State v. Matthews ( 2013 )

[Cite as State v. Matthews, 2013-Ohio-3482.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2012-09-175
Plaintiff-Appellee, :
OPINION
: 8/12/2013
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:
SEAN BRYAN MATTHEWS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2012-04-0614
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Charles M. Conliff, 5145 Pleasant Avenue, Suite 18, P.O. Box 18424, Fairfield, Ohio 45018-
0424, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Sean Bryan Matthews, appeals his convictions in the
Butler County Common Pleas Court for criminal child enticement, gross sexual imposition,
and public indecency. For the reasons stated below, we affirm the convictions.
{¶ 2} On April 26, 2012, appellant was indicted on one count of criminal child
enticement in violation of R.C. 2905.05 as to N.F., an 11-year-old boy (Count One), one
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count of criminal child enticement in violation of R.C. 2905.05 as to W.B., a 13-year-old boy
(Count Two), one count of criminal child enticement in violation of R.C. 2905.05 as to T.W.,
an eight-year-old boy (Count Three), one count of criminal child enticement in violation of
R.C. 2905.05 as to N.W., a 10-year-old boy (Count Four), one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4) as to N.W. (Count Five), and one count of public
indecency in violation of R.C. 2907.09(A)(1) as to N.W. (Count Six). The criminal child
enticement charges arose out of allegations that, on separate occasions from October 2011
until March 2012, appellant attempted to coax or entice the victims into a vehicle in Hamilton,
Butler County, Ohio. The gross sexual imposition and public indecency charges arose out of
allegations that appellant touched N.W.'s penis and exposed his penis to N.W.
{¶ 3} In June 2012, appellant moved to suppress statements he made to detectives
while under arrest as well as the pretrial photo-identification of appellant by N.W. and W.B.
Appellant also sought to sever the six counts of the indictment into three trials. After a
hearing held July 18, 2012, the trial court denied all three motions.
{¶ 4} Consequently, on August 3, 2012, appellant entered no contest pleas on all six
counts of the indictment. Appellant was found guilty of all counts and sentenced to 180 days
for each criminal child enticement conviction, 48 months for the gross sexual imposition
conviction, and 30 days for the public indecency conviction, all sentences to be served
concurrently with one another.
{¶ 5} From his convictions, appellant appeals, raising three assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
OVERRULING HIS MOTION TO SUPPRESS STATEMENTS MADE DURING A
CUSTODIAL INTERROGATION.
{¶ 8} In his first assignment of error, appellant argues the trial court erred by denying
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his motion to suppress, thereby admitting statements detectives obtained in violation of
appellant's constitutional right against self-incrimination. Essentially, appellant contends that
his constitutional rights were violated when he was questioned by detectives without having
waived his Miranda rights and the trial court deemed these statements admissible. See
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
{¶ 9} "An appellate court's review of a motion to suppress presents a mixed question
of law and fact." State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15,
citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. "When considering a
motion to suppress, the trial court assumes the role of trier of fact and is, therefore, in the
best position to resolve factual questions and evaluate the credibility of witnesses." Id.; State
v. Bird, 12th Dist. Butler No. CA2002-05-106, 2003-Ohio-2541, ¶ 9; State v. Mills, 62 Ohio
St.3d 357, 366 (1992). Consequently, an appellate court may not disturb a trial court's ruling
on a motion to suppress where it is supported by substantial, credible evidence. Bird at ¶ 9;
State v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997). "Accepting these facts as
true, the appellate court must independently determine, without deference to the trial court,
whether the trial court's conclusions of law are correct." Gray at ¶ 15, citing Bird at ¶ 9.
{¶ 10} "It is well-established that before law enforcement officials question a suspect in
custody, the suspect must be advised of his Miranda rights and make a knowing and
intelligent waiver of those rights before any statements obtained during the interrogation will
be admissible as evidence." State v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-
068, 2012-Ohio-3754, ¶ 8, citing State v. Treesh, 90 Ohio St.3d 460, 470, 2001-Ohio-4.
However, "the duty to advise a suspect of constitutional rights pursuant to Miranda * * * arises
only when questioning by law enforcement rises to the level of a custodial interrogation." In
re J.S., 12th Dist. Clermont No. CA2011-09-067, 2012-Ohio-3534, citing In re J.B., 12th Dist.
