In re R.S.

[Cite as In re R.S., 2014-Ohio-3543.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
IN RE: CASE NO. 11-13-10
R.S.,
ALLEGED DELINQUENT CHILD. OPINION
Appeal from Paulding County Common Pleas Court
Juvenile Division
Trial Court No. 20122087
Judgment Affirmed
Date of Decision: August 18, 2014
APPEARANCES:
Charlyn Bohland for Appellant
Matthew A. Miller for Appellee
Case No. 11-13-10
ROGERS, J.
{¶1} Defendant-Appellant, R.S., appeals the judgment of the Paulding
County Court of Common Pleas, Juvenile Division, overruling his motions to
suppress and dismiss. On appeal, R.S. argues that Captain Weidenhamer violated
his right against self-incrimination, and as a result, the trial court erred in denying
his motion to suppress. For the reasons that follow, we affirm the judgment of the
trial court.
{¶2} On October 17, 2012, a complaint was filed against R.S. charging him
with a single count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the
first degree if committed by an adult. The complaint arose as a result of an
admission by R.S. that he had digitally penetrated C.R., an 11-year-old girl.
{¶3} On December 10, 2012, R.S. filed a motion to suppress statements
made in an interview with Captain Weidenhamer and his subsequent written
statement. R.S. alleged that these statements were made during a custodial
interrogation and he was not advised of his Miranda rights. R.S. also filed a
motion to dismiss the charge against him, arguing that without his incriminating
statements, the crime would not have been discoverable since C.R. and her mother
were allegedly not going to report the incident.
{¶4} The matter proceeded to a suppression hearing on December 28, 2012.
The following facts and testimony were subsequently adduced.
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{¶5} Captain Weidenhamer testified that while employed with the Paulding
Police Department, she came into contact with R.S. on October 15, 2012. On that
day, she was on duty as a police officer and was in uniform. Captain
Weidenhamer testified that she received a phone call from Anna Campbell, a
juvenile probation officer, and was asked to come to Campbell’s office.
{¶6} Captain Weidenhamer testified that she, R.S., R.S.’s father, and
Campbell were all in present in Campbell’s office when R.S. told her what
happened the previous weekend. Captain Weidenhamer stated that R.S. told her
that “he was at [T.K.’s] mother’s house and they were celebrating [T.K.’s]
birthday. Um, they had been drinking beer, and [T.K.’s] little brother and sister *
* * ended up crawling into bed with them and [R.S.] told me that he fingered
[T.K.’s little sister, C.R.].” Suppression Hearing Tr., p. 6.
{¶7} At this point, Captain Weidenhamer testified that R.S. was not under
arrest and that he was free to leave. Captain Weidenhamer then asked if R.S.
could come to the police station for additional questioning. R.S. went to the police
station with his father and reiterated the same story, but went into “a little bit more
detail.” Id. at p. 8. R.S. also provided a written statement. Captain Weidenhamer
testified that she explained to R.S. and his father that he could decline to make a
written statement.
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{¶8} Captain Weidenhamer also testified that she spoke with T.K. and
C.R.’s mother, Tammy. According to Captain Weidenhamer, Tammy never
indicated that she was “definitely not going to report” the incident. Id. at p. 9.
{¶9} On cross-examination Captain Weidenhamer stated that she was
aware that R.S. was a juvenile and was only 16-years-old. She also admitted that
she never advised R.S. or his father of R.S.’s Miranda rights. Moreover, it was
only after Captain Weidenhamer received R.S.’s statement that she contacted
Tammy; Tammy never contacted her. Although Tammy told Captain
Weidenhamer that she wanted to call the police to report what had happened, she
did not want everyone to know what happened to C.R. or get R.S. in trouble.
Tammy admitted to Captain Weidenhamer that she served R.S. and T.K. alcoholic
beverages on the night of the incident and was afraid to get in trouble with the
police. While Captain Weidenhamer believed that R.S. committed a crime after
speaking with him in Campbell’s office, she did not believe that he needed to be in
custody for committing that crime.
{¶10} On December 28, 2012, the trial court overruled R.S.’s motion to
suppress and motion to dismiss.
