[Cite as State v. Givens, 2016-Ohio-4978.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :  C.A. CASE NO. 26782
                                                   :
 v.                                                :  T.C. NO. 15CR763
                                                   :
 ALYSA N. GIVENS                                   :  (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :
                                              ...........

                                             OPINION

                    Rendered on the ___15th__ day of ____July____, 2016.

                                              ...........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 W. Fourth Street, Suite 250, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                             .............

FROELICH, J.

        {¶ 1} After the trial court overruled her motion to suppress evidence, Alysa Givens

pled no contest to engaging in solicitation after a positive HIV test, in violation of R.C.

2907.24(B), a third-degree felony. A charge of loitering to engage in solicitation after a

positive HIV test, in violation of R.C. 2907.241(A)(3) and (B), a fifth-degree felony, was

dismissed. Givens was sentenced to community control for a period not to exceed five
                                                                                          -2-


years.

         {¶ 2} Givens appeals from her conviction, claiming that the trial court erred in

denying her motion to suppress. For the following reasons, the trial court’s judgment will

be affirmed.

                             I. Factual and Procedural History

         {¶ 3} At the suppression hearing, the parties agreed that, in lieu of testimony, the

court would resolve the motion to suppress based on four exhibits: (1) a copy of a video-

recording from the Dayton police cruiser into which Givens was placed upon her arrest

(due to an equipment malfunction, the recording did not include any audio); (2) a copy of

the pre-interview rights card that was used to notify Givens of her Miranda rights; (3) a

certified copy of the search warrant for Givens’s medical records; and (4) Dayton Police

Department Report No. 1503120992, which contained synopses by three detectives of

what occurred. The evidence established the following facts.

         {¶ 4} During the week of March 9, 2015, Detective Gordon Cairns of the Dayton

police department and other detectives from the Street Crimes Unit investigated

complaints of alleged prostitution activity in the area of East Third Street in Dayton. The

detectives received information from several sources that a woman named “Allie,” who

had dark hair and was wearing a pink jacket and jeans, was engaging in prostitution after

having been diagnosed with HIV. Givens had been observed on East Third Street during

that week, and on March 11, 2015, she was seen wearing a pink jacket and jeans.

         {¶ 5} At approximately 2:18 p.m. on March 12, 2015, Detective Cairns, working

undercover in an unmarked vehicle, located Givens at the intersection of East Third Street

and South Jersey Street, staring, smiling, and waving at passing vehicles; Cairns
                                                                                        -3-


indicated that such behavior was consistent with a prostitute summoning a “john.” Cairns

informed Detective John Howard that he intended to approach Givens.

      {¶ 6} At approximately 2:20 p.m., Detective Cairns stopped along the west curb of

southbound South Jersey Street. Givens approached the passenger side of the vehicle

and, without invitation, entered the vehicle through the front passenger door. Detective

Cairns drove south with Givens. After apparently satisfying herself that Detective Cairns

was not a police officer, Givens agreed to perform oral sex without a condom for $25.

Detective Howard monitored the conversation from another vehicle.

      {¶ 7} Detective Cairns drove with Givens to a particular parking lot that the

detectives had prearranged to be an arrest location. Detectives Howard and Gustwiller

also went to that location, and two uniformed officers were asked to come and assist with

Givens’s arrest. Detective Howard removed Givens from Cairns’s vehicle, patted Givens

down (nothing was located), and asked Givens for her name, address, and the name of

the driver of the vehicle in which she was found (Givens claimed the driver was a friend).1

Detective Howard read Givens her Miranda rights using a card provided by the

prosecutor’s office, and he began to interrogate her about the agreed sexual transaction;

the parties agree that Givens was properly notified of her Miranda rights. Ultimately,

Detective Howard handcuffed Givens and advised her that she was under arrest.

      {¶ 8} Givens stated several times that she was sorry and wanted to help. After

placing Givens in handcuffs, Detective Howard asked Givens if she had HIV or AIDS or



1
 The trial court found that Detective Cairns “removed Defendant from the vehicle,
performed Defendant’s patdown, and obtained Defendant’s personal identifiers.” Both
Detective Cairns’s and Detective Howard’s reports indicate that Detective Howard
performed these actions.
                                                                                             -4-


any other disease about which he should be aware. Givens responded that she did not.

Howard directed Givens to sit on the front bumper or hood of his unmarked vehicle.

       {¶ 9} Thereafter, Detective Gustwiller interviewed Givens regarding the encounter

and whether Givens took a “cocktail” of drugs for HIV.             Givens responded in the

affirmative, although Detective Howard stated that she may have believed that “cocktail”

referred to illegal drug use.     Subsequently, Detective Howard placed Givens in the

backseat of a police cruiser.

