State v. Higgins , 2013 Ohio 2555 ( 2013 )

[Cite as State v. Higgins, 2013-Ohio-2555.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 12 JE 11
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
MARK HIGGINS, JR., )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 11CR59.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Jane Hanlin
Prosecuting Attorney
Attorney Jeffrey Bruzzese
Assistant Prosecuting Attorney
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Attorney Francesca Carinci
Suite 904-911, Sinclair Building
Steubenville, Ohio 43952
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 17, 2013
[Cite as State v. Higgins, 2013-Ohio-2555.]
VUKOVICH, J.
{¶1} Defendant-appellant Mark Higgins, Jr. appeals from his conviction and
sentence rendered in the Jefferson County Common Pleas Court for two counts of
rape of a child under the age of 13, in violation of R.C. 2907.02(A)(1)(b). Three
issues are presented in this appeal. The first two concern whether the state proved
essential elements of the crimes. Specifically, whether the state proved when and
where the rapes occurred and whether the state proved the element of penetration.
The third issue is whether the trial court’s suppression ruling was correct. Specifically,
did the trial court abuse its discretion when it found that Higgins intelligently waived
his Miranda rights, which resulted in the denial of his motion to suppress his
confession?
{¶2} For the reasons discussed below, all arguments lack merit. The
judgment of the trial court is affirmed.
Statement of Facts and Case
{¶3} On April 25, 2011, A.V., the victim’s sister, walked into the garage of
her mother’s house and saw Higgins and the victim with their pants down and
Higgins finger in the victim’s vagina. Trial Tr. 337. The victim was 8 years old at the
time. A.V. and the victim then left the garage and A.V. contacted her mother and
father.
{¶4} The victim was then taken to Martins Ferry East Ohio Regional Hospital
where a rape kit was performed. After the nurses and doctor’s observations were
documented, the Jefferson County Sheriff’s Department was called and a complaint
was filed. Higgins was arrested the next day.
{¶5} Following the arrest and booking, Higgins was interrogated by Sheriff
Abdalla, Jefferson County’s Sheriff. Prior to giving a statement, Higgins was read his
Miranda rights and orally waived those rights. During this interrogation, Higgins
admitted to vaginal penetration and that the victim performed oral sex on him on April
25, 2011. He also admitted to a prior occurrence of oral and vaginal sex that
occurred within the previous week. Higgins was then asked to give a written
statement, which he agreed to do. However, prior to that, he was given a written
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document titled “Your Rights,” which listed the Miranda rights. After each right, the
questionnaire asks if the person understands. Higgins responded by writing “yes.”
The last question on the form is “Having these rights in mind, do wish to talk to us
now?” Higgins wrote “Yes.” Higgins then proceeded to write a written statement with
the help of the Sheriff.
{¶6} On June 1, 2011, Higgins was indicted by the Jefferson County Grand
Jury for two counts of rape, in violation of R.C. 2907.02(A)(1)(b). The indictments
specified that Higgins engaged in sexual conduct with the victim, who was under the
age of ten, on April 25, 2011 and “on or about April 17 through April 20, 2011.” The
Bill of Particulars further provided that the sexual conduct in counts one and two of
the indictment was for oral and vaginal sex. 06/21/11 Bill of Particulars.
{¶7} Following the indictment, two evaluations were ordered. The first was a
competency and sanity evaluation. Although Higgins was found to have a lower than
average range of intellectual functioning, he was deemed to be sane and competent
to stand trial. The second was performed to evaluate Higgins’ ability to waive his
Miranda rights. Dr. Kristen Haskins administered this evaluation and opined that
Higgins did not intelligently waive his Miranda rights.
{¶8} Thereafter, based on Dr. Haskins’ report and the video of the
interrogation with Sheriff Abdalla, Higgins filed a motion to suppress his confession.
Following a suppression hearing, the trial court overruled the motion.
{¶9} The case then proceeded to a jury trial. A jury returned a guilty verdict
on both counts of the indictment. Higgins was sentenced to two concurrent life
sentences without the possibility of parole.
{¶10} Higgins timely appeals his conviction and sentence.
First Assignment of Error
{¶11} “The State of Ohio failed to meet its burden in establishing an essential
element of the crime, namely, during the testimony of the victim it was never
established that the events occurred in the State of Ohio County of Jefferson on the
date and place as alleged.”
