did not raise the foregoing claims of undue prejudice during trial
via objection, therefore he waives all but plain error on appeal. “Notice of plain error under
Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances,
and only to prevent a manifest miscarriage of justice.” State v. Tylke, 7th Dist. Harrison
No. 21 HA 0006, 2022-Ohio-2010, ¶ 42, citing State v. Long, 53 Ohio St.2d 91, paragraph
three of the syllabus (1978).
{¶22} First, during voir dire, prospective juror Emily Dudley revealed she was a
back-up nurse at the Noble County Jail. (11/2/2022 Trial by Jury Tr., p. 58-59). Dudley
did not believe she had any knowledge of Appellant’s case, had not made up her mind,
and indicated she could just focus on what was said in the courtroom. (Id. at p. 59).
Dudley recognized Appellant from jail, had no direct contact with him, and did not want a
possible mistrial because of her. (Id.) Dudley was not selected to serve on the jury in
Appellant’s trial. Notably, Dudley was not stricken for cause and was not determined to
Case No. 22 NO 0503
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be an inappropriate juror. We fail to find that any of Dudley’s statements prejudiced
Appellant by poisoning the jury pool.
{¶23} Second, Renee was asked where Appellant was when the home was being
searched. (Id. at p. 350). Renee inadvertently stated Appellant was in jail in reference to
his location in the hours following the search. (Id.) Renee then immediately corrected
her statement on the record that Appellant was in fact home. (Id.) We fail to find that
Renee’s statement, which she immediately corrected, prejudiced Appellant. See
Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (“Recognizing that jurors are quite aware
that the defendant appearing before them did not arrive there by choice or
happenstance”); State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, ¶ 76 (“The fact
that the jury knew that [the defendant] had been arrested for the crimes for which he was
being tried is simply not comparable to a jury’s seeing a defendant in shackles. Nothing
in the record suggests that the trial’s result was affected by the disclosure that police had
arrested [the defendant] while investigating[.]”)
{¶24} Third, Captain McKee stated Appellant requested to speak to him in jail on
September 28, 2022 and a video was played at trial showing Appellant in jail clothing.
(Exhibit G). Irrespective of Captain McKee’s statement, the jury was already aware of
Appellant’s jail status by virtue of the video. We fail to find that Captain McKee’s
statement and/or video prejudiced Appellant. See Williams, supra, at ¶ 75 (“Evidence
about a defendant’s arrest and ensuing custody does not contravene the presumption of
innocence”); State v. Bankston, 11th Dist. Ashtabula No. 2020-A-0005, 2021-Ohio-4332,
¶ 36, citing State v. Cline, 11th Dist. Trumbull No. 2007-T-0052, 2008-Ohio-1500, ¶ 39
(Holding that “playing two videos of interviews with a defendant in jail clothing was not
reversible error” and “noting that the jurors had been advised the defendant was in [jail]
when he gave the interviews and ‘even if * * * it was error to admit such a video, the error
would be harmless since the jurors were well aware of his [jail] status at the time of the
interview.’”)
{¶25} In the trial court’s final jury instructions, the jury was reminded that Appellant
is “presumed innocent until his guilt is established beyond a reasonable doubt”; Appellant
“must be acquitted unless the State produces evidence which convinces [the jury] beyond
a reasonable doubt of every essential element of the offenses as charged in the
Case No. 22 NO 0503
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indictment”; and that “[e]vidence is all the testimony received from the witnesses, the
exhibits admitted during trial, facts agreed to by counsel, and any facts which the court
requires [the jury] to accept as true.” (11/2/2022 Trial by Jury Tr., p. 538-539). “The jury
is presumed to have followed the court’s instructions.” State v. Jones, 91 Ohio St.3d 335,
344 (2001), citing State v. Raglin, 83 Ohio St.3d 253, 264 (1998).
{¶26} Appellant’s claim that the presumption of innocence was eroded is premised
on his belief that there were other potential suspects, i.e., Renee and Jane, and that he
was the only one in jail. As addressed, Appellant posits that someone else could have
caused J.W.’s burns. However, the record reveals the injuries occurred while J.W. was
in the sole care of Appellant. Appellant first claimed the burns occurred due to an
accident. Appellant then changed his story and admitted to intentionally using hot chicken
strips to inflict burns on J.W. Appellant then changed his story again claiming the home
was invaded and that Johns was responsible for burning J.W. with a torch lighter.
