[Cite as State v. Miller, 2014-Ohio-2936.]

                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )    CASE NO.     13 MA 12
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )    OPINION
                                               )
DONOVAN MILLER,                                )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 11CR1085.


JUDGMENT:                                           Conviction Affirmed; Remanded for
                                                    Resentencing.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Paul Gains
                                                    Prosecuting Attorney
                                                    Attorney Ralph Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Attorney J. Gerald Ingram
                                                    7330 Market Street
                                                    Youngstown, Ohio 44512


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

                                                    Dated: June 23, 2014
[Cite as State v. Miller, 2014-Ohio-2936.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Donovan Miller appeals after being convicted of
aggravated murder with a firearm specification and tampering with evidence in the
Mahoning County Common Pleas Court. The threshold issue concerns suppression
of appellant’s videotaped statements in the interrogation room.             We find that
appellant unambiguously invoked his right to cut off questioning which the police
failed to scrupulously honor and thus the subsequent statements at the first interview
should have been suppressed. However, appellant later reinitiated conversation from
the transport area so that his final story was properly admitted, and he retold that
story to his girlfriend. Considering that this final story (admitting that he shot the
victim) was properly admitted, we conclude that it was harmless error to admit the
earlier story (involving him witnessing a shooting by an unidentified intruder).
        {¶2}     Appellant also raises issues involving the jury instruction for tampering
with evidence, the sufficiency of the evidence to prove tampering, the jury instruction
on consciousness of guilt, ineffective assistance of counsel for failing to object to the
two contested jury instructions, and the imposition of consecutive sentences and
post-release control.          The trial issues lack merit.   As to sentencing, the state
concedes that the court failed to make consecutive sentence findings and improperly
imposed five mandatory years of post-release control on the tampering with evidence
conviction instead of three discretionary years of post-release control.           For the
following reasons, appellant’s conviction is affirmed, and the case is remanded for
resentencing.
                                    STATEMENT OF THE CASE
        {¶3}     Twenty-one year old Quest Wagoner spoke to his mother on the
telephone just around midnight as Thursday, September 22, 2011 was beginning.
His mother was starting her midnight shift as a nurse, and they agreed to talk the
next day. (Tr. 379). When she could not then reach him, she went to his house at
1339 Inverness on the Southside of Youngstown just after 7:30 p.m. (Tr. 380, 382).
She discovered the side door was unlocked, which she found unusual. (Tr. 383).
                                                                                    -2-

        {¶4}   She soon discovered her son’s body. (Tr. 386). He died of single
gunshot wound to the head. Because she was a nurse, she knew he had not died
recently as she noticed his skin was grayish/blue and his leg was cold and she felt
some rigor. (Tr. 387). It appeared that he had been sleeping on his living room
couch when he was shot as he was found lying on his side with one hand under his
head and his legs curled up, a position his mother recognized as his favorite sleeping
position. (Tr. 387-388). It was also later discovered that his eyelids had gun powder
stippling but his eyes did not, meaning that his eyes were closed at the time the gun
was fired.
        {¶5}   The murder weapon was not found at the scene. A loaded .9mm was
found in a bedroom drawer, but it was not compatible with the .38 caliber bullet used
to shoot Quest. There were no signs of a struggle in the house. The living room was
neat with glass end tables and a flat screen TV intact, a can of pop sitting upright, a
cigarette pack with a lighter lying square on top, and an ashtray with ashes that had
not been disturbed. (Tr. 387, 398). There were no signs of forced entry at the side
door, and the front door was locked. (Tr. 383, 398). In the kitchen was an open cake
box with two spoons still in the cake. (Tr. 413). A marijuana grow operation was
found in the attic.
        {¶6}   While police were on the scene, Quest’s girlfriend, who is the mother of
his child, arrived at the house. They had recently broken up, and she and the child
had moved out of the house a few days prior. (Tr. 382). As police were aware the
couple had past issues with domestic violence, she was placed in a police car and
transported to the station for questioning. (Tr. 479-480). She was cooperative, she
gave her phone to police, she offered to take a polygraph, she provided an alibi, and
she consistently maintained her story. (Tr. 481). Her alibi was later confirmed by her
boyfriend, whose gun was taken and excluded as the murder weapon. (Tr. 435, 468,
482).
        {¶7}   From neighbors, police learned that a green SUV-type vehicle was
observed in Quest’s drive at various times between 2:00 a.m. and 11:00 a.m. on the
day of the shooting. (Tr. 338-341, 347-349, 353, 483-484). When police asked
                                                                                    -3-

Quest’s ex-girlfriend about the green SUV, she related that said vehicle belonged to
defendant-appellant Donovan Miller, and she provided his telephone number to
police who began trying to locate him. (Tr. 485).
      {¶8}      Police also learned that two City of Youngstown Water Department
employees were standing in the street in front of 1309 Inverness at approximately
11:00 a.m. when they heard one loud bang come from just south of their position,
which testimony suggested would include the location of Quest’s house. (Tr. 344,
356-358, 361-363, 370-372, 374-375). One of the employees, who had firearms
training in two branches of the military, knew immediately that the bang was a single
gunshot.     (Tr. 365-366, 370-371).   He contacted police after hearing about the
shooting on the news. (Tr. 371-373). During a recorded interview, the detective
asked the witness if he saw any cars driving away that day, and he responded that
he saw nothing out of the ordinary. (Tr. 374-376). He testified, however, that he
called the detective the next day to add that he saw a green SUV on the street; he
believed the vehicle was moving. (Tr. 371-372, 374-376).
      {¶9}      On September 26, 2011, the detective made contact with appellant over
the phone, and appellant voluntarily came to the police station for an interview. He
was placed in an interrogation room where a video recorder was rolling, he was read
his rights, and he signed a waiver at 11:37 a.m. Appellant stated that he and Quest
were friends, noting that he helped Quest move into the rental house near his
because the neighborhood was safer than where Quest had been living. Appellant
said that Quest sold drugs and had been robbed twice in the past. He provided the
last name of a person said to have been following Quest, adding that Quest had
been shot at.
      {¶10} Appellant initially claimed that he last saw Quest alive on the night of
Wednesday, September 21, when Quest stopped at appellant’s house on
Cambridge, while appellant and his housemate were smoking marijuana. He said
Quest tried to get him to come with him to look for his ex-girlfriend to see if she was
with a man she had been seeing. After Quest left, appellant supposedly dropped his
truck off with a mechanic named “Animal,” who lived in an apartment complex on
                                                                                      -4-

Shields Road. Appellant’s girlfriend lived in the same complex, and appellant stated
that he and his housemate slept at her apartment that night.
       {¶11} Appellant reported that he woke at noon on Thursday and drove his
girlfriend’s car to a shoe store and two auto parts stores (in order to get the parts the
mechanic had written down for him). He said that he returned his girlfriend’s car by
2:00 p.m. and then borrowed his mother’s vehicle. He and his housemate then went
to various places filming a video until Quest’s ex-girlfriend called him that night to
report Quest’s death. Appellant said that he called Quest various times Thursday
with no response and that he thought Quest was mad at him because he would not
go with him the prior night. Appellant insisted that he did not see Quest on Thursday
and did not get his truck back until close to midnight that night, adding that the last
time his truck was at Quest’s was Tuesday.           He also explained that he was
constantly at the house as they dealt drugs together, he often ate at the house, but
he never stayed overnight.
       {¶12} When the detective advised that appellant’s truck was seen in Quest’s
drive at 2:00 a.m. and at 11:00 a.m. by neighbors with no reason to lie and asked
why appellant was lying, appellant eventually revealed that after Quest left
appellant’s house, appellant went to Quest’s house to drop off a marijuana plant and
lights around 2:00 a.m., left after five minutes, and then dropped off his truck with the
mechanic.    When asked why he lied at first, appellant expressed that he was
concerned about getting in trouble for drugs. (Although, he had already stated that
he bought weed from Quest, that Quest dealt drugs, and that Quest also bought
weed from him).
       {¶13} The detective pressed that appellant was still lying as his car was
spotted in Quest’s drive again at 11:00 a.m. Appellant asked the detective to confirm
his whereabouts with his housemate, and the detective advised that he would not
believe the alibi of the housemate. Appellant also asked him to call his mother, who
could report what time he took her car, and the detective responded that anyone’s
mother would try to protect their child. The detective urged him to tell the truth
multiple times and expressed how he did not understand why appellant was lying
                                                                                    -5-

about being at the house. Appellant then voiced that he was the last person to see
Quest alive and he did not know what to do.
       {¶14} Eventually, appellant admitted that he drove back to Quest’s house
sometime before noon. He explained that he did not initially admit this because he
came back to deliver three pounds of marijuana. He also said he went to check on
Quest, who was not answering his phone. Appellant indicated that he left after no
one answered his knock, and he returned the three pounds of marijuana to his
supplier. As to the mechanic, appellant now stated that he brought his vehicle to the
mechanic after the 2:00 a.m. plant drop, the mechanic diagnosed the problem,
appellant left with the vehicle, and he brought it back to the mechanic after knocking
on Quest’s door and returning the marijuana to his supplier. Appellant said he used
his mother’s vehicle thereafter.
       {¶15} The detective pressed that this did not account for why neighbors also
saw appellant’s vehicle at 8:30 a.m. The detective also fabricated that neighbors saw
appellant run out of the house after hearing a single gunshot around 11:00 a.m.,
noting that this was the time the coroner put the time of death. The detective then
asked if appellant went in and saw Quest dead. After pausing a moment, appellant
replied that he did see Quest dead.
       {¶16} Appellant’s next version of events was that he entered Quest’s house
through the unlocked side door sometime before noon. He said Quest was dead,
lying on his side on the living room couch with a bullet in his head and blood all over
his face. He said he did not know what to do so he just ran. He added that he saw
people outside when he ran out of the house, specifically he saw the people across
the street to the right and other people to the left. He said that he originally lied
because of the three pounds of marijuana and he was scared due to Quest’s drug
business, fearing “they” would kill him next. He denied being present when the gun
was fired.
       {¶17} The detective asked what happened inside the house, stating that he
could not believe that appellant would walk up and shoot Quest in the head. He
asked for motive:    was Quest hurting his girlfriend; was there a fight over drug
                                                                                   -6-

money; was Quest threatening him; did he shoot Quest for someone else; or did he
see someone else shoot Quest?         The detective and a captain explained that
appellant was in serious trouble and about to be indicted for murder. In discussing
the unlocked side door, appellant stated that it was always unlocked and the
detective responded that it was unlikely Quest would leave his door unlocked if he
was afraid of people following him, had been robbed twice, and had marijuana
growing in the attic.
       {¶18} Appellant put his head down or laid his head on his arm while the
officers talked. He announced that he did not murder Quest. Then, at 1:25 p.m. on
the video, appellant stated multiple times, “I’m done talking,” but the discussion did
not cease.     (A detailed description of what occurred here is set forth in the
suppression assignment below.) Thereafter, at 1:35 on the video, appellant was
asked if someone else was inside the house. Appellant stated multiple times that he
was “gonna get killed,” and he asked for protective custody, while the police told him
to think about himself and asked what he saw. He seemingly began crying and
reported that, when he arrived at Quest’s house, he saw a man holding a black gun,
who took the three pounds of marijuana and appellant’s identification, said he knew
where appellant lived, and threatened to kill him if he told the police. He described
the shooter as being white or Puerto Rican, with black hair and tattoos, 6’ tall, and
weighing less than 200 pounds. Appellant denied hearing a gunshot.
       {¶19} Then, he admitted that he did hear the gunshot as he walked through
the kitchen to the living room. He repeated the prior story and said he ran out when
instructed to by the shooter, adding that this was when the neighbors saw him. The
officers expressed that the shooter would not have let appellant go and this would not
explain why his car was there at 8:30 a.m. as well.
       {¶20} Appellant then altered the story, admitting that he spent the night at
Quest’s house. He stated that the above-described man knocked on the side door,
put a gun to his head when he answered, searched him, took his identification, and
walked him to the living room where Quest was sleeping. Appellant disclosed that
the man asked appellant where the money was, took $500-600 in cash that appellant
                                                                                     -7-