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{¶12} Higgins argues that the state failed to prove both subject matter
jurisdiction and venue. Specifically, he asserts that the state not only failed to prove
that the rapes occurred in Ohio, but it also failed to prove that it occurred in Jefferson
County.
{¶13} The State of Ohio has subject matter jurisdiction over a crime if any
element of the offense, under the laws of this state, takes place in Ohio. R.C.
2901.11(A)(1). The Ohio Constitution establishes the right of the accused to have a
“trial by an impartial jury of the county in which the offense is alleged to have been
committed.” Ohio Constitution, Article I, Section 10. R.C. 2901.12 further guarantees
that right by requiring that a criminal trial shall be held in a court with subject matter
jurisdiction “in the territory of which the offense or any element of the offense was
committed.”
{¶14} As for venue, it has been held that the prosecution must prove beyond
a reasonable doubt that the crimes alleged were committed in the county where the
trial was held, if the defendant did not waive this right. State v. Gonzales, 188 Ohio
App.3d 121, 2010-Ohio-982, 934 N.E.2d 948, ¶ 4 (3rd Dist.), quoting Toledo v.
Taberner, 61 Ohio App.3d 791, 793, 573 N.E.2d 1173 (6th Dist.1989), citing State v.
Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716, (1983); State v. Draggo, 65 Ohio
St.2d 88, 90, 418 N.E.2d 1343 (1981); and State v. Nevius, 147 Ohio St. 263, 71
N.E.2d 258 (1947), paragraph three of the syllabus. Accordingly, we have explained
that, “Venue is not a material element of any crime but, unless waived, is a fact that
must be proven at trial beyond a reasonable doubt.” State v. Barr, 158 Ohio App.3d
86, 2004-Ohio-3900, 814 N.E.2d 79, ¶ 14 (7th Dist.). Typically the prosecutor will
directly establish venue; however, it does not need to be proven in express terms, but
rather can be established by the totality of facts and circumstances of the case.
Gonzales at ¶ 4, quoting Taberner at 793.
{¶15} At the outset, we note that Higgins may have waived the venue
argument because he failed to raise a Crim.R. 29 motion for acquittal or any other
motion that argued that the state failed to prove that the crimes occurred in Jefferson
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County. See Gonzales at ¶ 5. That said, in the interest of justice we will still address
the merits of the argument.
{¶16} At trial, Sheriff Abdalla stated that the site of the rape was at the victim’s
home located at 1309 County Road 3, Rayland, Ohio. Trial Tr. 171, 217. He further
provided that this address is in Jefferson County. Trial Tr. 171, 217. The victim’s
mother testified that at the time of the offense she was living at 1309 County Road 3,
Rayland, Ohio in Jefferson County. Trial Tr. 304. She indicated that the sexual
assault occurred at that address. Trial Tr. 306-307. The victim’s father further
testified that the victim lives with the mother at the 1309 County Road 3, Rayland,
Ohio residence. Trial Tr. 317, 318. The victim’s sister, who witnessed the sexual
conduct, also testified that the victim lives with the mom and that she was also
staying with her mom on April 25, 2001, when the rape occurred. Trial Tr. 334-335.
While the victim did not testify to the address of the house she was living at, she did
testify that the rape occurred at that residence. Trial Tr. 329.
{¶17} Higgins claims that only the victim and her sister, the witness to the
alleged sexual conduct, can establish where the sexual conduct occurred. He offers
no citations to support this position. As explained above, where the crime occurred
can be proven by a totality of the facts and circumstances of the case. Gonzales at ¶
4, quoting Taberner at 793. Thus, it can be proven through a collection of every
person’s testimony and the evidence admitted at trial. See Taberner at 793.
{¶18} The above testimony was undisputed. Therefore, the state proved
beyond a reasonable doubt that the rape occurred at 1309 County Road 3, Rayland,
Jefferson County, Ohio. Thus, the state proved both subject matter jurisdiction and
venue.
{¶19} In the text of the assignment, Higgins also contends that the state failed
to prove when the rapes occurred. This argument also fails. Higgins own statement
to Sheriff Abdalla indicates that sexual conduct occurred on April 25, 2011 and the
preceding week. Thus, that statement alone, which was not disputed, provides
evidence of when the rapes occurred.
