[Cite as State v. Brunson, 2016-Ohio-8519.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellant,          :
                                                       CASE NO. 2016-P-0004
        - vs -                                 :

RYAN A. BRUNSON,                               :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
00456.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

Joseph F. Gorman, Gorman, Malarcik, Pierce, Vuillemin & Locascio, The Gothic
Building, 54 East Mill Street, Suite 400, Akron, OH 44308 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     The state of Ohio appeals from the judgment of the Portage County Court

of Common Pleas, granting Ryan A. Brunson’s (“appellee”) motion to suppress in a

case of alleged sexual assault. We reverse the trial court’s judgment and remand the

matter for further proceedings.

        {¶2}     On June 30, 2015, appellee was indicted by the Portage County Grand

Jury on two counts of rape, in violation of R.C. 2907.02(A)(2), felonies of the first
degree, and two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(1),

felonies of the fourth degree. Appellee entered pleas of not guilty to all charges and

later moved to suppress any and all statements and evidence resulting from his

interrogation by police.

       {¶3}   A suppression hearing was held on November 6, 2016. Testifying for the

state were Ed Samec, Chief of the Hiram Police; Officer Hoyle West, formerly of the

Hiram Police; and Steve Chapman, Director of Campus Safety at Hiram College. Chief

Samec had interrogated appellee on March 23, 2015, and obtained a written statement.

Mr. Chapman questioned appellee again on March 25, 2015, and obtained a further

written statement. A DVD of the interrogation of appellee by Chief Samec was entered

into evidence for the trial court to review in chambers.

       {¶4}   On December 31, 2015, the trial court filed its judgment entry, granting the

motion to suppress. The trial court found the March 23, 2015 interrogation by Chief

Samec had been custodial, and that appellee was not properly Mirandized. It further

found that Mr. Chapman was acting as an agent of the police when he spoke with

appellee and obtained his statement March 25, 2015. On January 6, 2016, the state

noticed this appeal, having certified pursuant to Crim.R. 12(K) and R.C. 2945.67(A) that,

as a result of the granting of the suppression motion, its case was too weak to

prosecute.

       {¶5}   “‘An appellate court’s review of a motion to suppress presents a mixed

question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332, * * *. In

reviewing the trial court's findings of fact, an appellate court must give due weight to

inferences drawn from those facts by the trial court because the trial court is in the best




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position to resolve questions of fact and evaluate the credibility of witnesses. State v.

Hopfer (1996), 112 Ohio App.3d 521, 548, * * * appeal not allowed (1996), 77 Ohio St.

3d 1488, * * *. Accordingly, an appellate court reviews a trial court’s findings of fact only

for clear error. State v. Russell (1998), 127 Ohio App.3d 414, 416, * * *. A trial court’s

legal conclusions, however, are reviewed by an appellate court de novo. Id. at 416.’

State v. Yeager, 9th Dist. Summit Nos. 21091, 21112, 21120, 2003-Ohio-1808, ¶5.”

(Parallel citations omitted.) State v. Guzzi, 11th Dist. Lake No. 2014-L-101, 2015-Ohio-

4426, ¶16.

       {¶6}    The following relevant facts are taken from the transcript of the

suppression hearing, and the DVD of the interrogation.

       {¶7}    At the suppression hearing, Officer West testified he was the road officer

for the Hiram Police Department on the evening of March 23, 2015, when he received a

report of a sexual assault at East Dormitory, Hiram College. After speaking with the

alleged victims, Officer West identified appellee as the suspect. Officer West testified

he contacted Chief Samec to interview appellee. On direct examination, Officer West

testified he did not know how appellee arrived at the police station, but that he came

voluntarily.

       {¶8}    On cross examination, Officer West admitted he could not find appellee

initially, and had the latter’s roommate contact him at the room of another student.

Under repeated questioning by defense counsel, Officer West denied vehemently that

he actually drove appellee to the police station that night.

