[Cite as In re R.C., 2020-Ohio-1486.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

In the Matter of:                            :      Case No. 19CA20

R.C.                                         :

Alleged Delinquent Child                     :      DECISION AND
                                                    JUDGMENT ENTRY
                                             :
                                                RELEASED 4/10/2020
                                        APPEARANCES:

Sara Barger, Barger Law Office, LLC and Dennis Kirk, Kirk Law Office, LLC, Hillsboro,
Ohio, for appellant.

Anneka P. Collins, Highland County Prosecutor, and James Roeder, Highland County
Assistant Prosecutor, Hillsboro, Ohio, for appellee.

Hess, J.
      {¶1}       R.C. appeals the trial court’s decision adjudicating him a delinquent child as

a result of committing gross sexual imposition in violation of O.R.C. 2907.05(A)(4). R.C.

contends that the trial court erred by denying his motion to suppress his statements made

to an investigating detective. He argues that he was not properly advised of his Miranda

rights and he lacked the capacity to knowingly and intelligently waive those rights. R.C.

also contends that his adjudication of delinquency was against the manifest weight of the

evidence because the record does not support a finding that the incident occurred or that

he acted with the purpose of sexual arousal or gratification.

        {¶2}     We conclude that the trial court did not err in denying R.C.’s motion to

suppress because R.C. was not in custody at the time of the interview, thus his Miranda

rights were not triggered, and his statements were made knowingly, intelligently, and

voluntarily. Additionally, we find that the trial court’s judgment is not against the manifest

weight of the evidence. We find that the trier of fact did not lose its way and create such
Highland App. No. 19CA20                                                 2


a manifest miscarriage of justice that the conviction must be reversed. We overrule R.C.’s

assignments of error and affirm the trial court’s judgment.

                              I. PROCEDURAL HISTORY

      {¶3}   In February 2019, the state filed a complaint alleging that R.C. was a

delinquent child because he had sexual contact with M.G., a child less than thirteen years

of age, in violation of O.R.C. 2907.05(A)(4), gross sexual imposition. Prior to the

adjudicatory hearing, R.C. filed a motion to suppress the statements he made to an

investigating detective on two grounds: (1) he was not properly advised of his Miranda

rights and (2) his statements were not made knowingly, intelligently and voluntarily. The

trial court denied the motion, finding that R.C. was not in custody when the statements

were made and that the circumstances surrounding his statements showed that they were

made knowingly, intelligently and voluntarily. Following an adjudicatory hearing, the

Juvenile Division of the Highland County Court of Common Pleas found R.C. to be a

delinquent child. R.C. appealed.

                             II. ASSIGNMENT OF ERROR

      {¶4}   R.C. assigns the following errors for our review:

       1. The trial court erred by overruling appellant’s motion to suppress as
          appellant did not give a voluntary, knowing, and intelligent confession.

       2. The trial court erred by finding that appellant was delinquent by reason
          of gross sexual imposition because such a finding was against the
          manifest weight of the evidence.

                                III. LAW AND ANALYSIS

                                   A. Motion to Suppress

                                   1. Standard of Review
Highland App. No. 19CA20                                                    3


       {¶5}   In general “appellate review of a motion to suppress presents a mixed

question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10

N.E.3d 691, ¶ 7. “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.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court's

findings of fact if they are supported by competent, credible evidence.” Id. “ ‘Accepting

these facts as true, the appellate court must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.’ ” Codeluppi at ¶ 7, quoting Burnside at ¶ 8.

                  2. General Principles Concerning Custodial Interrogations

       {¶6}   The Fifth Amendment to the United States Constitution and Article I, Section

10 of the Ohio Constitution provide that no person shall be compelled to be a witness

against himself or herself in any criminal case. State v. Arnold, 147 Ohio St.3d 138, 2016–

Ohio–1595, ¶ 30. “[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.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). “A

suspect in police custody ‘must be warned prior to any questioning that he has the right

to remain silent, that anything he says can be used against him in a court of law, that he

has the right to the presence of an attorney, and that if he cannot afford an attorney one

will be appointed for him prior to any questioning if he so desires.’ ” State v. Lather, 110

Ohio St.3d 270, 2006–Ohio–4477, ¶ 6, quoting Miranda at 479.
Highland App. No. 19CA20                                                  4


       {¶7}   Police are not required to administer Miranda warnings to every person they

question, even if the person being questioned is a suspect. State v. Biros, 78 Ohio St.3d

426, 440, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.

711, 50 L.Ed.2d 714 (1977). Miranda warnings are required only for custodial

interrogations. Id. Miranda defined 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.” Miranda at 444, 86 S.Ct. 1602.

       {¶8}   “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, 2004–Ohio–3430, 811 N.E.2d

48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995). After the 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.” Id., quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77

L .Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50

L.Ed.2d 714 (1977). Whether an individual is in custody is an objective inquiry. J.D.B. v.

North Carolina, 564 U.S. 261, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011); State v.

Hambrick, 4th Dist. Ross No. 15CA3497, 2016-Ohio-3395, ¶ 15; In re C.M.R., 2nd Dist.

No. 27519, 2018-Ohio-110, 107 N.E.3d 34, ¶15-16.
Highland App. No. 19CA20                                                   5


        {¶9}   The United States Supreme Court has recognized that, “[i]n some

circumstances, a child's age ‘would have affected how a reasonable person’ in the

suspect's position ‘would perceive his or her freedom to leave.’ ” J.D.B. v. North Carolina,

564 U.S. 261, 270, 271–272, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), quoting Stansbury

v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The Court held

that, “so long as the child's age was known to the officer at the time of police questioning,

or would have been objectively apparent to a reasonable officer, its inclusion in the

custody analysis is consistent with the objective nature of that test.” Id. at 277, 131 S.Ct.

