[Cite as State v. Gomez, 2017-Ohio-8681.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :
                                                        CASE NO. CA2017-03-035
        Plaintiff-Appellee,                       :
                                                               OPINION
                                                  :            11/27/2017
   - vs -
                                                  :

MIGUEL LESTER GOMEZ,                              :

        Defendant-Appellant.                      :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CR2016-06-0792



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant-
appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Miguel Lester Gomez, appeals from the decision of the

Butler County Court of Common Pleas denying his motion to suppress. Gomez was

sentenced to serve eight years in prison after a jury found him guilty of one count of

endangering children. For the reasons outlined below, we affirm.

        {¶ 2} Gomez, who is originally from Guatemala, came to the United States when
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he was approximately 19 years old. Gomez is now 30 years old, having lived and worked

in the United States for over a decade. Being from Guatemala, Gomez's native language

is Kaqchikel, a language that was also referred to during the proceedings as K'iche' or

Qatzijob'al. Kaqchikel is a Mayan language spoken by the indigenous Kaqchikel people of

central Guatemala.

      {¶ 3} On July 6, 2016, the Butler County Grand Jury returned an indictment

charging Gomez with one count of endangering children in violation of R.C. 2919.22(B)(1),

a second-degree felony. The charge arose after Gomez admitted to Detectives Mark

Henson and Mark Nichols of the Hamilton Police Department to violently shaking his infant

daughter causing her to suffer multiple skull fractures, bleeding and swelling of the brain,

as well as several fractured ribs. Gomez's confession occurred during an interview the

detectives had with Gomez during the early morning hours of May 30, 2016. It is undisputed

that the detectives' questioning of Gomez and Gomez's subsequent confession were video

recorded. It is also undisputed that prior to this incident, Gomez had been in a four-year

relationship with the child's biological mother, S.O., during which Gomez communicated

with S.O. almost exclusively in Spanish. This communication included Gomez writing

letters and text messages to S.O. in Spanish.

      {¶ 4} On October 19, 2016, Gomez filed a motion to suppress the video recorded

confession he made to the detectives. In support of this motion, Gomez alleged he was

subject to a custodial interrogation by Detectives Henson and Nichols, during which he did

not knowingly, intelligently, and voluntarily waive his Miranda rights. On November 8, 2016,

the trial court held a hearing on Gomez's motion to suppress, wherein the trial court heard

testimony from Detective Henson, S.O., and the English-to-Spanish interpreter provided to

Gomez during the detectives' questioning.

      {¶ 5} At the hearing, Detective Henson testified that he was called to the station

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during the early morning hours of May 30, 2016 on reports that a child had suffered

significant injuries and had to be airlifted from Cincinnati Children's Liberty Campus located

in Liberty Township to one of Cincinnati Children's downtown Cincinnati campuses. After

arriving at the station, Detective Henson met with Detective Nichols and another officer who

informed him that "the parents [S.O. and Gomez] were willing to come into headquarters to

talk with us. So the parents drove themselves into headquarters."

       {¶ 6} Continuing, Detective Henson testified that once S.O. and Gomez arrived at

the station on their own volition, he and Detective Nichols spoke with S.O. first, followed by

S.O.'s two other children, ages seven and eight, respectively. After these interviews were

complete, Detectives Henson and Nichols spoke with Gomez with the assistance of an

English-to-Spanish interpreter. This interview began at approximately 2:30 a.m. Prior to

speaking with Gomez, the video recording indicates Detective Henson informed Gomez of

the following:

                 You are not under arrest. You are not in custody. I appreciate
                 that you have come here on your own. But you are in a building
                 that is locked. And because of that I want to make sure that you
                 understand that you can leave any time you want.

Detective Henson also testified that he told Gomez he "was free to leave at any time." The

video recording of the interview corroborates Detective Henson's testimony. Gomez was

then provided with a Miranda waiver card written in Spanish that Gomez signed after the

interpreter read it to him in Spanish.

       {¶ 7} After signing the Miranda waiver card, and upon confirming with Gomez that

he understood his rights, Detectives Henson and Nichols questioned Gomez about the

cause of his daughter's injuries, questioning that eventually led to Gomez confessing to

violently shaking his infant daughter for approximately one minute after he became

frustrated that the child would not stop crying. Gomez then twice demonstrated on a doll


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how he shook his daughter, once with the interpreter present in the room and once without,

causing the doll's head to forcefully swing back and forth. In attempting to explain his

actions, Gomez told the detectives, "I was angry – my head – I lost my head." According

to Detective Henson, when possible, Gomez responded to his questions in English and that

those responses were appropriate to the questions asked.

       {¶ 8} Following Detective Henson's testimony, S.O. testified she took her injured

daughter, as well as Gomez and her two other children, to the Cincinnati Children's Liberty

Campus during the late evening hours of May 29, 2016. Once there, S.O. testified she met

with a police officer who asked her if she, Gomez, and her other two children would be

willing to go to the Hamilton Police Department to answer a few questions about how her

daughter was injured. Concerned about leaving her car behind at the hospital, S.O. testified

that she drove to the station with Gomez and her two children while "one of the officers

followed us." S.O. then testified that neither she nor Gomez were ever told that they were

under arrest, only that they "were just going for questions."