Appellant’s story was inconsistent with the evidence and scene at the residence. It was
also determined Johns had a well-documented alibi making it impossible for him to be at
the residence on the day at issue. Specifically, Johns provided photographic evidence
that he was in Cleveland at the time J.W. was injured. Thus, Appellant was left as the
prime individual with the access and ability to inflict burns on J.W. with hot chicken strips
and butane lighters.
{¶27} We find no merit under Appellant’s first issue as his claims regarding undue
prejudice do not amount to plain error.
{¶28} Regarding his second issue, Appellant contends his trial counsel was
ineffective in failing to move for a mistrial, failing to file a motion in limine relating to a
statement he made to law enforcement in the September 28, 2022 recorded conversation,
and failing to object to references regarding his incarceration status. Specifically,
Appellant asserts the following: (1) that references to his incarceration status made by a
prospective juror should have been objected to; (2) his trial counsel should have filed a
motion in limine to restrict the video of Appellant in jail; and (3) his counsel should have
moved for a mistrial based exclusively upon references to Appellant’s incarceration
status.
Case No. 22 NO 0503
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{¶29} “[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect
the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052
(1984).
In order to demonstrate ineffective assistance of counsel, Appellant must
show that trial counsel’s performance fell below an objective standard of
reasonable representation, and prejudice arose from the deficient
performance. State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373(1989), citing Strickland [, supra]. Both prongs must be established: If
counsel’s performance was not deficient, then there is no need to review for
prejudice. Likewise, without prejudice, counsel’s performance need not be
considered. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52(2000).
In Ohio, a licensed attorney is presumed to be competent. State v. Calhoun,
86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel’s
performance, appellate review is highly deferential as there is a strong
presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance. Bradley at 142-143, citing Strickland at 689.
Appellate courts are not permitted to second-guess the strategic decisions
of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965(1995).
Even instances of debatable strategy very rarely constitute ineffective
assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514
N.E.2d 407 (1987). The United States Supreme Court has recognized that
there are “countless ways to provide effective assistance in any given case.”
Bradley at 142, citing Strickland at 689.
To show prejudice, a defendant must prove his lawyer’s deficient
performance was so serious that there is a reasonable probability the result
of the proceeding would have been different. Carter at 558. “It is not enough
for the defendant to show that the errors had some conceivable effect on
Case No. 22 NO 0503
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the outcome of the proceeding.” Bradley, 42 Ohio St.3d 136 at fn. 1, 538
N.E.2d 373, quoting Strickland at 693. Prejudice from defective
representation justifies reversal only where the results were unreliable or
the proceeding was fundamentally unfair as a result of the performance of
trial counsel. Carter, 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart
v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
***
[A]n ineffective assistance of counsel claim cannot be predicated upon
supposition. State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008-Ohio-
6634, ¶ 15. Likewise, proof of ineffective assistance of counsel requires
more than vague speculations of prejudice. Id. ¶ 55, citing State v. Otte, 74
Ohio St.3d 555, 565, 1996-Ohio-108, 660 N.E.2d 711.
State v. Rivers, 7th Dist. Mahoning No. 17 MA 0078, 2019-Ohio-2375, ¶ 20-23, 27.
When a claim for ineffective assistance of counsel is made based on failure
to file an objection or a motion, the appellant must demonstrate that the
objection or motion had a reasonable probability of success. If the objection
or motion would not have been successful, then the appellant cannot prevail
on the ineffective assistance of counsel claim. State v. Adkins, 161 Ohio
App.3d 114, 2005-Ohio-2577, ¶ 14 (4th Dist.).
State v. Saffell, 7th Dist. Jefferson No. 19 JE 0021, 2020-Ohio-7022, ¶ 51.
{¶30} “[T]he failure to make objections is not alone enough to sustain a claim of
ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, ¶ 103, citing State v. Holloway, 38 Ohio St.3d 239, 244 (1988); State v. Gumm, 73
Ohio St.3d 413, 428 (1995).