       {¶ 10} After a few seconds, Detective Howard spoke with Givens as she sat in the

cruiser. During this conversation, Howard “asked Givens did she have HIV and or AIDS.

I explained to Givens that it was against the law to work as a prostitute after testing

positive for HIV. I did tell Givens it’s also against the [law] to lie to the police about HIV.”

Givens started to cry and acknowledge that she was HIV positive. Howard walked away

from the cruiser.

       {¶ 11} Detective Gustwiller approached the cruiser and spoke with Givens again.

She told him that she had been tested for HIV at Miami Valley Hospital and had been

positive for six months. Gustwiller asked for the number of men with whom she had

engaged in sexual intercourse over the past six months. At that point, Givens stated that

she did not wish to speak further with Detective Gustwiller. Approximately five minutes

had elapsed from the time that Givens was placed into the cruiser until the she ended the

interview with Gustwiller.

       {¶ 12} At 2:44 p.m., Givens was transported to the Montgomery County Jail.

Approximately 24 minutes had elapsed since Givens entered Detective Cairns’s vehicle.

       {¶ 13} The next day, on March 13, 2015, Detective Gustwiller obtained a search
                                                                                            -5-


warrant for Givens’s medical records and lab reports at Miami Valley Hospital.

Gustwiller’s affidavit for the search warrant outlined the investigation of Givens including:

1) the officer’s experience handling street prostitution cases; 2) the information provided

to Detective Cairns regarding the clothing and description of the alleged HIV positive

prostitute; 3) the fact that Detective Cairns found a woman -- Givens -- matching that

description; 4) Givens’s statements to Detective Cairns during the attempted transaction;

and 5) Givens’s statements after she was Mirandized, including statements regarding her

HIV status and where she had been tested for HIV. The search warrant was executed

the same day (March 13). According to Detective Gustwiller’s police report, the hospital

records indicated that Givens had tested positive for HIV on November 20, 2013.

       {¶ 14} On March 19, 2015, Givens was indicted for engaging in solicitation after a

positive HIV test and loitering to engage in solicitation after a positive HIV test, both based

on the March 12 incident. Two weeks later, Givens moved to suppress the statements

she had made to the police on March 12 and any evidence derived from those statements,

including evidence obtained pursuant to the search warrant for her medical records.

Givens claimed that her statements to the police were made involuntarily.

       {¶ 15} A hearing on the motion to suppress was scheduled for July 10, 2015, but

the parties agreed at the hearing that the motion would be resolved based on the four

exhibits described above. No testimony was taken.

       {¶ 16} On July 22, 2015, the trial court overruled the motion to suppress. Initially,

the trial court noted that defense counsel had agreed that Givens was properly advised

of her Miranda rights. As to the voluntariness of Givens’s statements, the trial court

concluded that Givens’s will was not overborne by Detective Howard’s statement that it
                                                                                        -6-


was a crime to lie to police regarding one’s HIV status. The court reasoned that the

officer did not misstate the law, and it cited R.C. 2921.31 (obstructing official business)

and R.C. 2921.32(A) (obstructing justice). The court further found that (1) the police had

made no threats, promises, or offers of leniency, (2) no weapons were drawn or displayed,

(3) Givens never asked for an attorney, (4) Givens was not under the influence of drugs

or alcohol and provided appropriate answers, (5) the interview in the cruiser lasted

approximately five minutes, (6) Givens’s entire encounter with the police lasted less than

one hour, and (7) Givens ended the interview when she no longer wished to speak with

Detective Gustwiller.

      {¶ 17} In addition, the trial court found no basis to suppress the evidence obtained

pursuant to the search warrant. The court stated that there was a substantial basis for

the magistrate to conclude that probable cause existed for the warrant and, even if

Givens’s statement regarding her HIV should have been suppressed, the remainder of

the affidavit provided probable cause for the warrant.

      {¶ 18} The day after the trial court’s ruling on her motion to suppress, Givens pled

no contest to engaging in solicitation after a positive HIV test. She was subsequently

sentenced to community control. Givens appeals the trial court’s judgment.

                        II. Voluntariness of Statements to Police

      {¶ 19} On appeal, Givens claims that the trial court erred in overruling the motion

to suppress “because the statements made by the Appellant were not made knowingly,

intelligently, and voluntarily.” Givens asserts that Detective Howards’s statement that it

was “against the [law] to lie to the police about having HIV” was a threat of additional

charges if Givens did not confess to having HIV, and that the evidence indicated that
                                                                                           -7-


Givens was under the influence of drugs and alcohol at the time of her arrest. Givens

further argues that, because her statements should have been suppressed, there was

also an insufficient basis to issue a search warrant for her medical records.