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{¶20} Accordingly, for the above stated reasons, we find that there is no merit
with this assignment of error.
Second Assignment of Error
{¶21} “The State of Ohio failed to establish an essential element of the crime,
namely that penetration had occurred through direct examination of the child/victim.”
{¶22} The argument presented in this assignment of error is a sufficiency of
the evidence argument. A challenge to the sufficiency of the evidence supporting a
conviction requires the court to determine whether the state has met its burden of
production at trial. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541(1997). On review for sufficiency, courts are to assess not whether the state's
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction. Id. An inquiry into sufficiency focuses on whether any
rational trier of fact, viewing the evidence in the light most favorable to the
prosecution, could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶23} Higgins was convicted of two counts of rape in violation of R.C.
2907.02(A)(1)(b), which states:
(A)(1) No person shall engage in sexual conduct with another
who is not the spouse of the offender or who is the spouse of the
offender but is living separate and apart from the offender, when any of
the following applies:
***
(b) The other person is less than thirteen years of age, whether
or not the offender knows the age of the other person.
R.C. 2907.02(A)(1)(b).
{¶24} By statutory definition “sexual conduct” means vaginal intercourse, anal
intercourse, and oral sex, i.e. fellatio and/or cunnilingus. R.C. 2907.01(A). It also
includes insertion of any body part into the vaginal or anal opening of another. R.C.
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2907.01(A). “Penetration, however slight, is sufficient to complete vaginal or anal
intercourse.” R.C. 2907.01(A).
{¶25} The indictment also alleged that the victim was under the age of 10,
which pursuant to division (B) of R.C. 2907.02, could subject Higgins to life in prison
without the possibility of parole.
{¶26} The element Higgins focuses on in this assignment of error is sexual
conduct and whether the state provided evidence of penetration.
{¶27} The victim testified at trial that Higgins touched her “private area” with
his hand and with his “private area”. Trial Tr. 331. Her testimony does not indicate
whether there was actual digital or penal penetration. Trial Tr. 331. She denies that
he put his penis in her mouth. Trial Tr. 331. Thus, her testimony does not establish
sexual conduct to constitute rape; it does not establish digital or penile penetration or
oral sex.
{¶28} That said, other evidence of sexual conduct was presented at trial. This
occurred through Higgins’ April 26, 2011 confession, the victim’s statement to the
emergency room nurse on April 25, 2011, and the victim’s sister who witnessed one
alleged incident of sexual conduct.
{¶29} State’s exhibit 2 and 3, which were both admitted into evidence, are the
written confession from Higgins and the recorded video confession. Both establish
penile penetration into the victim’s vagina. Higgins specifically stated that part of the
head of his penis was in the victim’s vagina. Exhibit 3 Video Confession. As stated
above, even slight penetration is sufficient for vaginal intercourse. R.C. 2907.01(A).
Furthermore, in his confession, he also admitted that on April 25, 2011 and the
previous week, he had the victim perform oral sex on him. This is also sufficient to
constitute sexual conduct.
{¶30} Likewise, the nurse who examined the victim also offered evidence of
penetration and sexual conduct. During her testimony, Exhibit 11 was introduced
and was later admitted into evidence. Exhibit 11 is a document that is filled out in
connection with the rape kit. Trial Tr. 236. That document indicates that there was
penile and oral penetration. Furthermore, on the second page of this document is
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the Narrative History in the victim’s own words. This section indicates that Higgins
made the victim perform oral sex on him on April 25, 2011 and that this was not the
first time this occurred. The victim also told the nurse that Higgins had put his penis
in her vagina on that date and that he had also done that to her on previous
occasions. The victim also relayed that prior to that date Higgins had had anal
intercourse with her.
{¶31} Lastly, the victim’s sister also testified that on April 25, 2011 she
witnessed Higgins with his finger in the victim’s vagina. Trial Tr. 337. By definition, if
believed, this also constituted sexual conduct by means of digital penetration.
{¶32} Thus, there was evidence of at least five incidents of sexual conduct.
Considering all of the testimony and evidence admitted at trial, there was sufficient
evidence of sexual conduct and penetration. This assignment of error lacks merit.