{¶31} First, prospective juror Dudley revealed during voir dire that she was a back-
up nurse at the Noble County Jail but had no direct contact with Appellant. (11/2/2022
Trial by Jury Tr., p. 58-59). As addressed, Dudley was not selected to serve on the jury
in Appellant’s trial, was not stricken for cause, and was not determined to be an
Case No. 22 NO 0503
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inappropriate juror. As stated, we fail to find that any of Dudley’s statements prejudiced
Appellant by poisoning the jury pool. In fact, the jurors were advised of the presumption
of innocence and the record does not reveal they acted in a manner inconsistent with
those instructions.
{¶32} Second, similar to a trial counsel’s failure to file a motion to suppress, the
failure to file a motion in limine restricting the use of the video in this case would have
been futile. Appellant acknowledges the recorded conversation had probative value that
would not have prevented the exclusion of the audio evidence contained therein.
(4/3/2023 Appellant’s Brief, p. 18-19). Appellant cannot demonstrate there exists a
reasonable probability that the factfinder would have had a reasonable doubt respecting
guilt. As stated, the evidence establishes, inter alia, the following: the existence of lighters
in the home; the official diagnosis by Dr. McPherson that J.W.’s burns were not self-
inflicted and were not the result of an accident; Appellant created a false story attempting
to blame his actions on an innocent third party; and Appellant admitted guilt.
{¶33} Third, Appellant asserts ineffective assistance because his counsel failed
to move for a mistrial. “A mistrial should be declared only ‘when the ends of justice so
require and a fair trial is no longer possible.’” State v. Palmer, 7th Dist. Mahoning No. 19
MA 108, 2022-Ohio-2643, ¶ 46, quoting State v. Franklin, 62 Ohio St.3d 118, 127 (1991).
“Voir dire decisions by counsel are subjective and prone to counsel strategy and generally
should not be second-guessed.” State v. Uncapher, 7th Dist. Mahoning No. 20 MA 0017,
2022-Ohio-1449, ¶ 46, citing State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751,
¶ 237. Here, Appellant’s trial counsel made a tactical decision to let this jury decide the
case, as submitted, and not take another chance before another jury. It is worth noting
again that Appellant’s counsel moved for a Crim.R. 29 acquittal, which was granted as to
count two (kidnapping). The State aptly asserts the following:
Contrary to Appellant’s contention that his being in jail made him seem more
guilty, Appellee would submit that it was Appellant’s confession to burning
a 13-month-old infant left in his care and his unwillingness to contact
emergency medical personnel that made him seem more guilty.
(5/24/2023 Appellee’s Brief, p. 23).
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{¶34} We find no merit under Appellant’s second issue regarding ineffective
assistance of counsel. Upon consideration, the record establishes trial counsel’s
representation was constitutionally effective and did not affect Appellant’s rights.
Counsel’s performance was neither deficient nor prejudicial. Appellant fails to
demonstrate ineffective assistance of counsel. See Strickland, supra.{¶35} Appellant’s first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
FOX’S FIFTH AMENDMENT RIGHTS WERE VIOLATED WHEN HE WAS
NOT PROPERLY MIRANDIZED PRIOR TO HIS INTERROGATION ON
SEPTEMBER 28, 2022, AND TRIAL COUNSEL WAS INEFFECTIVE FOR
NOT [SIC] FOR THE CONTENTS OF THE INTERVIEW TO BE
SUPPRESSED.
{¶36} Under his second assignment of error, Appellant raises two issues: (1)
“Does an officer violate Miranda v. Arizona when they fail to apprise a defendant of all
their Miranda rights when the defendant is in jail but requested to speak with the officer?”;
and (2) “Is a defendant denied effective assistance of trial counsel when the attorney fails
to move for the suppression of inculpatory evidence discovered as a result of a
constitutionally insufficient Miranda warning?” (4/3/2023 Appellant’s Brief, p. ii).
{¶37} Regarding his first issue, Appellant claims his Fifth Amendment rights were
violated by not being apprised of his Miranda rights before speaking with an officer at his
request. Appellant, however, failed to raise this argument below.
{¶38} An argument is waived if it is brought for the first time on appeal. See State
v. Lynn, 7th Dist. Belmont No. 11 BE 18, 2011-Ohio-6404, ¶ 9.