2394.

        {¶10} In his motion to suppress, R.C. identified few factors to support his

contention that the interview was custodial in nature. He stated that it took place in a

patrol vehicle parked at R.C.’s residence and started with the investigator, Detective

Engle, stating that she “has to give Miranda” even though she told R.C. that “he is not

under arrest, which seems to contradict the Miranda she believes she is required to

provide.” (OR. 20, p. 2) The trial court found that the interview was not custodial in nature

and did not trigger Miranda rights.

        {¶11} At the suppression hearing Detective Engle testified that she interviewed

R.C., a 17-year-old tenth grade student, (Tr. 7) at his home in her vehicle with his mother

present. Detective Engle’s vehicle was an unmarked police car equipped with a two-way

radio, and Engle was wearing a detective uniform. (Tr. 30-31) Detective Engle audio-

recorded the interview, which was played for the court. (May 31, 2019 Hearing Tr. p. 6)

Detective Engle began the interview by telling R.C. that he was not under arrest and

would not be leaving with her. She told R.C., “you can choose to end this interview at any
Highland App. No. 19CA20                                                          6


point in time and get out of my car and go back into the house.” (Tr. p. 7) After

approximately thirty minutes, Detective Engle finished her interview with R.C., turned the

recording off, and R.C. exited her vehicle and went back into his house. (Tr. 24) Detective

Engle and R.C.’s mother, who was seated in the back seat of the vehicle, continued to

talk for approximately twenty more minutes after R.C. left. (Tr. 24) Detective Engle

testified that she never asked R.C. if he understood the idea that he could leave at any

time, but she had explained to him and also to his mother that they did not have to

participate in the interview and that R.C. was free to get out of the vehicle at any time he

chose. (Tr. 28)

       {¶12} R.C.’s mother testified that when Detective Engle arrived at R.C.’s house,

she spoke to Detective Engle prior to her interview with R.C. and told Detective Engle

that R.C. has short-term memory problems, gets confused, and has an IEP.1 R.C.’s

mother testified that Detective Engle told her to “stay quiet unless I had a major question

or something” as “the interview was between the two of them.” (Tr. 42) R.C.’s mother

testified that R.C was in tenth grade, has never had any experience with law enforcement,

and has never been interviewed by law enforcement prior to his interview with Detective

Engle. (Tr. 46, 48)

       {¶13} R.C. testified that he felt pressure to answer Detective Engle’s questions

but that he “sort of” understood that he was free to leave and get out of the car and “sort

of” knew that he could stop that interview at any point. (Tr. 52, 53, 54) R.C. testified that

he was sitting in the front seat of the unlocked vehicle. (Tr. 56) R.C. agreed that his

feelings of pressure could also have been nervousness at being question by a police


1Individualized Education Program, see O.A.C. 3301-51-07. The record contains no additional evidence
of R.C.’s cognitive abilities, memory function, or learning disabilities.
Highland App. No. 19CA20                                                                7


officer. (Tr. 56) R.C. testified that he did not see any guns or handcuffs and was told that

he could leave anytime. (Tr. 56)

        {¶14} After a careful review of the record, we find that R.C. was not in custody for

Miranda purposes at the time he spoke with Detective Engle. Detective Engle spoke to

R.C.’s mother and the mother agreed to bring R.C. to the patrol car to be interviewed and

was present throughout it. At the beginning of the interview, Detective Engle explained

that R.C. was not under arrest and could choose to end the interview, get out of the patrol

car, and go back inside his home. R.C. sat, without handcuffs, in the front of an unlocked

patrol car in front of his house and was questioned for approximately 30 minutes. R.C.

was not under arrest and was not “otherwise deprived of his freedom of action in any

significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. At the time of the interview

R.C. was 17 years old and a tenth-grade student. That the interview occurred in a police

vehicle is not alone sufficient to establish it was custodial. In re M.D., 12th Dist. Madison

No. CA2003-12-038, 2004-Ohio-5904, ¶ 18.

        {¶15} Because R.C. was not in custody at the time he spoke with Detective Engle,

the trial court properly denied his motion to suppress on the ground that the interview was

not a custodial interrogation and thus R.C.’s Miranda rights were not triggered. Because

R.C. was not in custody, law enforcement had no obligation to inform him of his Miranda

rights and R.C.’s arguments that he did not knowingly waive them or that law enforcement

did not properly recite them are moot.2

                              3. General Principles Concerning Confessions


2The record shows that Detective Engle informed R.C. that anything he said could and would be used
against him, that he had a right to an attorney, and if he could not afford an attorney one would be
appointed for him, but she did not inform R.C. that he had the right to remain silent. (May 31, 2019 Tr. p.
6-7)
Highland App. No. 19CA20                                                     8


       {¶16} A second argument R.C. raised in his motion to suppress was that, “even if

Miranda was not required * * * [R.C.’s] alleged confession was not knowingly, voluntarily,

or intelligently given.” (O.R. 20, p. 5) In his appellate brief, R.C. contends that he “did not

voluntarily, knowingly, and intelligently waive his Miranda Rights and confess to a crime.”