had sitting by the TV and the three pounds of marijuana, and asked for the rest of the
money. Appellant related that the man said, “you think I’m playing?” and then shot
Quest as he slept. Appellant maintained that the man threatened him and let him run
out of the house. He explained that he and Quest were going to buy the marijuana
for $1,100 per pound (or $1,250 per pound if they did not buy all three pounds).
       {¶21} When appellant was accused of covering for himself, he pulled his shirt
over his head and put his head on the table and said, “I’m done talking” multiple
times as officers continued to talk. (This discussion is set forth in more detail in the
suppression assignment.)     The detective expressed that the story did not make
sense and said appellant could get the shooter locked up for life. Appellant replied
that he did not know him but would testify against him. They discussed a photo line-
up and the characteristics of the alleged shooter. Appellant fretted that word would
spread that he was a snitch and he would be killed. When asked about the gun,
appellant disclosed that it was a long-barreled, revolver. While they were going over
a map of Quest’s house, DVD 1 ended at 2:32 p.m. (as it only holds three hours of
content).
       {¶22} At some point, appellant was brought upstairs to the holding cells in the
police station for transport to the county jail. The detective stated that when he
brought the transport papers to the holding cell later, appellant said he wanted to tell
the truth. Around 4:00 p.m. on DVD 2, he was brought back to the interview room
and re-Mirandized Appellant disclosed that he spent the night at Quest’s house and
left in the morning to pick up marijuana. He revealed that when he returned to
Quest’s house, Quest did not want to purchase the marijuana and they started to
fight. Appellant asserted that Quest kicked him between the legs and pulled out a
gun.
       {¶23} Appellant said they wrestled for the gun, he wrested it from Quest, and
when he went to hit Quest with the gun, it went off as Quest already had it cocked.
Appellant then ran and could not remember where he dropped the gun, noting that
he searched his truck for it later. He advised that he also told his housemate that
Quest tried to rob him, they fought, and the gun went off on accident. He reverted to
                                                                                      -8-

the story that he returned the marijuana to his supplier (which he had more recently
stated was stolen by the unidentified shooter). Appellant stated that he drove by
Quest’s house hours later because he did not know if Quest was dead or if maybe
the bullet just grazed him. He also disclosed that he once had an issue with Quest
over drug money but said he had let the issue go.
       {¶24} Appellant’s girlfriend was then permitted into the interrogation room to
say goodbye. While the video was still recording onto DVD 3, appellant reiterated to
his girlfriend that he accidentally killed Quest while defending himself. He stated that
he did not do it intentionally, Quest pulled a gun on him and tried to rob him, he got
the gun off Quest during a fight, he did not know Quest already had the gun cocked
back, and the gun just went off. He said the police gave him one more chance
because his story did not make sense so he told the truth. He mentioned that he
would have to serve some time in prison.
       {¶25} Appellant was then indicted for aggravated murder with a firearm
specification (as the evidence showed the victim had been sleeping), tampering with
evidence (as he disposed of the murder weapon), and trafficking in marijuana (as he
said he was there to sell three pounds of marijuana). He filed a motion to suppress
his statements, contending in pertinent part that the police failed to cease the
interrogation when he stated that he was done talking at 1:25 p.m. and all the times
thereafter until the first video stopped at 2:32 p.m. It was also alleged that the re-
Mirandization that occurred at 4:07 p.m. could not cure the prior violation (to allow the
statements made thereafter) as substantial time must pass before initiation of
conversation could be reattempted.
       {¶26} The state countered that appellant did not unambiguously invoke his
right to remain silent when he said he was done talking. The state urged that each
time appellant claimed to be done talking, he kept talking. The state also said that
sufficient time elapsed between the interviews and it was appellant who asked to
speak with the detective again.      The state also pointed out the first four stories
appellant told occurred before the alleged invocation and they were thus not subject
to the Fifth Amendment argument. At the suppression hearing, the detective testified
                                                                                          -9-

that he did not interpret appellant’s statements as invoking the right to remain silent
because appellant kept answering after saying he was done talking and because his
statements were the result of frustration and confusion because he was making up
stories and did not know what else to say. (Supp.Tr. 30-38, 55).
       {¶27} The trial court watched the recordings and overruled the motion to
suppress.    The court found that although the defendant stated that he was done
talking, his words and actions showed that he did not want to remain silent as he kept
talking and asking questions. The court concluded that a reasonable officer would
not view any invocation as unambiguous and found the entire first interview
admissible. The court alternatively stated that even if he invoked silence at the first
interview, he reinitiated the interview while awaiting transport so that the second
interview on DVD 2 was admissible. The court also found that DVD 3, containing
appellant’s retelling of the self-defense story to his girlfriend, was also admissible.
       {¶28} The case was then tried to a jury. The state presented the testimony of
the two neighbors, the two water department employees, the victim’s mother, the first
responding officer, and the BCI forensic scientist who examined the bullet recovered
from the victim.    Then, photographs of the scene and appellant’s vehicle were
introduced by a crime scene officer. He testified that a gunshot residue (GSR) test
was conducted on the victim, on appellant’s vehicle, and on Quest Wagoner’s ex-
girlfriend. (Tr. 419, 432, 443). He submitted a pair of shoes for testing which he
found in the recycle bin behind appellant’s residence and another pair which were
taken from appellant at the station. (Tr. 421, 424, 489, 522). In searching appellant’s
vehicle, he found appellant’s driver’s license in plain view in the visor and $670 cash
and a small amount of marijuana in the console. (Tr. 426-428, 430).
       {¶29} The forensic pathologist testified that the victim was shot in the center
of the forehead with a gun held eight to twelve inches from the victim. (Tr. 572-573).
The bullet was recovered from behind the right ear.          (Tr. 557).   There were no
defensive wounds. The pathologist pointed out there were gun powder burns on the
face and eyelids but not on the eyes themselves. (Tr. 554-555). He concluded that
this and the body’s position were consistent with a sleeping victim. (Tr. 574-575).
                                                                                     -10-

His time of death was said to be “near noon,” with a range in the surrounding hours.
(Tr. 577).
       {¶30} The detective testified about the scene and how there was no evidence
of a fight, referring to the condition of the room and the position of the victim’s body
and clothing. (Tr. 475, 504). He explained that there were no shell casings at the
scene. (Tr. 475). He stated that he excluded Quest’s ex-girlfriend and her boyfriend
as suspects. (Tr. 480-488). He acknowledged that the GSR tests for the victim and
for his ex-girlfriend came back positive. (Tr. 531). He pointed out that GSR generally
lasts for four hours but the victim’s girlfriend was tested nearly twelve hours after the
shooting, noting that she had been placed in the cruiser and some studies show that
GSR can be picked up that way; it was also noted that people placed in cruisers are
often handcuffed and officers often have GSR on their hands. (Tr. 479, 538). The
GSR test for appellant’s vehicle was never submitted due to prior rejection of such
tests by BCI in the past. (Tr. 489-490). The detective noted that appellant disclosed
that the weapon was a revolver, and that at the time of the interview, the detective did
not know that a .38 caliber bullet was used, which he said is only shot from a
revolver. (Tr. 545). Appellant’s recorded statements were played for the jury. (Tr.
491-501).
       {¶31} The defense presented the testimony of a BCI scientist who testified
that the GSR test came back positive from one of the victim’s hands and there was
only one particle found on each of the ex-girlfriend’s hands. (Tr. 595, 601). He
stated that after four to six hours of normal activity, even without washing, GSR is
usually eliminated. (Tr. 598-600). It was noted that the ex-girlfriend was tested more
than ten hours after the shooting. The defense also called a BCI scientist who found
no trace of blood on either the pair of shoes that appellant threw away or the new
pair that he bought the day of the murder. (Tr. 610). She explained that blood can
be cleaned from shoes so that it would not appear in her testing. (Tr. 611).
       {¶32} Next, an employee from AutoZone (on Market Street on Youngstown’s
Southside) produced a receipt from 11:55 a.m. on the day of the murder showing that
ball joints were purchased with cash for a 1995 Chevy Tahoe.            (Tr. 616).   The
                                                                                     -11-

warranty portion of the receipt named the owner as Donavan (misspelled) Miller. (Tr.
617). He explained that many customers are mechanics buying parts for customers
and that a mechanic would put the customer’s name on the warranty. (Tr. 620).
         {¶33} An employee of Youngstown Auto Wrecking (on the Eastside, close to
downtown) produced a receipt from 12:04 p.m. on the day of the murder showing that
a brake booster was purchased for a 1995 Tahoe naming the owner as Donavan
(same misspelling) Miller. (Tr. 646-647). She believed the salesperson would have
used the name of the person in the store. (Tr. 650). Another employee testified that
he was the salesperson on the receipt. He said it appeared the part had to be
removed from a vehicle in the yard so the purchaser would have had to return the
next day. (Tr. 654-656). He believed that he had seen appellant before. (Tr. 654-
655).
         {¶34} Appellant’s mother testified that appellant came over to borrow her
vehicle at 11:00 a.m. on the day of the murder. (Tr. 624). She said he left with her
car after visiting for ten minutes. (Tr. 625). Another witness testified that appellant
came to see her boyfriend at their apartment in Liberty at 10:30 a.m. but left after
fifteen minutes as her boyfriend was not home. (Tr. 632-633). She testified that
appellant returned between 12:45 p.m. and 1:00 p.m. and stayed for forty-five
minutes. On cross-examination, the state asked if she was certain the date was
September 22. She said she was because that was the date her boyfriend went to
court for a traffic ticket. (Tr. 636). The state then showed her certified records from
Trumbull County showing that her boyfriend had an appearance date on September
21.     (Tr. 637-638).   On redirect, she stated that her boyfriend went to Warren
Municipal Court, and she did not know if he had to go two days in a row. (Tr. 639).
         {¶35} Her boyfriend testified that appellant came over at 12:00 or 12:30 p.m.
on September 22 for half an hour. (Tr. 641-642). He stated that he had been in
traffic court that day in Warren for a follow-up but had not been in traffic court the day
before. (Tr. 641). In closing, defense counsel noted that the paperwork produced by
the state involved a court in Girard rather than Warren. (Tr. 688).
                                                                                      -12-