       {¶9}    Chief Samec personally conducted the interrogation of appellee in the

squad room of the Hiram Police Department. He conducted the interrogation in full




                                             3
uniform, and gun belt. Chief Samec admitted he did not know how appellee arrived at

the station, or whether Officer West had previously handcuffed him. The squad room

has a camera to record interviews, which is activated by movement. Nevertheless,

Chief Samec had to admit that about one-half of the interrogation of appellee was

unrecorded. Chief Samec testified he discussed the department’s waiver-of-Miranda-

rights form with appellee 10 to 15 minutes into the interrogation, and that appellee

signed it. The form is in evidence. This discussion of the form and its signature are not

contained on the DVD of the interview, even though the time noted on the form by Chief

Samec was within the recorded portion of the interrogation. Chief Samec admitted

Steve Chapman entered the squad room following the interview.           He agreed with

defense counsel that Mr. Chapman may have congratulated the chief on his

interrogation techniques.    He denied recollecting whether he and Mr. Chapman

discussed further proceedings which the state and/or the college might take against

appellee.

      {¶10} At the suppression hearing, Steve Chapman, the campus safety director,

testified he arrived at the police station about a quarter of the way through Chief

Samec’s interrogation of appellee, and that he watched the interrogation on a monitor

outside the squad room. He testified he only entered the squad room to issue appellee

a no contact order from the college at the end of the interview. He denied recollecting

congratulating the chief on the interrogation. He denied discussing with the chief what

further proceedings the state and the college would be taking against appellee. He

admitted he did not Mirandize appellee when interviewing him March 25, 2015, and




                                           4
obtaining his statement for the college. He admitted being an auxiliary Hiram police

officer, but denied he acted in that capacity during the investigation of appellee.

       {¶11} In its judgment entry granting the suppression motion, the trial court made

the following observations regarding events depicted on the DVD of the interrogation. It

noted the discrepancy between the time the waiver of Miranda rights was allegedly

administered as revealed by the statement itself, and the fact that event should be on

the DVD, but is not. The trial court noted a strong police presence throughout the

interrogation, with Mr. Chapman walking in and out of the room several times. It noted

that Officer West on several occasions seated himself next to appellee, in what the trial

court found to be “a demonstration of police dominance, wherein a reasonable person

would not feel free to walk away.” It noted that Chief Samec and Mr. Chapman did

discuss further actions to be taken following the interrogation, and that Mr. Chapman did

congratulate the chief on his interrogation techniques.       It noted that Chief Samec

actually crossed out items written by appellee, and coached appellee on what to write.

       {¶12} On appeal, the state assigns three errors. We shall address the state’s

first two assignments of error together. They provide, respectively:

       {¶13} “[1.] As law enforcement advised Brunson of his Miranda rights before

conducting a non-custodial interview, the trial court erred in granting Brunson’s motion

to suppress on improper Miranda grounds.

       {¶14} “[2.] The trial court erred in granting Brunson’s motion to suppress

because under the totality of the circumstances, Brunson’s statements to law

enforcement were voluntary.”




                                             5
          {¶15} Under its first assignment of error, the state argues that a review of the

DVD reveals the interrogation of appellee was non-custodial, and that the Miranda-

waiver form proves appellee was properly advised of, and waived, his Miranda rights.

Under its second assignment of error, the state argues that any changes to the written

statement suggested or made by Chief Samec were trivial.

          {¶16} Only a custodial interrogation triggers the need for a Miranda-rights

warning. Berkemer v. McCarty, 468 U.S. 420 (1984).             The fact that a suspect is

interviewed at a police station does not, unto itself, require officers to issue Miranda

warnings. State v. Mason, 82 Ohio St.3d 147,153 (1998). Rather, the inquiry into

whether an interrogation was custodial requires a court to consider how a reasonable

person in the suspect’s position would have understood the situation. Berkemer, supra,

at 442. “The ultimate inquiry is simply whether there is a ‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” California v.

Beheler, 463 U.S. 1121, 1125 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495

(1977). In this case, we conclude appellee was not in custody during the interview.

