State v. Isaac

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[Cite as State v. Isaac, 2004-Ohio-4683.] IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 2003-CA-91 T.C. CASE NO. 03CR341 TONY ISAAC: (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 3rd day of September, 2004. . . . . . . . . . William F. Schenck, Pros. Attorney; Andrew J. Hunt, Asst. Pros. Attorney, 61 Greene Street, Xenia, Ohio 45385, Atty. Reg. No. 0073698 Attorney for Plaintiff-Appellee J. Allen Wilmes, 4428 N. Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Defendant, Tony Isaac, appeals from his conviction and sentence for the forcible rape of a child under ten years of age. {¶2} forcibly Defendant raping a was child indicted under on ten thirteen years of counts age. of R.C. 2907.02(A)(1)(b). sentences. Those offenses require 2 life mandatory Defendant was also indicted on seven counts of gross sexual imposition involving a child under ten years of age. R.C. 2907.05(A)(4). Defendant requested competency and sanity evaluations, and filed a written plea of not guilty by reason of insanity. After both parties subsequently stipulated to Dr. Susan Perry-Dyer s competency evaluation report, the trial court found Defendant competent to stand trial. {¶3} Defendant filed a motion to suppress statements he made to police during an interview at the police station because those warnings. that statements were not preceded by Miranda Following a hearing, the trial court concluded Defendant s statements were voluntary and that Defendant was not in custody during the interview, and thus there was no need for Miranda warnings. The trial court overruled Defendant s motion to suppress his statements. {¶4} Defendant withdrew his not guilty by reason of insanity plea and, pursuant to a plea agreement, entered pleas of no contest to three counts of forcibly raping a child under ten years of age. dismissed the remaining charges. In exchange, the State Both parties also agreed that Defendant s three mandatory life sentences would be served concurrently. {¶5} pleas and The trial court accepted Defendant s no contest found him guilty. The trial court imposed concurrent life sentences on each of the rape charges as recommended by the parties. 3 The trial court also designated Defendant a sexual predator. {¶6} Defendant has now timely appealed to this court from his conviction and sentence. FIRST ASSIGNMENT OF ERROR {¶7} FAILING THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY TO SUPPRESS APPELLANT S STATEMENTS WHICH WERE ILLEGALLY OBTAINED AND THE PRODUCT OF POLICE COERCION. {¶8} refusing interview Defendant claims that the trial court erred in to suppress at the the police statements station he because made during police did an not advise him of his Miranda rights, and because his statements were not voluntary. {¶9} When considering a motion to suppress, the trial court assumes the role of the trier of facts and, as such, is in the best position to resolve conflicts in the evidence and determine the credibility of the weight to be given to their testimony. (1994), 93 Ohio App.3d 586. accept the trial court s witnesses and the State v. Retherford The court of appeals must findings of fact if they are supported by competent, credible evidence in the record. Id. Accepting those facts as true, the appellate court must then independently determine, as a matter of law and without deference to the trial court s legal conclusion, whether the applicable legal standard is satisfied. Id. {¶10} The facts found by the trial court are as follows: {¶11} Officer Dennis Evans of the 4 Police Ashland Department was requested to be involved in an interview of the Defendant regarding allegations of sexual misconduct. The Defendant was contacted through his cell phone and asked to come to the police department for an interview. The Defendant voluntarily came to the police department and was escorted back to the interview room. why he was there and the The Defendant asked officer advised him of the allegations, the Defendant smiled and laughed and indicated that he had been through this before. At the beginning of the interview the Defendant was not advised of his Miranda rights. he However, he was advised he was not under arrest and could leave the interview room at any time. The Defendant was clear in his understanding of the fact that he was not under arrest. During the course of the interview the Defendant was not threatened in any way, he was not offered any leniency, promises, or other inducements to make a statement. The door was not locked and interview the Defendant was left alone once. during the The Defendant demonstrated that he had a background with the military police which the Court finds adds to an understanding of the process he was undergoing at that process was approximately an hour. time. The interview The officer was dressed in plain clothes during the course of the interview and the Court finds that the interview was easy, casual and friendly in its demeanor. Detective Major of the Ashland Police Department continued the interview and during her interview, 5 again, no offers of leniency were made, no promises made, and no threats to the Defendant were made, and further the Defendant was again advised he was not under arrest during the interview process. Again, the door was unlocked and the Defendant was aware of the fact he could