Third Assignment of Error
{¶33} “The Defendant/Appellant was unable to make an intelligent waiver of
his Miranda rights: therefore, his confession should not have been admitted. It was
reversible error to permit the taped statement of the interrogation into evidence.”
{¶34} This assignment of error addresses the trial court’s denial of Higgins’
motion to suppress. He contends the confession should have been suppressed and
thus, it was reversible error for the court to admit the confession into evidence.
{¶35} Appellate review of a suppression decision presents a mixed question
of law and fact. State v. Roberts, 110 Ohio St .3d 71, 2006–Ohio–3665, 850 N.E.2d
1168, ¶ 100. On factual matters, the trial court occupies the best position to evaluate
the credibility of witnesses and weigh the evidence. Id., citing State v. Mills, 62 Ohio
St.3d 357, 366, 582 N.E.2d 972 (1992). Thus, factual findings are accorded great
deference. Roberts, citing State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583(1982). The trial court's legal conclusions, on the other hand, are reviewed de novo.
Roberts, citing State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d
71, ¶ 8.
{¶36} Higgins’ motion to suppress was based on Dr. Haskins’ conclusion that
he could not intelligently waive his Miranda rights. For a waiver of the Miranda rights
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to be effective, it must be knowing, intelligent and voluntary. Colorado v. Connelly,
497 U.S. 157, 107 S.Ct. 515 (1986). Thus, her conclusion, if believed, would render
the confession inadmissible.
{¶37} It is the government's burden to prove that the statements made were
not obtained in violation of the offender's Miranda rights. United States v. Reese
(N.D.Ohio 2010), 1:09 CR 00145, 2010 WL 3730148, citing Miranda v. Arizona
(1966), 384 U.S. 436, 475 and Connelly, 479 U.S. at 168. The United States
Supreme Court has stated that the totality-of-the-circumstances approach is
adequate to determine whether there has been a valid waiver of Miranda rights. Fare
v. Michael C., 442 U.S. 707, 725 (1979). The totality approach requires inquiry into
all the circumstances surrounding the interrogation. Id. This includes evaluation of
the offender’s age, experience, education, background, intelligence, and whether the
offender has the capacity to understand the warnings given to him, the nature of his
Fifth Amendment rights, and the consequences of waiving those rights. Id.{¶38} Previously, we have addressed whether the trial court’s conclusion that
a criminal defendant did not intelligently waive his Miranda rights was correct. State
v. Lynn, 7th Dist. No. 11BE18, 2011-Ohio-6404. In that case, Dr. Haskins evaluated
the defendant and found that he had an IQ of 73, which is in the borderline range.
She also administered Thomas Grisso's Instruments for Assessing Understanding &
Appreciation of Miranda rights, which is commonly referred to as the Grisso test and
as the name suggests it is only used to determine whether a defendant understands
the Miranda rights. Following the administration of this test, she concluded that Lynn
did not fully understand the irrevocable nature of the right to remain silent. She noted
that he only scored 4 out of 10 in the section that relates to the significance of the
right to remain silent. He thought the right to remain silent meant he did not have to
talk unless the police told him to. Id. at ¶ 40.
{¶39} In making our determination on the correctness of the trial court’s ruling,
in addition to Dr. Haskins’ observation and opinion, we also referenced the fact that
some of the cases that concluded that there was an understanding of Miranda found
as such because of conduct that occurred prior to and during the interrogation.
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However, in Lynn, there was no conduct that could have led the court to believe that
there was an understanding of the Miranda rights. For example, prior to the
interrogation, there was no evidence that Lynn made any statement to anyone trying
to explain away the allegation that he engaged in sexual conduct with the victim. Id.
at ¶ 42. Thus, in that case, there was evidence that there was not an understanding
of the Miranda rights.
{¶40} That said, we also acknowledged that there was evidence that the
waiver was intelligently made. Lynn was twenty-five years old at the time of the
interrogation, he had completed high school and he had two other experiences with
the judicial system. Id. at ¶ 43. Furthermore, the waiver he was given was within his
reading level. Id.