Butler No. CA2004-09-226, 2005-Ohio-7029, ¶ 53. Miranda defines custodial interrogation
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as any "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." (Emphasis
added). Miranda, 384 U.S. at 444.
{¶ 11} In this case, Detective Paul Davis of the Hamilton Police Department (the
"Police Department") spoke with appellant on two separate occasions regarding the
allegations against him: once at appellant's residence and again at the Police Department.
During the first discussion at appellant's residence, Davis sought to discuss the allegations
with appellant's roommate, who owned the vehicle involved in the incidents. During the visit,
appellant indicated to Davis that he had not driven the vehicle in several months.
{¶ 12} During the second discussion at the Police Department, appellant was under
arrest and being booked for the charges upon which he was subsequently indicted. Davis
explained at the suppression hearing that, during this booking process, Davis read appellant
his Miranda rights, but appellant refused to sign a card waiving those rights. Nonetheless,
Davis testified that appellant "continued to talk" and "state[d] that he hadn't done anything."
At some point during the booking process, appellant admitted that he had driven his
roommate's vehicle on the days that the incidents occurred but denied doing "anything" to the
victims. Davis then asked appellant "why he had lied to [Davis] the first time about driving
and [appellant] indicated because he was [driving] under suspension[.]"
{¶ 13} The trial court determined, and appellant concedes, that Davis' first
conversation with appellant at appellant's residence was not a custodial interrogation subject
to Miranda. The trial court further found that appellant had been properly Mirandized before
the second discussion at the Police Department. However, the trial court suppressed
appellant's response to Davis' question of "why did you lie to me" because appellant had not
waived his Miranda rights. Finally, the trial court determined that appellant's remaining
statements made during the booking process, including that he used his roommate's vehicle,
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were admissible as the statements were "not in response to an interrogation" and were made
after appellant "had been properly Mirandized."
{¶ 14} While the parties argue extensively about whether appellant waived his Miranda
rights prior to making statements regarding use of his roommate's vehicle, we find that
whether appellant waived his Miranda rights is immaterial to the case at hand, as all but one
statement made by appellant was voluntary and unprovoked by police conduct.
{¶ 15} "The requirements of Miranda do not affect the admission of volunteered
statements made without police coercion or inducement." State v. Becherer, 12th Dist.
Warren No. CA99-07-085, 2000 WL 190039, *3 (Feb. 14, 2000), citing State v. Tucker, 81
Ohio St.3d 431, 435 (1998). A defendant's voluntary, unprovoked statements to police do
not fall within the protections of Miranda, even though the defendant was placed under
arrest. Id., citing State v. Williams, 12th Dist. Butler No. CA92-07-133, 1993 WL 185611, *4
(June 1, 1993); State v. Jaradat, 8th Dist. Cuyahoga No. 88290, 2007-Ohio-1971, ¶ 28
("voluntary, spontaneous statements made without police coercion or inducement do not fall
within the protection of Miranda even if the defendant was under arrest and in custody").
{¶ 16} In this case, testimony at the suppression hearing revealed that, although
appellant refused to sign a waiver of his Miranda rights, appellant continued to make
statements during the booking process. There is no evidence these statements were
provoked by police coercion or inducement or were not otherwise voluntary. The only
statement which was elicited by police concerned why appellant had lied to Davis about using
the vehicle and this statement was excluded by the trial court.
{¶ 17} Based upon our review of the record, we find that appellant's constitutional
rights were not violated by the trial court's denial of the motion to suppress. All but one of the
statements in question were voluntary, unprovoked statements made by appellant, and the
sole statement actually elicited by police was excluded from evidence.
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{¶ 18} Accordingly, appellant's first assignment of error is overruled.
{¶ 19} Assignment of Error No. 2:
{¶ 20} THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHTS BY
FINDING THAT THE STATE COMPLIED WITH THE STATUTORY IDENTIFICATION
PROCEDURES.