        {¶36} For Quest’s death, the jury was instructed on both aggravated murder
and murder.       They found appellant guilty of aggravated murder with a firearm
specification and tampering with evidence and found him not guilty of drug trafficking.
In a February 4, 2013 entry, the court sentenced appellant to thirty years to life, plus
three years for the firearm specification, with a consecutive three-year sentence for
tampering with evidence. The court also imposed a five-year mandatory term of
post-release control.
                        ASSIGNMENT OF ERROR NUMBER FIVE
        {¶37} Appellant’s suppression argument has been relocated here as it is a
threshold issue and here it is in closer proximity to the recitation of the facts pertinent
to suppression:
        {¶38} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO SUPPRESS STATEMENTS.”
        {¶39} Appellant states that he invoked his right to remain silent multiple times
during the interview but the police failed to scrupulously honor his right and thus the
statements made after his invocation should be suppressed, citing principles derived
from the United States Supreme Court cases of Michigan v. Mosley, Smith v. Illinois,
and Edwards v. Arizona. He acknowledges that interrogation can continue if the
defendant initiates further exchanges but urges that the officer’s statements
encouraging him to continue talking after his invocation were the equivalent of further
interrogation.    He also states that the second interview and the subsequent
conversation with his girlfriend were the direct results of the Fifth Amendment
violations during the first interview and must be suppressed as fruits of the poisonous
tree.
        {¶40} The state counters that appellant’s alleged invocation statements were
ambiguous as appellant did not sufficiently articulate his desire to cut off questioning
clearly so that a reasonable police officer under the circumstances of the case would
understand his statements to be the invocation of his right to remain silent. The state
notes that the officers have no duty to try to clear up any ambiguity in his alleged
                                                                                   -13-

invocation. The state cites examples from the Ohio Supreme Court in Murphy and
Jackson and appellate courts in Bird and Wright.
      {¶41} The Miranda warnings protect the Fifth Amendment constitutional
privilege against compulsory self-incrimination by excluding the product of custodial
interrogation unless the defendant is informed that he had the right to remain silent,
any statement can be used against him as evidence, he has the right to an attorney,
and one will be appointed for him if he cannot afford one. Miranda v. Arizona, 384
U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The opportunity to exercise
these rights exists throughout the interrogation, and thus, the interrogation must
cease when the defendant exercises his “right to cut off questioning,” which must be
scrupulously honored. Id. at 473-474, 479. See also Michigan v. Mosley, 423 U.S.
96, 104, 96 S.Ct. 321, 327, 46 L.Ed.2d 313 (1975).
      {¶42} In Mosley, the Court pointed out that invocation of the right to cut off
questioning does not create a per se proscription on later questioning. Mosley, 423
U.S. at 102-103 (where detective stopped questioning immediately upon exercise of
right and other detective re-Mirandized him two hours later at other location and
questioned him about other crime). The Court stated that admissibility of statements
obtained after the person in custody has invoked the right to remain silent depends
on whether his right to cut off questioning was “scrupulously honored.” Id. at 104.
The Court suggested that the right is not honored “where the police failed to honor a
decision of a person in custody to cut off questioning, either by refusing to
discontinue the interrogation upon request or by persisting in repeated efforts to wear
down his resistance and make him change his mind.” Id. at 105-106.
      {¶43} Recently, the Supreme Court clarified that once a defendant waives his
right to remain silent, the subsequent assertion of the right during the interview must
be unambiguous in order to require the police to stop. Berghuis v. Thompkins, 560
U.S. 370, 381, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (there is no reason to adopt
different standards for determining when an accused has invoked the Miranda right to
remain silent and the Miranda right to counsel in Davis), citing Davis v. United States,
512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (which held that the
                                                                                      -14-

Miranda right to counsel must be unambiguously invoked before immediate cessation
of questioning was required). The Berghuis Court stated that the requirement of
unambiguous invocation of Miranda rights allows objective inquiry in order to avoid
the “difficulties” in proof and provide guidance to officers so they need not make
difficult decisions on unclear intent of defendants. Berghuis, 560 U.S. at 381-382
(and officers need not ask clarifying questions where invocation is ambiguous or
equivocal).
       {¶44} In a right to counsel case, it has been stated that the court can view the
statement and the events leading up to it but cannot view subsequent statements to
determine if the invocation of the Miranda right was ambiguous, as there is either an
assertion of the right or not at the time of the alleged invocation. Smith v. Illinois, 469
U.S. 91, 97-98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). It was pointed out that the
invocation of the right and the subsequent waiver of the right are distinct issues which
are not to be merged or blurred. Id. at 98.
       {¶45} Nevertheless, a defendant can himself reinitiate further conversation
after invoking a Miranda right. See Edwards v. Arizona, 451 U.S. 477, 485-486, 101
S.Ct. 1880, 68 L.Ed.2d 378 (1981) (invalidating police-initiated second interview after
defendant invoked right to counsel but had not yet received counsel but noting that
the interview would have been permissible had the defendant initiated the further
conversation). See also Arizona v. Robertson, 486 U.S. 675, 687, 108 S.Ct. 2093,
100 L.Ed.2d 74 (1988) (saying that subsequent suspect-initiated exchanges were
“perfectly valid” after invocation of Miranda right to counsel).
       {¶46} Thus, we must first determine whether the defendant unambiguously
invoked his right to cut off questioning at various points and whether the police failed
to honor that request so that the resulting unidentified shooter story must be
suppressed. We must then determine whether the defendant reinitiated conversation
in a separate setting, permitting the admission of the subsequent story of accidental
firing during self-defense.
       {¶47} In Berghuis, the defendant was largely silent throughout the hours of
interview but did not make any statements regarding his wish to cut off questioning.
                                                                                      -15-

The Court noted that the defendant “did not say that he wanted to remain silent or
that he did not want to talk with the police” and described these options as simple,
unambiguous statements that would have invoked the right to cut off questioning.
Berghuis, 560 U.S. at 382.
       {¶48} The Ohio Supreme Court has stated that the defendant must articulate
the desire to cut off questioning sufficiently clearly so that a reasonable police officer
under the circumstances would understand the statement to be an invocation of the
right to remain silent    State v. Murphy, 91 Ohio St.3d 516, 520, 747 N.E.2d 765
(2001) (applying Davis to the right to cut off questioning prior to Berghuis).          In
Murphy, the defendant told his version of events and concluded, “I'm ready to quit
talking now and I'm ready to go home, too.” The Court stated that the first part of the
sentence might well be read as an unambiguous invocation if read in isolation but the
words must be read in context.        Id. at 520-521.      The Court concluded that the
statement could be interpreted as merely meaning that he wanted to “go home” and
his words did not mean that he wanted to stop talking no matter what because if
police were not ready to release him, he may have wanted to keep talking. Id. at
521. Thus, Murphy concluded that the statement was ambiguous and police were
not required to clarify or to cease questioning. Id. at 520-521. That defendant’s
statement was an unprovoked concluding statement to a flowing rendition of his
version of events.
       {¶49} In Jackson, the defendant said, “I don't even like talking about it man * *
* cause you know what I mean, it's fucked for me, man, * * * I told you * * * what
happened, man, * * * I mean, I don't even want to, you know what I'm saying, discuss
no more about it, man, you know, ‘cause it ain't gonna, you know, it ain't gonna to
bring, ain't gonna bring the man back.” State v. Jackson, 107 Ohio St.3d 300, 2006-
Ohio-1, 839 N.E.2d 362, ¶ 97. The Court seemed to find this equivocal, as it upheld
the introduction of the subsequent statement, “I ain't mean to do it, I'm sorry I did it, *
* * but, I was left, I had no choice, man.” Id. at ¶ 98.
       {¶50} After this, the defendant stated, “I don't even want to talk about it no
more, man. I'm, I'm, I'm through with it, man,” and soon added, “And that's it. End of
                                                                                           -16-

discussion, man.”       The Court concluded that the police should have stopped
questioning at that point. Id. at ¶ 99. The Court found harmless error, however,
because the statements made after the invocation did not add substance or implicate
him further. Id.
        {¶51} In the Wright case cited by the state, the defendant stated: “Yeah,
yeah. You know, man, I really don't even want to keep going through these questions
and stuff, man, because you all getting ready to charge me with something. I don't
know, man. You know what I am saying?” State v. Wright, 10th Dist. No. 07AP-154,
2007-Ohio-7144, ¶ 36. The detective merely asked, “You don't want to answer any
more questions?” The defendant replied, “At least tell me what I am charged with,
man.” The officer urged him to tell his side, stating his odds of being charged were
100%.     Id.      The Tenth District stated that the defendant did not clearly or
unequivocally assert his right to remain silent because he qualified the invocation
with, “I don't know, man. You know what I'm saying?” Id. at ¶ 38, 41. Plus, the
detective’s initial response was clarifying, not interrogation, and then appellant kept
talking. Id. at ¶ 41, 43.
        {¶52} The court then addressed the statement: “if it is like that, man, I ain't
got nothing to say, man. I ain't got nothing to say. I ain't got nothing to say. Evidently,
you're trying to put something on me, man. I ain't got nothing to say. I didn't-I didn't
do nothing. I ain't did a thing. I ain't did a thing. I ain't did a thing. I ain't did a thing.”
The detective did not try to elicit further comments except to respond, “Okay. So you
don't want to talk about this anymore?” The defendant replied: “No, not if you're
trying to put something on me. You still ain't told me what I did, you know what I'm
saying. And I am still answering your questions. You know what I'm saying?” Id. at ¶
37. The court pointed out that appellant answered the clarifying question by stating
that he was still answering. Id. at ¶ 38, 41, 43.
        {¶53} At another point, the defendant said, “I don't even know nothing. So, I
mean, I really-really have nothing else to say, man. I really don't.” The detective
asked if appellant had any questions for him. Id. at ¶ 39. Appellant asked what the
case was about.        The detective gave some specifics, and again asked if the
                                                                                     -17-

defendant had any other questions. Appellant repeated his version and repeatedly
denied that he did anything. Id. at ¶ 40. The court did not really address this portion
of the interview except to say that the follow-up questions were not interrogation. Id.
at ¶ 43.
       {¶54} In the Bird case cited by the state, a detective told the defendant that
this was his chance to talk about it, noting that he had been talking to other people.
State v. Bird, 12th Dist. No. CA2002-05-106, 2003-Ohio-2541, ¶ 28. The defendant
replied, “Everything's right there in the paper [possibly referring to a list of witnesses
who told police what appellant told them about a murder]. I'm done talking about it.”
Id.   The appellate court stated that after viewing the video and considering the
context of the statement, the defendant did not express an unequivocal desire to end
the questioning and remain silent. Id. at ¶ 30-31 (earlier defendant stood up and said
to book him as there was no sense sitting there and trying to convince them). These
two appellate cases cited by the state are not binding and not directly on point.
       {¶55} In the case before us, after nearly two hours of questioning, when the
police were beginning to accuse appellant of the murder, appellant put his head
down or laid his head on his arm while the officers talked. He said that he did not
murder Quest. The detective stated that it was hard to believe and asserted that
appellant was in the house at the time of the gunshot. Appellant then recapped his
last story and said, “How is that hard to believe?”
       {¶56} As the captain was responding, at 1:25 on the video, appellant then
stated with his head down in his arm, “I’m done talking” three times and then lifted
his head.   The detective stated that it is not going away and asked if appellant
wanted some water. Appellant responded, “I’m just done talking. There’s nothing
else to talk about.” The detective told him to relax, to sit there for a minute, and
said, “We’re gonna talk.”      The detective asked if he wanted water again, and
appellant answered affirmatively.
       {¶57} When the detective left the room, the captain stated, “Believe me,
you’re not done talking cause what’s gonna happen is, you’ll probably get indicted,
                                                                                  -18-

