[Cite as In re T.B.W., 2011-Ohio-5806.]


                                       OURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




IN RE: T. B. W.                                  JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
                                                 Hon. Sheila G. Farmer, J.
                                                 Hon. Patricia A. Delaney, J.

                                                 Case No. 2011CA00150

                                                 OPINION



CHARACTER OF PROCEEDING:                         Appeal from the Court of Common
                                                 Pleas, Juvenile Division, Case No.
                                                 2011JCR01209


JUDGMENT:                                        Affirmed




DATE OF JUDGMENT:                                November 7, 2011




APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

JOHN D. FERRERO                                  JOHN A. DANKOVICH
Stark County Prosecutor                          200 West Tuscarawas Street
                                                 Suite 200
By: RENEE WATSON                                 Canton, OH 44702
110 Central Plaza South
Suite 510
Canton, OH 44702
Stark County, Case No. 2011CA00150                                                   2

Farmer, J.

      {¶ 1} On May 13, 2011, appellant, T. B. W., was charged with delinquency by

reason of conveying or possessing a weapon on school property in violation of R.C.

2923.122, having a weapon while under disability in violation of R.C. 2912.13, and

carrying a concealed weapon in violation of R.C. 2923.13. Said charges arose from an

incident wherein appellant took a loaded firearm to his high school.

      {¶ 2} On May 19, 2011, appellant filed a motion to suppress, claiming a violation

of his Miranda rights. A hearing before a magistrate was held on May 27, 2011. By

order filed June 1, 2011, the magistrate denied the motion. Appellant filed objections.

A hearing was held on June 9, 2011. By judgment entry filed June 14, 2011, the trial

court overruled the objections.

      {¶ 3} On June 13, 2011, appellant pled no contest to the charges except for the

carrying a concealed weapon charge which was dismissed. By judgment entry filed

June 14, 2011, the trial court found appellant delinquent and sentenced him to the

Department of Youth Services for an indefinite commitment with a minimum of six

months.

      {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶ 5} "THE TRIAL COURT ERRED IN FAILING TO SUPRESS (SIC) THE

EVIDENCE OBTAINED IN VIOLATION OF THE RIGHTS GUARANTEED BY THE

FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
Stark County, Case No. 2011CA00150                                                      3


CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE CONSTITUTION

OF THE STATE OF OHIO AS WELL AS MIRANDA V. ARIZONA."

                                            II

      {¶ 6} "THE TRIAL COURT ERRED IN FAILING TO SUPRESS (SIC) THE

EVIDENCE OBTAINED AS A RESULT OF AN INVOLUNTARY CONFESSION."

                                           I, II

      {¶ 7} Appellant claims the trial court erred in denying his motion to suppress as

his admission was not voluntary, and he was in custody at the time and entitled to

Miranda warnings before questioning. We disagree.

      {¶ 8} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence.       State v. Fanning

(1982), 1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger

(1993), 86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact.      In that case, an

appellate court can reverse the trial court for committing an error of law.      State v.

Williams (1993), 86 Ohio App.3d 37. Finally, assuming the trial court's findings of fact

are not against the manifest weight of the evidence and it has properly identified the law

to be applied, an appellant may argue the trial court has incorrectly decided the ultimate

or final issue raised in the motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case.
Stark County, Case No. 2011CA00150                                                    4

State v. Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623;

Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116

S.Ct. 1657, 1663, "…as a general matter determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal."

       {¶ 9} In her order filed June 1, 2011, the magistrate correctly summarized the

facts as follows:

       {¶ 10} "Testimony from Sandra Klein counselor at Timken High School: on

5/12/2011 immediately after bell rang she saw def and another juvenile (Kip) exchange

handshake and saw an item be placed in def's hand; hand was placed in hoodie pocket;

def proceeded as to exit the building; Ms Klein reported incident to principal.

       {¶ 11} "Testimony from Chris Stone, principal Timken High School, upon receipt

of above report approached def who told him to 'get off him' and tried to walk away;

witness grabbed his arm and told him to stop; def refused to stop and continued to walk;

witness continued to hold arm and walk with him past a congested area of students

(distance of about 30 yards) outside the building but still on school property; def

continued to keep his hand in pocket; Officer Ondo came and put def in cruiser; Timken

High School considered 'inner city high school' with concerns of drugs and weapons

and all school personnel concerned about possible safety issues.

       {¶ 12} "Kim Fete, Assistant Principal at Timken High School; ID of def.       At

dismissal 5/12/2011 she was outside building; apparent there was commotion and she

walked over and saw def outside cruiser. Then def was asked to sit inside cruiser and

Ms. Fete spoke to him from outside of car; asked him what was going on. He said 'I

can't stay out of trouble'. She asked if he had marijuana he said 'it was worse' then
Stark County, Case No. 2011CA00150                                                       5


asked if cocaine and he said 'it was worse' then asked if knife and he said 'it was

worse.' She testified that she then knew what it was and asked him to hand it over. At

that time he handed over the gun to Officer Ondo.