Miranda errors must be raised at the appropriate time in the proceedings.
We cannot rule on whether there was a Miranda violation [if an] Appellant
did not address this issue at the proper time during the trial court
proceedings.
***
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The sole remedy for a Miranda violation is the suppression of the evidence
which was derived from the violation. Bennett v. Passic (C.A.10, 1976), 545
F.2d 1260, 1263; see Miranda, supra, 384 U.S. at 479. A criminal defendant
is required to raise a Miranda violation in a pretrial motion to suppress. State
v. Cornely (1978), 56 Ohio St.2d 1, 6. By failing to file a motion to suppress
before trial, [an] appellant waive[s] any Miranda error relating to the failure
to suppress his conversation with [an officer]. See State v. Moody (1978),
55 Ohio St.2d 64, 66; State v. Sibert (1994), 98 Ohio App.3d 412, 429.
State v. Scott, 7th Dist. Belmont No. 00 BA 40, 2001 WL 1667866, * 3 (Dec. 20, 2001).
{¶39} Notwithstanding waiver, the record reveals Appellant was not subject to a
custodial interrogation at the time of the September 28, 2022 recorded conversation he
had with Captain McKee. (Exhibit G). A Miranda warning is only required prior to a
custodial interrogation. The United States Supreme Court in Miranda held, “By custodial
interrogation, we mean questioning initiated by law enforcement officers after a person
has been taken into custody[.]” Miranda, supra, at 444. “[I]imprisonment alone is not
enough to create a custodial situation within the meaning of Miranda.” Howes v. Fields,
565 U.S. 499, 511 (2012).
{¶40} Again, Appellant admitted to intentionally using hot chicken strips to inflict
burns on J.W. and he was arrested. (11/2/2022 Trial by Jury Tr., p. 435). However,
Appellant later changed his story in jail. (Id. at p. 443); (Exhibit G). Jail employees
informed Captain McKee that Appellant wanted to speak to him and an 18 minute
conversation was conducted in the first available room. (11/2/2022 Trial by Jury Tr., p.
443); (Exhibit G). No Miranda warning was required. The voluntary conversation was
not initiated by Captain McKee but rather by Appellant. See Miranda, supra, at 444;
(Exhibit G). At no point was Appellant threatened, coerced, or physically restrained.
(Exhibit G). Captain McKee confirmed with Appellant that he has counsel, was under no
obligation to speak to him, and told Appellant “this is at your request.” (Id.)
{¶41} Appellant noted it helps for him to talk and he first complained about the
quality of the food in jail. (Id.) Appellant voluntarily apologized for previously lying and
now said he did not harm J.W. (Id.) Appellant claimed the home was invaded and that
Case No. 22 NO 0503
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Johns was responsible for burning J.W. with a torch lighter. (11/2/2022 Trial by Jury Tr.,
p. 447); (Exhibit G). It was later determined that Johns, however, had a well-documented
alibi making it impossible for him to be at the residence on the day at issue. (11/2/2022
Trial by Jury Tr., p. 482-485). Captain McKee did not want to get in depth with questioning
before speaking to Appellant’s counsel and doing further investigating into Appellant’s
claims. (Exhibit G). Upon the completion of the conversation, Appellant left the room and
returned to his cell. (Id.)
{¶42} We find no merit under Appellant’s first issue as his Fifth Amendment rights
were not violated.
{¶43} Regarding his second issue, Appellant claims his trial counsel was
ineffective in failing to file a motion to suppress his recorded statements discovered as a
result of a constitutionally insufficient Miranda warning.
Counsel’s failure to file a motion to suppress does not constitute ineffective
assistance of counsel per se. State v. Brown, 115 Ohio St.3d 55, 2007-
Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Madrigal, 87 Ohio St.3d
378, 389, 721 N.E.2d 52 (2000). A defendant must prove there was a basis
to suppress the evidence in question. Brown, 115 Ohio St.3d 55 at ¶ 65.
State v. Smith, 7th Dist. Belmont No. 19 BE 0013, 2020-Ohio-760, ¶ 43, quoting State v.
Albright, 7th Dist. Mahoning No. 14 MA 0165, 2016-Ohio-7037, ¶ 58.