you’ll get a lawyer assigned to you.” Appellant asked if he was going to jail, and the
captain responded that he would have to see what the detective wanted to do.
          {¶58} Appellant then stated twice, “I ain’t got nothing else to say.”     He
added, “I keep getting asked the same questions. I ain’t got nothing else to say.
I want to go home or go to work. I just ain’t got nothing else to say.” The
captain replied, “Well then we’ll do what we gotta do.” He added they gave him every
opportunity to explain so he should have “no hard feelings” later. Appellant then
stated, “I just wanna go. I should have never dealt with drugs and I wouldn’t be in
this predicament.” The captain agreed and expressed that this was not going away.
He reiterated, “don’t hold it against us because we gave you every opportunity to tell
us what happened.” He also stated, “Now you do what you want. The ball’s in your
court.”
          {¶59} Appellant replied, at 1:28 on the video, “I’m done talking.     I just
wanna go.” The captain said he would see what the detective wanted to do, adding,
“He’ll probably want to cut you loose and then go talk to the prosecutor to get the
warrant.” Appellant repeated, “Get a warrant?” The captain asked if appellant had
provided his contact information and then asked appellant about his job. The captain
left to retrieve the detective at 1:29. Appellant began pacing. When they returned at
1:32, the detective provided him with water, and the captain cuffed appellant’s leg to
the floor. The detective explained that they “did not have a choice but to lock you up
on this. It’s just too compelling.” He then said he wished appellant would tell him
what this was all about, asking if someone put him up to it or someone else was there
or there was a fight involved, stating, “Donovan, you gotta come off right about
this.” Appellant stated, “I told you everything I know. There ain’t nothing else to
talk about.”
          {¶60} The detective kept talking. Appellant again stated, “There’s nothing
else to talk about.” The captain then asked if appellant wanted to talk about
Quest’s ex-girlfriend, and appellant asked what about her.       Soon, he told three
versions of the unidentified shooter story: (1) he walked in after the shooting without
hearing a gunshot; (2) he heard the gunshot as he walked in; and (3) he stayed the
                                                                                     -19-

night at Quest’s, he answered the door to find the shooter, and the shooter walked
him to the living room and shot Quest while asking appellant for money.
        {¶61} The United States Supreme Court’s Berghuis case described an
expression that “he wanted to remain silent or that he did not want to talk with the
police,” as a simple, unambiguous statement that invokes the right to cut off
questioning. Berghuis, 560 U.S. at 382 (emphasis added). Appellant’s statement to
the two police officers, “I’m done talking,” is a simple statement that he did not want
to talk to the police. Ambiguity in the statement itself is wholly lacking. See Murphy,
91 Ohio St.3d at 520 (stating that, “I’m ready to quit talking” by itself would be
unambiguous).
        {¶62} And, appellant initially repeated the statement three times in a row.
Moreover, nothing occurred prior to that statement or was attached to that statement
to make it ambiguous. Compare Murphy, 91 Ohio St.3d at 520-521 (where suspect
told his story and concluded by saying he was done talking and ready to go home).
See also Smith v. Illinois, 469 U.S. at 97-98 (court can view the statement and the
events leading up to it but cannot view subsequent statements to determine if the
invocation of the Miranda right to counsel was ambiguous, as there is either an
assertion of the right or not at the time of the alleged invocation).
        {¶63} And, appellant soon followed his litany with, “I’m just done talking.
There’s nothing else to talk about.” See Jackson, 107 Ohio St.3d 300 at ¶ 99 (police
should have stopped after, “I don’t even want to talk about it no more, man. And,
that’s it.   End of discussion.”).   Appellant continued to make further declarations
thereafter, which only served to reinforce the initial invocation. Contrary to the state’s
position, appellant’s subsequent mentioning that he wanted to go home or to work
would not erase a prior invocation merely because the Murphy court held that a
single, compound statement, “I’m done talking and I want to go home, too” was
ambiguous. We are not faced with one compound statement used as the suspect
was wrapping up his version of events.
        {¶64} The unambiguous statements here had already occurred with the use
of the “simple” statement approved of in Berghuis and repeated by appellant multiple
                                                                                   -20-

times. The statements were made in response to hard questioning, not at the tail end
of a defendant telling his story, and they were not connected to a further phrase that
may have diminished the unambiguous nature of the invocation. Compare Murphy,
91 Ohio St.3d at 520-521. We thus conclude that appellant clearly invoked his right
to cut off questioning at and after the 1:25 announcement, “I’m done talking.”
       {¶65} A detective not only ignored a clear invocation of the right to remain
silent, but interrupted it and tried to talk over it. And, the detective and the captain
actually instructed that he was not done talking.      A detective cannot erase the
invocation by leaving the room, while another officer keeps engaging the defendant,
expressly reinforcing the other officer’s assertion that appellant was not done talking,
and then returning within minutes and essentially telling the defendant that he has to
say something. Their express declarations constituted an announcement that he
could not invoke his right to cut off questioning.
       {¶66} Moreover, merely because an officer ignores the invocation, keeps
talking, and is able to prompt further statements within minutes from the defendant
does not mean the prior invocation is ambiguous or a new waiver is entered. As per
Miranda and Mosley, when the suspect invokes right to silence, the direct or indirect
interrogation must cease. See Mosley, 423 U.S. at 105-106 (the right to cut off
questioning is not honored “where the police failed to honor a decision of a person in
custody to cut off questioning, either by refusing to discontinue the interrogation upon
request or by persisting in repeated efforts to wear down his resistance and make
him change his mind.”). Persistent attempts to prompt the defendant to speak after
his invocation are just as improper as specific questioning. See id. at 105-106. See
also Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)
(if suspect invokes Miranda right to stop speaking without counsel, questioning must
stop; waiver is not established by the fact that he kept responding to police-initiated
conversation).
       {¶67} In sum, the officers expressly declined appellant’s request to be done
talking.   The officers repeatedly prompted him to continue speaking and then
questioned him further. His request was not scrupulously honored. The fact that he
                                                                                     -21-

answered various statements and eventually told a new story does not erase his prior
invocation or eliminate the fact that police did not honor that invocation, i.e. there was
no respite and reinitiation by the defendant prior to the three versions of the
unidentified shooter story. As a result, the three versions of the unidentified shooter
story should have been suppressed.
       {¶68} We also point out here that after appellant told the unidentified shooter
story, appellant pulled his shirt over his head and put his head on the table. (DVD 1
at 2:04 p.m.).     He then said, “I’m done talking” nine times in a row as officers
continued to talk. Then, the detective stated, “You’re done talking, but it ain’t gonna
go away. It doesn’t make any sense, man.” The detective continued talking and
prompting appellant to talk. Thus, appellant’s right to cut off questioning was violated
again. The statements made after this violation are similar to those appellant made
after the first violation.
       {¶69} We proceed to address whether the admission of the unidentified
shooter story was harmless. Notably, appellant’s invocation of his right to cut off
questioning came after he had already told the police the following various stories
that changed each time the flaws in his story were identified: (1) he last saw Quest
Wednesday night when Quest stopped over; he dropped his truck off at a mechanic’s
near midnight; he slept at his girlfriend’s house with his housemate; he borrowed her
car and then his mother’s car the next day while running to various places; his truck
was last at Quest’s on Tuesday; he never stayed overnight at Quest’s; (2) he went to
Quest’s at 2:00 a.m. to drop off marijuana plants and lights, left after five minutes,
dropped his truck off with the mechanic, and slept at his girlfriend’s with his
housemate; (3) the mechanic only diagnosed the problem that night after he dropped
a plant off at Quest’s house and appellant then drove his truck from the mechanic’s
place; he drove back to Quest’s house before noon on Thursday to deliver three
pounds of marijuana; he knocked on the door but no one answered; he returned the
three pounds of marijuana to his supplier, returned his truck to the mechanic, and
borrowed his mother’s car; and (4) appellant entered through the unlocked side door
before noon on Thursday; he claimed the door was always unlocked even though he
                                                                                                 -22-

said people were after Quest, who sold and grew marijuana; he saw Quest lying on
his side, dead from a gunshot wound to the head with blood all over his face; and he
ran from the scene seeing people in the neighborhood as he fled in his green Tahoe.
        {¶70} The state’s evidence to be considered here also includes that: there
were no signs of forced entry; the victim was shot from close range while sleeping;
appellant’s vehicle was seen at Quest’s house by two witnesses at approximately
2:00 a.m., 8:30 a.m., 10:15 a.m. and 11:00 a.m.; appellant told multiple stories; he
lied to police and concocted an alibi for his truck; it was unlikely Quest would have
left his door unlocked, but appellant stated he entered through an unlocked door; and
he fled the scene upon seeing his friend’s condition and did not call for an ambulance
or police all day long.
        {¶71} Lastly, there is appellant’s final story that the gun accidentally fired at
Quest’s head while appellant was trying to hit him with the gun in self-defense after
allegedly disarming Quest who was trying to rob him of the three pounds of marijuana
that appellant brought over to sell to him.            And, there is appellant’s subsequent
retelling of this self-defense/accidental firing story to his girlfriend. With this story
admitted (which issue is analyzed next), we conclude that the unidentified shooter
story was harmless beyond a reasonable doubt.
        {¶72} We observe that the admission of the unidentified shooter story may
have reinforced that appellant told many lies to police, but appellant’s admissible
stories already demonstrated that he was in the midst of multiples lies on the topic of
the day of the shooting. The admission of unidentified shooter may have actually
help show that appellant was really afraid of a shooter and that was why he changed
his story to self-defense after initially “snitch[ing]” on someone else. That is, the final
self-defense/accidental firing story was not believable as the victim appeared to have
been sleeping when shot and his clothes were straight and the room was not out of
place. Likewise, the defense did not rely on the self-defense story but suggested that
his initial statement to police, involving various alibis,1 was true and the police led

        1
         As to his alibi defense, appellant’s mother testified that he came to her house to borrow her
car at 11:00 a.m. on the day of the shooting and stayed for ten minutes. He presented receipts from
                                                                                                  -23-

appellant through his various lies. In fact, if all the other stories were coming in,
appellant may not have protested the admission of the unidentified shooter story
below. And, his argument on appeal is geared toward excluding all statements made
after the 1:25 invocation of the right to cut off questioning. The admission of the
unidentified shooter story would not prejudice the defense if the accidental shooting
during self-defense story was properly admitted.
          {¶73} This leads to the next question: must appellant’s subsequent story on
accidental firing during self-defense be excluded as the “fruit” of the prior Miranda
violation. To recap, appellant invoked his right to cut off questioning at 1:25 p.m. and
then told his unidentified shooter story from 1:35 until 2:04, at which point he again
invoked his right to cut off questioning.            Thereafter, he restated the story, was
encouraged to describe the shooters’ characteristics for a line-up, and the DVD
ended at 2:32 p.m. with appellant and the detective going over the layout of Quest’s
house on a map. At some point, officers from the jail unit came down to the interview
room, handcuffed appellant, and brought him upstairs to the jail unit to await
transport to the county jail. (Supp.Tr. 39-40).
          {¶74} DVD 2 begins at 4:07 p.m. with the detective reading appellant’s
Miranda rights again and appellant signing the waiver.                  Appellant noted that the
detective said he could help him and asked how the detective could help him with
this. The detective stated that appellant pulled him aside upstairs to tell him the truth
and he wanted him to go through it again. Appellant stated that he was scared and
then told the story of accidental firing during self-defense (set forth in statement of
facts).
          {¶75} After the story, another detective in the room made some comments,
and appellant explained that he was scared and did not know what to do, stating,
“Luckily, this man [gesturing to the main detective] gave me one more chance when
he was upstairs. So I’m just like fuck it, tell him the truth ‘cause he kept asking, and


parts stores for just before noon and just after noon. His friend testified that he was at his house
around 12:30, and the friend’s girlfriend testified that appellant stopped over earlier around 10:30 as
well.
                                                                                      -24-