{¶ 21} In his second assignment of error, appellant argues that the trial court erred in
denying his motion to suppress evidence of two photo lineups shown to W.B. and N.W., from
which he was identified as the perpetrator. Specifically, appellant contends that the photo
lineup procedure utilized by the Police Department did not substantially comply with the
requirements of R.C. 2933.83 by failing to utilize the "folder system." Therefore, appellant
asserts that the identifications of appellant by W.B. and N.W. should have been suppressed.
We reject this contention and affirm the trial court's determination that the Police Department
complied with R.C. 2933.83 in conducting the photo lineup and in overruling appellant's
1
motion to suppress his identification.
{¶ 22} As stated above, an appellate court may not disturb a trial court's ruling on a
motion to suppress where it is supported by substantial, credible evidence. State v. Bird,
2003-Ohio-2541 at ¶ 9.
{¶ 23} At the July 18, 2012 motions hearing, Detective Donald Taylor recalled
conducting two lineups of six photographs—referred to as the "six-pack" photo array—which
were separately shown to W.B. and N.W. Taylor testified that he acted as a "blind
1. Before the trial court, appellant sought only the suppression of his identification based upon the photo lineups.
Appellant now concedes that suppression is not a remedy for noncompliance with R.C. 2933.83. Therefore,
rather than seeking suppression of his identification, appellant now seeks remand of this issue with direction that
the trial court permit him to submit evidence of noncompliance with R.C. 2933.83 and instruct the jury that it may
consider such noncompliance in determining the reliability of his identification. These were not remedies sought
before the trial court and, therefore, are not properly preserved for appeal. Additionally, these remedies were
waived by appellant's no contest plea. Our discussion of this matter will be confined to the trial court's ruling on
the motion to suppress regarding compliance with R.C. 2933.83.
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administrator" during the lineups, meaning that he had not created the photo lineups, was
unaware who the suspect was in the case, and did not know whether the suspect was even
depicted in one of the six photographs. Taylor additionally testified concerning the
"investigative photo array procedure checklist" that he followed in administering the photo
lineup. He explained that the checklist "documents the requirements of what you're trying to
accomplish with the photo array" and "describes who the assigned investigator is; who the
blind administrator is; a statement indicating that the suspect may or may not be included;
[and] photos." Taylor testified that, when presenting the photo lineup to each victim, he
would read statements verbatim from the checklist and follow all the necessary steps. Taylor
then showed the six-pack photo lineup to W.B. and N.W. on separate occasions and both
witnesses identified appellant "very quickly" out of the lineup.
{¶ 24} "R.C. 2933.83(B) requires any law enforcement agency or criminal justice entity
that conducts live lineups and photo lineups to adopt specific procedures for conducting the
lineups," and to comply with minimum requirements outlined in the statute. State v. Ruff, 1st
Dist. Hamilton No. C-110250, 2012-Ohio-1910, ¶ 5.
{¶ 25} Appellant does not contend that the Police Department failed to satisfy the
requirements of R.C. 2933.83(B). In fact, appellant acknowledges that the trial court
determined that the six-pack photo array was not unreliable or impermissibly suggestive.
Rather, appellant's argument is that the six-pack photo array used in this case was improper
under R.C. 2933.83 simply because it was not the folder system detailed in R.C.
2933.83(A)(6). Specifically, appellant contends that R.C. 2933.83 mandates that only the
folder system or, at a minimum, a substantially similar system, can be used to identify a
perpetrator through a photo lineup and, as the folder system was not used by the Police
Department, the case must be reversed.
{¶ 26} We find appellant's argument unpersuasive. After a thorough review of R.C.
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2933.83, we can find no indication that the folder system or a substantially similar system
must be utilized by law enforcement agencies or criminal justice entities in performing a
photo lineup. See State v. Henry, 6th Dist. Lucas No. L-11-1157, 2012-Ohio-5552, ¶ 41
("The statute does not require the use of the folder system"). On the contrary, R.C.
2933.83(B) requires only that a law enforcement agency or criminal justice entity "adopt
specific procedures for conducting" lineups which meet the minimum requirements outlined in
the statute. The statute neither expressly nor impliedly mandates the sole use of the folder
system or a substantially similar system. Even R.C. 2933.83(D), which allows a law
enforcement agency or criminal justice entity to adopt a different type of lineup procedure so
long as it is considered "more effective" by the "scientific community," does not mandate the
use of the folder system. Rather, R.C. 2933.83(D) provides that systems utilizing
requirements other than those enumerated in R.C. 2933.83(B) may be permissible in
conducting live or photo lineups.
