In re D.F.

[Cite as In re D.F., 193 Ohio App.3d 78, 2011-Ohio-1004.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE D.F. ) CASE NO. 10 NO 374
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) OPINION
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CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Juvenile Division, Case No. 210-2008.
JUDGMENT: Conviction Reversed.
APPEARANCES:
Clifford Sickler, Noble County Prosecuting Attorney, and Jamie Riley, Assistant
Prosecuting Attorney, for appellee.
Lindsey Donehue, for appellant.
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: February 28, 2011
VUKOVICH, Judge.
{¶ 1} Juvenile-appellant D.F. appeals after he was adjudicated a delinquent
child by the Noble County Juvenile Court. He contends that his incriminating
statements should have been suppressed because he was not provided with Miranda
warnings prior to questioning on whether he had provided his prescription medication to
a fellow detention-center resident. However, merely because appellant was a resident
in a youth-detention facility does not mean that he was in custody for purposes of
Miranda. To the contrary, Miranda warnings are not required for on-scene-investigation
questioning of residents regarding acts that occurred in a detention center if there are
no additional impositions on the residents’ freedom above those that normally occur in
that facility.
{¶ 2} Appellant also argues that the state did not sufficiently prove that the
confiscated pill was a controlled substance. Appellant states that the two witnesses
were not shown to be experts on pill identification. He notes that they received their
information from an unnamed nurse, who did not testify and whose records were not
introduced. As appellant points out, even if testimony on what the corrections officer or
superintendent learned from the nurse regarding the pill was admissible, that testimony
was presented only at the suppression hearing and was not reiterated at the actual trial.
For the following reasons, appellant’s conviction is reversed, because the state
presented insufficient evidence at trial that the confiscated pill fit the definition of a
controlled substance as used in R.C. 2925.11.
STATEMENT OF THE CASE
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{¶ 3} Appellant was a 15-year-old resident in the Muskingum County Juvenile
Detention Center. After the residents in his pod attended a youth program in the facility,
a pen was discovered to be missing. For safety reasons, this pen had to be recovered;
the residents were thus asked to line up outside their individual rooms. Appellant
voluntarily stated that another resident (Resident S) took the pen and flushed it down
the toilet.
{¶ 4} A corrections officer approached Resident S and discovered that Resident
S had two pills in his book: a red capsule and a small, round, dark yellow pill that was
partially dissolved. It was ascertained that only one of these pills belonged to Resident
S. Upon consultation with the nurse, the officer apparently learned that the other pill
was Adderall and that appellant was the only resident to whom the nurse had dispensed
this drug.
{¶ 5} The corrections officer and his supervisor then approached appellant in
his room. He was asked how Resident S had obtained appellant’s pill, and appellant
responded by stating that he had “cheeked” the pill when the nurse gave it to him.
Appellant was then charged with complicity to aggravated possession of drugs, a fifth-
degree felony under R.C. 2925.11(A) and (C)(1)(a). His case was transferred to Noble
County, since this was his permanent residence.
{¶ 6} Appellant filed a motion to suppress his statement on the grounds that the
corrections officer and superintendent had failed to provide him with Miranda warnings
before questioning him. The court denied the motion after holding a suppression
hearing during which the corrections officer and the superintendent testified.
Immediately after the suppression hearing, the trial began, and the state recalled these
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two witnesses. Thereafter, the court adjudicated appellant a delinquent child. In a May
26, 2010 entry, appellant was sentenced to a minimum sentence of six months and a
maximum sentence of the attainment of age 21. Appellant filed a timely notice of
appeal.
ASSIGNMENT OF ERROR NUMBER ONE
{¶ 7} Appellant’s first assignment of error alleges:
{¶ 8} “The trial court made a fatal error when it denied appellant’s motion to
suppress because appellant was in custody and subject to custodial interrogation, a
reasonable person in appellant’s situation would have believed he was in custody,
appellant was interrogated, and the trial court’s admission of appellant’s confession was
not harmless error.”
{¶ 9} The typical Miranda inquiry asks whether the suspect was in custody and
whether the suspect was subject to interrogation. Miranda v. Arizona (1966), 384 U.S.