{¶44} “Generally, the decision not to file a motion to suppress does not constitute
ineffective assistance of counsel ‘when doing so was a tactical decision, there was no
reasonable probability of success, or there was no prejudice to the defendant.’” Smith,
supra, at ¶ 44, quoting State v. Nields, 93 Ohio St.3d 6, 34 (2001).
{¶45} As addressed, the record reveals Appellant was not subject to a custodial
interrogation at the time of the recorded conversation between him and Captain McKee.
No Miranda warning was required and, thus, Appellant’s Fifth Amendment rights were not
violated.
{¶46} The decision to not file a motion to suppress Appellant’s recorded
conversation with Captain McKee is neither ineffective assistance of counsel nor is it
prejudicial to Appellant as Appellant notes the video has probative value and it would not
Case No. 22 NO 0503
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have been suppressed in its entirety. The playing of the video was part of trial strategy.
See Rivers, supra, at ¶ 22 (“Even instances of debatable strategy very rarely constitute
ineffective assistance of counsel.”)
{¶47} Notwithstanding a motion to suppress, compelling evidence still exists in the
record against Appellant: J.W. was awake in a clean diaper and onesie; Renee and Jane
went to a neighboring trailer; J.W. was left home alone with Appellant; Appellant called
Renee to come home as quickly as possible because J.W. had been burned; Appellant
claimed J.W. got out of his highchair and burned himself by accidently sitting on a hot
plate of chicken strips; Renee and Jane immediately returned home; they observed J.W.
no longer wearing his onesie but rather just his diaper; they observed serious burns on
J.W. which were not there before they left J.W. alone with Appellant; Renee and Jane
called 911 over Appellant’s objection; J.W. was transported via ambulance to Marietta
Memorial Hospital; upon examination, children’s services and law enforcement were
contacted for an investigation because J.W.’s wounds were not found to be consistent
with Appellant’s version of events; due to the severity of his injuries, J.W. was transported
to Akron Children’s Hospital Burn Unit; an investigating officer, Deputy Baker, was
skeptical that a 13-month-old child could get out of a highchair on his own; Dr. McPherson,
a child abuse specialist, testified to the characteristics and potential causes of J.W.’s
burns; J.W.’s injuries were diagnosed as third-degree burns including contact burns,
some of which included characteristics of directed flame burns, on approximately three
percent of his body; the official diagnosis included a determination that J.W.’s burns were
not self-inflicted and were not the result of an accident; Renee and Appellant consented
to a search of their residence; several butane lighters were found; Appellant later admitted
at the police station to intentionally using hot chicken strips to inflict burns on J.W.;
Appellant was arrested that day; however, over two months later, Appellant changed his
story again; jail employees informed Captain McKee that Appellant wanted to speak to
him; Appellant voluntarily claimed the home was invaded and that Johns was responsible
for burning J.W. with a torch lighter; Appellant’s story was inconsistent with the evidence
and scene at the residence; also, investigating further into Appellant’s claim, it was
determined that Johns had a well-documented alibi making it impossible for him to be at
the residence on the day at issue; specifically, Johns provided photographic evidence
Case No. 22 NO 0503
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that he was in Cleveland at the time J.W. was injured; thus, Appellant was left as the
prime individual with the access and ability to inflict burns on J.W. with hot chicken strips
and butane lighters; Renee revealed she no longer trusts Appellant and believes he was
responsible for injuring her son.
{¶48} We find no merit under Appellant’s second issue regarding ineffective
assistance of counsel. Upon consideration, the record establishes trial counsel’s
representation was constitutionally effective and did not affect Appellant’s rights.
Counsel’s performance was neither deficient nor prejudicial. Appellant fails to
demonstrate ineffective assistance of counsel. See Strickland, supra.{¶49} Appellant’s second assignment of error is without merit.
CONCLUSION
{¶50} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The December 12, 2022 judgment of the Noble County Court of Common Pleas
convicting and consecutively sentencing Appellant to five years for felonious assault and
ten years for aggravated arson for a total, indefinite prison term of 15 years (minimum) to
20 years (maximum) following a trial by jury is affirmed.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 22 NO 0503
[Cite as State v. Fox, 2023-Ohio-4026.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Noble County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.