leave at any time {¶12} During appeared very the normal interview and did not process make receive anything during the interview. the any Defendant requests to Detective Major, likewise, was dressed in civilian clothes and the interview with her conclusion was subdued of the and non-confrontational. interview the detectives At obtained the a statement from the Defendant and after consulting with their supervisor, the Defendant was later placed under arrest. {¶13} Based upon these facts the trial court found that Defendant was not in custody during his interview at the police station required. and therefore We agree. Miranda warnings were not In State v. Hopfer (1996), 112 Ohio App.3d 521, 545-546, this court observed: {¶14} The United States Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706, defined a custodial interrogation as 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. Custodial interrogation is measured by an objective standard, not by the subjective understanding of the suspect. {¶15} A policeman's unarticulated plan has no bearing 6 on the question whether a suspect was "in custody" at a particular time; reasonable man the in only the relevant suspect's understood his situation. inquiry position is how would a have Berkemer v. McCarty (1984), 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317, 336. {¶16} The facts in this case are similar to those in State v. Mason, 82 Ohio St.3d 144, 153-154, 1998-Ohio-370, wherein the Ohio Supreme Court stated: {¶17} On February 10, Detective Dennis Potts stopped by Mason's house, drove him to the police station, asked him questions for eighteen minutes, then drove him home after driving by the Youngs' residence. On February 12, Potts again stopped at Mason's house and asked whether he would go to the police station for further interviews. voluntarily agreed. The ensuing Mason again conversations, all recorded, began at 11:29 a.m. and lasted until 3:24 p.m. Mason was cooperative and talked freely throughout. {¶18} Around 4:00 p.m., police advised Mason of his Miranda rights, and his parole officer (who had secretly observed the interview) arrested him for violating the conditions of his parole by drinking and associating with felons. After Mason asked for an attorney, police stopped further questioning. {¶19} Until he was told that he was under arrest, detectives never told Mason that he could not leave, and he was never handcuffed. Mason acknowledged that he was left alone two or three times, the door was not locked, and that 7 the first time he understood that he would be arrested and could not leave was around 4:00 p.m. {¶20} Only a custodial interrogation triggers the need for a Miranda rights warning. Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317. The evidence supports the trial court's finding that Mason was not in custody when questioned. {¶21} The fact that a suspect is being interviewed at a police station does not, per se, require a Miranda rights warning. Rather, custodial the interrogation determination has occurred as to requires whether an a inquiry into how a reasonable man in the suspect's position would have understood his situation. Berkemer v. McCarty, 468 U.S. at 442, 104 S.Ct. at 3151, 82 L.Ed.2d at 336. [T]he ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement associated with a formal arrest. (1983), 463 U.S. 1121, 1125, L.Ed.2d 1275, 1279, quoting 103 of the degree California v. Beheler S.Ct. 3517, 3520, 77 Oregon v. Mathiason (1977), 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719. {¶22} Because Mason was not in custody, police were not required to advise him of his Miranda rights. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714; California v. Beheler, 463 U.S. at 1123, 103 S.Ct. at 3519, 77 L.Ed.2d at 1278; State v. Biros (1997), 78 Ohio St.3d 426, 440, 678 N.E.2d 891, 904. {¶23} In this case Defendant voluntarily drove himself 8 The police to the police station at the request of police. interview of Defendant lasted only two hours. During that time Defendant was seated in an interview room. The door was closed but not locked, and Defendant was not handcuffed. Both Officer Evans and Det. Mager each told Defendant that he was not under arrest and was free to leave at anytime. Defendant assured the officers he understood that he was free to leave. The interview was conducted reasonably relaxed, non-confrontational atmosphere. in a Neither Officer Evans nor Detective Mager were armed, and both wore civilian clothes rather than a police uniform. No threats or promises were made to Defendant. {¶24} At various times during the interview the door to the interview room was open and police left Defendant alone in the room. Defendant was not arrested, and police never expressed any such intention until the conclusion of his interview with Det. Mager, after Defendant had given a full and detailed confession about his sexual conduct with two young female victims. {¶25} We conclude that a reasonable person in Defendant s position during this police interview would have understood that he was free to walk away from the questioning by police and leave, despite being at the police station. Mason, supra. {¶26} The mere fact that Defendant confessed to the crime during the interview, leading to his arrest at the conclusion of the interview, does not convert a non- custodial interview into one which is 9 