(Brief p. 9) However, much of his argument addresses his waiver of Miranda rights, which

we have determined is moot as his interview was noncustodial. It is unclear from his

argument which facts from the record R.C. believes supports his contention that – aside

from compliance with Miranda – his confession was involuntary. However, in the interest

of justice we will take those same factors as grounds supporting his contention that his

confession was involuntary.

       {¶17} Separate from the issue of compliance with Miranda in custodial

interrogations is the voluntariness of the defendant’s confession. In re N.J.M., 12th Dist.

Warren No. CA2010–03–026, 2010-Ohio-5526, ¶ 18, citing State v. Chase, 55 Ohio St.2d

237, 246, 378 N.E.2d 1064 (1978). “Even where Miranda warnings are not required, ‘a

confession may [still] be involuntary [and excludable] if on the totality of the

circumstances, the defendant's will was overcome by the circumstances surrounding

the giving of the confession.’ ” (Brackets sic.). In re N.J.M. at ¶ 18, quoting State v.

Fille, 12th Dist. Clermont No. CA2001–08–066, 2002-Ohio-3879, ¶15 and Dickerson v.

United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

       {¶18} To satisfy due process with respect to a challenged confession, the state

must prove by a preponderance of the evidence that the confession was voluntary. Lego

v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The due process

test for voluntariness takes into consideration the totality of the circumstances. Dickerson
Highland App. No. 19CA20                                                   9


v. U.S., 530 U.S. at 433–434, 120 S.Ct. 2326, 147 L.Ed.2d 405, citing Schneckloth v.

Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

       {¶19} The Supreme Court of Ohio addressed confessions in the juvenile context

in Barker, infra:

       The totality-of-the-circumstances test takes on even greater importance
       when applied to a juvenile. * * * The totality-of-the-circumstances test allows
       courts necessary flexibility to consider a juvenile's age and experience. The
       court stated as follows:

               The totality approach permits—indeed, it mandates—inquiry
               into all the circumstances surrounding the interrogation,
               [including] evaluation of the juvenile's age, experience,
               education, background, and intelligence, and into whether he
               has the capacity to understand the warnings given him, the
               nature of his Fifth Amendment rights, and the consequences
               of waiving those rights.

           * * * “ ‘It is now commonly recognized that courts should take “special
           care” in scrutinizing a purported confession or waiver by a child.’
           ” When an admission is obtained from a juvenile without counsel, “the
           greatest care must be taken to assure that the admission was voluntary,
           in the sense not only that it was not coerced or suggested, but also that
           it was not the product of ignorance of rights or of adolescent fantasy,
           fright or despair.” (Citations omitted, brackets sic.)

State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 38-41.

       {¶20} R.C. contends that he did not voluntarily confess to a crime because he had

“memory troubles,” “would need additional time to answer the detective’s questions,” was

“rapidly asked numerous questions,” “had no previous interaction with law enforcement,”

“was asked closed ended questions,” “was provided the crime details,” and underwent

“extensive and intense questioning by the detective” to which he “eventually acquiesced.”

R.C. also contends that he was “a juvenile with a low functioning mental capacity” that

was “highly impressionable and susceptible to coercion.”
Highland App. No. 19CA20                                                  10


        {¶21} After carefully reviewing the record, including R.C.’s recorded interview, we

find, based on the totality of the circumstances, that R.C.’s statements to Detective Engle

were voluntary.

        {¶22} The record shows that before the questioning began, R.C. was told he could

end the interview, leave and go back into his home. His mother was sitting with him during

the entire interview, during which time Detective Engle questions him for only

approximately 30 minutes. R.C.’s interview with the detective was not particularly lengthy,

intense or frequent. In re N.J.M., 2010–Ohio–5526 at ¶ 25.

        {¶23} Although as the trial court noted, the detective’s questioning technique was

arguably “not standard or appropriate,” (Tr. 59) she did not use coercive police tactics to

obtain R.C.’s statements. “Coercive police activity is a necessary predicate to the finding

that a suspect involuntarily confessed.” In re R.L., 2014-Ohio-5065, 23 N.E.3d 298, ¶ 22

(2nd Dist.), citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d

473 (1986). Coercive law enforcement tactics include, but are not limited to, physical

abuse, threats, deprivation of food, medical treatment or sleep, use of certain

psychological techniques, exertion of improper influences or direct or implied promises,

and deceit. In re N.J.M., 2010–Ohio–5526 at ¶ 20. There is no evidence of physical

deprivation, mistreatment, threats, or improper inducement. Although the detective

repeatedly told R.C. she did not believe that he could not remember the events and

questioned his credibility, admonitions to tell the truth are both permissible and non-

coercive. Id. at ¶ 25; State v. Lewis, 7th Dist. Mahoning No. 03 MA 36, 2005–Ohio–2699,

¶ 15.
Highland App. No. 19CA20                                                  11


      {¶24} Detective Engle told R.C. the victim’s version of events and asked him

whether the events occurred as she described. R.C.’s responded repeatedly that he did

not know or could not remember. Detective Engle’s interview consisted entirely of long

narrative statements and leading questions about the events and whether R.C. touched

the victim’s buttocks and breasts, to which R.C. eventually responded, “I think so.”

However, “the use of leading questions does not coerce an individual to submit to those

questions.” Lewis at ¶ 16. During the interview, R.C. repeatedly stated that he did not

recall the incident. However, R.C. also stated that he “sort of” remembered laying on the

top bunk with the victim while they both watched R.C.’s brother play a video game and

he thought he may have touched the victim’s buttocks. After the detective explained the

victim’s version of events, R.C.’s responses were either to state that he did not remember,

or that he thought her story might be correct.