436, 467-471. Here, the interrogation prong is undisputed, leaving the custody prong
for our review. A person is in custody for purposes of Miranda when he is placed under
formal arrest or his freedom of movement is restrained to a degree associated with a
formal arrest. Minnesota v. Murphy (1984), 465 U.S. 420, 434. The totality of the
circumstances must show that a reasonable person in the defendant’s position would
have believed that he was not free to leave. State v. Gumm (1995), 73 Ohio St.3d 413,
429. The first issue here is whether appellant is considered to have been in custody
during the interrogation merely because he was a detention-center resident.
{¶ 10} It is fairly well established that the freedom-of-movement test is different
for residents of prisons because they are not free to leave in any event. The situation in
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which corrections officers are conducting an on-the-scene investigation of acts that
occurred in the facility is treated as a distinct fact pattern by the Ohio and federal courts
that have addressed the issue.
{¶ 11} Specifically, it has been held that Miranda warnings need be provided to a
resident-inmate being questioned by corrections officers about behavior that occurred in
a detention facility only if there is added imposition on that resident’s freedom of
movement, i.e., a change in the inmate’s surroundings making his movement more
restricted than it is in the normal prison situation. State v. Porter, 178 Ohio App.3d 304,
2008-Ohio-4627, ¶16 (2d District); State v. Simpson, 10th Dist. No. 01PAP-757, 2002-
Ohio-3717, ¶34-35; United States v. Ozuna (C.A.6, 1999), 170 F.3d 654, 658, fn. 3;
State v. Peeples (1994), 94 Ohio App.3d 34, 41-42 (4th District); Garcia v. Singletary
(C.A.11, 1994), 13 F.3d 1487, 1490-1492; United States v. Conley (C.A.4, 1985), 779
F.2d 970, 972-973; United States v. Scalf (C.A. 10, 1984), 725 F.2d 1272, 1276; State
v. Schultz (Sept. 22, 1983), 8th Dist. No. 46043, 1983 WL 4749; Cervantes v. Walker
(C.A.9, 1978), 589 F.2d 424, 427-428. As in the typical Miranda case, a totality-of-the-
circumstances test is employed to determine whether there were sufficient additional
restrictions imposed upon the resident to require Miranda warnings. Id.{¶ 12} In Porter, Ohio’s Second District Court of Appeals found that Miranda
warnings should have been given when the defendant was singled out, removed from
her jail cell, questioned, handcuffed, moved to a dressing area, questioned again
without handcuffs, handcuffed again, moved to the shower, ordered to strip, required to
squat and cough, allowed to dress, informed that a search warrant was on its way and
that a body-cavity search would be performed at the hospital, handcuffed again, and
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moved to the transport area, at which point she admitted that there were drugs hidden
inside her body. Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, at ¶21-26.
{¶ 13} In Cervantes, the defendant was being moved to a new cell due to a fight
with another inmate. He was directed to gather his belongings and to sit in the jail
library to talk with an officer before the move. When the defendant left his belongings
on a table outside the library, the officer conducted a routine search, finding a green
substance. The officer entered the library with the substance and asked, “What’s this?”
to which the defendant replied, “That’s grass, man.” The United States Court of
Appeals for the Ninth Circuit held that Miranda warnings were not required because this
was an on-the-scene investigation with no added imposition on the defendant’s freedom
of movement. Cervantes, 589 F.2d at 428.
{¶ 14} In Scalf, the defendant was questioned in his cell soon after the stabbing
death of another inmate. The United States Court of Appeals for the Tenth Circuit
characterized the situation as “on-the-scene questioning,” held that the defendant's
freedom of movement was not restricted more than is usual in the prison context, and
concluded that Miranda warnings were unnecessary. Scalf, 725 F.2d at 1276.
{¶ 15} In another case, a civilian employee of a prison was killed in the metal
shop. Standard prison procedure called for strip searches of all metal-shop employees.
Before conducting the search, while the employees were all lined up, a corrections
officer noticed blood on the defendant. An officer asked the defendant whether he had
caused the employee’s death, and the defendant responded in the affirmative. Ohio’s
Fourth Appellate District held that Miranda warnings were not required because this
situation constituted an on-the-scene investigation and that the restricted movement
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was not over and above that normally occurring in a prison setting. State v. Bradley
(Sept. 22, 1987), 4th Dist. No. 1583, 1987 WL 17303.