          {¶17} First of all, we recognize that only part of the interview was preserved due

to an error in record keeping. Nevertheless, the flow and tone of the surviving portion of

the interview, which was approximately 45 minutes long, demonstrates appellee was

neither formally arrested nor subject to the restraints comparable to those of a formal

arrest.

          {¶18} Although the interview took place at the police department, amongst

uniformed officers, the environment and nature of the exchanges between appellee and

Chief Samec, the interviewing officer, was casual and conversational throughout. We




                                              6
recognize the transcript of the hearing indicates the Chief was in full uniform with his

gun belt. A review of the video demonstrates, however, that Chief Samec conducted

the interview in what appears to be plain clothes. The Chief’s attire, in conjunction with

the non-confrontational nature of the dialogue, fostered an atmosphere that was

reasonably relaxed.

      {¶19} Further, the interview took place in the department’s “squad room,” an

informal area where officers complete their paperwork. The door to the squad room

remained open throughout the interview. Appellee was left alone for lengthy periods of

time with the door open while he prepared his statement.            Appellee was never

handcuffed or arrested and neither the Chief nor any other officer expressed any

intention to arrest him. Indeed, at the end of the interview, Chief Samec simply stated

he may contact appellee again in the future.

      {¶20} Moreover, Chief Samec did not make any threats or promises to appellee

in order to obtain his cooperation.   Appellee arrived at the station voluntarily and was

never told he could not leave the interview. After reading appellee’s statement, the

Chief advised him he had some additional questions; he also advised appellee that “you

don’t have to answer any more questions.”          Appellee nevertheless continued to

voluntarily cooperate, answering the Chief’s questions to help clarify the statement.

      {¶21} Appellee notes that, in the course of asking additional questions relating to

the statement, that Chief Samec made changes to or edited appellee’s statement. The

trial court made a similar determination in its “conclusion[s] of law.” A review of this

portion of the interview, however, demonstrates the Chief made no such changes. The

Chief asked how long appellee penetrated the victim, to which appellee responded no




                                            7
longer than three seconds. He then questioned appellee’s written statement insofar as

it provided “I attempted to put my finger in [the victim’s] vagina.” The Chief questioned

appellee’s phraseology, i.e., whether appellee merely attempted the sexual act or

whether he succeeded. The Chief pointed out that, earlier in the interview, appellee

admitted to the act. Appellee, without argument, changed the written statement using

the word “proceeded,” in lieu of “attempted.”

       {¶22} Moreover, appellee, like the trial court, places emphasis on the fact that

Chief Samec and Mr. Chapman had a conversation, after appellee left the department,

about what might follow in the case. Mr. Chapman had served a no-contact order on

appellee and disclosed, to the Chief, expulsion proceedings would likely be initiated.

Chief Samec noted that he did not want the victim and other witnesses facing appellee

in a potential administrative proceeding until the criminal investigation was complete.

This conversation, viewed objectively, does not indicate the Hiram Police Department

was interested in utilizing the Director of Safety for the college as an instrument to aid in

the investigation. Rather, the Chief’s statement appears to reflect a concern for the

victim and preserving the integrity of the investigation.

       {¶23} Given the foregoing facts, we hold appellee voluntarily agreed to be

interviewed by the Hiram Police Department, relating to certain allegations against him,

in a non-custodial setting. And neither the location of the interview nor the heightened

police presence undermine this conclusion. As the United States Supreme Court has

aptly emphasized:

       {¶24} “[A] noncustodial situation is not converted to one in which Miranda
             applies simply because a * * * court concludes that, even in the
             absence of any formal arrest or restraint on freedom of movement,
             the questioning took place in a ‘coercive environment.’ Any



                                              8
               interview of one suspected of a crime by a police officer will have
               coercive aspects to it, simply by virtue of the fact that the police
               officer is part of a law enforcement system which may ultimately
               cause the suspect to be charged with a crime. But police officers
               are not required to administer Miranda warnings to everyone whom
               they question. Nor is the requirement of warnings to be imposed
               simply because the questioning takes place in the station house, or
               because the questioned person is one whom the police suspect.
               Miranda warnings are required only where there has been such a
               restriction on a person’s freedom as to render him ‘in custody.’ It
               was that sort of coercive environment to which Miranda by its terms
               was made applicable, and to which it is limited.” Mathiason, supra,
               at 495.