       {¶ 20} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.” Id.

       {¶ 21} Under the Fifth Amendment to the United States Constitution, no person

shall be compelled to be a witness against himself or herself. In order to ensure that this

right is protected, statements resulting from custodial interrogations are admissible only

after a showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S.

436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed. In re R.L., 2014-

Ohio-5065, 23 N.E.3d 298, ¶ 17 (2d Dist.), citing In re Haubeil, 4th Dist. Ross No.

01CA2631, 2002-Ohio-4095, ¶ 9.

       {¶ 22} Whether a statement was made voluntarily and whether an individual

knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct

issues. State v. Eley, 77 Ohio St.3d 174, 178, 672 N.E.2d 640 (1996); State v. Kelly, 2d

Dist. Greene No. 2004-CA-20, 2005-Ohio-305.              Regardless of whether Miranda
                                                                                        -8-


warnings were required and given, a defendant’s statement may have been given

involuntarily and thus be subject to exclusion. Kelly at ¶ 11.

      {¶ 23} A defendant’s statements to police after a knowing, intelligent, and voluntary

waiver of the individual’s Miranda rights are presumed to be voluntary. Miranda, supra.

“The Miranda presumption applies to the conditions inherent in custodial interrogation that

compel the suspect to confess. It does not extend to any actual coercion police might

engage in, and the Due Process Clause continues to require an inquiry separate from

custody considerations and compliance with Miranda regarding whether a suspect’s will

was overborne by the circumstances surrounding his confession.” State v. Porter, 178

Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.), citing Dickerson v.

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

      {¶ 24} “In deciding whether a defendant’s confession is involuntarily induced, the

court should consider the totality of the circumstances, including the age, mentality, and

prior criminal experience of the accused; the length, intensity, and frequency of

interrogation; the existence of physical deprivation or mistreatment; and the existence of

threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976),

paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147,

57 L.Ed.2d 1155 (1978). See also State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d

491 (1990); State v. Beaty, 2d Dist. Montgomery No. 24048, 2011-Ohio-5014, ¶ 16.

      {¶ 25} In general, the State has the burden to show by a preponderance of the

evidence that a defendant’s confession was voluntarily given. State v. Melchior, 56 Ohio

St.2d 15, 381 N.E.2d 195 (1978).

      {¶ 26} We have reviewed the exhibits submitted by the parties, and we agree with
                                                                                         -9-


the trial court that Givens’s statements were made voluntarily. At the time of the offense,

Givens was 26 years old, and the Police Incident Report reflects that she had 12 “FICs”2

and five prior arrests; Detective Cairns indicated that a check of Givens’s record on the

JusticeWeb computer system showed no prior arrests for prostitution.           There is no

evidence that Givens had any mental impairment.

       {¶ 27} Detective Howard’s synopsis indicated that Givens had a “drug habit” and

that she admitted to taking a “cocktail” of some sort. Detective Howard wrote, “Detective

Gustwiller and I learned from Givens that she did see a doctor several months ago and

the doctor did give her some medication to take. Detective Gustwiller asked Givens was

the medication called a ‘cocktail’ which Gives [sic] stated said, Yes.         Givens was

questioned about the name of the drugs. Givens stated she thought he was talking about

drugs and her drug habit, and she was taking any medication.” Although Howard’s

synopsis reflects that Givens took drugs, there is no indication from the record that Givens

was under the influence of drugs or alcohol when she was questioned by the police on

March 12.

       {¶ 28} Givens’s encounter with the police began at 2:20 p.m., when she entered

Detective Cairns’s unmarked vehicle, and the detectives’ questioning ended at 2:44 p.m.,

when uniformed officers began transporting her to the Montgomery County Jail; Givens

spoke with the detectives for no more than 24 minutes. The cruiser video and the

detectives’ synopses indicate that detectives spoke with Givens over several short

sequences.


2
 We have described an FIC as “a notation made by a police officer and placed in their
computer system, which indicates a prior ‘run in’ with the police.” State v. Groves, 156
Ohio App.3d 205, 2004-Ohio-662, 805 N.E.2d 146, ¶ 3, fn. 1 (2d Dist.).
                                                                                            -10-


        {¶ 29} The first two conversations in the parking lot with detectives were not

captured by the cruiser video. The first conversation occurred after Detective Howard

removed Givens from Detective Cairns’s unmarked car. Givens provided identifying

information about herself to Detective Howard and was read her Miranda rights; Givens

was willing to speak with the officers. Givens was briefly questioned about whether she

had agreed provide oral sex for $25. After Givens stated that she didn’t know if she

should say anything, Detective Howard handcuffed Givens and told her that she was

under arrest. Howard asked Givens if she had “Hep-C, AIDS, HIV or any other disease

that [he] should beware of about,” and Givens responded that she did not.