{¶ 16} Here, a pen went missing, and all residents were asked to stand outside
their cells pursuant to standard facility procedure. Appellant volunteered that Resident
S took the pen. Resident S was found in possession of two pills, one of which did not
belong to him. As appellant was the only resident to whom the nurse provided this pill,
a corrections officer and his supervisor entered appellant’s cell and asked him how
Resident S came to possess appellant’s medication. Appellant incriminated himself by
admitting that he had “cheeked it.”
{¶ 17} The encounter lasted only one to two minutes in appellant’s own cell. He
was not handcuffed, searched, or removed from the general facility population. This
was an on-the-scene investigation of a missing potentially dangerous object and then a
contemporaneous investigation of a drug offense by corrections officers in a prison
setting. Under the totality of the circumstances, appellant’s freedom of movement was
not imposed upon over and above the normal situation in the detention facility
environment. Therefore, Miranda warnings were unnecessary.
ASSIGNMENT OF ERROR NUMBER TWO
{¶ 18} Appellant’s second assignment of error provides:
{¶ 19} “The state did not prove beyond a reasonable doubt that the pill obtained
by the officers was a controlled substance.”
{¶ 20} Appellant states that the only evidence that the pill was a controlled
substance was presented at the suppression hearing and was not repeated at the trial.
Appellant argues that the corrections officer and the superintendent were not shown to
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have experience in identifying pills and thus could not provide testimony on the type of
pill confiscated. Appellant also complains that these witnesses received information on
the type of pill from only an unnamed facility nurse, but the nurse did not testify, and the
nurse’s notes were never introduced.
{¶ 21} Regarding the identity of the pill, the corrections officer testified to the
following at trial:
{¶ 22} “Q And you found what in it?
{¶ 23} “A Two pills, one was a red capsule pill and the other was a dark
yellowish pill.
{¶ 24} “Q Okay, did you investigate the source of those pills?
{¶ 25} “A Yes I contacted our nurse that we had on staff and she looked into it
and verified –
{¶ 26} “[Defense counsel]: I’m going to object to that, I can’t, the lack of right to
confrontation and hearsay.
{¶ 27} “COURT: Sustained.
{¶ 28} “Q Did you ask Nurse Rush about the pills? Did you ask Mr. Rush about
the pills?
{¶ 29} “A (inaudible)
{¶ 30} “Q Yes.
{¶ 31} “A Yes.
{¶ 32} “Q To the best of your knowledge did he talk with the nurse?
{¶ 33} “A Yes I do believe he talked with the nurse.
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{¶ 34} “Q In the course of the regular activities of the detention facility is the
nurse the person who would have custody of the record regarding pills and
medications?
{¶ 35} “A Yes she is.
{¶ 36} “Q Okay, the nurse was the proper person which you would ask regarding
these medications, or these pills correct?
{¶ 37} “A Yes.
{¶ 38} “Q What did you do after you found out information about the pills from
the nurse?
{¶ 39} “A We, took youth [DF] into his room and asked him about the pills.
{¶ 40} “Q Is this something that you would have done to every single person in
that Pod?
{¶ 41} “A Yes we would have, the nurse came back and identified the two pills.
{¶ 42} “[Defense counsel]: I’m going to object.
{¶ 43} “COURT: Sustained.
{¶ 44} “Q We can’t talk about what the nurse identified okay.”
{¶ 45} After the corrections officers testified, the facility superintendent testified,
as relevant to the identity of the pill and the nurse’s information, to the following:
{¶ 46} “A I asked [DF] about the pills that were found on [Resident S] and he
admitted that he had given one of those pills to [Resident S].
{¶ 47} “Q Okay. So to the best of your knowledge was [Resident S] prescribed
to that pill?
{¶ 48} “[Defense counsel]: I’m going to object.
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{¶ 49} “COURT: Until the foundation is laid I’m going to sustain.
{¶ 50} “[Prosecutor]: Okay.
{¶ 51} “Q In [sic] the course of your normal duties to know which juvenile
residence [sic] are prescribed to what pills? What there [sic] prescriptions are?
{¶ 52} “A I don’t know if it’s necessarily my direct knowledge on every resident
that comes in. Sometimes I might know, sometimes I might not. I mean that’s handled
through our nursing department.
{¶ 53} “Q Okay, but someone there normally does, correct?
{¶ 54} “A Yes, that’s correct.
{¶ 55} “Q And do you have access to those records?