like he said, he’s not the drug police [which was something they discussed repeatedly
during the admissible portions of the original interview].” On video, the detective
clarified that when he came upstairs, appellant asked about the charges, the
detective answered, appellant freely stated that he wanted to talk about what had
happened, appellant went ahead and told the story, and the detective told him that
they would go downstairs to talk further.        Appellant agreed that this was the
sequence of events.
       {¶76} At the suppression hearing, the detective testified that after the officers
transported appellant upstairs, he stayed downstairs and completed his paperwork
for transfer, including preparation of the charges. He stated that he brought the
paperwork to the jail unit so appellant could be transported to the county jail.
(Supp.Tr. 40).   He testified that appellant was sitting waiting for transfer and he
“immediately jumped up and said that he wanted to talk to me about this homicide, he
wanted to tell me the truth.” (Supp.Tr. 40-41). He listened and then told appellant
they would have to go downstairs to sit and talk about it. (Supp.Tr. 41).
       {¶77} On cross-examination, the detective was asked about his notes from
the interview, with a focus on the conversation upstairs. (Supp.Tr. 49). The page
referred to by defense counsel provided that the detective delivered the paperwork to
the transporting officers at which time appellant asked what he was being charged
with and why he was being taken to county jail, the detective responded that he was
being charged with the murder of Quest Wagoner, and appellant requested to talk to
the detective and tell the truth about the homicide. See State’s Exhibit 1 at 7, 9.
       {¶78} Appellant argues that DVD 2 (containing the accidental firing during
self-defense story) and DVD 3 (repeating the story to his girlfriend) should be
suppressed under the fruit of the poisonous tree doctrine, generally citing Wong Sun
and Mapp. That is, he urges that the final story represented the fruit of the unheeded
Miranda invocation and the inadmissible unidentified shooter story told during the last
hour of the three-hour interview on DVD 1.
       {¶79} In Wong Sun, the Court held a statement of a defendant made in his
bedroom just after police unlawfully broke down his door to unlawfully arrest him in
                                                                                                     -25-

his house “derives so immediately” from the official illegality that it was an excludable
fruit and that there was no time for an intervening independent act of a free will to
purge any taint. Wong Sun v. United States, 371 U.S. 471, 584, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963). See also Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6
L.Ed.2d 1081 (1961) (simply extending the exclusionary rule to the states). Here, the
final story had no real nexus with the story subject to suppression for violation of the
right to cut off questioning, and appellant was not being illegally detained.
         {¶80} It has been stated that the second story (after police reinitiation) need
not be automatically suppressed as a fruit merely because the first story must be
suppressed due to the failure to give any warnings; rather, the court views the
voluntariness of the first and then the second stories. Oregon v. Elstad, 470 U.S.
298, 311-312, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); State v. Dixon, 101 Ohio St.3d
328, 2004-Ohio-1585, 805 N.E.2d 1042 (where police purposely withheld Miranda
warnings at session II because suspect invoked his rights at session I, session II was
then suppressed, but session III was found admissible). Voluntariness is not raised
here.2
         {¶81} Yet, those cases involved failure to initially warn rather than failure to
cease after the invocation of the right; so they do not involve the Mosley test inquiring
whether the police scrupulously honored the right to cut off questioning test. To
reiterate, Mosley held that the admissibility of statements made after a person in
custody has invoked his right to silence depends on whether the police scrupulously
honored the suspect’s right to cut off questioning. Michigan v. Mosley, 423 U.S. 96,
104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).                        Still, Mosley dealt with police

         2
           DVD 2 shows no indication of impropriety or even of pressure. Appellant acted relieved to be
telling his story. He even stood up and reenacted the maneuvers he allegedly used to disarm the
victim and mimed the action of beginning to hit the victim with the gun as it went off.
          As for the last hour of DVD 1, there may be a violation of the right to cut-off questioning
requiring suppression, but there is no palpable coercion in the conversation and there is no
mistreatment. Repeatedly urging a suspect to tell the truth and providing guesses as to what
happened are not coercive police tactics; nor is saying you want to help him or giving a false sense of
security. See Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (“Ploys to
mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or
coercion to speak are not within Miranda's concerns”). And, such question of voluntariness is best left
for the trial court.
                                                                                      -26-

reinterrogating the suspect later after he had invoked his right to cut-off questioning
and did not deal with a suspect’s later initiation of communications. Mosley, 423 U.S.
at 102-104 (admitting statement where a different officer re-Mirandized and
questioned suspect at different location on a different offense two hours after first
interview). A defendant asking to speak to police after they violated his right to cut off
questioning is a somewhat different scenario from pure police reinterrogation after
violating his right.
       {¶82} In general, a suspect can waive previously asserted Miranda rights and
ask to speak with officers and reinitiate conversation. See State v. Davies, 80 Ohio
St.3d 311, 320 686 N.E.2d 245 (1997) (but where police had previously honored his
invoked right to stop talking), citing Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981). The main holding in Edwards was that when a suspect
invokes his right to counsel, questioning must stop and waiver cannot be established
by showing that he kept responding to police-initiated conversation.          The Court
added:
               “We further hold that an accused, such as Edwards, having
       expressed his desire to deal with the police only through counsel, is not
       subject to further interrogation by the authorities until counsel has been
       made available to him, unless the accused himself initiates further
       communication, exchanges, or conversations with the police. * * *
               “In concluding that the fruits of the interrogation initiated by the
       police on January 20 could not be used against Edwards, we do not
       hold or imply that Edwards was powerless to countermand his election
       or that the authorities could in no event use any incriminating
       statements made by Edwards prior to his having access to counsel.
       Had Edwards initiated the meeting on January 20, nothing in the Fifth
       and Fourteenth Amendments would prohibit the police from merely
       listening to his voluntary, volunteered statements and using them
       against him at the trial.”
                                                                                        -27-

Edwards, 451 U.S. at 484-485. See also Arizona v. Robertson, 486 U.S. 675, 687,
108 S.Ct. 2093, 100 L.Ed.2d 74 (1988) (further suspect-initiated exchanges are
“perfectly valid” after invocation of Miranda right to counsel); Miranda, 384 U.S. at
478 (“Volunteered statements of any kind are not barred by the Fifth Amendment and
their admissibility is not affected by our holding today.”).
       {¶83} The Edwards Court also observed that where the meeting is initiated by
the accused, it is likely that the officers will say something that would clearly
constitute an interrogation. Edwards, 451 U.S. at 486, fn. 9. “In that event, the
question would be whether a valid waiver of the right to counsel and the right to
silence had occurred, that is, whether the purported waiver was knowing and
intelligent and found to be so under the totality of the circumstances, including the
necessary fact that the accused, not the police, reopened the dialogue with the
authorities.” Id.
       {¶84} Some courts interpret all this to mean that the suspect’s subsequent
initiation and waiver of previously invoked rights depend on the police having
previously honored the suspect’s invocation, finding that the police violation after
invocation suggests that the defendant’s later initiation was coerced by (a fruit of) the
prior violation.    These courts then resort to an exception by evaluating whether
sufficient time passed so that any coercive effect may have subsided. McKinney v.
Ludwick, 649 F.3d 484, 490-491 (6th Cir.2011); Hill v. Brigano, 199 F.3d 833, 842
(6th Cir.1999) (applying exception), citing United States v. Gomez, 927 F.2d 1530,
1538-1539 (11th Cir.1991), fn. 8 (where officer did not stop talking on request for
counsel and within minutes defendant “initiated” conversation, but noting that in other
cases, “it may be possible for enough time to elapse between the impermissible
further interrogation and the ‘initiation’ that the coercive effect of the interrogation will
have subsided.”).
       {¶85} These cases do not say that the improper continuance of interrogation
after invocation of the right to cut off questioning per se immunizes all statements the
suspect ever makes to police even on his own initiation of conversation. Whether the
issue here is the voluntariness of both statements such as in Elstad or Dixon, the
                                                                                       -28-

totality of the circumstances regarding knowing and intelligent subsequent waiver
such as in Edwards, the sufficient dissipation of earlier impropriety such as in
McKinney and Hill (plus knowing and intelligent waiver), or a combination of all of
these considerations, the issue is a factual question best left for the trial court.
       {¶86} That is, whether the invocation language used by the defendant was
unambiguous was a legal question subject to de novo review; just as it was a legal
question as to whether an officer honored an invocation by telling the suspect that he
was not done talking and then continuing to engage the suspect in conversation. In
contrast, credibility, voluntariness, a knowing and intelligent waiver, and dissipation of
the effect of impropriety are more factual in their nature. For instance, it is a matter of
credibility as to whether appellant spontaneously reinitiated conversation in the
manner described after the detective went upstairs to deliver transport papers
(containing the charge). The trial court found that more than an hour after the first
interview ended and prior to being transported to jail, the defendant asked to speak
with the detective. He asked what the charges were and when he was told the
charge was murder, he declared that he wanted to tell the truth. The court found that
appellant reinitiated the interview, not the police; thus, the dialogue was reopened.
The court also noted that appellant was then re-Mirandized, during which he heard
his rights being read, he understood them, and signed the waiver, allowing the details
of his volunteered new statement to be flushed out by police questioning. The court
concluded that appellant’s statements were voluntary and not coerced and that the
final rights waiver at issue was voluntary, knowing, and intelligent.
       {¶87} The trial court’s factual findings at suppression are upheld if they are
supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Weight of the evidence and credibility of
witnesses at the suppression hearing are issues that lie primarily in the province of
the trial court. State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). We uphold
the trial court’s findings on those matters, and hold that the second interview on DVD
2, being the product of appellant reinitiating conversation sometime after the first
interview had stopped and he was transferred to a holding cell, was admissible as it
                                                                                       -29-

was not the fruit of the last hour of DVD 1. As DVD 2 is not a fruit, DVD 3, which
contains appellant’s repeating of the self-defense/accidental firing story to his
girlfriend prior to being transported to jail, is likewise not a fruit.
       {¶88} In conclusion, this first two hours of DVD 1 (occurring prior to the
alleged invocation) are undisputedly admissible, the last hour of DVD 1 was
inadmissible, DVD 2 and 3 were admissible, and the erroneous admission of the last
hour of DVD 1 (involving the unidentified shooter story) was harmless beyond a
reasonable doubt. This assignment of error is overruled.
           ASSIGNMENTS OF ERROR NUMBERS ONE & FOUR (part two)
       {¶89} Appellant’s first and part two of his fourth assignments of error contend:
       {¶90} “THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE
JURY ON ‘KNOWINGLY’ AND ‘PURPOSELY’, ESSENTIAL ELEMENTS OF THE
CRIME OF TAMPERING WITH EVIDENCE, AND WHEN IT RELIEVED THE STATE
OF ITS BURDEN TO PROVE SPECIFIC INTENT.”
       {¶91} “DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY
FAILING     TO    OBJECT       TO    THE     *   *   *   TAMPERING        WITH   EVIDENCE
INSTRUCTIONS GIVEN TO THE JURY.”
       {¶92} Appellant was charged with tampering with evidence due to the
disposal of the murder weapon. The argument is not that the trial court failed to set
forth all of the elements of this offense, which it did, but that the instruction was faulty
because: (1) the court stated that it had previously defined knowingly when it had
not; (2) the court stated that purpose was an element (and had previously defined it),
but then, when defining the elements of the offense, the court failed to mention
purpose again when directing the jury to prior definitions; and (3) the court referred to
its prior definition of motive where the mention of purpose should have occurred. In
combining the latter two arguments, appellant asserts that the court essentially
eliminated the instruction on the mental state involving purpose.
       {¶93} We begin by back-tracking to the instruction on aggravated murder
where the court defined the mental state of purposely by stating that a person acts
purposely when it is his specific intention to cause a certain result. (Tr. 703). The
                                                                                                   -30-

court instructed that purpose is a decision of the mind to do an act with a conscience
objective of producing a specific result. (Tr. 703-704). The court also stated that the
purpose with which a person does an act is determined from the manner in which it is
done and all the existing circumstances. (Tr. 704). After defining purpose, the court
instructed that proof of motive is not required, the presence or absence of motive is
one of the circumstances bearing upon purpose, and where an act is a crime, a good
motive or purpose is not a defense. (Tr. 705).
        {¶94} Later, the court set forth the essential elements of tampering with
evidence: the defendant, knowing that an official proceeding or investigation was
about to be or was likely to be instituted, did alter, destroy, conceal, or remove
anything with purpose to impair its value or availability as evidence in such
proceeding or investigation. (Tr. 710). See R.C. 2921.12(A)(1). The court then
further discussed these elements. First, the court said: “I have previously defined
knowingly and how it’s determined.” However, the court had not previously done this;
nor did the court later define knowingly.3 Next, the court defined official proceeding
and investigation and noted that the terms alter, destroy, conceal, and remove were
self-explanatory. (Tr. 710-711). The transcript then shows the court saying, “How
determined, I’ve already defined that.” It appears that the word “purposely” at the
beginning of this sentence was omitted in transcription or in speaking. Then, the
court said, “Motive, I’ve previously explained what motive is and whether it’s not
needed to be proven.”           Finally, the court stated that the word impair was self-
explanatory. (Tr. 711).
        {¶95} A defendant is entitled to have the jury instructed on all elements that
must be proven for the offense. State v. Lynn, 129 Ohio St.3d 146, 2011-Ohio-2722,
950 N.E.2d 931, ¶ 15. In examining the trial court's jury instructions, we must review
the court's charge as a whole, not in isolation, to determine whether the jury was