{¶ 27} Thus, as the Police Department in this case established a procedure wherein
Taylor, a blind administrator, made separate written records for each witness that included
the signatures of the witnesses and the identification of appellant, and otherwise complied
with R.C. 2933.83(B), we find that the trial court did not err in denying appellant's motion to
suppress.
{¶ 28} Even if the Police Department failed to comply with R.C. 2933.83 by not using
the folder system or a substantially similar system, the trial court still did not err in denying
appellant's motion to suppress, as suppression is not the remedy for a violation of R.C.
2933.83. Although R.C. 2933.83(C)(1) provides that evidence of any failure to comply with
the statute "shall be considered by trial courts in adjudicating motions to suppress eyewitness
identification resulting from or related to the lineup," the statute "does not provide an
independent ground for suppression" and "noncompliance with R.C. 2933.83(B) alone is
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insufficient to warrant suppression." See Ruff, 2012-Ohio-1910 at ¶ 6-8; State v. Simpson,
2d Dist. Montgomery No. 25069, 2013-Ohio-1072 ("the 'penalty' for failure to comply with the
statute is not suppression, but the other remedies provided for in the statute"); State v.
Jackson, 4th Dist. Pickaway No. 11CA20, 2012-Ohio-6276, ¶ 25 ("failure to comply with R.C.
2933.83 does not, by itself, warrant the suppression of evidence"); State v. Parks, 7th Dist.
Columbiana No. 11 CO 20, 2012-Ohio-3010, ¶ 17 ("the statue does not provide for automatic
exclusion of a line-up conducted in a manner different than that provided thereunder"); State
v. Alexander, 8th Dist. Cuyahoga No. 98941, 2013-Ohio-2533, ¶ 27 ("R.C. 2933.83(C)(1),
however, does not provide an independent basis upon which to suppress evidence, and a
trial court errs in solely relying on the statute in suppressing an identification"). "Indeed, the
'penalty' for failure to comply with R.C. 2933.83 is not suppression, but that 'the jury shall be
instructed that it may consider credible evidence of noncompliance in determining the
reliability of any eyewitness identification.'" State v. Stevenson, 2d Dist. Montgomery No.
24821, 2012-Ohio-3396, ¶ 16, quoting R.C. 2933.83(C)(3).
{¶ 29} In order to seek suppression of a photo lineup, a defendant must argue that the
procedure of the photo lineup did not comply with R.C. 2933.83 and that the photo lineup
was a violation of his constitutional rights. Ruff at ¶ 8 (noting that the defendant expressly
declined to argue that the photo lineups were impermissibly suggestive under the Fourteenth
Amendment). In the case at hand, appellant does not raise a constitutional issue, stating that
constitutional considerations "are not at issue here." Rather, appellant solely asserts that the
statutory requirements of R.C. 2933.83 are not satisfied by the six-pack photo array system
and, therefore, the identifications of appellant by W.B. and N.W. should have been
suppressed.
{¶ 30} For the foregoing reasons, we find that the trial court did not err in denying
appellant's motion to suppress.
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{¶ 31} Accordingly, appellant's second assignment of error is overruled.
{¶ 32} Assignment of Error No. 3:
{¶ 33} APPELLANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE
MISJOINDER OF UNRELATED CRIMINAL OFFENSES.
{¶ 34} In his third assignment of error, appellant argues that the trial court committed
plain error by permitting the joinder of unrelated offenses. Specifically, appellant argues that
the trial court should have granted his motion to sever the six counts into three trials: one trial
on Count One, one trial on Count Two, and one trial on Counts Three through Six. Appellant
contends that a consolidated trial on all six counts would have resulted in the admission of
"other acts" evidence that would be inadmissible in separate trials and that the jury would
hear "inflammatory" testimony regarding T.W. and N.W. that would adversely affect the
charges relating to N.F. and W.B. Thus, appellant claims that he was prejudiced by the trial
court's decision denying his request for severance.