{¶11} A bench trial was held in this matter on January 2, 2013, and the
juvenile court found R.S. to be a delinquent child on one count of rape. The trial
court imposed a 12-month minimum commitment to the Ohio Department of
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Youth Services (“DYS”), but suspended the commitment on the condition that
R.S. successfully complete the treatment program at Juvenile Residential Center of
Northwest Ohio (“JRC”).1 The trial court filed a judgment entry reflecting its
verdict and disposition on January 4, 2013.
{¶12} R.S. filed this timely appeal, presenting the following assignment of
error for our review.2
Assignment of Error
THE JUVENILE COURT ERRED WHEN IT OVERRULED
R.S.’S MOTION TO SUPPRESS, IN VIOLATION OF THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 10, OHIO
CONSTITUTION.
{¶13} In his sole assignment of error, R.S. contends that the trial court erred
in denying his motion to suppress. Specifically, R.S. argues that the trial court
should have found he was in custody and suppressed all statements made to
Captain Weidenhamer. We disagree.
1
On July 11, 2013, JRC unsuccessfully discharged R.S. and the trial court invoked his suspended
commitment to DYS. (Docket No. 39, p. 2).
2
We note that R.S. did not file his notice of appeal until November 4, 2013. However, the trial court’s
January 2013 judgment entry was not served to R.S. or his attorney in accordance with Civ.R. 58(B), which
mandates that “the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service
in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the
service is complete.” In this matter, there is no notation in the docket that any of the parties were served
and no indication of the date when service was completed upon the parties. Accordingly, “the time for
filing a notice of appeal never began to run because the trial court failed to comply with Civ.R. 58(B).” In
re Anderson, 92 Ohio St. 3d 63, 67 (2001).
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Standard of Review
{¶14} “Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8.
The trial court serves as the trier of fact and is the primary judge of the credibility
of witnesses and the weight to be given to the evidence presented. State v.
Johnson, 137 Ohio App. 3d 847, 850 (12th Dist.2000). Therefore, when an
appellate court reviews a trial court’s ruling on a motion to suppress, it must
accept the trial court’s findings of facts so long as they are supported by
competent, credible evidence. State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-
3665, ¶ 100, citing State v. Fanning, 1 Ohio St. 3d 19, 20 (1982); see also In re
T.W., 3d Dist. Marion No. 9-10-63, 2012-Ohio-2361, ¶ 20. The appellate court
must then review the application of the law to the facts de novo. Roberts at ¶ 100,
citing Burnside at ¶ 8.
Miranda Standard
{¶15} The Fifth Amendment to the United States Constitution provides
individuals with protection against self-incrimination. See Chavez v. Martinez,
538 U.S. 760, 765, 123 S. Ct. 1994 (2003). “ ‘Juveniles are entitled both to
protection against compulsory self-incrimination under the Fifth Amendment and
to Miranda warnings where applicable.’ ” In re K.W., 3d Dist. Marion No. 9-08-
57, 2009-Ohio-3152, ¶ 12, quoting State v. Thompson, 7th Dist. Jefferson Nos. 98
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JE 28, 98 JE 29, 2001 WL 69197, *8 (Jan. 24, 2001), citing In re Gault, 387 U.S.
1, 55, 87 S. Ct. 1428 (1967).
{¶16} “[W]hen an individual is taken into custody or otherwise deprived of
his freedom by the authorities in any significant way and is subjected to
questioning, the privilege against self-incrimination is jeopardized.” Miranda v.
Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602 (1966). “[T]he prosecution may not
use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” Id. at 444.
Police are not required to administer Miranda warnings to every person they
question. State v. Biros, 78 Ohio St. 3d 426, 440 (1997), citing Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711 (1977). Rather, police officers are
only required to administer Miranda warnings where the individual questioned is
subject to “custodial interrogation.” Biros at 440, citing Mathiason at 494.
{¶17} “In order to determine whether a person is in custody for purposes of
receiving Miranda warnings, courts must first inquire into the circumstances
surrounding the questioning and, second, given those circumstances, determine
whether a reasonable person would have felt that he or she was not at liberty to
terminate the interview and leave.” State v. Hoffner, 102 Ohio St. 3d 358, 362,
2004–Ohio–3430, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct.