        3
          It appears the instructions read like this because the state initially anticipated a preceding
instruction on voluntary manslaughter, wherein the element of knowingly would have been defined.
See State’s Proposed Jury Instructions. When voluntary manslaughter was removed from the
proposed instruction, the definition of knowingly would have been removed as well.
                                                                                      -31-

properly instructed. State v. Burchfield, 66 Ohio St.3d 261, 262, 611 N.E.2d 819
(1993).
       {¶96} However, no objections were entered during these instructions. After
the instructions were given, the court asked if there was anything the defense wanted
the court to redo or change, and defense counsel did not voice any issues with the
tampering instruction. (Tr. 727). A party may not assign as error the giving or the
failure to give any jury instruction unless the party objects prior to the jury retiring to
deliberate. Crim.R. 30(A). Appellant thus asks us to conduct a plain error review
here. Plain error is a discretionary doctrine whereby the appellate court may, but
need not, take notice of errors which are obvious and which affect substantial rights
that are outcome determinative. See Crim.R. 52 (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.”); State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62
(plain error should be recognized in only the most exceptional circumstances where it
is necessary to avoid a manifest miscarriage of justice).
       {¶97} In assignment of error number four, appellant raises ineffective
assistance of appellate counsel for failing to object to the instruction. Said question
inquires whether counsel rendered deficient performance (fell below an objective
standard of reasonable representation) by failing to object to the instruction and
whether appellant was prejudiced by that failure, i.e. whether there is a reasonable
probability that the outcome of the tampering with evidence charge would have been
different. See State v. Mitts, 81 Ohio St.3d 223, 234, 690 N.E.2d 522 (1998); State v.
Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). It has also been stated that
prejudice from defective representation can justify reversal only where the result of
the trial was unreliable or the proceeding fundamentally unfair due to the
performance of trial counsel. Carter, 72 Ohio St.3d at 558, citing Lockhart v. Fretwell,
506 U.S. 364, 369, 113 S.Ct. 838, 842-843, 122 L.Ed.2d 180, 189-191 (1993).
       {¶98} We initially evaluate the effect of the court’s failure to define knowingly.
A court need not define every element of an offense. State v. Gross, 97 Ohio St.3d
121, 2002–Ohio–5524, 776 N.E.2d 1061, ¶ 105-106. A court generally defines only
                                                                                    -32-

those “technical and legal terms which have a meaning not generally understood by
the average juror.”   State v. Caver, 8th Dist. No. 91443, 2009-Ohio-1272, ¶ 84.
Terms of common usage need not be defined for the jury. Gross, 97 Ohio St.3d 121
at ¶ 106. Notably, appellant does not contest the court’s statement that the words
alter, conceal, destroy, remove, and impair were self-explanatory.
       {¶99} In defining culpable mental states, R.C. 2901.02(B) provides: “A person
acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably
exist.” The First District has stated that “[t]he word ‘knowingly’ is not so technical or
mysterious as to be beyond the comprehension of the jury when not told the
definition as set forth in R.C. 2901.22(B).” State v. Jones, 1st Dist. No. 790410 (June
25, 1980).
       {¶100} Such a broad holding is not required here due to the specifics of the
particular criminal statute at issue. The tampering with evidence charge dealt with
conduct done with purpose to impair value or availability as evidence “knowing that
an official proceeding or investigation is in progress, or is about to be or likely to be
instituted * * *.” (Emphasis added). R.C. 2921.12(A)(1). In this context, the failure to
define the word knowing is not a serious error and would not prejudice the defendant.
The use of “knowing” before “an official proceeding or investigation is in progress, or
is about to be or likely to be instituted” lends itself to the common usage of the word
knowing. The language of the tampering statute, especially “likely to be instituted,”
seemingly incorporates the general definition of knowledge that “circumstances
probably exist.”
       {¶101} And, informing the jury that a defendant has knowledge of
circumstances if he is “aware that circumstances probably exist” would not have
favored the defense in this case. In fact, appellant was convicted of aggravated
murder for shooting Quest Wagoner in the head. The person who shot Quest in the
head performed any subsequent acts “knowing” that an investigation was in progress
or would soon or was likely to be instituted. This case does not present a scenario
                                                                                    -33-

where the defendant could claim they did not know an investigation would soon begin
or would likely begin.
       {¶102} The lack of a specific definition for knowingly under the circumstances
here was not outcome determinative, and thus, plain error does not exist. See State
v. Jones, 7th Dist. No. 05MA218, 2007-Ohio-3183, ¶ 44 (failure to define purposely
was not per se plain error as it could not be said that, had purpose been defined, the
defendant may not have been convicted of attempted murder where defendant
stated, “Die Bitch” as he repeatedly shot victim).       There is also no reasonable
probability that the outcome would have been different on the tampering charge if the
element “knowing” was further defined, and thus the matter does not constitute
ineffective assistance of counsel.
       {¶103} We turn to the argument that the court’s tampering with evidence
instruction (by not re-mentioning purpose and then speaking of motive) essentially
eliminated the element of purpose. Initially, we reiterated that the court did define the
mental state involving purpose when instructing on aggravated murder, and appellant
takes no issue with that definition previously provided. It should also be recognized
that after the purpose instruction, the court moved into a discussion on motive, and
appellant takes no issue with that discussion in the context of the aggravated murder
charge. (See review of instructions supra.)
       {¶104} As to the tampering instruction, the court did instruct the jury on all of
the elements of tampering with evidence, including “with purpose to impair its value
or availability as evidence in such proceeding or investigation.” (Tr. 710). The court
did not define purpose thereafter. However, the term was already defined for the
jury. Thus, the court was not required to redefine it. See, e.g., State v. Miller, 2d
Dist. No. 22433, 2009-Ohio-4607, ¶ 27; State v. Lane, 8th Dist. No. 89023, 2007-
Ohio-5948, ¶ 40; State v. Collier, 10th Dist. No. 82AP-685 (Jan. 17, 1984).
       {¶105} Appellant’s argument revolves more around the fact that the court (or
the court reporter) forgot to put the word purpose before the statement:           “How
                                                                                                  -34-

determined, I’ve already defined that.” (Tr. 711).4 So, after the court set forth every
element of tampering, the court orally listed the elements it already defined (and
defined some that it had not) and the word purpose may have been omitted when the
court was referring back to the prior definitional instructions.
        {¶106} Despite appellant’s contention, the end of the tampering instruction
does not read as though the court erased what it had just stated was an element:
“with purpose to impair its value or availability as evidence in such proceeding or
investigation.” (Emphasis added). (Tr. 710). “A single instruction to a jury may not
be judged in artificial isolation but must be viewed in the context of the overall
charge.” State v. Price, 60 Ohio St.2d 136, 137, 398 N.E.2d 772 (1979), syllabus at ¶
4. Reading the entire charge, prejudice is not apparent in failing to redefine purpose.
        {¶107} Finally, the motive instruction, referring back to the prior uncontested
motive instruction, did not effectively result in the elimination of the purpose element
due to the failure to redefine purpose.             The court had instructed for aggravated
murder that proof of motive is not required, the presence or absence of motive can be
a circumstance bearing on purpose, and a good motive is not a defense. And, no
issue is taken with those instructions.
        {¶108} “Intent and motive should not be confused. Motive is what prompts a
person to act, or fail to act. Intent refers only to the state of mind with which the act is
done or omitted.” See, e.g., State v. Wyant, 64 Ohio St.3d 566, 597 N.E.2d 450
(1992), fn. 8,5 quoting Black's Law Dictionary (6 Ed.1990) 810. “A person's motive
for a crime, i.e., the reason why the crime was committed, is distinct from the
defendant's culpable mental state, or criminal intent * * *.” State v. Johnson, 7th Dist.
No. 04MA193, 2007-Ohio-3332, ¶ 27. “Motive is a mental state that induces an act; it
is a circumstantial fact used to strengthen an inference, drawn from other evidence,



        4
           The state’s proposed instructions stated here, “Purpose, previously defined. How determined,
previously defined.” Although the jury was provided the written instructions, these were not
maintained as “papers of the case” as required by R.C. 2945.10(G).
         5
          The ultimate decision in Wyant was vacated on a finding that Ethnic Intimidation Acts are
constitutional.
                                                                                   -35-

that an act was done.” Id., quoting State v. Nichols, 116 Ohio App.3d 759, 764, 689
N.E.2d 98 (1996)
      {¶109} There are various offenses involving the language “with purpose to [do
some specified act].” See Wyant, 64 Ohio St.3d at 597 (stating that burglary is a
trespass “with purpose” to commit a felony or a theft and holding: “Purpose in this
context is not the same as motive.”) However, appellant cites no case where a
motive instruction has been invalidated when the statute defining the offense
contains such language. Appellant recognizes that the instruction relieving the state
from proving the motive for killing Quest was not the same as saying that the state
need not show purpose to kill Quest. But still, appellant believes, with regards to
tampering, that the instruction that motive is not required is the same as saying that
the state need not prove purpose to impair the value or availability of evidence.
However, this is not so. See id.
      {¶110} Motive refers to the why of the offense, and why appellant had the
specific intent to impair the value or availability of the evidence in an investigation
was not a required element. All that mattered was that he had the specific intent to
impair the value or availability of the evidence in the investigation; again, his reason
for having purpose to impair the value or availability of thing as evidence in an
investigation was not an element. For instance, whether he was trying to protect
himself or whether he was trying to protect someone else was irrelevant as long as
he had the purpose specifically outlined by the court and the tampering statute. We
therefore conclude that the court’s instruction did not eliminate the tampering with
evidence element involving purpose. This assignment of error is overruled.
                     ASSIGNMENT OF ERROR NUMBER TWO
      {¶111} Appellant’s second assignment of error alleges:
      {¶112} “APPELLANT’S CONVICTION FOR TAMPERING WITH EVIDENCE
WAS SUPPORTED BY INSUFFICIENT EVIDENCE.”
      {¶113} Sufficiency of the evidence is a legal test dealing with the adequacy,
as opposed to the weight, of the evidence. State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). In viewing a sufficiency of the evidence argument, a
                                                                                       -36-