      {¶25} The record shows that R.C. was a tenth grader with no prior criminal history

at the time of the interview. Although his mother stated that R.C. had memory issues and

had an IEP, there was nothing in the record, including the recorded statement, to support

counsel’s contention that R.C. was “a juvenile with a low functioning mental capacity”

that was “highly impressionable and susceptible to coercion.” R.C.’s age and mentality

did not prevent him from understanding the questions and answering them. Moreover,

diminished cognitive abilities do not necessarily equate to an involuntary statement,

especially where the juvenile does not have difficulty understanding questions, and the

juvenile’s responses were clear and responsive. In re M.J.C., 12th Dist. Butler No.

CA2014-05-124, 2015-Ohio-820, ¶ 16-21 (the confession of a 15 years old who had

trouble reading at a third grade level; was diagnosed with a mood disorder, ADHD, and a
Highland App. No. 19CA20                                                12


psychotic disorder; only prior criminal experience was a runaway charge; and where the

investigating detective repeatedly questioned juvenile's credibility and asked several

leading questions, was voluntary); In re R.L., 2014-Ohio-5065, 23 N.E.3d 298, ¶ 20-28

(2nd Dist.) (nine-year-old juvenile's statements to police officer during noncustodial

conversation were voluntarily made.); In re N.J.M., 2010–Ohio–5526 at ¶ 27 (the

confession of a 13–year–old boy with no prior criminal experience, an IQ of 67, and

delayed cognitive and emotional development, was voluntary).

       {¶26} R.C. was never confused and never sounded as though he was in acute

distress. R.C.’s mother was present in the back seat and R.C. was not prevented from

conferring with her or vice versa. No “police trickery” or deceit was alleged or shown.

Nothing in the record suggests that R.C.’s will was overborne. In light of the foregoing,

we find that R.C.'s statements to Detective Engle were voluntary.

       {¶27} The trial court properly denied R.C.’s motion to suppress. We overrule his

first assignment of error.

                             B. Manifest Weight of the Evidence

       {¶28} For his second assignment of error, R.C. contends that the trial court’s

finding of delinquency for gross sexual imposition is against the manifest weight of the

evidence because the record does not support a finding that an incident occurred beyond

a reasonable doubt. And, the record does not support the finding that R.C. acted with the

purpose of sexual arousal or gratification.

                                   1. Standard of Review

       {¶29} “[I]n the juvenile context we employ the same standard of review applicable

to criminal convictions claimed to be against the manifest weight of the evidence.” In re
Highland App. No. 19CA20                                                  13


Higginbotham, 4th Dist. Lawrence No. 04CA26, 2004-Ohio-6004, ¶ 4, citing In re Watson,

47 Ohio St.3d 86, 91, 548 N.E.2d 210 (1989). In determining whether a criminal conviction

is against the manifest weight of the evidence, an appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119;

State v. Woods, 2018-Ohio-4588, 122 N.E.3d 586, ¶ 64 (4th Dist.).

       {¶30} “[U]nder Thompkins, even though there may be sufficient evidence to

support a conviction, a reviewing court can still reweigh the evidence and reverse a lower

court's holdings. Sufficiency of the evidence is a test of adequacy as to whether the

evidence is legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence's effect of inducing belief.” State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25 citing Thompkins at 386-87, 678

N.E.2d 541. “In other words, a reviewing court asks whose evidence is more persuasive—

the state's or the defendant's?” Id. Although there may be sufficient evidence to support

a judgment, it could nevertheless be against the manifest weight of the evidence. Id.

“[T]he civil-manifest-weight-of-the-evidence standard affords the lower court more

deference then does the criminal standard.” (Citations omitted.) State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 26. “Weight of the evidence concerns

‘the inclination of the greater amount of credible evidence, offered in a trial, to support

one side of the issue rather than the other. It indicates clearly to the jury that the party
Highland App. No. 19CA20                                                      14


having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.’ ” (Citations omitted.) State v. Thompkins, 78 Ohio

St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

       {¶31} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder's resolution of the conflicting testimony.”

(Citations omitted.) State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25. “ ‘However, this review is tempered by the principle that questions of weight

and credibility are primarily for the trier of fact.’ ” State v. Elkins, 4th Dist. Lawrence No.

17CA14, 2019-Ohio-2427, ¶57 quoting State v. Garrow, 103 Ohio App.3d 368, 371, 659

N.E.2d 814 (4th Dist.1995).

       {¶32} “If the prosecution presented substantial evidence upon which the trier of

fact could reasonably conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction is not against the manifest

weight of the evidence.” (Emphasis added.) State v. Elkins, 4th Dist. Lawrence No.

17CA14, 2019-Ohio-2427, ¶¶ 57-58 citing State v. Picklesimer, 4th Dist. Pickaway No.

14CA17, 2015-Ohio-1965, ¶ 8. “Proof beyond a reasonable doubt is proof of such

character that an ordinary person would be willing to rely and act upon it in the most

important of his own affairs.” State v. Dyer, 4th Dist. Scioto No. 07CA3163, 2008-Ohio-

2711, ¶ 12; R.C. 2901.05 “A reviewing court should find a conviction against the manifest

weight of the evidence only in the exceptional case in which the evidence weighs heavily
Highland App. No. 19CA20                                                    15


against the conviction.” (Internal quotations omitted.) State v. Taylor, 4th Dist. Ross No.

13CA3419, 2016-Ohio-1231, 62 N.E.3d 591 ¶ 31, quoting State v. Thompkins, 78 Ohio

St.3d at 387.