{¶41} Regardless of those admitted facts, we affirmed the trial court’s
conclusion that the waiver was not intelligently made. Ultimately we concluded that
the trial court found Dr. Haskins to be credible and when there is evidence to support
suppression and evidence to deny suppression, an appellate court will
overwhelmingly affirm a trial court's decision due to the great deference that it must
be given in matters of credibility. Id. at ¶ 44.
{¶42} In the instant case, Dr. Haskins interviewed Higgins for six hours.
During that time, she administered the Neurobehavioral Cognitive Status
Examination (COGNISTAT), Wechsler Adult Intelligence Scale (I.Q. test), the Wide
Range Achievement Test, Validity Indicator Profile, and the Grisso test. The result of
the COGNISTAT and the I.Q. tests were that Higgins was borderline to low average
range of intellectual functioning with an I.Q. of 72. The Wide Range Achievement
Test indicated in Word Reading he read at a 6th grade, 9th month level. On
Sentence Comprehension his grade equivalent was at an 8th grade, 2nd month level.
The Validity Indicator test indicated that the results of the tests were a valid
representation of Higgins' ability.
{¶43} As mentioned above, the Grisso test specifically tests for understanding
of Miranda rights. The Grisso test consists of four parts: Comprehension of Miranda
Rights, Comprehension of Miranda Rights – Recognition, Comprehension of Miranda
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Vocabulary, and Function of Rights in Interrogation. In the Comprehension of
Miranda Rights, Higgins scored 8 out of 8; his score was better than the mere score
of 7 found for individuals aged 23 to 26 with an IQ of 71 to 80. In the Comprehension
of Miranda Rights – Recognition section, he scored 9 out of a possible 12 points.
This section concluded that he demonstrated a weakness in his comprehension of
his right to remain silent and of when it is he is entitled to see an attorney. In the
Comprehension of Miranda Vocabulary, he scored 10 out of 12 points. Lastly, in the
Function of Rights in Interrogation, he scored 10 out of 10 points.
{¶44} In completing her report, Dr. Haskins also stated that the “Your Rights”
form that is used by the Jefferson County Sheriff’s Office for waiver of Miranda rights
has a Flesch-Kincaid Readability Test of a 4.1 grade level. Thus, she concluded that
given Mr. Higgins sentence comprehension score on the WRAT4, he was able to
read and paraphrase the form. However, she added:
[E]ven though the waiver and warning were read to Mr. Higgins,
he still did not have adequate intellect or academic achievement to
comprehend and appreciate the implications of the statement read to
him. Additionally, there is no portion or place on the rights form that is
designated as the waiver or rights waiver. There is simply a question:
“Having these rights in mind, do you wish to talk to us now?” Mr.
Higgins’ “yes” followed by his initials on each of these statements on
the form he signed was in all probability a simple matter of complying in
a situation where he was confronted with an authority figure.
02/24/12 Report from Dr. Haskins.
{¶45} In all she concluded that Higgins did not intelligently waive his Miranda
rights:
“Current assessment of Mr. Higgins capacity to knowingly,
intelligently and voluntarily waive his Miranda rights revealed he
evidenced some understanding of his rights to silence and an attorney.
However, he did not understand or appreciate the meaning and function
of those rights. He did not comprehend or understand he had a right to
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not self-incriminate or not tell on himself or confess. While he
acknowledged he had a right to an attorney, he poorly understood why
it was that an attorney would be a good idea or why an attorney would
be particularly useful in helping him with his legal situation. That is he
did not adequately understand or appreciate the special training and
skills an attorney has that could be brought to bear on his legal
situation.
Overall, it is my opinion with reasonable psychological certainty
that while Mark Higgins has demonstrated a limited knowledge of his
Miranda rights, he did not intelligently waive those rights because he
did not appreciate the nature and extent of those rights and the
meaning of those rights related to his particular situation. Interfering
with his intelligent waiver of his rights were his limited intellect, his
depression, his withdrawal from alcohol, opiates and marijuana and his
fear of Sheriff Abdalla. Mr. Higgins was not physically mistreated or
disrespected during interrogation. However, there was a speed read of
his rights, he was interrogated as a jail inmate by the local sheriff
around whom there has over the years developed considerable
purported “urban legend” related to treatment of inmates and suspects,
and no effort was made to ascertain whether or not the defendant
understood his rights beyond “you understand?” Thus, given the
circumstances it is difficult to imagine Mr. Higgins voluntarily waived his
rights.