{¶ 56} “A Yes I do.
{¶ 57} “Q And are you able to review those records?
{¶ 58} “A Yes I do.
{¶ 59} “Q And are you able to view those records at any time?
{¶ 60} “A Yes.
{¶ 61} “Q And did you view those records regarding youth [DF] or [Resident S]?
{¶ 62} “A I did not view them. It was done by our nurse and she gave me that
information.
{¶ 63} “Q Okay. In the course of the Muskingum Detention Facility who
administers the medications to the juvenile resident’s [sic] there?
{¶ 64} “A If it’s during the day shift hours through the week our nurse that we
contract through the Health Department she dispenses those meds. If it’s on off times,
week-ends, Holidays, it’s a trained supervisors [sic] that pass them out.”
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{¶ 65} “Q Okay, and are the medications administered in the presence of the
nurse or the supervisor to each resident?
{¶ 66} “A Yes they are.
{¶ 67} “Q And are the resident’s [sic] expected to take the medication in the
presence of the nurse or supervisor?
{¶ 68} “A Yes they are.
{¶ 69} “Q Okay. So if everything would have taken place in accordance with the
normal practices and procedures and the policies of the detention facility there should
be no reason why any resident should have pills on their person or in their possession
correct?
{¶ 70} “A That’s correct.
{¶ 71} “Q And did youth [DF] state anything to you regarding a pill?
{¶ 72} “A He did say that he had cheeked the medication or not swallowed it
when he was given the pill?
{¶ 73} “Q And is this against the policies of the detention facility?
{¶ 74} “A Yes it is.”
{¶ 75} The state then rested, and defense counsel moved for an acquittal on the
grounds that the state did not prove the pill was a controlled substance. The state
responded that they had proved it with the nurse’s records and that they had proved
that the nurse administers prescribed medications. The state urged that the substance
is obviously controlled if it was a prescription. Defense counsel responded that even if
the records are maintained in the ordinary course of business, no records were
introduced, and the only evidence was that appellant cheeked an unidentified pill and
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gave it to Resident S. He noted that the pill could have been a vitamin. The court
overruled the acquittal motion and adjudicated appellant as having committed complicity
to aggravated drug possession.
{¶ 76} It should first be noted that at the suppression hearing, the corrections
officer testified that the pill that did not belong to Resident S was Adderall and that
appellant was the only resident to whom this pill was prescribed. The superintendent
then testified at the suppression hearing that the nurse identified the pill as belonging to
appellant. He also stated that Adderall is a controlled substance.
{¶ 77} However, suppression testimony cannot be considered in determining
whether there was sufficient evidence that the pill was a controlled substance. Even
though the hearings occurred back-to-back, they are two separate phases. Notably,
defense counsel’s objections as to hearsay and foundation were sustained at trial. At
suppression, there was no opportunity to object on these grounds because the hearing
was a preliminary, miscellaneous proceeding used to determine whether a statement
should be suppressed. See State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180,
¶14 (court may rely on hearsay at suppression hearing, even though it would not be
admissible at trial), citing Evid.R. 101(C)(1) (Rules of Evidence do not apply to
determinations prerequisite to rulings on the admissibility of evidence).
{¶ 78} Thus, the trial court and this court can view only the testimony presented
at the actual trial to determine the sufficiency of the evidence regarding whether the pill
was a controlled substance. We point this out because it appears that the state may
have believed that it had presented certain testimony because the witness had just
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testified in more detail at the suppression hearing mere minutes before the trial. We
now continue to discuss the sufficiency of the evidence at trial.
{¶ 79} Sufficiency of the evidence deals with legal adequacy rather than the
weight or persuasiveness of the evidence. State v. Thompkins (1997), 78 Ohio St.3d
380, 386. In viewing a sufficiency-of-the-evidence argument, we evaluate the evidence
in the light most favorable to the prosecution. State v. Goff (1998), 82 Ohio St.3d 123,
138. A conviction cannot be reversed for insufficient evidence unless the reviewing
court determines that no rational factfinder could have found that the elements of the
offense were proven beyond a reasonable doubt. Id.{¶ 80} Appellant was adjudicated as being complicit in the possession of a
controlled substance by Resident S in violation of R.C. 2925.11(A) and (C)(1)(a), which
involve a Schedule I or II controlled substance. A Schedule II controlled substance
includes stimulants such as amphetamines. R.C. 3719.41, Schedule II (C)(1). See also
R.C. 2925.01(A), R.C. 3719.01(BB). Adderall is a stimulant that contains
amphetamines and is comparable to Ritalin. http://www.hopkinsmedicine.org/news/
publications/johns_hopkins_health/Fall_2009/Abusing_the_System. Thus, Adderall is a
Schedule II controlled substance.