        {¶ 30} The second conversation occurred while Givens was seated on the front

bumper/hood of Howard’s unmarked police car.             Detective Gustwiller asked Givens

questions about the proposed sexual transaction, whether Givens had any sexually

transmitted diseases, and whether she was taking medication. At 2:38 p.m. (according

to the cruiser video), after this brief discussion, Givens was placed into the back of a

marked cruiser.

        {¶ 31} At 2:39, Howard spoke again with Givens.            During this conversation,

Howard “explained to Givens that it was against the law to work as a prostitute after

testing positive for HIV * * * and it’s also against the [law] to lie to the police about having

HIV.”     Givens admitted to having HIV.      This conversation lasted approximately one

minute.

        {¶ 32} Detective Gustwiller again spoke with Givens at 2:41 p.m., asking additional

questions about where Givens was tested for HIV and how many men Givens had “slept

with in the last 6 months.” Gustwiller’s conversation with Givens lasted approximately
                                                                                          -11-


one and one-half minutes.

       {¶ 33} Nothing on the cruiser video or in the synopses indicate that the officers

engaged in any conduct that would render Givens’s statements involuntary.             While

Givens was in the cruiser, the detectives spoke with Givens while standing outside the

rear passenger door across from where Givens was seated; the door was open.

Although no audio is available, nothing in the detectives’ posture or mannerisms

appeared to be threatening.

       {¶ 34} Givens asserts that Detective Howard’s statement that it was “against the

[law] to lie to the police about having HIV” was a threat that induced her to admit to having

HIV. “Generally, a correct statement of the law does not rise to the level of coercion

necessary to render a confession involuntary.” State v. Robinson, 9th Dist. Summit No.

16766, 1995 WL 9424 (Jan. 11, 1995); see also State v. Western, 2015-Ohio-627, 29

N.E.3d 245, ¶ 38 (2d Dist.).

       {¶ 35} Detective Howard correctly told Givens that it was against the law to work

as a prostitute after testing positive for HIV, see R.C. 2907.24(B), and given that the

officers were investigating an allegation of engaging in solicitation after a positive HIV

test, Howard also correctly told Givens that it was against the law for her to lie to police

officers about her HIV status. The Ohio Supreme Court has held generally that “[t]he

making of an unsworn false oral statement to a public official with the purpose to mislead,

hamper or impede the investigation of a crime is punishable conduct within the meaning

of R.C. 2921.13(A)(3) [falsification] and 2921.31(A) [obstructing official business].” State

v. Lazzaro, 76 Ohio St.3d 261, 667 N.E.2d 384 (1996); see also, e.g., State v. Ertel, 12th

Dist. Warren No. CA2015-12-109, 2016-Ohio-2682 (sufficient evidence supported
                                                                                          -12-


defendant’s conviction for obstructing official business based on defendant’s repeated

lies to responding officers); State v. McLaughlin, 2015-Ohio-4611, 48 N.E.3d 987 (2d

Dist.) (sufficient evidence existed to support defendant’s conviction for falsification based

on defendant’s lying to a police officer with the purpose of misleading him).

       {¶ 36} Even if Detective Howard’s statement were a misstatement of law, we do

not conclude that Givens’s will was overborne by Howard’s statement that it was against

the law to lie to the police about her HIV status. With the information before us, Detective

Howard’s statement was not said in such a way that it necessarily compelled a response

from Givens. Howard’s statement did not suggest, in any way, that she would face a

negative consequence if she failed to answer his questions about her HIV status. In fact,

the statement could have been construed as a warning to Givens that she should remain

silent, rather than lie, if she did not want to reveal her HIV status. Moreover, Howard’s

statement did not suggest that Givens would receive more lenient treatment if she

provided her HIV status to the officers.

       {¶ 37} Considering the totality of the circumstances, the trial court did not err in

concluding that Givens’s statements to the police about her HIV status were made

voluntarily. Given that conclusion, the trial court also did not err in denying Givens’s

request to suppress evidence subsequently obtained based on those statements.

Givens’s assignment of error is overruled.

                                      III. Conclusion

       {¶ 38} The trial court’s judgment will be affirmed.

                                           .............

HALL, J. and WELBAUM, J., concur.
                        -13-


Copies mailed to:

Michele D. Phipps
Brent E. Rambo
Hon. Steven K. Dankof