02/24/12 Dr. Haskins’ Report.
{¶46} The trial court disagreed with her conclusion:
The defendant’s witness testified that she did not dispute that
defendant knowingly and voluntarily waived his Miranda rights, but that
the defendant did not intelligently waive his Miranda rights. Defendant’s
witness based this opinion upon her examination and interview of
defendant, various tests which she administered to the defendant,
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historical information supplied or obtained regarding the defendant,
conversations with the defendant’s attorney and a view of the
audio/visual recording of defendant’s interview/questioning by the
Sheriff.
Dr. Haskins opined that the defendant has a low I.Q. of 72 (plus
or minus 5 points) and is not mentally retarded but is on the borderline
and near to mild mental retardation. The defendant reported
depression, grieving of recent deaths and withdrawing from drugs and
alcohol at the time of giving of the statement.
The evidence presented does not establish that the defendant
was withdrawing from any drugs or alcohol at the time of the statement.
The evidence does not establish that the defendant was suffering from
grief or depression that would affect his ability to waive his Miranda
rights. The evidence does establish by a preponderance that the
defendant was of sufficient intelligence to comprehend and waive his
Miranda rights; that he understood those rights and that he knowingly,
intelligently and voluntarily waived his Miranda rights.
The Court has considered the defendant’s age (26 years), the
defendant’s mental capacity (I.Q. of 72 and high school/vocation school
completion). That the defendant had prior criminal involvement and
was on probation at the time of the statement, that the length and
intensity of the interrogation was certainly reasonable and appropriate,
that there was no physical deprivation or mistreatment, that there was
no existence of a threat or inducement, and that the defendant was
aware that his statement would be used against him.
Underline in Original. 03/19/12 J.E.
{¶47} Thus, the trial court did not find Dr. Haskins’ conclusion to be credible.
Although Higgins’ rights were read to him in less than 30 seconds, we uphold that
finding. The trial court’s statements regarding Higgins prior involvement in criminal
activity and his mental capacity are accurate. At the suppression hearing Sheriff
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Abdalla stated that Higgins informed him that Higgins has had Miranda rights read to
him at least on one other occasion. Suppression Tr. 10. Furthermore, as the trial
court states there is no evidence, besides Higgins’ own statement, that at the time of
the interrogation he was withdrawing from drug and/or alcohol use. Sheriff Abdalla
testified that during the interrogation, Higgins did not ask for medical treatment for
withdrawal and did not appear to be under influence. Suppression Tr. 9-10. Even
Dr. Haskins admitted on the stand that when watching the video confession she did
not see any outward signs of intoxication or withdrawal. Suppression Tr. 116.
Likewise, the recording of the confession indicates that Higgins was not threatened or
mistreated during the interrogation. Moreover, the Grisso test results and the fact
that the “Your Rights” form was easily within his reading level indicates that he did
have a basic understanding of the rights he was waiving.
{¶48} In Lynn we favorably cited an Illinois Appellate Court decision which
states:
If intelligent knowledge in the Miranda context means anything, it
means the ability to understand the very words used in the warnings. It
need not mean the ability to understand far-reaching legal and strategic
effects of waiving one's rights, or to appreciate how widely or deeply an
interrogation may probe, or to withstand the influence of stress or fancy;
but to waive rights intelligently and knowingly, one must at least
understand basically what those rights encompass and minimally what
their waiver will entail.
Lynn, 2011-Ohio-6404, at ¶ 21-22, quoting People v. Bernasco, 138 Ill.2d 349, 363–
64 (1990).
{¶49} Higgins met this test. That said, we take this opportunity to note that
while the written Miranda warning in Jefferson County is adequate, the questionnaire
in addition to asking if the offender understands the rights, should probably also
include a question to the offender asking him if he wishes to waive those rights.
{¶50} In conclusion, given our standard of review and the information
provided at the suppression hearing, we uphold the trial court’s suppression ruling;
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the trial court did not abuse its discretion in disagreeing with Dr. Haskins’ conclusion.
This assignment of error lacks merit.
Conclusion
{¶51} For the foregoing reasons, all three assignments of error lack merit. The
judgment of the trial court is hereby affirmed.
Waite, J., concurs.
DeGenaro, P.J., concurs.