{¶ 81} Yet, there was no testimony as to the contents of Adderall. Even if a court
can take judicial notice that Adderall contains amphetamines, there was not even
testimony presented at the trial that the pill was Adderall. (The identity of the pill as
Adderall was presented only at the suppression hearing, and as set forth previously,
evidence that was presented only at a suppression hearing cannot be used to establish
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the elements of the offense.) The state suggests that evidence that a pill was a
prescription medication is sufficient evidence that it was a controlled substance.
{¶ 82} However, the state did not even prove at trial that the pill was a
prescription medication. The corrections officer said nothing about prescriptions in his
trial testimony. The state questioned the superintendent about prescriptions, but the
most relevant mention resulted in a sustained objection, and other mentions of
prescriptions really did not result in any answer relevant to appellant. For example, the
state tried to elicit that the superintendent saw appellant’s prescription record, but he
answered that he did not. He did say that “[i]t was done by our nurse and she gave me
that information.” Yet, what information he obtained was never revealed. The state
then switched to speaking of the dispensing of medications, which does not necessarily
mean prescription medications. Thus, the fact that appellant takes a prescription
medication was not actually established.
{¶ 83} Contrary to the state’s suggestion, it cannot be presumed that the mere
fact that a nurse hands out pills means that every pill is a prescription medication. It is
just as likely that youth-detention-facility residents are not permitted to carry their own
bottles of ibuprofen or over-the-counter allergy medication but instead must have a dose
dispensed by a facility nurse.
{¶ 84} Regardless of this line of inquiry, even if the state’s evidence could allow
an inference that the pill dispensed to and cheeked by appellant was a prescription
medication, there is no indication that the pill fell under Schedule I or II as appellant was
charged. As aforementioned, the pill was not named, nor were its chemical contents
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described. From the trial record, one cannot discern whether it falls under Schedule I, II,
III, IV, V, or none.
{¶ 85} This leads to our revelation of the main fallacy in the state’s argument.
Contrary to the state’s position, not all prescription medications fall under the definition
of “controlled substance” as related to the criminal offense of drug possession contained
in R.C. 2925.11. Pursuant to R.C. 2925.01(A), a controlled substance for purposes of
Chapter 2925 has the same meaning as in R.C. 3719.01. Under R.C. 3719.01(C), a
controlled substance means a drug, compound, mixture, preparation, or substance
included in Schedule I, II, III, IV, or V. In reviewing these schedules, it is clear that not
all prescription medications are listed. For instance, penicillin and other types of
antibiotics are available by prescription only, but they are not contained within a
schedule. Thus, even if there was evidence that the pill appellant provided to Resident
S was his prescription medication, this would not provide sufficient evidence that the pill
was a controlled substance as defined in the pertinent statutes.
{¶ 86} Because of these issues, appellant’s arguments regarding the failure to
provide the expert testimony on the identity of the pill1 or to provide records to show that
appellant was prescribed this pill need not be reached. In fact, they cannot be reached
because we cannot say that the witnesses’ testimony was improper (due to allegations
of hearsay and lacking expert identification) when those witnesses never actually
provided any trial testimony at all as to the identity of the pill and as to whether it was
prescribed to appellant.
1
Although a pill can be identified without scientific testing or the testimony of a scientist, some
type of expert testimony is required, such as that of an experienced police officer. State v. Maupin
(1975), 42 Ohio St.2d 473, 478-480; State v. Singh, 157 Ohio App.3d 603, 2004-Ohio-3213, ¶39. Here,
neither witness professed to have any experience identifying pills, and in fact, testified to the opposite as
they noted their reliance on the identification of the pill by a nurse.
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{¶ 87} For all of these reasons, appellant’s conviction is reversed, because the
state presented insufficient evidence at trial that the pill fit the definition of a controlled
substance as required by R.C. 2925.11.
Judgment reversed.
DONOFRIO and DEGENARO, JJ., concur.
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