[Cite as State v. Walker, 2017-Ohio-9255.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                               :        APPEAL NO. C-150757
                                                      TRIAL NO. B-1500422
        Plaintiff-Appellee,                  :
                                                         O P I N I O N.
  vs.                                        :

DAMON WALKER,                                :

     Defendant-Appellant.                    :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                            Remanded

Date of Judgment Entry on Appeal: December 27, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS


M OCK , Presiding Judge.

       {¶1}      Defendant-appellant Damon Walker was indicted for two counts of

gross sexual imposition in violation of R.C. 2907.05(A)(4). Walker filed a motion to

suppress the statement he made to police while held in the Hamilton County Justice

Center, claiming that his statements were “involuntary because he did not have the

capacity to waive his Miranda rights.” After two separate evaluations from the Court

Clinic Forensic Services and a hearing on the matter, the trial court denied the

motion. Walker pleaded no contest to the charges, and the trial court found him

guilty. He was sentenced to five years in prison and provided notice of his duty to

register as a Tier III sex offender.    In three assignments of error, Walker now

appeals.

                       The Hearing on the Motion to Suppress

       {¶2}      During the hearing on the motion to suppress his statement,

Cincinnati Police Detective Kimberly Kelley testified that she and Detective Iris Kelly

had interviewed Walker on January 22, 2015. Walker had recently been assaulted by

a person who accused him of molesting a relative. The detectives were already

familiar with Walker from previous investigations in 2013 involving two different

child victims.    Kelley also testified that Walker had previously been treated for

competency restoration in the juvenile court before he was adjudicated for gross

sexual imposition.

       {¶3}      Walker’s interview was conducted at the Hamilton County Justice

Center while he was awaiting trial in an unrelated matter. Detective Iris Kelly

reviewed the notification of rights form with Walker, knowing that Walker had a

“limited intellect.” She began by reading the rights form to Walker. When she asked

what that meant to him, he responded that he didn’t know. She said, “That means


                                          2
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS


that you can talk to us without a lawyer. Okay? That means that if you want - - if you

want to stop talking to us, you can stop at any time. Okay? Do you understand

that?” Walker said that he did. When she asked if he was sure, Walker confirmed

that he understood.

       {¶4}    During the interview, Kelly used simple language to communicate

with him, and he appeared to have no problem understanding the questions and

providing logical responses. Walker was interviewed for less than two hours. During

the course of the interview, Walker admitted taking the five-year-old nephew of his

godmother into the bathroom of her apartment, removing his clothing, fondling his

penis, and forcing him to fondle Walker’s penis.

       {¶5}    The trial court also heard testimony from Dr. Carla Dreyer and Dr.

Gail Hellmann of the Court Clinic Forensic Services. Both submitted reports opining

that Walker was not competent to waive his Miranda rights.           Dreyer had had

previous contact with Walker during the course of Walker’s juvenile proceedings.

Four weeks before the detectives interviewed Walker at the Justice Center, Dreyer

had concluded that Walker had been competent to stand trial in another matter.

       {¶6}    Prior to conducting the interview with Walker in preparation for the

hearing in this case, Dreyer reviewed the “Receipt Confirmation of Forensic

Participant’s Rights Policy and Privacy Practices of Court Clinic and Informed

Participation Statement” with Walker. Even though Walker had had a guardian ad

litem appointed who was not present at the time, Dreyer concluded that Walker

appeared to adequately understand the information such that Walker was capable of

waiving his privacy rights. After being convinced that Walker understood his rights

and the consequences of cooperating with the interview, Dreyer commenced her

evaluation and administered the “Miranda Rights Comprehension Instruments” test.



                                          3
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS


       {¶7}    Dreyer interviewed Walker for about 30 minutes at the Justice

Center. Dreyer indicated that Walker “has consistently minimized his history of

contacts with the court system and the sexually-inappropriate behaviors.” He had

also   been     diagnosed     with     disruptive-behavior    disorder,    attention-

deficit/hyperactivity disorder, a psychotic disorder not otherwise specified, impulse-

control disorder, and oppositional-defiant disorder, and had been sexually abused as

a child. Nonetheless, Walker had been denied assistance from the Hamilton County

Developmental Disabilities Services because of Walker’s “previous formal

measurements of his adaptive functioning.” After the evaluation was concluded, Dr.

Dreyer concluded that Walker had not been competent to waive his Miranda rights

at the time he was questioned, rendering his waiver unknowing and involuntary.

       {¶8}    Dr. Hellmann evaluated Walker five months after Dr. Dreyer.

Hellmann interviewed Walker for less than an hour. She also reviewed the interview

between Walker and the detectives.       Hellmann concluded that Walker “had a

tendency to acquiesce or provide statements [which] he perceived to be socially

acceptable or desired by the questioner.” Hellmann, like Dreyer, concluded that

Walker had not been competent to waive his Miranda rights.

       {¶9}    In denying the motion to suppress, the trial court chose to reject the

conclusions of Drs. Dreyer and Hellmann. The trial court said that

              With our case at hand, we have a situation where the defendant,

       while being interviewed was cunning enough to minimize his criminal

       record and has consistently done that. He was not medicated. He was

       only using sleep medication. He [has], in fact, been determined - - or

       deemed uneligible [sic] for DDS services.




                                          4
               O HIO F IRST D ISTRICT C OURT OF A PPEALS


       He talks about - - to the doctors about the cops coming to see

him.   He remembers that and why they came to see him about

touching his nephew. He remembers that the police told him he did

not have to sign the Miranda waiver and that he could have an

attorney with him. He indicates that he forgot to tell the police that he

wanted a lawyer.

       Despite all of that, and the fact that he has repeatedly been

found competent after restoration to stand trial, the doctors had

deemed him incompetent on a date that was about five months prior to

their examination for Miranda.

       He is able to understand all of the courtroom activities[,] all of

the involvement of the parties, what his job is in the courtroom, what

his lawyer’s job is, the prosecutor, the judge, the various pleas that he

could enter.

       Throughout his interview, which was not lengthy. [sic] There is

was [sic] one interview. The police officer spoke with him very softly,

handled him very generally [sic].      He, throughout the interview,

corrected the officer or denied things that they suggested. He was not

simply endorsing what the police officers had said.

       He denied touching his nephew’s behind. He explained who

Day-Day was. He knew the location of the apartment. He explained

his conviction with a victim named [M.S.]. He denied having pulled

the child into the bathroom.

       He has prior criminal experience which is extensive. And the

Miranda waiver is only a factor in the totality of the circumstances of



                                   5
                       O HIO F IRST D ISTRICT C OURT OF A PPEALS


       him understanding everything that was going on, the signature of the

       waiver.

               Again, this was not a long interview. It was not intense. He was

       not deprived of anything. He was not mistreated. No inducements

       were made.