         {¶25} There was no such restriction on appellee’s freedom in this case. Thus,

even if the Miranda waiver in this case was flawed, suppression of appellant’s statement

was improper as a matter of law because the interview did not rise to the level of a

custodial interrogation.

         {¶26} The state’s first and second assignments of error have merit.

         {¶27} Appellant’s third assignment of error provides:

         {¶28} “The trial court erred in granting Brunson’s motion to suppress as no

constitutional violation occurred warranting an application of the derivative evidence

rule.”

         {¶29} Although our disposition of appellant’s first and second assignments of

error are dispositive of the instant appeal, we shall consider the state’s third assignment

of error as it could have some substantive import in the proceedings that follow this

appeal.

         {¶30} The trial court determined that Mr. Chapman was working in concert with

and as an agent of police when appellee gave his March 25, 2015 statement. The basis

for this conclusion appears to be Mr. Chapman’s presence and interaction with Chief




                                             9
Samec during the original interview. Because the trial court determined the original

interview involved a custodial interrogation during which appellee was not properly

Mirandized, the court ultimately suppressed the statement to Mr. Chapman as a “fruit of

the poisonous tree.”

       {¶31} Preliminarily, given our disposition of appellant’s first and second

assignments of error, the derivative evidence rule is clearly inapplicable to this case.

Moreover, Mr. Chapman’s interaction with Chief Samec after the original interview was

insufficient to render him an agent of the police.

       {¶32} Mr. Chapman testified he, as a campus safety director for a private

college, is not a law enforcement officer. He testified he has no arrest powers, is not

commissioned, and his duties include enforcing campus policy as well as addressing

“parking issues.” Even though Mr. Chapman is an auxiliary police officer for Hiram

Police Department, he testified he was not acting in that capacity at the time he took

appellee’s statement. He further testified that his duties as an auxiliary officer involve

security detail for community events and college football games.

       {¶33} Finally, although Mr. Chapman and Chief Samec briefly discussed

appellee’s interview after he left the station, there is nothing to suggest the Chief

solicited Mr. Chapman to obtain an additional statement for use in the criminal

investigation. Rather, Mr. Chapman requested appellee to give a statement relating to

a possible violation of campus policy regarding sexual misconduct. Appellee agreed;

arrived at Mr. Chapman’s office of his own volition; and provided a voluntary statement.

The record is devoid of any evidence that appellee was detained when he provided the

statement. The evidence demonstrates Mr. Chapman was acting in an independent




                                             10
capacity as the Director of Safety for Hiram College when he took appellee’s statement.

Accordingly, we hold the trial court erred in concluding Mr. Chapman was acting as an

agent for the state and, by implication, erred in concluding appellee’s statements during

this interview were inadmissible.

      {¶34} The state’s final assignment of error has merit.

      {¶35} The judgment of the Portage County Court of Common Pleas is reversed

and the matter is remanded for further proceedings.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                               _____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


      {¶36} I respectfully dissent.

      {¶37} In its judgment entry granting the suppression motion, the trial court made

the following observations regarding events depicted on the DVD of the interrogation. It

noted the discrepancy between the time the waiver of Miranda rights was allegedly

administered as revealed by the statement itself, and the fact that event should be on

the DVD, but is not. The trial court noted a strong police presence throughout the

interrogation, with Mr. Chapman walking in and out of the room several times. It noted

that Officer West on several occasions seated himself next to Mr. Brunson, in what the

trial court found to be “a demonstration of police dominance, wherein a reasonable

person would not feel free to walk away.” It noted that Chief Samec and Mr. Chapman




                                           11
did discuss further actions to be taken following the interrogation, and that Mr. Chapman

did congratulate the chief on his interrogation techniques. It noted that Chief Samec

actually crossed out items written by Mr. Brunson, and coached Mr. Brunson on what to

write.