Id.; custodial. Oregon v. Mathiason (1977), 429 U.S. 495. Defendant was not in custody during his interview with police, and therefore police did not violate his rights by failing to give him Miranda warnings before questioning. Mason, supra. {¶27} The trial court also concluded that Defendant s statements to police were voluntary, there being no improper police coercion or inducements. We agree. {¶28} As a threshold matter, coercive police activity is a necessary predicate to finding that a confession is not voluntary within the Fifth Amendment, on which Miranda was based. State v. Dailey (1990), 53 Ohio St.3d 88, 91-92, 559 N.E.2d 459, 463, citing Colorado v. Connelly (1986), 479 U.S. 157, 170, 107 S.Ct. 515, 523, 93 L.Ed.2d 473, 486. Without police defendant's coercion, minority or circumstances low I.Q. do such not as the negate the voluntariness of the confession. Dailey at 92, 559 N.E.2d at Hopfer's 463. In deciding whether confession was involuntary, the court should consider the totality of the circumstances, including the age, criminal experience of the accused; and frequency of interrogation; deprivation or mistreatment; inducement. (Emphasis sic.) mentality, and prior the length, intensity, the existence of physical and the existence of threat or State v. Edwards (1976), 49 Ohio St.2d 31, 40-41, 3 O.O.3d 18, 23, 358 N.E.2d 1051, 1059, citing Brown v. United States (C.A.10, 1966), 356 F.2d 230, 232. Promises of leniency by the police, such as probation upon conviction, are ensuing confession involuntary. improper and render 10 an State v. Arrington (1984), 14 Ohio App.3d 111, 116, 14 OBR 125, 130-131, 470 N.E.2d 211, 216-217. However, admonitions to tell the truth directed at a suspect by police officers are not coercive in nature. State v. Wiles (1991), 59 Ohio St.3d 71, 81, 571 N.E.2d 97, 112, State v. Cooey (1989), 46 Ohio St.3d 20, 28, 544 N.E.2d 895, 908. Hopfer, supra, at 548. {¶29} The totality of the facts and circumstances in this case demonstrate voluntary. that Defendant s were Defendant was thirty-three years old and had completed twelve years of school. policeman statements for ten years, and He had been a military thus had experience with police interrogations. familiarity and The questioning only lasted two hours, and during which time Defendant never requested anything, including break. Defendant was never refreshments or threatened or a bathroom physically mistreated, nor were any promises or inducements offered in exchange for his statements. On these facts, we cannot find that Defendant s free will was overcome by the behavior of the police. Defendant s statements were therefore voluntary and admissible. {¶30} The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶31} THE TRIAL COURT ACCEPTED A NO CONTEST PLEA WITHOUT ADVISING APPELLANT OF A SERIOUS CONSEQUENCE, VIZ, HIS BEING CLASSIFIED AS A SEXUAL PREDATOR AND DID NOT CURE THIS FAILING BY A PASSING REFERENCE AT A 11 SUBSEQUENT SENTENCING HEARING. {¶32} Defendant complains that the trial court violated Crim.R. 11(C)(2) without first when it advising accepted him that his upon no contest conviction pleas for a sexually oriented offense he would be placed into one of three categories as a sexual offender, with applicable reporting and registration requirements per Chapter 2950 of the Ohio Revised Code. According to Defendant, the trial court s failure to advise him of this serious consequence of his pleas rendered those pleas invalid because they were not entered knowingly, intelligently and voluntarily. We disagree. {¶33} We have previously held that because the registration and reporting requirements imposed by Chapter 2950 of the Ohio Revised Code upon defendants who are convicted of a sexually oriented offense are remedial and not punitive in nature, the trial court is not obligated per Crim.R. 11(C)(2) to explain those requirements to a defendant before accepting his or her plea of guilty or no contest. 16791. State v. Hill (July 24, 1998), Montgomery App. No. Accord: State v. Perry (November 26, 2003), Cuyahoga App. No. 82085, 2003-Ohio-6344. {¶34} Furthermore, the record in this case affirmatively refutes the notion that Defendant would not have entered his no contest pleas had he known that his conviction for a sexually oriented offense would result in a sexual offender 12 classification with applicable registration and reporting requirements. At the commencement of the sentencing hearing, which occurred just three days after Defendant had entered his pleas, the court explained to Defendant the sexual offender place, including reporting, requirements. classification the procedure various registration, that categories and and community would take applicable notification After ascertaining that Defendant understood these matters, the trial court specifically asked Defendant whether he still wanted the court to accept his no contest pleas, knowing that this would be yet another consequence of his pleas. Defendant replied: Yes, sir. Clearly, the knowing and voluntary character of Defendant s pleas was not impacted by his sexual offender classification. {¶35} The second assignment of error is overruled. judgment of the trial court will be affirmed. FAIN, P.J. and BROGAN, J., concur. Copies mailed to: Andrew J. Hunt, Esq. J. Allen Wilmes, Esq. Hon. Stephen A. Wolaver The

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