               He knew he was talking to the police. He knew he did not have

       to talk. He knew he was in the Justice Center. He had been through

       the system multiple times.

               There is nothing, frankly, that indicates that he did not

       understand the ramifications of signing the Miranda waiver. So I

       respectfully disagree with the doctors. And the motion to suppress is

       denied. Overruled.

                      The Motion to Suppress Was Properly Denied

       {¶10}       In his first assignment of error, Walker claims that the trial court

improperly denied his motion to suppress his statement. Appellate review of a

motion to suppress presents a mixed question of law and fact. State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. An appellate court must accept

the trial court’s findings of fact if they are supported by competent, credible

evidence.    Id.     Accepting those facts as true, the appellate court must then

independently determine, without deference to the trial court’s conclusion, whether

the facts satisfy the applicable legal standard. Id.

       {¶11}       In Miranda, the United States Supreme Court determined that, due

to the coercion inherent in custodial police interrogation, certain procedural

safeguards were necessary as prophylactic measures “to secure the privilege against

self-incrimination.”     Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16


                                             6
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


L.Ed.2d 694 (1966). Thus, “[p]rior to any questioning, the person must be warned

that he has a right to remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of an attorney, either

retained or appointed.” Id. After he is advised of his rights, “[t]he defendant may

waive effectuation of these rights, provided the waiver is made voluntarily,

knowingly and intelligently.” Id.

       {¶12}   In this case, Walker argued below that his statement had been

involuntary because he did not have the capacity to waive his Miranda rights. The

basis for that argument was that Walker lacked the mental capacity, including the

intellect, to knowingly, voluntarily, and intelligently waive his rights—an argument

supported by the expert opinions of Drs. Dreyer and Hellmann.

       {¶13}   And so, there are two questions for this court to answer. First, we

must determine if it was permissible for the trial court to reject the conclusions of the

two experts who testified in this case. Second, if such a rejection was permissible, we

must decide if there was competent, credible evidence to support the conclusion that

Walker’s intellect did not prevent him from knowingly, intelligently, and voluntarily

waiving his Miranda rights.

                                The Expert Testimony

       {¶14}   While a trial court cannot “arbitrarily” ignore an expert opinion, it

may reach a contrary conclusion if there are “some reasons * * * objectively present”

in the record to do so. State v. Brown, 5 Ohio St.3d 133, 135, 449 N.E.2d 449 (1983).

Thus, an expert's opinion is not conclusive, even if uncontradicted by another expert.

Id.; see State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 71

(holding that the trial court is not required to accept an expert’s opinion when there

is some objectively present reason for ignoring it).


                                           7
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


       {¶15}   In this case, the trial court had reasons objectively present upon

which it could rely to reject the expert opinions below. Just weeks before he was

evaluated by Dr. Dreyer as to his “Competence to Waive Miranda Rights,” Dreyer

had filed a report in another matter that Walker was competent to stand trial. In

other words, just 36 days before, Dr. Dreyer had found that Walker understood the

nature and objective of the proceedings against him and could participate in his own

defense. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824

(1960). While the experts indicated that competence to stand trial and competence

to understand the Miranda rights are not the same thing, Walker’s ability to

understand the trial process and assist in his defense is some evidence that he

understood what was happening to him, the role of law enforcement, and that he

could understand information about that process that was explained to him.

       {¶16}   Particularly noteworthy was the fact that Dreyer, prior to interviewing

Walker, had engaged him in a discussion in order to determine whether he could

knowingly agree to the “Confirmation of Forensic Participant’s Rights Policy and

Privacy Practices of Court Clinic and Informed Participation Statement.” Dreyer

concluded that Walker, in order to participate in the evaluation, was competent

enough to waive his fundamental right to privacy. And, even though Walker had a

guardian to protect his interests, Dreyer went through the interview without either

having the guardian review the form or having Walker sign it. Dreyer had concluded

that Walker was able to participate in that process, saying that she was comfortable

interviewing Walker—even without his guardian present—because of his numerous

prior contacts with the Court Clinic.

       {¶17}   Similarly, the trial court could reasonably look at this determination,

very similar to the determination of whether the Miranda waiver was knowing,



                                          8
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS


intelligent, and voluntary, when reaching its conclusion that Walker had validly

waived his rights.     The trial court also noted that Walker had had extensive

experience with the criminal-justice system prior to the interview. The trial court

mentioned that Walker was insightful enough to “minimize his criminal record and

has consistently done so.” And while Dr. Dreyer had indicated that she disagreed

with its conclusion, the fact remained that the Hamilton County Developmental

Disabilities Services agency had found Walker ineligible for their services due to

“previous formal measurements of his adaptive functioning.”

       {¶18}   On this record, we conclude that the trial court could reject the

conclusions of the expert witnesses and make its own determination as to whether

Walker’s intellect precluded him from knowingly, intelligently, and voluntarily

waiving his Miranda rights.

          The Decision Was Supported by Competent, Credible Evidence

       {¶19}   We must now determine, absent the conclusions of the expert

witnesses, whether there was competent, credible evidence upon which the trial

court could rely when determining that Walker’s waiver of his Miranda rights was

knowing, voluntary, and intelligent. “[A] court may infer from the totality of the

circumstances that a defendant voluntarily, knowingly, and intelligently waived his

rights.” State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 9,

citing State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988). The totality of

the circumstances includes “the age, mentality, and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; the existence of

physical deprivation or mistreatment; and the existence of threat or inducement.”

State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 25, quoting

State v. Eley, 77 Ohio St.3d 174, 178, 672 N.E.2d 640 (1996). By this definition of


                                         9
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


“totality,” a court is to look to all of the evidence to determine a suspect's

understanding, which can be implied by his conduct and the situation. Lather at ¶ 9.

        {¶20}   An individual's low intellect does not necessarily render him or her

incapable of waiving Miranda rights. State v. Jenkins, 15 Ohio St.3d 164, 233, 473

N.E.2d 264 (1984). Rather, a person's low intellect is but one of many factors under

the totality of circumstances that a court must consider in assessing the

voluntariness of a Miranda waiver or confession. State v. Frazier, 115 Ohio St.3d

139, 154, 873 N.E.2d 1263 (2007).

        {¶21}   As the trial court noted, the detectives spoke plainly with Walker

when explaining his rights. Both detectives had had previous contact with Walker

while investigating two separate offenses involving other victims. Detective Kelly

had previously explained Walker’s Miranda rights to him. After the rights form was

read to Walker, he was asked if he knew what it meant, and he said that he didn’t

know. Detective Kelly then summarized the rights for Walker, stating that they

meant that “you can talk to us without a lawyer, or you can talk to us with a lawyer.

Okay? That means that if you want to stop talking to us, you can stop at any time.”

Walker was then asked if he understood, and he said that he did. Kelly pressed him

further, asking, “Are you sure?” Walker responded, “Yes, ma’am.” After repeatedly

telling the detectives that he understood his rights, he then agreed to speak with

them.