                                     2. Legal Analysis

       {¶33} R.C. was adjudicated delinquent for committing gross sexual imposition in

violation of O.R.C. 2907.05(A)(4), which provides in relevant part:

       (A) No person shall have sexual contact with another, not the spouse of the
       offender; cause another, not the spouse of the offender, to have sexual contact
       with the offender; or cause two or more other persons to have sexual contact when:
       *      *      *
       (4) The other person * * * is less than thirteen years of age, whether or not the
       offender knows the age of that person.

       {¶34} O.R.C. 2907.01(B) defines         “sexual contact” as “any touching of an

erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic

region, or, if the person is a female, a breast, for the purpose of sexually arousing or

gratifying either person.”

       {¶35} The trial court held an adjudication hearing over two days in July and August

2019. At the hearing the victim, M.G., testified that when she was 10 years old in

November 2018 she was in R.C.’s bedroom with him and two other friends, G.L. and K.B..

(July 19, 2019, Tr. 8-9) Her friends G.L. and K.B. were playing a video game together and

she and R.C. were on the top bunk. (Tr. 11-12) M.G. testified that while they were laying

on the top bunk, R.C. got close to her and put his hand down her pants. She told him to

back away and he tried to do it again. After that, M.G. told the group that it was time for

her to go home and, because she was feeling uncomfortable, she left and went home.

(Tr. 13) M.G. testified that the next day she told her friend K.B. about it and, about a month
Highland App. No. 19CA20                                                     16


later, told her mother. (Tr. 15) M.G. testified that her mother called the police and

eventually M.G. talked to Detective Engle about the incident.

       {¶36} M.G. testified that during her interview with Detective Engle, M.G. was

presented a drawing with a girl’s body and M.G. marked the location on the drawing where

R.C. touched her. The drawing indicated that M.G. was touched on her buttocks and

breast. (Tr. 17, Ex 2) M.G. explained that R.C. touched her breast earlier that day when

she was looking around his house and his room, “[H]e came up behind me and he

grabbed underneath my chest, which made me feel real uncomfortable. But I thought he

was just rouse [sic] house…like rough house playing or whatever so I just ignored it. So,

I don’t know if that’s what he was doing but it just made me feel really uncomfortable.”

(Tr. 18)

       {¶37} On cross-examination, M.G. testified that she did not tell her mother about

the incident until after a month or two after it happened and that she initially told law

enforcement that the incident occurred in the garage, not R.C.’s bedroom. (Tr. 20, 21)

M.G. also testified that both she and K.B. were neighbors of R.C.; that K.B. was spending

more time at R.C.’s house; that this made M.G. mad because K.B. was her best friend;

and that this was all happening before M.G. reported that R.C. had touched her. (Tr. 24-

25) On re-direct, M.G. explained that her statement that the incident occurred in the

garage was a lie, “I feel like I was just like wanting to tell it and I feel like I was kind of

confused but it was in his room, I kind of think I lied but it was in his room.” (T. 26)

       {¶38} K.B. testified that she was in the bedroom the entire time and did not see

R.C. touch M.G. However, K.B. testified that during some of the relevant time period, she

was on the bottom bunk and M.G. was on the top bunk. M.G. eventually got down off the
Highland App. No. 19CA20                                                    17


top bunk and joined K.B. on the bottom bunk. (Tr. 33-35) K.B. testified that M.G. and R.C

were never up on the top bunk together. (Tr. 41) K.B. testified that R.C., R.C.’s friend G.L.

and R.C.’s brother V.C. were all three playing video games, there were three to five video

game systems in the room, and she and M.G. were watching them. (Tr. 32) K.B. also

testified that she did not learn of the touching incident until Detective Engle came to school

two to three months later and pulled her out of recess to talk to her. (Tr. 37)

       {¶39} G.L. testified that he was R.C.’s 14-year-old friend and was in the room the

entire time except to use the restroom or get a drink of water. (Tr. 49-50) G.L. testified

that he never saw R.C. on the top bunk with M.G. or have any physical contact with M.G.

(Tr. 51-52) G.L. testified that there were three video game consoles in the room and he,

R.C., and R.C.’s brother V.C. were at the three gaming consoles (Tr. 49-51) G.L. testified

that it was common for R.C. and him to sit playing video games for hours without getting

up. (Tr. 59)

       {¶40} V.C. was R.C.’s 20-year old brother. V.C testified that he was in the

bedroom while M.G. was present. V.C. testified that R.C., G.L. and he all were playing

video games during her visit. (Tr. 61) V.C. never saw R.C. on the top bunk with M.G. or

touch her.

       {¶41} L.C. was R.C.’s father and testified that he has poor vision and is blind in

one eye. (Tr. 66) He testified that he checked in on the group during M.G.’s visit. R.C.,

V.C. and G.L. were all three on their consoles playing video games and K.B. and M.G.

were watching. L.C. saw M.G. on the top bunk and told M.G. to get off the top bunk, but

M.G. was reluctant to do so because she told L.C. she could see the computers better

from up there. L.C. testified that he had to make M.G. get down off the top bunk.(Tr. 68-
Highland App. No. 19CA20                                                             18


69) L.C. did not see R.C. up on the top bunk with M.G. L.C testified that M.G. eventually

left and went home but she did not seem upset and returned later that evening to play

outside in the front yard with R.C. and the others. (Tr. 71) L.C. did not become aware of

the accusations against R.C. until a sheriff appeared at his house. (Tr. 71)

        {¶42} Detective Engle testified that she investigated the case and interviewed

R.C. in the driveway of his home approximately two months after the alleged incident.