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457 (1995). The first inquiry is distinctly factual. Keohane at 112. “Once the
factual circumstances surrounding the interrogation are reconstructed, the court
must apply an objective test to resolve ‘the ultimate inquiry’ of whether there was
a ‘formal arrest or restraint on freedom of movement’ of the degree associated
with a formal arrest.” Hofner at ¶ 27, citing California v. Beheler, 463 U.S. 1121,
1125, 103 S. Ct. 3517 (1983), quoting Mathiason at 495. The subjective views
harbored by either the interrogating officers or the person being questioned are of
no consequence in the Miranda analysis. Stansbury v. California, 511 U.S. 318,
323, 114 S. Ct. 1526 (1994). In resolving “the ultimate inquiry” courts must
consider the totality of the circumstances surrounding the questioning. State v.
Gumm, 73 Ohio St. 3d 413, 429 (1995); Beheler at 1125. “Relevant factors to
consider in determining whether a custodial interrogation took place are: (1) the
location of the questioning; (2) duration of the questioning; (3) statements made
during the interview; (4) the presence or absence of physical restraints; and (5)
whether the interviewee was released at the end of the interview.” State v.
Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 44, citing Howes v.
Fields, 132 S. Ct. 1181, 1189 (2012).
{¶18} Recently, the United States Supreme Court held that a juvenile's age
may be considered in the Miranda analysis, so long as the juvenile's age was
known to the officer at the time of questioning or would have been objectively
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apparent to a reasonable officer. J.D.B. v. North Carolina, ––– U.S. ––––, 131
S. Ct. 2394 (2011). The Supreme Court recognized that in the specific context of
police questioning, events that “would leave a man cold and unimpressed can
overawe and overwhelm a” teen. Id. at 2397, quoting Haley v. Ohio, 332 U.S.
596, 599, 68 S. Ct. 302 (1948). While a juvenile's age may be considered in the
Miranda custody analysis, the Supreme Court cautioned that “this does not mean
that a child's age will be a determinative, or even a significant, factor in every case
* * *.” J.D.B. at syllabus.
Reconstruction of Facts
{¶19} The facts of this case are relatively undisputed. On Monday
morning, R.S. and his father went to R.S.’s probation officer to make a report
regarding an incident that had happened over the weekend. Campbell, the
probation officer, then asked Captain Weidenhamer to come to her office so she
could talk with R.S. Captain Weidenhamer, who was dressed in uniform, testified
that she knew that R.S. was 16-years-old at the time of questioning. R.S., his
father, Campbell, and Captain Weidenhamer were all in the probation office when
the interview took place. After R.S. disclosed what he had done, Captain
Weidenhamer asked R.S. and his father to come to the police station so she could
speak further with R.S. At this point, R.S. was not under arrest.
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{¶20} R.S. and his father then went to the police station, where Captain
Weidenhamer questioned R.S. again, in the presence of his father. R.S. also
provided Captain Weidenhamer a written statement. Before writing out a
statement, Captain Weidenhamer explained to R.S. and his father that he did not
have to fill out the statement. After making his written statement, Captain
Weidenhamer did not place R.S. under arrest, and he left the station with his
father.
Totality of the Circumstances
{¶21} Upon considering all of the facts surrounding R.S.’s interview, we
find that a reasonable juvenile in R.S.’s position would have felt free to terminate
the interview and leave.
{¶22} On appeal, R.S. argues that that he was in custody because he was
“ordered” by Campbell to disclose to Captain Weidenhamer what had happened
and that he was surrounded by three authority figures during his interview. We
find no evidence in the record to support R.S.’s contention that he was “ordered”
by Campbell to “confess what he did.” Appellant’s Br., p. 10. Captain
Weidenhamer testified that upon arriving at Campbell’s office, “Campbell had
told me that [R.S.] was one of her probationers and that [he] had been doing some
drinking over the weekend and something had happened, and she asked [R.S.] to
tell me what happened.” (Emphasis added.) Suppression Hearing Tr., p. 6. Thus,
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the only evidence presented at the suppression hearing was that Campbell asked
R.S. to tell Captain Weidenhamer what had happened over the weekend. R.S.
chose not to challenge this evidence when he cross-examined Captain
Weidenhamer, or when given the opportunity to present his own evidence.3
{¶23} We also do not find the fact that R.S. was surrounded by three adults
in Campbell’s office indicative of a custodial interrogation, especially since one of
the adults was R.S’s father. Further, R.S. was familiar with Campbell, as she was
his probation officer. See In re Bucy, 9th Dist. Wayne No. 96CA0019, 1996 WL
640039, *2 (finding no custodial interrogation when juvenile was familiar with the
interviewing officer); see also In re Johnson, 5th Dist. Morgan No. CA-95-13,
1996 WL 363811, *1 (juvenile not in custody when talking to his probation officer
even though a deputy was present).