        {¶22}   The interview itself was not long, lasting less than two hours. He was

not denied anything during the course of the interview, and he was not mistreated.

While he was in the Hamilton County Justice Center at the time of questioning, he

was being held there on a separate matter. He was 20 years old at the time, and had

had numerous contacts with the justice system before that.



                                          10
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


       {¶23}    It is worth noting that the trial court was able to not only read the

cold transcript of the interview, but was also able to listen to the audio recording.

The audio recording gives a different sense of the exchange than can be had from

reading the words on the page. It is in situations like this when this court should give

deference to the trial court’s interpretation of such evidence. The trial court listened

to the recording of Kelly reading the rights to Walker, Walker’s response claiming he

did not understand, and Kelly’s explanation of the rights. On this record, the trial

court’s determination was supported by competent, credible evidence.

       {¶24}    The trial court concluded that there was “nothing, frankly, that

indicates that he did not understand the ramifications of signing the Miranda

waiver.” In the context of this case, and having determined that the trial court

permissibly rejected the opinions of the expert witnesses, this statement was

accurate. While the experts reached a different conclusion, the trial court was not

required to accept their opinions as long as other evidence in the record supported

departing from their conclusions. Compare State v. White, 118 Ohio St.3d 12, 2008-

Ohio-1623, 885 N.E.2d 905, ¶ 70 (the trial court failed to set forth any rational basis

grounded in the evidence for rejecting the uncontradicted testimony of two qualified

expert witnesses in the field of psychology). In this case, the trial court gave an

extensive recitation of the evidence in the record to explain why it did not agree with

the expert witnesses.    Because the trial court’s finding was supported by some

competent, credible evidence, the trial court did not err when it denied his motion to

suppress. We overrule Walker’s first assignment of error.

               Content of Miranda Warning and Subsequent Explanation

       {¶25}    While the dissent has raised the issue of Detective Kelly’s inadequate

explanation of the Miranda rights during Walker’s interview, Walker neither raised


                                           11
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


that issue in the trial court, nor argued that issue to this court on appeal. During the

course of the proceedings on the motion to suppress, Walker’s counsel clearly limited

the scope of his challenge to his “capacity to waive his Miranda rights,” not their

adequacy. After having presented the expert testimony, counsel argued only that the

“State has the burden * * * of proving, by a preponderance of the evidence, that Mr.

Walker’s statement was voluntary. You have two experts who have both agreed

independently that [it] was not.” Counsel concluded by stating that “we ask that you

accept and follow the opinions offered to you by the scientific experts in this regard.”

       {¶26}   “It is well-settled law that issues not raised in the trial court may not

be raised for the first time on appeal because such issues are deemed waived.”

Columbus v. Ridley, 2015-Ohio-4968, 50 N.E.3d 934, ¶ 28 (10th Dist.), quoting

State v. Barrett, 10th Dist. Franklin No. 11AP-375, 2011-Ohio-4, ¶ 13; see State v.

Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990). This “well-settled law”

applies to arguments not asserted either in a written motion to suppress or at the

suppression hearing. Id., citing State v. Johnson, 10th Dist. Franklin No. 13AP-637,

2014-Ohio-671, ¶ 14; State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-

Ohio-828, ¶ 9; State v. Perkins, 9th Dist. Summit No. 21322, 2003-Ohio-3156, ¶ 13;

State v. Molk, 11th Dist. Lake No. 2001-L-146, 2002-Ohio-6926, ¶ 11.

       {¶27}   Walker would not have been able to raise on appeal the issue of

whether the warnings he received from Detective Kelly were adequate. And the

appellate record demonstrates that he has not. Throughout his brief to this court,

Walker continued to rely solely on Walker’s mental capacity to understand his rights,

as demonstrated by the expert testimony. Even in his third assignment of error,

wherein Walker argues the ineffectiveness of trial counsel, he fails to assert that trial




                                           12
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


counsel should have raised the issue of the inadequacy of the explanation of the

Miranda rights.

       {¶28}   In a recent case from the Eleventh Appellate District, the court

addressed a similar issue. State v. Mock, 11th Dist. Lake No. 2012-L-066, 2013-

Ohio-874. In that case, the defendant had filed a motion to suppress based on his

unlawful continued detention during a traffic stop. Id. at ¶ 4. On appeal, he argued

for the first time that the search of a bag in the vehicle was improper. Id. at ¶ 7. The

court began by noting that the failure to make an argument before the trial court in

support of a motion to suppress “constitutes waiver of the defenses or objections.”

Id. at ¶ 8, citing Crim.R. 12(H). The court reasoned that

       by failing to advance these arguments in his suppression motion

       before the trial court, the state did not have notice of the issues and an

       opportunity to prepare its case. The trial court did not make any

       findings of fact on these points because the matters were not raised

       and there was no evidence placed before it at the suppression hearing.

       [Consequently], this appellate court is unable to conduct its ordinary

       standard of review as there are no factual findings upon which to defer

       and no application of law to apply.

(Citations omitted.) Id. at ¶ 9. The court then went on to reject the proposition that

such an argument could be considered under a plain-error analysis.

       Notice of plain error is to be “taken with utmost caution and only to

       prevent a manifest miscarriage of justice[.]” However, we question the

       propriety of a plain error analysis in the context of a defendant's

       failure to make constitutional arguments in a suppression motion.

       Under appellant's line of reasoning, the trial court, to avoid the alleged



                                          13
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


       error in this case, would have been required to raise new suppression

       issues on behalf of appellant, request the parties to present evidence

       on those matters, and then evaluate the issues.

(Emphasis sic.) (Citation omitted.) Id. at ¶ 10.

       {¶29}   We agree with our colleagues in the Eleventh District that addressing

an argument not raised below in support of a motion to suppress, even under plain

error, would be inappropriate. But even if we were to consider it in the context of

plain error, Walker would not succeed. For an error to constitute “plain error” under

Crim.R. 52(B), it must satisfy three prongs: (1) there must be an error, meaning a

deviation from a legal rule, (2) the error must be “plain,” meaning an “obvious”

defect in the trial proceedings, and (3) the error must have affected “substantial

rights,” meaning the error must have affected the outcome of the trial. State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

       {¶30}   In this case, we would not be able to say that any error was an obvious

defect in the trial proceedings. Generally, when a suspect receives an incomplete

reading of the Miranda warnings, courts have held that subsequent statements are

not admissible. See California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d

696 (1981). But this is not a case where the only information given to the suspect

was an incomplete reading of the rights. The incomplete explanation had been

preceded by a complete reading of the rights. This court has not found a case with a

fact pattern similar to the case at bar, though courts have held that an incomplete

rewarning is not deficient when it has been preceded by a complete warning. See,

e.g., State v. Treesh, 90 Ohio St.3d 460, 472, 739 N.E.2d 729 (2001) (holding that

partial rewarning was sufficient in light of the arresting officer's earlier warning that

had occurred just two hours before). Thus, even if this court were inclined to engage



                                           14
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS


in such an analysis, without a bright-line rule that would have clearly demonstrated

an obvious defect, we could not have concluded that the failure to sua sponte grant a

motion to suppress based on grounds that had not been argued rose to plain error.