{¶ 35} "The decision to grant or deny a motion to sever is a matter in the trial court's
discretion, and therefore, we review the trial court's decision under an abuse of discretion
standard." State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 11, citing
State v. Moshos, 12th Dist. Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 76. "An abuse of
discretion implies that the trial court's decision was unreasonable, arbitrary, or
unconscionable." Id., citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
{¶ 36} "'The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if
the offenses charged 'are of the same or similar character.'" Id. at ¶ 12, quoting State v. Lott,
51 Ohio St.3d 160, 163 (1990); State v. Torres, 66 Ohio St.2d 340 (1981). "However, a
defendant is allowed, under Crim.R. 14, to move to sever offenses that have otherwise been
properly joined where it appears that joinder would be prejudicial." Id., citing State v. Schaim,
65 Ohio St.3d 51, 58 (1992).
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{¶ 37} To prevail on a claim that the trial court erred in denying a motion to sever, the
appellant must affirmatively demonstrate that "(1) his rights were prejudiced, (2) he provided
the trial court with sufficient information enabling it to weigh the consideration favoring joinder
against the defendant's right to a fair trial, and (3) the trial court abused its discretion in
refusing to separate the charges for trial." Schaim at 59; Rose at ¶ 13.
{¶ 38} "The state may negate a claim of prejudice in one of two ways." Rose at ¶ 14.
"The first is through the 'other acts' test, where the 'state must demonstrate it could have
introduced evidence of the joined offenses at separate trials, pursuant to the 'other acts'
provision of Evid.R. 404(B).'" Id., citing Lott at 163. "Alternatively, under the 'joinder test' the
state can refute a claim of prejudice by showing 'that evidence of each crime joined at trial is
simple and direct.'" Id., citing Moshos at ¶ 79. If the state can establish that the evidence is
"simple and direct," then there is no need to meet the more strict "other acts" test. Id., citing
State v. Hensley, 12th Dist. Warren No. CA2009-11-156, 2010-Ohio-3822, ¶ 40. In other
words, a demonstration by the state "that the evidence relating to each crime is simple and
direct negates any claims of prejudice and renders joinder proper." Moshos at ¶ 80.
{¶ 39} In this case, the trial court determined that the evidence relative to each count
of the indictment is simple and direct and that appellant failed to meet his burden of
demonstrating that joinder of these counts is prejudicial. We find no abuse of discretion in
the trial court's determination.
{¶ 40} "Ohio appellate courts have upheld joinder in sex abuse cases involving
multiple child victims where the evidence as to each offense is separate, uncomplicated and
sufficient to support a conviction without necessitating the use of evidence relating to other
offenses." State v. Ashcraft, 12th Dist. Butler No. CA2008-12-305, 2009-Ohio-5281, ¶ 19,
citing State v. Eads, 8th Dist. Cuyahoga No. 87636, 2007-Ohio-539, ¶ 50-53; State v.
Campbell, 11th Dist. Lake No. 2004-L-126, 2005-Ohio-6147, *5-6 (reversed on other
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grounds); State v. Owens, 2d Dist. Montgomery No. 17394, 2000 WL 217219, *10-11 (Feb.
25, 2000); State v. Strobel, 51 Ohio App.3d 31, 32-33 (3d Dist.1988).
{¶ 41} At the July 18, 2012 motions hearing, the trial court heard evidence that the
charges alleged in this case involved four different victims, occurred at different times, and
occurred in different places. Although appellant drove the same vehicle during each offense,
he approached different victims at different locations. In addition, there is no indication in the
record that appellant would have defended the charges differently had they been tried
separately as opposed to jointly. See Ashcraft at ¶ 25; State v. Franklin, 62 Ohio St.3d 118,
123 (1991).
{¶ 42} Based upon the foregoing, and after a thorough review of the record, we find
the trial court did not err in denying appellant's request for severance where the evidence
concerning each offense was separate and distinct, and simple and direct. See Ashcraft at ¶
27. Because our analysis as to this issue is determinative, we need not address the issue of
whether evidence of each offense would have been admissible at separate trials pursuant to
Evid.R. 404(B). See Lott, 51 Ohio St.3d at 163.
{¶ 43} Accordingly, appellant's third and final assignment of error is overruled.
{¶ 44} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.
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