         {¶38} “The requirement that police administer Miranda warnings is triggered only

when interrogations are custodial in nature. State v. Lynch, 98 Ohio St. 3d 514, 2003-

Ohio-2284,* * *, ¶47 (citation omitted).     Custodial interrogation means ‘questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.’ Miranda v. Arizona,

384 U.S. 436, 444, * * * (1966).

         {¶39} “In determining whether an individual is in custody for purposes of

Miranda, the court considers ‘the circumstances surrounding the interrogation’ and

whether, under those circumstances, ‘a reasonable person (would) have felt he or she

was not at liberty to terminate the interrogation and leave.’ Thompson v. Keohane, 516

U.S. 99, * * * (1995). A non-custodial interrogation becomes custodial when there is a

‘formal arrest or restraint on freedom of movement’ similar to that of a formal arrest.

California v. Beheler, 463 U.S. 1121, 1125, * * *, (1983) (citation omitted).          A

determination of whether an interrogation is custodial or non-custodial depends on the

objective circumstances of the interrogation, not the subjective views held by either the

officer or the person being questioned. Stansbury v. California, 511 U.S. 318, 323 * * *

(1994).” (Parallel citations omitted.) Guzzi, supra, at ¶17-18.




                                            12
      {¶40} In determining whether a person was in custody for the purposes of

Miranda, courts must consider the totality of the circumstances. In re J.S., 3rd Dist.

Marion No. 9-15-26, 2016-Ohio-255, ¶13.

      {¶41} This court has long held that at a hearing on a motion to suppress, the trial

court functions as the trier of fact and is in the best position to weigh the evidence by

resolving factual questions and evaluating the credibility of witnesses. On review, an

appellate court must accept the trial court’s findings of fact if they are supported by

some competent and credible evidence. State v. Frye, 11th Dist. Ashtabula No. 2007-

A-0023, 2007-Ohio-6941 ¶17-18 (internal citations omitted). The majority disregards

such precedent in its reversal of the trial court. Inasmuch as we must defer to the trial

court’s determination of the facts when reviewing suppression proceedings, and

considering the totality of the circumstances surrounding Mr. Brunson’s interrogation by

Chief Samec, this writer does not feel the trial court erred in determining both that the

interrogation was custodial, and that Mr. Brunson was not properly Mirandized.           In

arguing the interrogation was not custodial, and that Mr. Brunson properly waived his

Miranda rights, the majority looks at each item of evidence discretely and cherry picks

the facts as if they were the trial court, disregarding the standard set forth in Frye. The

state points out, and the majority adopts the position, that most of the changes made by

Chief Samec to the written statement were minor. But there were several. The state

ignores the discrepancies between the testimony the trial court heard at hearing, and

what appears on the DVD. Mr. Chapman testified he only entered the squad room at

the end of the interrogation. The DVD shows he entered several times. Both the chief

and Mr. Chapman could not recollect strategizing together about the further conduct of




                                            13
their investigations against Mr. Brunson. As the trial court noted, they clearly did have

such a discussion. The state ignores the fact that the signing of the waiver form should

appear on the DVD, according to the time written on it for its administration by the chief,

and does not.

       {¶42} In its brief, the state emphasizes the mere fact that a person is a suspect,

and is interrogated at a police station, does not establish that an interrogation was

custodial. This is an accurate statement of the law. State v. Tate, 7th Dist. Mahoning

No. 07 MA 130, 2008-Ohio-3245, ¶44, 47. However, these were not facts on which the

trial court particularly relied in this case. Rather, the trial court noted the strong police

presence in the squad room during the interrogation, and its conclusion that Mr.

Brunson was being physically and verbally dominated. These are circumstances which

may be considered in determining whether an interrogation was custodial. Id. at ¶51-

52. The trial court further found that nobody, under the totality of the circumstances

presented, would have felt free to leave. There is evidence presented by the DVD

supporting these findings, and we should, therefore accept them for purposes of

reviewing the suppression hearing per our standard of review.

       {¶43} I respectfully dissent.




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