         {¶31}   We overrule Walker’s first assignment of error.

                             Tier III Offender Classification

         {¶32}   In his second assignment of error, Walker claims that he was

improperly classified as a Tier III sex offender. The state concedes that Walker

should have been classified as a Tier II sex offender. We agree.

         {¶33}   As a juvenile, Walker had been classified as a Tier I offender for a

previous incident of gross sexual imposition. However, at the hearing below, the

trial court concluded that the juvenile court had not had the authority to classify

Walker as a Tier I offender. As a result, the trial court determined that Walker had

actually been a Tier II offender. Thus, the trial court classified Walker as a Tier III

offender in this case.

         {¶34}   This court has previously held that the juvenile court has discretion to

classify juvenile offenders, like Walker, who commit gross sexual imposition as Tier I

offenders. See In re A.C., 182 Ohio App.3d 237, 2009-Ohio-2567, 912 N.E.2d 182, ¶

13. Therefore, the trial court should have classified Walker as a Tier II offender in

this case. See R.C. 2950.01(F)(1)(j). We sustain Walker’s second assignment of

error.

                                 Assistance of Counsel

         {¶35}   In his third assignment of error, Walker claims that counsel was

ineffective to the extent that counsel failed to properly preserve the record below to

allow for appellate counsel to fully argue the first two assignments of error. He first

argues that trial counsel was deficient for failing to argue that the waiver was not


                                            15
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS


knowing or intelligent, having raised only the issue of voluntariness. But, as the state

concedes, it did not believe that the motion to suppress “was in any way insufficient

to preserve the issues raised in his first assignment of error. The trial court clearly

considered whether Walker’s waiver of his Miranda rights was done knowingly,

intelligently, and voluntarily.” We agree with this analysis, and have considered

whether Walker’s mental capacity rendered his waiver unknowing, unintelligent, or

involuntary within the context of his first assignment of error.

         {¶36}   We also conclude that the record below was sufficient for counsel to

raise the issue of his improper classification, an error which the state concedes. Thus

we have considered this argument within the context of the second assignment of

error.

         {¶37}   Since we have addressed the substance of the arguments in both

assignments of error, trial counsel was not ineffective for failing to preserve them for

our review. We overrule Walker’s third assignment of error.

                                      Conclusion

         {¶38}   The portion of the trial court’s judgment classifying Walker as a Tier

III sex offender is reversed, and this cause is remanded to the trial court with

instructions to classify Walker as a Tier II sex offender, after providing him with the

appropriate notifications relevant to that classification. The trial court’s judgment is

affirmed in all other aspects.

                     Judgment affirmed in part, reversed in part, and cause remanded.

CUNNINGHAM, J., concurs.
ZAYAS, J., dissents.

ZAYAS, J., dissenting.


         {¶39} I concur with the majority’s conclusion that Walker’s waiver of his


                                           16
                        O HIO F IRST D ISTRICT C OURT OF A PPEALS


Miranda rights was voluntary.             However, based on this record, the evidence

overwhelmingly demonstrates that Walker did not have the intellectual capacity to

understand or appreciate the significance of his Miranda rights, and the trial court

arbitrarily ignored the experts’ testimony. I therefore respectfully dissent.

                                       The Expert Reports

         {¶40} The trial court appointed two Court Clinic Forensic Services experts to

evaluate Walker. Dr. Dreyer was appointed at the request of the defense, and Dr.

Hellmann was appointed at the request of the state. The state stipulated to the

experts’ qualifications.

         {¶41} Dreyer described Walker as an immature, simplistic person who is

often very childlike. Hellmann stated that he appears to have microcephaly, and his

cognitive disorder has caused communication deficits, limited vocabulary, and an

inability to understand abstract ideas.

         {¶42} Walker has a history of learning disabilities, special education classes,

participation in Individualized Education Programs, and difficulty reading. He has

long been involved with mental-health services at The Children’s Home, Altercrest,

St. Joseph’s Orphanage, Mental Health Access Point, Summit Behavioral Healthcare

(“SBH”), and Cincinnati Children’s Hospital Medical Center.                   His numerous

diagnoses     include     psychosis,    major-depressive    disorder,    disruptive-behavior

disorder, mild or moderate mental retardation, mixed-expressive-receptive-language

disorder,    oppositional-defiant       disorder,   impulse-control     disorder,   attention-

deficit/hyperactivity disorder, and kleptomania. He is also a victim of child sexual

abuse.

         {¶43} In addition to her evaluation of Walker’s ability to understand his

Miranda rights, Dreyer had evaluated Walker several times in the past four years,


                                               17
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS


administering various tests to gauge his intellectual and cognitive abilities.      In

previous evaluations, Walker completed the “Test of Memory Malingering” to

determine if he were feigning or exaggerating his memory problems.           In that

evaluation, Walker’s score was consistent with individuals with brain injuries,

aphasias, dementia, and other types of cognitive impairments, and inconsistent with

an individual who was feigning or exaggerating his memory deficits.

       {¶44} Under the Weschler Adult Intelligence Scale, Walker’s full scale IQ was

59, placing him in the first percentile. He scored in the first percentile for verbal

comprehension, the second percentile for perceptual reasoning, the first percentile

for working memory, and the first percentile for processing speed.       The scores

indicated that his verbal reasoning, perceptual reasoning, and ability to use

information, concentrate, and process information are in the extremely low range.

       {¶45} Dreyer also administered the “Wide Range Achievement Test” to

assess his academic abilities. Walker’s score on the word reading subtest was below

the first percentile, as was his score on the sentence comprehension subtest and his

reading composite score. He scored in the fourth percentile for spelling and the

second percentile for math.

       {¶46} Both experts administered the “Miranda Rights Comprehension

Testing,” (“MCRI”) to determine Walker’s capacity to understand and waive his

rights. The MCRI is a set of four instruments designed to assist in the determination

of a defendant’s capacity to understand and appreciate the significance of his or her

Miranda rights. Both experts noted that the MCRI tests are objective, standardized

tests with no subjective component to their scoring.

       {¶47} The “Comprehension of Miranda Rights-II” assesses an examinee’s

understanding of the basic meaning of each of the five Miranda warnings. Each



                                         18
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


warning is presented individually, and examinees are asked to explain the meaning

of each warning in their own words. Walker scored 2 out of 10 both times he was

tested, which is just below the third percentile and indicates significant deficits in

understanding Miranda rights.