(August 22, 2019, Tr. 7) Detective Engle testified that R.C. admitted that on the date of

the incident, he was in his bedroom with his friends, he and M.G. were on the top bunk,

and that he touched M.G.’s “butt.” (Tr. 9-10) Detective Engle testified that R.C. at first

could not recall the incident, “at first he appeared to have no knowledge of what I could

be talking about, but the longer that we talked he was very aware of what we were talking

about.” (Tr. 12)

        {¶43} On cross-examination, Detective Engle admitted that she provided R.C.

with nearly all of the details of the crime, asked leading and closed-ended questions (i.e.

“did you slide over to her or did you reach your arm over?” (Tr. 39)), and that R.C.’s

overwhelming responses were “I don’t know,” “sort of,” I don’t remember,” and “I don’t

know.” (Tr. 45-48) Detective Engle testified that she only interviewed the victim and R.C.

She did not interview any of the other children or parents present at the time. (Tr. 13-14)

Detective Engle denied that her mind was made up before she interviewed R.C. or that

the tone of her interview with R.C. would lead a listener to believe that her mind was made

up about the incident prior to interviewing R.C. (Tr. 17) Nevertheless, in the recording of

the interview,3 Detective Engle begins by telling R.C., “I would like to talk to you about a


3The entire recorded interview was played into the record and a CD of the interview was part of the
appellate record. (Tr. 29, State Ex. 1)
Highland App. No. 19CA20                                                    19


particular incident. Now when I ask you this, I don’t want you to seem that um that I think

you are a monster or that I think you prey on young girls or anything like that. Um, and I

can see how young girls now a days aren’t like young girls when your mom and I were

young.” (Tr. 30)

       {¶44} Detective Engle then asks, “There was an incident where your brother and

you were in your room and your brother was playing X-Box with [K.B.] and there was

another child in the room. Do you remember who that child would have been? Do you

remember [M.G.] coming over to your house?” When R.C. answers, “She has before but

I don’t exactly remember?” Engle adds, “Roughly about a month ago?” R.C. responds, “I

don’t remember.” (Tr. 30-31) After R.C. fails to recall the specific time a month earlier that

he was playing video games in his room with friends, Detective Engle responds, “Okay, I

want you to understand something, I know you have trouble with memory but we are kind

of trained to say hey, we don’t want to recall a memory or when a bad memory comes

into effect blood goes to your brain, extra blood flow and your vein sticks out on your neck

because you’ve recalled something that you don’t wish to remember.” Still, R.C. responds

that he does not recall the incident.(Tr. 31)

       {¶45} Detective Engle describes the incident in detail for R.C. and then asks if he

remembers it and R.C. responds several times that he does not recall it. Detective Engle

provides more details, asking multiple questions without waiting for an answer and then

concludes by asking, “And she went home because she was scared?“ R.C. responds to

the monologue and compound questioning with, “Sort of.” (Tr. 32) R.C. agrees that he

sort of remembers touching M.G.’s “butt” and then when asked for details, R.C. gives

Detective Engle the details she had provided to him earlier in the interview: he and M.G.
Highland App. No. 19CA20                                                     20


were on the top bunk watching V.C and K.B. play X-Box. R.C. is unable to provide any

details of the incident not already provided to him by Detective Engle.

       {¶46} When prodded for details he can remember about the day, R.C. repeated

stated that he cannot remember, “I don’t even remember what we did even yesterday

sometimes.” (Tr. 32) R.C. states that he may have laid on the top bunk with M.G. watching

his brother V.C “playing X-Box on his TV,” but that he does not remember much else

about it. (Tr. 33) Later when Detective Engle asks, “Were you and [M.G.] talking or were

you just watching the PlayStation?” R.C. changes his original answer that they were

watching V.C. play “X-Box” and adopts Detective Engle’s version that he and M.G. were

watching “PlayStation.” (Tr. 36-37)

       {¶47} When Detective Engle asked R.C. a leading exculpatory question, “* * * I

know your mom told me you have memory issues and I’m okay with that but again we are

trained to interview people and anytime you don’t want to recall something negative,

everything about you changes. * * * And I’m almost certain that you’re not the monster

out there that you see on TV that touches young girls, is that correct? You don’t go around

touching neighborhood girls, do ya?” R.C. responds, “No, I don’t.” (Tr. 35) After a period

of silence and indecipherable mumbling on the recording during which it sounds like R.C.

is reluctant to talk further with Detective Engle, she asks, “I don’t want to sit here and feel

like you are a monster, [R.C.]. But we do have a story out here that has to be told and

most times, 9 times out of 10 you don’t want just one side being told. Which is why I am

here today instead of throwing you in handcuffs and arresting you. Again, I come with no

handcuffs, I come to talk. I don’t have you in my backseat, behind the cage. * * * So, at
Highland App. No. 19CA20                                                   21


this point [R.C.] I need your side of the story. So, that I don’t have to present one side.”