{¶24} However, there are some facts that tend to weigh in favor of a
finding that R.S. was in custody. Although Captain Weidenhamer stated R.S. and
his father were free to leave at any time during the interviews, she did not convey
this to either R.S. or his father. Yarborough v. Alvarado, 541 U.S. 652, 665, 124
S. Ct. 2140 (2004). Captain Weidenhamer was also in uniform when the interview
took place. T.W. at ¶ 29. Further, while the record is silent as to how long each
interview was, R.S. was subject to essentially three interviews: one with Campbell
3
During the suppression hearing, no evidence was presented concerning what transpired during the initial
interaction between R.S. and his probation officer. Further, Campbell never testified at the suppression
hearing or at trial.
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at her probation office; another with Captain Weidenhamer in Campbell’s office;
and a third interview at the police department. See K.W., 2009-Ohio-3152, ¶ 12.
{¶25} Nevertheless, these circumstances are offset by other facts that tend
to weigh against a finding that R.S. was in custody. Most important, R.S. and his
father voluntarily showed up at Campbell’s probation office. Compare In re C.M.,
8th Dist. Cuyahoga No. 99599, 2013-Ohio-5426, ¶ 43 (“We are not persuaded by
C.M.’s contention that his appearance at the police station was involuntary
because his mother was with him, that is, his mother made him go.”) with In re
T.W., 2012-Ohio-2361, ¶ 29 (finding custodial interrogation when mother brought
T.W. to children services at intake investigator’s request “limiting the extent of
[T.W.’s] control over his being there, and rendering his presence ostensibly
involuntary”); see also In re J.S., 12th Dist. Clermont No. CA2011-09-067, 2012-
Ohio-3534, ¶ 14 (finding juvenile in custody when father was instructed to follow
them to the police station so his son could be questioned). The situation here is
distinguishable from that of T.W. and J.S., where the parents “were directed by
authorities to have their children submit to interviews.” C.M. at ¶ 43.
{¶26} Further distinguishable from T.W., R.S. was never separated from his
father during either interview. There is also no evidence on the record that
Captain Weidenhamer carried a gun to the interviews and if so, whether it was
visible to R.S. T.W. at ¶ 29; In re R.H., 2d Dist. Montgomery No. 22352, 2008-
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Ohio-773, ¶ 20. Moreover, there was no testimony as to whether Campbell or
Weidenhamer blocked the door, preventing R.S. from exiting the interview. T.W.
at ¶ 29. Unlike the juvenile in K.W., who was 10-years-old and had no criminal
history, R.S. was 16-years-old and had previous experience in the criminal justice
system. R.S. and his father were allowed to leave after the interviews concluded.
Billenstein, 2014-Ohio-255, ¶ 44. Lastly, R.S. was not transported to the interview
by a police officer. See Yarborough, 541 U.S. at 664; T.W. at ¶ 30.
{¶27} Upon balancing the forgoing facts, we find that the trial court did not
err in denying R.S.’s motion to suppress. Under the circumstances of the instant
case we agree with the trial court, that a reasonable 16-year-old in R.S.’s position
would have felt free to terminate the interview and leave the premises. Since R.S.
was not in custody, he did not need to be administered his Miranda warnings, and
the State was free to use statements made during R.S.’s interview and his written
statements at trial. Consequently, we need not address R.S.’s argument
concerning the trial court’s denial of his motion to dismiss. App.R. 12(A)(2)(c).
{¶28} Accordingly, we overrule R.S.’s sole assignment of error.
{¶29} Having found no error prejudicial to R.S. in the particulars assigned
and argued, we affirm the trial court’s judgment.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
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