       {¶48} The “Comprehension of Miranda Rights-Recognition-II” assesses an

examinee’s Miranda understanding, omitting the role of verbal expressive abilities in

the assessment. Each warning is presented, and after each, the examinee is read

other statements and must recognize whether each statement has the same meaning

as the Miranda warning. When Dreyer tested Walker, he answered 10 out of 15

correctly, which is just below the fifth percentile, indicating an impaired ability to

understand the warnings. He scored 8 out of 15 when Hellmann tested him.

       {¶49} The “Function of Rights in Interrogation” test is a structured interview

with visual stimuli, designed to assess an examinee’s understanding of the nature of

interrogation, the significance of the right to counsel, and the significance of the right

to silence.   Examinees are presented with illustrations accompanied by a brief

scenario and related questions. When Dreyer administered the test, Walker’s overall

score was 14 out of 30, which is at the first percentile, indicating a significant

impairment in the ability to understand his rights. Walker’s score on the nature of

interrogation was an 8 of 10, just below the twenty-second percentile, indicating a

general understanding of interrogation. However, on the right to counsel subscale,

Walker scored 4 out of 10, in the first percentile, indicating deficits in his

understanding of the function of legal counsel. On the right to silence subscale,

which tests an individual’s understanding of the protections of the warning and the

role of a confession, Walker scored 2 out of 10, at the second percentile. When

Hellmann tested him, Walker’s overall score was 19 out of 30, which is in the fifth



                                           19
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS


percentile. Again, Walker scored better on the nature of interrogation subpart, but

performed poorly regarding the function of legal counsel, the protections related to

the right to remain silent, and the role of confessions.

       {¶50} Finally,      Walker   completed    the   “Comprehension        of   Miranda

Vocabulary-II,” designed to measure his understanding of the vocabulary associated

with Miranda rights. When Dreyer tested him, Walker obtained a score of 5 out of

32, which is at the second percentile, indicating significant difficulties understanding

basic Miranda terms. When Hellmann tested him, he scored 14 out of 32, which is

in the fifth percentile.

       {¶51} Both reports discussed Walker’s tendency to acquiesce to the police

during the interrogation. As Hellmann’s report summarized:

        The defendant had a tendency to acquiesce to detectives during the

       questioning, resulting in him providing many confusing and

       conflicting statements. His friendly bantering and chuckling during

       portions of the interview suggest that he was not cognizant of the

       adversarial nature of the roles of the detectives during questioning,

       and was not adequately concerned with the perils and consequences of

       disclosure during the interview. * * * Rather, he seemed to have been

       more concerned with making sure he did not miss lunch.

       {¶52} Dreyer reached a similar conclusion:

       A review of the defendant’s interrogation with police suggests that the

       defendant may have been trying to be compliant with police.

                                          ***

       [The]     pattern    of   acquiescence    [in       intellectually   disabled

       individuals] * * * may lead to problems in a police interrogation.



                                           20
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

       Specifically, it often leads to defendants responding affirmatively to

       questions, regardless of their context or nature, as a means to avoid

       conflict with authority.

       It is noted that [Walker] appears to have lacked the appropriate

       understanding and appreciation of his Miranda rights at the time of

       his interrogation.   Further, his personality characteristics, coupled

       with his intellectual limitations, appear to have interacted with the

       police interrogation efforts and contributed to his confession.

       {¶53} Both experts agreed to a reasonable degree of psychological certainty

that Walker did not have the intellectual capacity to waive his Miranda rights

because he lacked the ability to understand his rights and to appreciate the

consequences of waiving those rights. Dreyer further opined that Walker had little

understanding of the negative consequences of speaking with the police and believed

police officers were there to help him if he provided them information.


                                  Walker’s Interrogation

       {¶54} In addition to extensively testing Walker, both experts reviewed and

considered the audio of the interrogation.       Two detectives interviewed Walker:

Detective Iris Kelly, who administered the warnings, and Detective Kimberly Kelley.

Kelly did not testify at the hearing on the motion to suppress, but Kelley did.

       {¶55} After Kelly read Walker the Miranda warnings, she asked Walker to

explain what they meant. He responded, “I don’t know.” Then Kelly gave Walker the

following additional explanation: “That means that you can talk to us without a

lawyer, or you can talk to us with a lawyer. Okay? That means that if you want, if you

want to stop talking to us, you can stop at any time. Okay? Do you understand that?”

Walker stated, “Yes ma’am,” and then signed the acknowledgement form.


                                           21
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

                                The Expert Testimony

       {¶56} Both experts unequivocally testified that Walker did not have the

intellectual capacity to understand his rights or appreciate the consequences of

waiving his rights.     Through rigorous cross-examination, the state attempted to

undermine the experts’ opinions. The state tried to show a discrepancy between the

opinion that Walker was competent to stand trial one month prior to the

interrogation and the opinion that he was not competent to understand the Miranda

warnings four months after the interrogation. However, both experts repeatedly

testified that competency to stand trial is distinct from competency to understand

Miranda rights, and that one can be competent to stand trial without being

competent to understand and waive Miranda rights, and Dreyer testified that the

timing of the evaluations was not an issue. Dreyer also explained that the length of

time between the interrogation and the Miranda testing was not relevant, because

Walker’s cognitive functioning and mental retardation were unlikely to change over

time. There is no evidence to contradict the experts’ opinions on this matter.

       {¶57} The prosecutor specifically discussed Walker’s ability to understand

the courtroom proceedings, the roles of the judge, prosecutor, and defense counsel,

the charges, and the available pleas, and suggested those factors undermined the

experts’ conclusions.      However, both experts repeatedly testified that the

determination of competency to stand trial assesses different criteria than the ability

to understand Miranda warnings, and Dreyer reiterated that Walker’s competency to

stand trial had no effect on “the fact that he didn’t understand fundamental rights

because he doesn’t understand the rights related to the interrogation or the Miranda

warnings.”

       {¶58} In response to the prosecutor’s suggestion that Walker’s ability to

correct the officers and not simply endorse the officer’s statements were relevant

                                          22
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS


factors, Dreyer again testified they were not relevant to the Miranda inquiry. The

only relevant issue was whether Walker had the capacity to understand his rights and

the consequences of waiving those rights, and Walker did not.

       {¶59} Additionally, both experts noted in their reports and in their testimony

that, while the officers behaved appropriately during the interrogation, Walker’s

behavior indicated a willingness to acquiesce to the officers and a failure to

understand the gravity of the circumstances.      The state did not introduce any

evidence to contradict their conclusions.

                             The Layperson Testimony

       {¶60} The sole witness for the state was Detective Kelley, who participated in

the interrogation and was present when Kelly read Walker his rights.          Kelley

acknowledged that she was aware that Walker had been designated possibly mildly

mentally retarded, and that both detectives were on notice that Walker was slow and

previously had been found incompetent to stand trial.

       {¶61} Kelley testified that she did not know whether Kelly had previously

interrogated Walker, but that she had Mirandized and interrogated Walker in 2013.