R.C. responds, “If I don’t remember that, how can I actual [sic] say it.” (Tr. 36)

       {¶48} Detective Engle describes the second incident in which R.C. allegedly

touched M.G.’s breasts, “Okay, do you remember um when [M.G.] got ready to leave and

she was standing at the bottom, on the bottom bunk, talking to [K.B.], standing beside

[K.B.], you came up behind her and with your palms facing her breasts, you might have

gave her a hug and touched her breasts?” R.C. responds, “I don’t know.” Detective Engle

then responds, “You see [R.C.] when I ask you direct questions, you tend to shut down

like you do recall, you just don’t want to say.” R.C. responds, “It’s because I am trying to

think.”(Tr. 38-39) Eventually after repeatedly being asked about touching M.G.’s breast,

R.C. responds, “I think so but it was messing around, (inaudible) grab her from behind,

like holding, just messing around.” (Tr. 41)

       {¶49} After repeatedly stating that he cannot recall much about the day or does

not remember, Detective Engle asks, “Do you remember that day, [R.C.]?” R.C., “Not

exactly.” Detective Engle, “Do you remember bits and pieces of that day? So, when, so

did you touch her butt?” R.C., “I think so.” (Tr. 39) Then Detective Engle asks a series of

close-ended questions and R.C. chooses one of the two choices. Detective Engle, “Okay,

how did that come about? She’s on the top bunk, you’re on the top bunk. Everybody’s

watching X-Box, did you slide over close to her or did you reach your arm over?” R.C, “I

think I reached my arm over.” Detective Engle, “Okay, and when you reached your arm

over, did you touch her on the outside of her jeans or did you try to slide your hand down

her pants?” R.C., “I think I tried to slide my hand down her pants.” (Tr. 39) In response to

a series of leading questions, R.C. admitted that he thinks he may have touched M.G.’s
Highland App. No. 19CA20                                                   22


skin when he put his hand in her pants, but doesn’t exactly remember. He agreed that he

may have put his hand her M.G.’s pants a second time but only touched M.G.’s

underwear. R.C. admitted that afterward, he thinks M.G. got down off the top bunk and

he may have stayed on the top bunk. (Tr. 41)

       {¶50} Detective Engle admitted that she had been given information prior to the

interview that R.C. had difficulties with memory and was very suggestable and agreeable,

(Tr. 20) yet she agreed that she “did go at him repeatedly,” provided him with most of the

crime details, and gave him limited options for answers. She agreed that R.C. gave

noncommittal or vague responses throughout much of her interview. (Tr. 45-48)

       {¶51} The trial court found R.C. a delinquent child. In its decision, the trial court

focused primarily on the testimony of the victim, M.G., and R.C.’s recorded statements.

The court noted that the state established that M.G. was a 10-year-old child. M.G. testified

that R.C. put his hand down her pants on several occasions and that earlier in the day

R.C. had reached around her and touched her breasts. (Tr. 57) As for R.C.’s recorded

interview, the trial court found that R.C. “did say I think I touched her butt and I reached

my arm around over and tried to slide my hand down her pants, [M.G.] just laid there.”

(Tr. 58) The trial court found it significant that while R.C. “never admitted” the alleged

incident, he also “certainly never denied.” (Tr. 59) The trial court criticized the interview

technique used with R.C. as arguably “not standard or appropriate” but determined that,

in this particular case, the inappropriate interview technique did not “mean that [R.C.]

gave a false conf… [sic] confession.” (tr. 59-60) Ultimately the court found, “I do believe

the touch happened. M.G. detailed what happened and R.C. never denied it, ever. In fact,
Highland App. No. 19CA20                                                     23


said I think so, I think so. So, I do believe it happened beyond a reasonable doubt.” (Tr.

60)

       {¶52} As for the element of “sexual contact,” the trial court discounted the incident

involving the breast touching, finding that the circumstance as described by both M.G.

and R.C. was likely just horsing around. However, as to the touch to the buttocks, the trial

court found that the touch occurred and that it was done for the purpose of sexual arousal

or gratification because R.C. was 17 years old and M.G. was 10 years old and R.C. placed

his hands into her pants and touched her skin. (Tr. 61)

       {¶53} On a manifest weight of the evidence challenge, an appellate court will not

reverse a conviction on that basis unless it is obvious that the trier of fact lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed. After

a close examination of the state’s evidence we cannot find that the trier of fact lost its way

and that a manifest miscarriage of justice has occurred.

       {¶54} Although there was inconsistent testimony concerning the breast

touching/hugging, the trial court ultimately determined it was “just horsing around” and

did not constitute gross sexual imposition. (Tr. 61) We find that the manifest weight of the

evidence supports the trial court’s rejection of the breast touching as a ground for the

gross sexual imposition charge. Both the victim and R.C. testified that they believed it

was just horse play and their respective testimony about it was inconsistent as to time

and place. Detective Engle led R.C. to agree that after M.G. got down off the bottom bunk

and was standing next to K.B., he came up behind her, hugged her and touched her

breast. (TR. 38, 41) However, M.G. testified that the hugging/breast touching incident

occurred earlier in the day and not while she was next to K.B. getting ready to leave.
Highland App. No. 19CA20                                                                 24


Thus, the version of events that Detective Engle got R.C. to agree to were not the same

version that M.G. testified to at trial. Likewise, none of the other witnesses who were in

the bedroom saw R.C. hug M.G. inappropriately when M.G. stated she was going home.

        {¶55} The trial court found that M.G.’s testimony and R.C.’s recorded statement

were the most important and relevant testimony concerning the buttocks-touching

incident. We agree. The other witnesses were not in a position to have noticed whether

R.C. slipped his hand down the back of M.G.’s pants while both were lying on the top

bunk. M.G. did not make a loud protest, but rather moved away, got down, and went

home.