conviction will not be reversed unless the reviewing court determines, after viewing
the evidence in the light most favorable to the prosecution, that no rational trier of fact
could find that the elements of the offense were proven beyond a reasonable doubt.
State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998); State v. Smith, 80
Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In other words, the evidence is sufficient
if, after construing the evidence in the state's favor, reasonable minds can reach
different conclusions as to whether each element has been proven beyond a
reasonable doubt. Id. See also State v. Bridgeman, 55 Ohio St.2d 261, 263, 381
N.E.2d 184 (1978). When evaluating the sufficiency of the evidence to prove the
elements, it must be remembered that circumstantial evidence has the same
probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272-273, 574
N.E.2d 492 (1991).
       {¶114} The elements of the tampering with evidence charge were:                  “No
person, knowing that an official proceeding or investigation is in progress, or is about
to be or likely to be instituted, shall * * * Alter, destroy, conceal, or remove any record,
document, or thing, with purpose to impair its value or availability as evidence in such
proceeding or investigation[.]” R.C. 2921.12(A)(1). Appellant argues that the state
failed to present sufficient evidence that he concealed or removed the gun with
purpose to impair its value or availability as evidence in the investigation.           He
contends that the absence of the murder weapon at the scene plus a defendant’s
statement that he disposed of the weapon do not sufficiently establish the offense of
tampering with evidence. He suggests that his admission about dropping the gun
after he fled was not admissible as no other evidence supported the offense of
tampering with evidence, employing a corpus delicti argument and relying on Like
and Spears from the Second District.
       {¶115} The corpus delicti rule provides that before an out-of-court confession
will be admitted, the corpus delicti (the body of the crime: meaning the act and the
criminal agency) must be established by evidence outside of the confession. See
State v. Van Hook, 39 Ohio St.3d 256, 261, 530 N.E.2d 883 (1988), citing State v.
Maranda, 94 Ohio St. 364, 114 N.E. 1038 (1916). “[T]he standard of proof is not a
                                                                                      -37-

demanding one.” Id. There need only be some evidence outside of the confession
that tends to prove some material element of the crime charged (not all elements),
and that evidence need not rise to the level of a prima facie case. Id. at 251-262.
       {¶116} The rule was meant to protect a person who not only confessed to a
crime that they did not commit but who confessed to a crime that was never
committed at all by anyone. State v. Vaughn, 7th Dist. No. 03MA49, 2004-Ohio-
5122, ¶ 64. It is considered a fairly outdated rule derived from homicide confessions
where the decedent actually survived. Van Hook, 39 Ohio St.3d at 261. It has thus
become more lenient since modern defendants have gained criminal procedural
protections in other ways. Id. (“the corpus delicti rule is supported by few practical or
social policy considerations.”) The Supreme Court refuses to apply the rule as strict
dogma. Id., citing State v. Edwards, 49 Ohio St.2d 31, 35-36, 358 N.E.2d 1051
(1976).
       {¶117} The Second District has reversed tampering with evidence convictions
on sufficiency grounds due to perceived corpus delicti issues. State v. Sims, 2d Dist.
No. 2008CA92, 2009-Ohio-5875, ¶ 18-29 (insufficient evidence of tampering where
defendant had gun in van after shooting and gun was no longer in van after
defendant jumped out plus defendant admitted that he dismantled gun and threw the
pieces in the reservoir); State v. Spears, 178 Ohio App.3d 580, 2008-Ohio-5181, 899
N.E.2d 188, ¶ 7, 23-25 (reversing for insufficient evidence after sua sponte finding
plain error for tampering conviction based upon no gun at shooting scene and
defendant’s statement to corrections officer that he “threw the gun away”); State v.
Like, 2d Dist. No. 21991, 2008-Ohio-1873, ¶20-27 (insufficient evidence of tampering
based on no gun at murder scene and defendant told police he disposed of the gun
in a dumpster).
       {¶118} However, those holdings are not persuasive.           Compare State v.
Hudson, 2d Dist. No. 2011CA100, 2013-Ohio-2351, ¶ 44 (where there was not a
defendant’s admission, court reviewed only for weight of the evidence, and could not
reverse because only two judges voted to reverse on prior line of cases; suggesting a
backing away from a sufficiency position), ¶ 63 (Welbaum, J., dissenting) (stating that
                                                                                       -38-

defendant had gun, fled, and did not have gun when he was caught allows a
reasonable inference that, during the chase, he disposed of the gun for a purpose
prohibited by statute).
       {¶119} Initially, we acknowledge the state’s argument that the use of a typical
sufficiency reversal may not be proper in deciding whether a defendant’s statement
should have been admitted.         The state points out that a sufficiency review is
conducted over all the evidence that was admitted, whether or not it was properly
admitted. State v. Abu-Enjeela, 7th Dist. No. 11MA102, 2012-Ohio-6275, ¶ 18; State
v. Peeples, 7th Dist. No. 07MA212, 2009-Ohio-1198, citing State v. Yarbrough, 95
Ohio St.3d 227, 767 N.E.2d 216, 2002-Ohio-2126, ¶ 80 (on a claim of insufficient
evidence, reviewing court considers all evidence admitted at trial), citing Lockhart v.
Nelson, 488 U.S. 33, 40-42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). The appellate
court does not rule on all of the evidentiary issues, find various pieces of evidence
inadmissible, and then review only the remaining evidence for sufficiency. Rather, if
evidence is improperly admitted and the requisite level of prejudice is established, the
case is remanded for a new trial, where the state may have other evidence that it did
not realize it needed to present due to the favorable admissibility ruling at trial.
       {¶120} Language of various cases suggests that the corpus delicti
requirement for confessions is a rule of admissibility. See Van Hook, 39 Ohio St.3d
at 261 (before an out-of court confession will be admitted, the corpus delicti must be
established by other evidence); Edwards, 49 Ohio St.2d at 35. The Ninth District
thus holds that a defendant must object to the admission of his statement below on
the basis of corpus delicti or the issue is waived. State v. Lortz, 9th Dist. No. 23762,
2008-Ohio-3108, ¶ 11-13 (“the corpus delicti doctrine only involves the admissibility
of a confession”); State v. Sibley, 9th Dist. No. 23439, 2007-Ohio-7054, ¶ 13-16. See
also State v. Puckett, 1919 Ohio App.3d 747, 947 N.E.2d 740, ¶ 14 (4th Dist.).
Appellant did not object on corpus delicti grounds below.
       {¶121} Now, the 1916 Maranda case (utilized for much of the Van Hook law)
does state: “it seems to be conclusively settled: (1) That an extrajudicial confession is
not sufficient in and of itself to sustain a conviction of a crime * * *.” Maranda, 94
                                                                                  -39-

Ohio St. at 369. However, the Ninth District ruled that only the Maranda syllabus was
law and thus refused to address a waived corpus delicti claim under a sufficiency
argument. Sibley, 9th Dist. No. 23439 at ¶ 14-15. The Maranda syllabus simply
stated:
      {¶122} “By the ‘corpus delicti’ of a crime is meant the body or substance of the
crime, included in which are usually two elements: (1) The act; (2) the criminal
agency of the act. It has long been established as a general rule in Ohio that there
must be some evidence outside of a confession, tending to establish the corpus
delicti, before such confession is admissible. The quantum or weight of such outside
or extraneous evidence is not of itself to be equal to proof beyond a reasonable
doubt, nor even enough to make it a prima facie case. It is sufficient if there is some
evidence outside of the confession that tends to prove some material element of the
crime charged.” Maranda, 94 Ohio St. 364 at syllabus.
      {¶123} Notably, the Second District has recently stated that where a
defendant did not object to the admission of his confession on corpus delicti grounds
at trial, he can only proceed with plain error or ineffective assistance of counsel
arguments. See State v. Lee, 2d Dist. No 25621, 2014-Ohio-627, ¶ 3-4, 20, 22.
Thus, their prior sufficiency rulings would likely no longer stand in the future. See
also State v. Williams, 7th Dist. No. 11MA185, 2014-Ohio-1015, ¶ 24, citing State v.
Powell, 176 Ohio App.3d 28, 39, 2008-Ohio-1316, 889 N.E.2d 1047, 1055 (2d Dist.)
(for the proposition that tampering convictions have been upheld when a defendant
told the investigating detective she threw the gun away after the shooting); Hudson,
2d Dist. No. 2011CA100, 2013-Ohio-2351, ¶ 44, 63.
      {¶124} In any event, the Second District seems to have applied the corpus
delicti rule in Like, Spears, and Sims with the type of “dogmatic vengeance”
disapproved of in Van Hook. We also note here that Van Hook and the previous
Supreme Court cases (mentioning how low the standard is for corpus delicti and how
there are few practical or social policy reasons left to support the rule) were pre-
Jenks cases. As circumstantial evidence now has the same probative value as direct
evidence, the application of corpus delicti appears to be an even easier test than it
                                                                                  -40-

already was. That is, the fact that a person was shot by the defendant can be used
as circumstantial evidence tending to show an element of tampering with evidence in
many cases.
      {¶125} That said, we apply the fairly lax Van Hook corpus delicti rule here.
The defendant stated that he shot the victim with a revolver, ran out of the house with
the gun, left in his truck, and did not have the gun when he got home. He stated that
he dropped the gun, but he could not remember where because he was scared. We
thus consider whether, besides appellant’s statement, there is some evidence that
tends to show some element of tampering with evidence.
      {¶126} It has been stated that the lack of a gun at the murder scene may not
itself be legally sufficient evidence of tampering with evidence. See, e.g., State v.
Lollis, 9th Dist. No. 24826, 2010-Ohio-4457, ¶ 30-31 (where police did not search
defendant’s house or house where he had been dropped off after the shooting, and
no statement by defendant); State v. Beard, 6th Dist. No. WD-08-037, 2009-Ohio-
4412, ¶ 18-21 (inability to find gun alone does not show tampering); State v. Wooden,
86 Ohio App.3d 23, 619 N.E.2d 1132 (9th Dist.1993) (no statement by defendant, no
evidence defendant’s residence was searched). But, those cases did not involve a
defendant’s statement as to gun disposal and did not discuss corpus delicti. And,
these cases did not say that the lack of a gun at the murder scene cannot be
considered in evaluating whether there was some evidence that tends to prove one
element of the crime, especially where the victim was shot from up close in his own
house.
      {¶127} That is, the victim was shot in the head while sleeping on his couch,
and he died immediately. Police searched the victim’s house for a gun and only
found one gun in a bedroom drawer which was not the murder weapon per a
ballistics test. The police searched the defendant’s house and the defendant’s car
for the gun to no avail. There is nearly incontrovertible evidence that the murder
weapon was removed from the scene and some evidence tending to show that it was
concealed thereafter.
                                                                                  -41-