However, Kelley did not testify that Walker had waived his rights or signed a written

waiver before making those statements. And, in the 2013 case, Walker was found

incompetent to stand trial several times and went through a lengthy restoration

period. It is unclear from the record whether Kelley interrogated him before or after

he was found competent to stand trial. Equally important, Walker did not challenge

whether his Miranda waiver was knowing and intelligent in that case.

       {¶62} Kelley also stated that she was familiar with Walker’s criminal history.

The state introduced the records of Walker’s adult criminal history, and she

confirmed his history. However, the state elicited no testimony from her regarding


                                            23
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


his prior criminal history.

       {¶63} Finally, Kelley initially testified that she “tried to use simple language”

when speaking to Walker, but later conceded that she used the same words with

Walker that she would use with anyone else. Kelley also testified that it appeared to

her that Walker understood his rights and their questions during the interrogation.

However, Dreyer specifically testified that she did not agree with Kelley’s opinion.

And both experts concluded, after objective testing, that Walker did not understand

his Miranda warnings. The state did not offer any evidence to refute Dreyer’s expert

opinion or the experts’ objective test results.      Additionally, the state did not

introduce any evidence to support Kelley’s subjective, lay opinion.

                                 Standard of Review


       {¶64} Appellate        review    of     a     trial    court’s     ruling     on

a motion to suppress presents a mixed question of law and fact. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. An appellate court accepts the trial

court’s findings of fact if they are supported by competent and credible evidence, but

must review de novo the application of the relevant law to those facts. Id.


            The Trial Court Impermissibly Ignored the Expert Testimony


       {¶65} The majority states that expert testimony may be disregarded “if there

are ‘some reasons * * * objectively present’ in the record to do so.” Brown, 5 Ohio

St.3d 133 at 135, 449 N.E.2d 449; White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885

N.E.2d 905, at ¶ 71. However, the question is whether the objective reasons are

grounded in the evidence and sufficient to undermine and discredit the testimony of

the qualified experts. See White at ¶ 70. The trial court may not disregard credible

and uncontradicted expert opinions in favor of the perceptions of lay persons or the


                                          24
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

court’s own expectations. Id. at ¶ 74. Other courts have concluded that

       [i]n assessing the factfinder's decision to disregard the experts’ opinion, a

       reviewing court should consider:

       (1) the correctness or adequacy of the factual assumptions on which the

          expert opinion is based;

       (2) possible bias in the expert’s appraisal of the defendant's condition;

       (3) inconsistencies in the expert's testimony, or material variations between

          experts; and

       (4) the relevance and strength of the contrary lay witness testimony.

(Footnotes omitted.) Strickland v. Francis, 738 F2d. 1542, 1552 (11th Cir.1984),

citing Brock v. United States, 387 F.2d 254, 257-258, (5th Cir.1967), quoting Mims v.

United States, 375 F.2d 135, 143, (5th Cir.1967) (Footnotes omitted.) See White at ¶

85 (holding that the trial court abused its discretion “by rejecting well-supported

expert opinion [ ] without any evidence to the contrary”).

       1. The correctness and adequacy of the facts upon which the
          doctors relied

       {¶66} Both experts examined and tested Walker extensively and reviewed his

past history, including his previous criminal history. Both concluded, to a reasonable

degree of medical certainty, that Walker was mildly mentally retarded and did not

have the intellectual capacity to knowingly understand or waive his Miranda rights.

Both doctors administered the MCRI, an objective, standardized test, to conclude

that Walker lacked the ability to understand or appreciate the Miranda warnings.

Notably, their conclusions were based on objective testing and not based on Walker’s

subjective statements or descriptions of his mental capacity.

       {¶67} Both experts also reviewed the audiotape of the interrogation and

noted that after Kelly read him all of his rights, Walker was asked to explain the



                                          25
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS


meaning of his rights. When Walker responded that he did not know, Kelly gave an

additional explanation that was very limited. Walker was only informed of his right

to have an attorney present while speaking to the officers, and his right to stop

talking to them whenever he wanted. This explanation did not inform him of his

right to remain silent—that is, to not talk at all—nor did it include two other required

components of the Miranda warnings: (1) that anything he said could be used

against him; and (2) that a lawyer would be appointed if he could not afford one.

Dreyer concluded that this exchange was too limited to establish that Walker

understood the information Kelly had read to him.

       {¶68} The state presented no reason to disregard the testimony of the experts

which was based on objective testing and Walker’s well-documented history and

deficiencies. The state presented no evidence that the reports lacked an adequate

factual basis or that the doctors made inaccurate assumptions. Therefore, this factor

weighs against the trial court’s decision to disregard the experts’ opinions.


   2. Possible bias in the experts’ appraisals

       {¶69} Both experts were appointed by the trial court and were employees of

the Court Clinic Forensic Services. As Court Clinic employees, their psychiatric

examinations were ordered by the court specifically to assist the court in making a

proper determination.      Both experts were qualified and competent to render

professional opinions, and nothing in the record suggests any bias.             The state

stipulated that both experts were qualified, and the trial court did not make any

findings challenging the experts’ qualifications or competency.        This factor also

weighs against the court’s decision to ignore the experts’ findings and conclusions.




                                           26
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

   3. Inconsistencies in the expert's testimony, or material variations
      between experts

       {¶70} The only expert testimony in this case was by the two appointed

experts who agreed to a reasonable degree of medical certainty that Walker was

intellectually incapable of understanding his Miranda rights.       Both submitted

detailed reports supporting their conclusions, discussed their findings and

conclusions, and unequivocally testified that Walker was not capable of a making

knowing and intelligent waiver of his Miranda rights.

       {¶71} As previously noted, the state unsuccessfully attempted to suggest

inconsistencies through cross-examination.         However, both experts remained

confident in their opinions and conclusions, and the state did not reveal any

inconsistencies within the reports or between the experts.

       {¶72} The state presented no conflicting testimony to undermine the experts’

opinions. This is not a case where the trial court heard dueling experts dispute the

findings of Dreyer and Hellmann or contradict their conclusions that Walker’s

intellectual limitations prevented him from understanding the Miranda rights and

the consequences of waiving his Miranda rights.          The only expert testimony

presented concluded that Walker was intellectually incapable of knowingly and

intelligently waiving his Miranda rights. This factor also does not support the trial

court’s disregard of the experts’ opinions.


   4. Relevance and strength of the contrary lay witness testimony

       {¶73} Kelley’s testimony was insufficient to undermine the experts’

uncontroverted opinions that Walker did not knowingly or intelligently waive his

Miranda rights. Most of her testimony was a recitation of the historical facts based

on the interrogation and her knowledge of Walker, and was irrelevant to whether

Walker knowingly waived his rights. Although she testified that she believed Walker

                                              27
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS

understood his rights and all of the questions he was asked during the interrogation,

her subjective opinion was refuted by Dreyer’s expert testimony, the experts’

objective testing, and the experts’ opinions based on the audiotape of the

interrogation.