        {¶56} As for R.C.’s recorded statement, although we find that Detective Engle’s

interview with R.C. did not rise to the level of “police coercion,” we afford it minimal

weight.4 Not only did Detective Engle get R.C. to agree to a different hugging incident

than M.G. testified had occurred, R.C. also agreed with her when she asked him if they

were watching “X-Box” and then agreed with her when she changed it to “Playstation.”

R.C. also denied touching neighborhood girls when Detective Engle asked the leading

question, “You don’t go around touching neighborhood girls, do ya?” (tr. 35) but then

acquiesced to possibly touching M.G. when asked leading questions about it. R.C.

repeatedly stated throughout the interview that he had memory issues and simply could

not recall the incident. Detective Engle acknowledged she had been told that R.C. was

very suggestable and agreeable, (Tr. 20) yet she provided him all the pertinent details of

the crime and led him through the interview with narrative, leading and closed-ended



4 At the suppression hearing, Detective Engle admitted that R.C.’s interview was her first interview, that it
was the first time she ever issued a Miranda warning, that it was her “first solo case” and that she had no
interview training prior to the case, but has had some training since. (May 31, 2019 Hearing Tr. p. 25)
Highland App. No. 19CA20                                                    25


questions. R.C. provided no independent facts about the incident that were not already

provided to him by Detective Engle. While we acknowledge we typically defer to the trial

court on matters of credibility, we do this less so in criminal matters, and here, where

R.C.’s interview was an audio recording, the trial court has no greater advantage in

assessing its credibility and weight than we do.

          {¶57} However, the trial court found the victim’s testimony about the buttocks-

touching incident to be credible. The victim was present and testified in court where the

trial court had an advantage over us in assessing her credibility and the weight to afford

her testimony. The weight and credibility of evidence are to be determined by the trier of

fact. State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. “A jury, sitting

as the trier of fact, is free to believe all, part or none of the testimony of any witness who

appears before it.” Id. We defer to the trier of fact on these evidentiary weight and

credibility issues because it is in the best position to gauge the witnesses' demeanor,

gestures, and voice inflections, and to use these observations to weigh their

credibility. Id.; see also State v. Minton, 2016-Ohio-5427, 69 N.E.3d 1108, ¶ 79-80 (4th

Dist.).

          {¶58} Here, the trial court was able to observe the victim on the witness stand,

and was in the best position to judge and weigh her credibility. The victim’s testimony

about her previous lie to law enforcement was also observed by the trial court, as was

her testimony concerning her jealousy motive to fabricate the event. The trial court was

free to believe all, part, or none of her testimony. In sum, the trial court had before

it sufficient facts to ascertain the victim's credibility and to weigh it accordingly, and we

will not substitute our judgment for that of the trier of fact.
Highland App. No. 19CA20                                                   26


       {¶59} Additionally, the evidence supports the trial court’s finding that the buttocks

touch occurred for the purpose of sexual gratification. We explained the proof of sexual

gratification as follows:

       Proof of sexual gratification generally must be accomplished by inference
       rather than by direct evidence. See State v. Cobb (1991), 81 Ohio App.3d
       179, 185, 610 N.E.2d 1009, 1012. In Cobb, the court noted that: “[T]he
       proper method is to permit the trier of fact to infer from
       the evidence presented at trial whether the purpose of the defendant
       was sexual arousal or gratification by his contact with those areas of the
       body described in R.C. 2907.01. In making its decision the trier of fact may
       consider the type, nature and circumstances of the contact, along with the
       personality of the defendant. From these facts the trier of fact may infer what
       the defendant's motivation was in making the physical contact with the
       victim. If the trier of fact determines, that the defendant was motivated by
       desires of sexual arousal or gratification, and that the contact occurred,
       then the trier of fact may conclude that the object of the defendant's
       motivation was achieved.” Id. See, also, In re Anderson (1996), 116 Ohio
       App.3d 441, 688 N.E.2d 545; In re Salyers (June 10, 1998), Ross App. Nos.
       97CA2312 and 2319; In re Bloxson (Feb. 6, 1998), Geauga App. No. 97–
       G–2062 (stating that “[a] sexual purpose can be inferred from the nature of
       the act itself if a reasonable person would find that act sexually stimulating
       to either the offender or the victim”).

(Brackets sic.) In re Higginbotham, 4th Dist. Lawrence No. 04CA26, 2004-Ohio-6004, ¶

18.

       {¶60} Here, the trial court noted the ages of the victim and R.C. and the

circumstances surrounding the touch and found that it was done for the purpose of sexual

arousal or gratification. Although there is no direct evidence of R.C.'s sexual motivation,

sufficient evidence exists from which the trial court reasonably could have inferred that

he committed the act for purposes of sexual arousal or gratification. A reasonable person

could conclude that R.C.’s placement of his hand inside M.G.’s pants and on her buttocks

constituted contact for purposes of sexual gratification or arousal as there is no innocent

explanation for this behavior.
Highland App. No. 19CA20                                                  27


         {¶61} Having reviewed the testimony and the other evidence adduced at trial, we

do not believe that the trial court clearly lost its way in convicting R.C. of gross sexual

imposition for touching the buttocks of M.G. Thus, the adjudication was not against

the manifest weight of the evidence. We overrule R.C.’s second assignment of error.

                                     IV. CONCLUSION

         {¶62} We overrule R.C.’s assignments of error and affirm the judgment of the trial

court.

                                                                 JUDGMENT AFFIRMED.
Highland App. No. 19CA20                                                     28



                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the HIGHLAND
COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION to carry this judgment
into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

                                           For the Court


                                           BY: ________________________
                                               Michael D. Hess, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