       {¶ 13} "Officer Michael Ondo: Canton City police officer assigned to Timken High

School as Resource Officer: testimony that on 5/12/2011 called by Principal Stone to

come to north side of school. Approached in cruiser and saw principal with def and def

continuing to walk away from principal. Told def to sit in cruiser so that they could 'sort

it out.' At that time Assistant Principal Fete approached car to speak to def. Then Ms.

Fete mouthed 'he has a gun' and Officer Ondo approached, asked him if he had a gun

which he said he did and handed it over.          Def remained in cruiser but was not

handcuffed. Officer Taylor and Gill arrested def. Testimony def's dob 11/14/95; gun

was on school property which was located in city of Canton, county of Stark, Ohio."

       {¶ 14} In its judgment entry filed June 14, 2011, the trial court concluded the

following:

       {¶ 15} "While the court believes [T] was in custody, the questioning came from

school personnel, not law enforcement, and therefore Miranda warnings were not

required. Court finds the confession to having the gun was voluntary. [T's] answers to

Ms. Fete's questions actually invited further questioning.     Facts and circumstances

show Ms. Fete was acting on her own and not as an agent of the police.

       {¶ 16} "The Court, having made an independent analysis of the issues and law,

approves and adopts the Magistrates Decision of June 1."

       {¶ 17} We concur with the trial court's conclusion that appellant was in custody.

It is clear that Officer Ondo placed appellant in the cruiser until "we could sort out what
Stark County, Case No. 2011CA00150                                                      6


was going on because at that time I had no idea what the problem was." May 27, 2011

T. at 15. The rear doors of the cruiser were equipped with child guard locks that prohibit

backseat passengers from exiting. Id. at 18. Despite the fact that Officer Ondo did not

place appellant under arrest until he surrendered the firearm, for purposes of Miranda

warnings, appellant was in custody.

      {¶ 18} The gravamen of this case is whether given the circumstances, appellant's

admission to Assistant Principal Fete was voluntary.

      {¶ 19} There is no doubt if Officer Ondo had questioned appellant, the admission

or surrender of the firearm would not have been voluntary. However, that is not the

case sub judice. Ms. Fete approached appellant independent of any knowledge of what

had transpired between Principal Stone, Officer Ondo, and appellant. Ms. Fete spoke

to appellant independently of any police action, and appellant voluntarily answered her

questions. Id. at 11-12.

      {¶ 20} As in the case of City of Columbus v. Gibson (1992), Franklin App. No.

92AP-570, Ms. Fete was not a law enforcement officer, as she "neither had the authority

to enforce the laws of Ohio nor the power to arrest." As an assistant principal, Ms. Fete

was not an agent of the police and had no statutory duty to report to the police except

as required by R.C. 2151.421(A). There was no causal link between Officer Ondo's

actions and appellant's admission to Ms. Fete. "The most outrageous behavior by a

private party seeking to secure evidence against a defendant does not make that

evidence inadmissible under the Due Process Clause." Colorado v. Connelly (1986),

479 U.S. 157, 166. In In re K.K., Fairfield App. No. 10-CA-30, 2011-Ohio-192, and In re
Stark County, Case No. 2011CA00150                                                     7

Andrew Carson, Stark App. No. 2007CA00070, 2007-Ohio-5687, we addressed parallel

issues of what constitutes state action vis-à-vis school administrators.

       {¶ 21} Based upon the facts in this case, we find Ms. Fete's questioning of

appellant did not constitute state action. Therefore, appellant's admission to Ms. Fete

was voluntary and the subsequent surrender of the firearm was also voluntary.

       {¶ 22} Upon review, we find the trial court did not err in denying appellant's

motion to suppress.

       {¶ 23} Assignments of Error I and II are denied.

       {¶ 24} The judgment of the Court of Common Pleas of Stark County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                             s/ Sheila G. Farmer___________________



                                             s/ W. Scott Gwin_____________________



                                             s/ Patricia A. Delaney        _____________

                                                            JUDGES
[Cite as In re T.B.W., 2011-Ohio-5806.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




IN RE: T. B. W.                               :
                                              :
                                              :
                                              :         JUDGMENT ENTRY
                                              :
                                              :
                                              :         CASE NO. 2011CA00150




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, Juvenile Division is

affirmed. Costs to appellant.




                                              s/ Sheila G. Farmer___________________



                                              s/ W. Scott Gwin_____________________



                                              s/ Patricia A. Delaney   _____________

                                                            JUDGES