       This Record Contains no Reason to Disregard the Experts’ Opinions


       {¶74} This record is devoid of any objective reasons to support the trial

court’s decision to disregard the experts’ reports and testimony. The record lacks

any testimony that would allow the court to disregard the experts’ opinions, and

none of the factors that would justify ignoring the experts are present. The experts’

reports and testimony were not challenged or contradicted by the state or the court.

       {¶75} The trial court gave no explanation as to how the court evaluated the

experts’ opinions or why those opinions were completely disregarded. The court

made no findings that the experts lacked credentials or credibility. The judge’s

failure to make any reference to the reports or any findings based on objective

evidence to disregard the experts’ opinions, suggests the court substituted its own

subjective judgment in making its determination.        Therefore, the trial court’s

decision to ignore the expert opinions of two court-appointed experts and their

objective test results and substitute its own judgment was arbitrary and not

supported by any objective evidence in the record. See White, 118 Ohio St.3d 12,

2008-Ohio-1623, 885 N.E.2d 905, at ¶ 74.


            The Trial Court Findings were not Supported by the Record


       {¶76} Several of the trial court’s findings of fact are not supported by any

evidence. The trial court stated that Walker was “cunning enough to minimize his

criminal record,” but there is no objective evidence in the record to support this


                                         28
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS

finding of fact. Objective testing demonstrated that Walker had memory issues

consistent with cognitive impairments, and inconsistent with deliberate malingering.

Both experts agreed that Walker was a poor historian. Neither indicated that his

minimization of his criminal history was deliberate, and there was absolutely no

evidence in the record indicating that Walker was “cunning.” In fact, a review of the

interrogation and expert reports gives the opposite impression.

        {¶77} Furthermore, while the trial court noted that Walker “remembers that

the police told him he did not have to sign the Miranda waiver,” a review of the

interview reveals that the officers never told him that he did not have to sign the

waiver. Walker’s false memory further supports the experts’ opinion that Walker is a

poor historian who was not deliberately minimizing his criminal record.

        {¶78} The trial court also stated that Walker was “not medicated” and only

using “sleep medication.” However, the record demonstrates that Walker told the

officers he was taking Risperdal, an antipsychotic, and Dr. Hellmann’s report

confirmed this.

        {¶79} While the trial court correctly noted that Walker had been deemed

ineligible for Developmental Disabilities Services (“DDS”) years earlier, the state

presented no evidence, and the court made no finding, regarding the relevance of

that fact. The record contains no evidence that the denial of services years earlier

affected Walker’s ability to understand his Miranda rights in 2014. And Dreyer

testified that Walker’s ineligibility was based on old assessments made when Walker

was much younger, and that DDS had repeatedly refused to reassess him. Moreover,

Dr. Dreyer disagreed with DDS’s assessment after looking at their testing, and both

experts concluded Walker was incapable of understanding his rights despite the DDS

ineligibility.

        {¶80} Many of the trial court’s findings were discounted by the experts or

                                         29
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

were not relevant to the question of whether the waiver was knowing and intelligent.

The trial court found that Walker was able to tell the doctors mostly accurate

information about the police interrogation, yet both experts explained that Walker’s

limited memory of the interrogation was inconsequential to his ability to understand

the Miranda warnings. The trial court found that the officers were gentle during the

interrogation, yet Dreyer testified that the gentleness of the officers had no impact on

the fact that Walker did not understand his fundamental rights.

       {¶81} The trial court’s belief that the competency findings supported a

conclusion that Walker knowingly and intelligently waived his Miranda rights was

repudiated by both experts numerous times. Absent any evidence by the state to

contradict the experts, the trial court’s finding was not supported by the record. The

court was also persuaded by the fact that the competency report was completed one

month before the interrogation and the Miranda competency evaluations were done

four months after the interrogation. Again, both experts testified that the timing of

the Miranda evaluation was irrelevant to their conclusions that Walker did not have

the intellectual capacity to understand his rights. Thus, the trial court's findings on

these issues do not comport with the evidence in the record, and improperly

discounted the experts’ opinions.

       {¶82} The trial court found that Walker had an extensive criminal history.

Walker had been charged with at least 28 juvenile offenses, had been adjudicated

delinquent in nine cases, found to be unruly in one case, and had been found

incompetent to stand trial in several cases. Of the nine adjudications, Walker did not

raise the issue of incompetence in any of those cases, admitted to eight of the

charges, and was represented by counsel in one of those cases. The criminal history

is accurate, but it is unclear how that fact pertains to Walker’s intellectual capacity to

waive his Miranda rights.

                                           30
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

          {¶83} The state presented no testimony tying Walker’s prior criminal history

to his ability to understand his rights, and the trial court made no finding as to why

his prior criminal history supported its conclusion that the waiver was knowing and

intelligent. Regardless, both experts were aware of Walker’s prior criminal history

and still concluded to a reasonable degree of psychological certainty that he did not

have the intellectual capacity to knowingly and intelligently waive his Miranda

rights.


                               Waiver of Miranda Rights


          {¶84} To determine whether a suspect knowingly, intelligently, and

voluntarily waived his Miranda rights, courts examine the totality of the

circumstances. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988). The

waiver inquiry has two dimensions: First, the relinquishment of the right must have

been voluntary in the sense that it was the product of a free and deliberate choice

rather than intimidation, coercion, or deception. Edwards v. Arizona, 415 U.S. 477,

482, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1981). Second, the waiver must have been made

with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. Id.

          {¶85} In this case, the record supports the trial court’s conclusion that

Walker’s waiver was voluntary.       The interview was not lengthy, and the police

officers did not intimidate, coerce, or deceive Walker. Thus, the sole issue is whether

Walker had the intellectual capacity to knowingly and intelligently waive his

Miranda rights.

          {¶86} A suspect’s waiver of his or her Miranda rights “must have been made

with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421,

                                           31
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS

106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); State v. Adams, 144 Ohio St.3d 429, 2015-

Ohio-3954, 45 N.E.3d 127, ¶ 44. If a suspect acts “in such a way as to reasonably

alert the interrogating officer that the warnings given have been misapprehended,

the officer must, before any further questioning, insure that the suspect fully

understands his constitutional privilege against self-incrimination * * *.” State v.

Jones, 37 Ohio St.2d 21, 306 N.E.2d 409 (1974), syllabus.

       {¶87} To intelligently and knowingly waive Miranda rights, one must, at the

very least, understand the words used in the warnings, what the rights encompass,

and the consequences of waiving those rights. State v. Lynn, 7th Dist. Belmont No.

11 BE 18, 2011-Ohio-6404, ¶ 22. “An individual’s low intellect does not necessarily

render him or her incapable of waiving Miranda rights.” Id. at ¶ 14, citing State v.