      {¶128} Notably, the “some evidence” “that tends to show some material
element” standard for admitting a confession nowhere approaches the beyond a
reasonable doubt standard used for a typical sufficiency review.     See Maranda, 94
Ohio St. 364 at syllabus (and need not even constitute a prima facie case).
Appellant’s truck was in the murder victim’s driveway at the approximate time of the
shooting. The identity of the perpetrator is not necessary for corpus delicti. Van
Hook, 39 Ohio St.3d at 262. But, it can tend to show intent. Furthermore, the
evidence evaluated need not exclude all other reasonable theories. Id. Thus, the
theory that a defendant may have accidentally lost the gun would not exclude an
alternative theory that he had a purpose to make it unavailable to police.
      {¶129} Last but not least, as discussed in the prior assignment of error, the
shooter (or anyone who removed the gun from the murder scene inside the house)
would have known that an investigation was about to be or likely would be instituted,
which is the first element of the offense of tampering with evidence. We conclude
that there was some evidence tending to prove a material element of tampering so
that appellant’s statement was properly admitted in accordance with the low-
threshold corpus delicti rule for admissions of confessions.
      {¶130} As for any remaining general sufficiency argument, a rational trier of
fact would certainly find the existence of the element that appellant dropped the gun
“knowing” an investigation was about to or likely to be instituted. Appellant was found
to be the perpetrator of the shooting and a rational trier of fact could find that he
removed and concealed the gun as he stated that he left the house with the gun and
got in his truck, he “dropped” it somewhere, and he did not have it when he returned
to his house. Some rational trier of fact could also find that appellant removed or
concealed the gun with a purpose to render it unavailable in the investigation. He
fled the house with the gun and entered his truck which was sitting right in the
victim’s driveway. Appellant’s statement that he was scared and he “dropped” the
gun at some point before he arrived home need not be read as meaning that he
accidentally dropped the gun, which would be a credibility issue in any event.
                                                                                    -42-

      {¶131} Finally, intent is nearly always established by circumstantial evidence,
which has the same probative value of direct evidence, and by rational inferences
drawn from the evidence. See Jenks, 61 Ohio St.3d at 265 (circumstantial has same
value as direct and is often more persuasive), 274-275 (intent need not be proven by
direct testimony and must be determined from the surrounding facts and
circumstances), 279 (upholding tampering with evidence conviction after reviewing
element regarding whether destruction was done with purpose to make evidence
unavailable for investigation). Whether appellant removed the gun from the house
and dropped it thereafter with the specific intent to make it unavailable for use in the
investigation was a question that a rational juror could answer either way (for the
state or for the defendant). Thus, there was not insufficient evidence of tampering
with evidence. This assignment of error is overruled.
           ASSIGNMENTS OF ERROR NUMBERS THREE & FOUR (part 1)
      {¶132} Appellant’s third and part one of his fourth assignments of error
contend:
      {¶133} “THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY ON
‘CONSCIOUSNESS OF GUILT’.”
      {¶134} “DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY
FAILING     TO   OBJECT     TO    THE    ‘CONSCIOUSNESS         OF    GUILT’    *   *   *
INSTRUCTIONS GIVEN TO THE JURY.”
      {¶135} The court provided a consciousness of guilt instruction, charging that
fleeing from the vicinity of a crime or tampering with evidence does not, in and of
itself, raise a presumption of guilt or a guilty connection with the crime. The court
warned the jury, “you may not presume the defendant guilty from such evidence.”
(Tr. 716). The court continued: “However, you may infer a consciousness of guilt
regarding the evidence of the defendant’s flight and tampering with evidence,”
explaining that a defendant’s flight, tampering with evidence, and related conduct can
be considered as evidence of consciousness of guilty and thus of guilt itself. (Tr.
716-717).
                                                                                   -43-

      {¶136} Under assignment of error number three, appellant presents two
issues with the instruction. However, no objection was entered before, during, or
after the instruction. Crim.R. 30(A) provides that a defendant cannot raise an issue
with a jury instruction on appeal where he did not object below.        Appellant thus
argues in assignment of error number four that counsel rendered ineffective
assistance in failing to object to the instruction. We refer to the law on failure to
object and ineffective assistance set forth within the combined analysis of
assignments of error one and four (part 2) supra.
      {¶137} Appellant initially takes issue with the giving of a consciousness of guilt
instruction at all, arguing the record did not support the instruction as there was no
evidence of flight from justice, tampering with evidence, or other related conduct to
support the giving of a consciousness of guilt instruction. It is well-established that
“flight, escape from custody, resistance to arrest, concealment, assumption of a false
name, and related conduct, are admissible as evidence of consciousness of guilt,
and thus of guilt itself.” State v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646
(1997), quoting State v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897 (1969).
      {¶138} As to whether there was evidence of tampering in the record to support
the instruction, appellant does not argue that tampering is not a type of “related
conduct” under Eaton. Rather, he focuses on his prior arguments concerning the
sufficiency of the evidence to support this offense.      We refer here to the prior
assignment of error where we conducted an actual sufficiency review on that offense.
If there was sufficient evidence to support a conviction of tampering with evidence,
then there was sufficient evidence for an instruction that tampering can be
considered as consciousness of guilt.
      {¶139} As for evidence of flight, flight from the crime scene is a type of flight.
See Eaton, 19 Ohio St.2d at 160 (flight from scene of homicide without attempt to
render aid). See also State v. Stokes, 7th Dist. No. 08MA39, 2009-Ohio-4820, ¶ 51-
57 (flight from vicinity of crime). And, the record supported the giving of the charge.
There was evidence that appellant fled the crime scene rather than call for police or
an ambulance, along with evidence that made the flight instruction warranted as
                                                                                     -44-

suggestive of guilt and to rebut various defenses. For instance, appellant initially told
police that he stopped to visit his friend but arrived to find him lying on the couch with
blood all over his face. The fact that he fled the scene without calling for help is
pertinent here and warrants the instruction. Moreover, appellant later stated that the
gun accidentally fired after he disarmed Quest, thus making a flight from the scene
instruction pertinent for this reason as well. The decision to give a consciousness of
guilt instruction was not plain error, and the failure to object was not a serious error
falling below reasonable representation, nor did it render the outcome questionable.
       {¶140} Next, appellant argues that the consciousness of guilt instruction given
was too favorable to the state without the following additional tempering language. “If
you find that the facts do not support that the defendant (describe conduct), or if you
find that some other motive prompted the defendant's conduct, or if you are unable to
decide what the defendant's motivation was, then you should not consider this
evidence for any purpose. * * * You alone will determine what weight, if any, to give to
this evidence.” 4 Ohio Jury Instructions (2005) Section 409.13.
       {¶141} In a case where counsel did timely object to the lack of the other
motivation instruction, we declined to find error, noting that the defendant failed to
explain how omitting a reference to some other motive was error and stating that
there was no defense theory of some other motive for fleeing. Stokes, 7th Dist. No.
08MA39 at ¶ 54, 57. We also facially upheld an instruction similar to the one in
appellant’s case, holding that it did not create a presumption of guilt. State v. Wright,
7th Dist. No. 03MA112, 2004-Ohio-6802, ¶ 38, 40.
       {¶142} Similarly, the trial court here explained that the described conduct
“does not, in and of itself, raise a presumption of guilt or a guilty connection with the
crime” and reiterated, “you may not presume the defendant guilty from such
evidence.” (Tr. 716). The court used permissive language in instructing, “you may
infer a consciousness of guilt regarding the evidence of the defendant’s flight and
tampering with evidence,” and in explaining that flight, tampering with evidence, and
related conduct “can be considered as evidence of consciousness and thus of guilt
itself.” (Tr. 716-717). The court’s instruction did not suggest to the jury that there
                                                                                     -45-

was a conclusive presumption as to guilt. See State v. Montgomery, 61 Ohio St.3d
410, 575 N.E.2d 167 (1991) (the fact that “may be” modified “inferred” in the trial
judge's instruction to the jury supports a conclusion that the jury was not instructed to
conclusively presume intent and the jury would not have felt compelled to presume
intent). See also Wright, 7th Dist. No. 03MA112 at ¶ 38, 40, 43.
       {¶143} Moreover, as to the last sentence of the omitted instruction, “You alone
will determine what weight, if any, to give to this evidence,” the jury was instructed
similarly elsewhere, and instructions need not be repeated. For instance, the jury
was told that they were the judges of the weight of the evidence. (Tr. 699-702). And,
the court had already defined an inference and instructed the jury that they may but
are not required to make inferences from established facts.           The court added,
“Whether an inference is made rests solely with you.” (Tr. 699).
       {¶144} In sum, counsel did not make a serious error by failing to object to this
instruction and the defendant suffered prejudice, i.e. the outcome would not have
been different and the reliability of the trial is not implicated. See State v. Carter, 72
Ohio St.3d 545, 558, 651 N.E.2d 965 (1995), citing Lockhart v. Fretwell, 506 U.S.
364, 369, 113 S.Ct. 838, 842-843, 122 L.Ed.2d 180, 189-191 (1993).                 These
assignments of error are overruled.
                      ASSIGNMENT OF ERROR NUMBER SIX
       {¶145} Appellant’s final assignment of error provides:
       {¶146} “THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE
REQUISITE FINDINGS PRIOR TO IMPOSITION OF CONSECUTIVE SENTENCES
AND WHEN IT SENTENCED APPELLANT TO A MANDATORY FIVE (5) YEAR
PERIOD OF POST-RELEASE CONTROL.”
       {¶147} Appellant was sentenced to thirty years to life for the aggravated
murder count to be served after the three year term imposed for the firearm
specification. Appellant was also sentenced to three years on the tampering with
evidence count to run consecutive to the sentence for the murder.
              “If multiple prison terms are imposed on an offender for
       convictions of multiple offenses, the court may require the offender to
                                                                                 -46-

      serve the prison terms consecutively if the court finds that the
      consecutive service is necessary to protect the public from future crime
      or to punish the offender and that consecutive sentences are not
      disproportionate to the seriousness of the offender's conduct and to the
      danger the offender poses to the public, and if the court also finds any
      of the following:
             (a) The offender committed one or more of the multiple offenses
      while the offender was awaiting trial or sentencing, was under a
      sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of
      the Revised Code, or was under post-release control for a prior offense.

             (b) At least two of the multiple offenses were committed as part
      of one or more courses of conduct, and the harm caused by two or
      more of the multiple offenses so committed was so great or unusual
      that no single prison term for any of the offenses committed as part of
      any of the courses of conduct adequately reflects the seriousness of the
      offender's conduct.
             (c) The offender's history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from future
      crime by the offender.”
R.C. 2929.14(C)(4)(b) (effective September 20, 2011).
      {¶148} Here, there is no indication that the trial court considered the
statutorily-required consecutive sentence findings. (Sent.Tr. 12-13); (Feb. 4, 2013
J.E.) The state agrees that the court did not make the necessary findings and that
appellant’s argument on consecutive sentence findings is meritorious.
      {¶149} The state also agrees that the court imposed the wrong term of post-
release control. The court imposed five years of mandatory post-release control.
Post-release control does not apply to unclassified felonies, such as aggravated
murder. See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶
36 (individual sentenced for aggravated murder is not subject to post-release control
as that crime is an unclassified felony to which the post-release control statute does
                                                                                     -47-

not apply; instead, the person may be subject to parole); State v. West, 7th Dist. No.
11MA33, 2012-Ohio-2758, ¶ 45; R.C. 2901.02(A) (distinguishing murder from a
degreed felony); R.C. 2929.03(A)(1)(d) (concerning life with parole eligibility after
thirty years); R.C. 2967.13(A)(4) (concerning parole eligibility after thirty years); R.C.
2967.28(B)-(C). Tampering with evidence is a non-violent felony of the third degree
that is not a sex offense. As such, that offense is only subject to up to three years of
discretionary post-release control. See R.C. 2967.28(C). As conceded by the state,
both arguments set forth in this assignment of error must be sustained.
       {¶150} For the foregoing reasons, the judgment of the trial court regarding
appellant’s conviction is affirmed, and the case is remanded for resentencing.



Donofrio, J., concurs.
Waite, J., concurs.