Jenkins, 15 Ohio St.3d 164, 233, 473 N.E.2d 264 (1984).

       {¶88} The state bears “a heavy burden” to demonstrate by a preponderance

of the evidence that the accused “knowingly and intelligently waived his privilege

against self-incrimination and his right to retained or appointed counsel” before

speaking to the police. State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d

365, ¶ 23, quoting Miranda, 384 U.S. at 475, 86 S.Ct. 1602, 16 L.Ed.2d 694. There

can be no presumption that the defendant understood the rights, nor can the burden

be placed on the defendant to show a lack of capacity. Tague v. Louisiana, 444 U.S.

469, 469-471, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980) (per curiam).


               Walker Did Not Receive a Complete Miranda Warning


       {¶89} The record establishes that Walker was not provided a full explanation

of his rights. When a suspect indicates that he or she does not understand, as Walker

did, the officer must “insure that the suspect fully understands his constitutional

privilege against self-incrimination.” Jones, 37 Ohio St.2d 21, 306 N.E.2d 409, at


                                         32
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS

syllabus. As both experts noted, the detective provided an incomplete explanation of

the Miranda rights after Walker indicated he did not understand his rights.

       {¶90} A condition precedent to waiving one’s Miranda rights is that all of the

Miranda warnings were provided. See Miranda, 384 U.S. at 479, 86 S.Ct. 1602, 16

L.Ed.2d 694 (explaining that “[a]fter such warnings have been given, and such

opportunity afforded him, the individual may knowingly and intelligently waive

these rights and agree to answer questions or make a statement. But unless and until

such warnings and waiver are demonstrated by the prosecution at trial, no evidence

obtained as a result of interrogation can be used against him.”); State v. Williams, 38

Ohio App.2d 67, 69, 313 N.E.2d 17 (1st Dist.1973) (concluding that the “failure to give

the required constitutional warnings results in a per se inadmissibility of inculpatory

statements made in response to custodial interrogation, regardless of the fact that

the statement may be truly voluntary”).

       {¶91} Even where a subset of the Miranda warnings are properly provided,

the remainder cannot be inferred due to other factors, such as the prior experience or

prior criminal history of the defendant, as this would completely undermine the

purpose and intent of the Miranda warnings. United States v. Street, 472 F.3d 1298

(11th Cir.2006) (holding that statements the defendant made to police after receiving

incomplete oral Miranda warnings should have been suppressed, and that the trial

court was wrong to imply that defendant’s 20 years of experience as a police officer

would mean he was not entitled to fully adequate warnings); United States v. Bland,

908 F.2d 471, 474, (9th Cir.1990), fn. 1 (“We likewise reject the government’s

suggestion that because Bland had prior experience with the criminal system, he

knew of his rights and did not have to be given a complete warning.”).

       {¶92} Without a complete explanation of all of his rights, Walker could not

have fully understood the consequences of abandoning his rights. While the majority

                                          33
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

is correct that Walker did not raise this issue below, the adequacy of the Miranda

warnings was a factor that both experts considered in determining that Walker’s

waiver was not knowing and intelligent. Moreover, the determination of whether a

waiver     is   knowing    and   intelligent    is   “made   upon    an   inquiry   into

the totality of the circumstances surrounding the interrogation,” including the

suspect's “age, experience, education, background, and intelligence” as well as

“capacity to understand the warnings given him, the nature of his Fifth Amendment

rights, and the consequences of waiving those rights.” Fare v. Michael C., 442 U.S.

707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). Thus, the adequacy of the warnings

given to Walker is a factor to be considered in determining whether the waiver was

knowing and intelligent.


                     The Motion to Suppress was Improperly Denied


         {¶93} In this case, the trial court erred when it arbitrarily discounted the

experts’ uncontroverted testimony that Walker did not have the intellectual capacity

to knowingly or intelligently waive his rights. The trial court failed to set forth any

basis supported by the evidence to reject the uncontroverted testimony of two

qualified experts.

         {¶94} The majority determined that the trial court was justified in rejecting

the expert opinions because Walker was competent to stand trial, understood the

courtroom proceedings, and could participate in his own defense. However, Dreyer

was specifically asked about those factors and repeatedly testified that those factors

were not relevant to Walker’s intellectual capacity to understand his Miranda rights.

Dreyer’s testimony, which was supported by Hellmann’s testimony, was unrefuted.

Therefore, the trial court’s reliance on these irrelevant factors was arbitrary,

especially in light of the objective testing conducted by the experts.


                                           34
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS

          {¶95} The majority also concludes that Walker’s ability to knowingly and

intelligently participate in the competency evaluations is “very similar” to the ability

to knowingly and intelligently waive Miranda rights. However, the trial court did not

make that finding, and the record does not support that finding.

          {¶96} Dreyer stated that Walker appeared to have an “adequate

understanding” of the information primarily because he had been given the same

information multiple times. Moreover, Hellmann, who evaluated Walker a scant ten

days after Dreyer, reported that she paraphrased the same information for Walker

using simple language to maximize his understanding. Despite her efforts, he was

unable to accurately summarize the information. She did not believe he understood

her explanations, and ultimately, Walker did not sign the document because he did

not understand it. Notably, the state presented no evidence to support a finding that

the ability to participate in a competency-to-stand-trial evaluation is similar to the

intellectual capacity to understand the Miranda rights. And neither expert testified

that Walker’s acknowledgement of the explanation of the court clinic rights and

procedures was in any way related to his ability to understand his Miranda rights.

          {¶97} The experts’ testimony, objective testing, and comprehensive reports

demonstrate that Walker’s waiver was not knowing or intelligent.           The limited

explanation of the Miranda rights compounded Walker’s inability to understand his

rights.    Both experts concluded, after objective testing, that Walker’s numerous

cognitive deficits prevented him from understanding the language of the Miranda

warnings and the consequences of waiving his rights, especially his right to remain

silent and his right to counsel. Dr. Dreyer testified that research has shown that the

right to remain silent is the most complicated concept for intellectually-disabled

individuals to understand, and this testimony was uncontroverted. Both experts also

agreed that Walker was likely acquiescing to the officer’s statements, and that he

                                          35
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

lacked a full appreciation of the adversarial nature of the interrogation.

       {¶98} Accordingly, I would hold that the trial court’s determination that

Walker’s waiver was knowing and intelligent is not supported by competent, credible

evidence, and therefore Walker’s motion to suppress should have been granted.

Based on the totality of circumstances, Walker did not have the intellectual capacity

to understand the Miranda rights or appreciate the significance of waiving those

rights. I therefore respectfully dissent.


                                      Conclusion
       {¶99} Because Walker’s waiver was not knowing or intelligent, I would

sustain the first assignment of error, vacate the conviction, and remand the cause for

further proceedings. I would find the remaining assignments of error to be moot.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                            36