       {¶ 9} Finally, the English-to-Spanish interpreter testified. The interpreter, a certified

interpreter with the Ohio Supreme Court, testified that she was asked by the Hamilton Police

Department to assist Detectives Henson and Nichols in interviewing Gomez during the early

morning hours of May 30, 2016. As part of these duties, the interpreter testified that she

read the Miranda waiver card (written in Spanish) to Gomez in Spanish. The interpreter

was then asked to translate the Miranda waiver card (written in Spanish) into English for

the trial court, which she did and testified as follows:

              It says, "I," and then the Defendant wrote his name, "have been
              informed of my rights as they are written in this card and I wish
              to answer the questions without the presence of a lawyer."
              Date, May 30th, 2016. Time 2:34 a.m. Witness and a signature.
              Warning.

              "I am a police officer. I am informing you that you have the right

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              to keep silence [sic]. Everything that you say can and it will be
              used against you in a court of law. You have the right to consult
              with a lawyer before and during any questioning, and to have a
              lawyer present while you're being questioned.

              "If you cannot afford to pay for a lawyer, one will be assigned
              without a cost to you before we proceed with any interrogation.
              During the interrogation, you can stop answering my questions,
              or the questions of any other officer, police officer, when you
              wish to do so.

              "Did you understand the rights as I have read them to you? After
              knowing your rights, do you wish to continue with me without the
              presence of a lawyer? * * * "

       {¶ 10} The interpreter was then asked if she recalled reading that specifically to

Gomez, to which the interpreter responded "Yes, I do." The interpreter also specifically

testified that she asked Gomez if he understood Spanish, to which he responded "yes."

The record indicates that Gomez never complained that he could not understand the

interpreter. In fact, just as Detective Henson had testified previously, the record indicates

Gomez would oftentimes answer the detectives' questions in English before the interpreter

had finished her Spanish translation.

       {¶ 11} In addition to the testimony from Detective Henson, S.O., and the interpreter,

as part of the evidence introduced by the state at the suppression hearing, the trial court

viewed the video recording of the May 30 interview of Gomez by Detectives Henson and

Nichols. The testimony elicited from Detective Henson and the interpreter present during

this interview is confirmed by the video recording, which this court has also viewed in its

entirety.

       {¶ 12} After both parties rested, the trial court issued its decision from the bench

denying Gomez's motion to suppress. In so holding, the trial court initially noted that Gomez

had executed a written waiver of his Miranda rights, which created a strong presumption

that his waiver was valid. The trial court then stated:


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              The Court has heard testimony today about the Defendant's
              ability to understand the Miranda rights as read to him. The
              Court notes that the Miranda rights were read to the Defendant
              in Spanish. And while the Defendant, there was testimony that
              the Defendant's first language is not Spanish or English, there
              was ample testimony that he speaks the Spanish language and
              some of the English language.

The trial court further stated:

              The Court notes that at no time during the interview that was
              conducted in Spanish and English did the Defendant indicate
              that he could not understand either the interpreter or the law
              enforcement officers. In fact, to the contrary, the Defendant
              would, when asked a question by the police officer, not hesitate
              to correct or clarify his answer even when it was contrary to the
              officer's question.

              The Court finds that the Defendant offered relevant and
              appropriate responses to the questions that were asked of him,
              and the Court knows that there were times when the Defendant
              answered in English the English question that was posed to him.
              And the Court also recollects the testimony of [the interpreter]
              where she indicated that sometimes the Defendant would
              answer in English before she had finished interpreting in
              Spanish.

              The Court finds that the interpreter took great lengths to make
              sure that the Defendant was able to understand what she was
              advising him. She stopped the interview to make sure that he
              understood what she [was] asking, and [the interpreter]
              indicated that when she could not understand the Defendant, it
              could be because of his accent, or because he was mumbling.

Concluding, the trial court again noted that the interpreter "directly asked the Defendant if

he understood her Spanish, and he said yes" and that "the Defendant affirmatively waived

his Miranda rights in writing after they were read to him in Spanish."

       {¶ 13} After denying Gomez's motion to suppress, the matter proceeded to a three-

day jury trial that ultimately concluded on January 11, 2017. Following deliberations, the

jury returned a verdict finding Gomez guilty as charged. Thereafter, on March 8, 2017, the

trial court sentenced Gomez to serve eight years in prison and imposed a mandatory period

of three years of postrelease control.

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        {¶ 14} Gomez now appeals from the trial court's decision denying his motion to

suppress, raising a single assignment of error for review.

        {¶ 15} THE TRIAL COURT ERRED IN OVERRULING MR. GOMEZ'S MOTION TO

SUPPRESS HIS STATEMENTS TO DETECTIVES WITH THE HAMILTON POLICE

DEPARTMENT.

        {¶ 16} In his single assignment of error, Gomez argues the trial court erred by

denying his motion to suppress. We disagree.

                                    Standard of Review

        {¶ 17} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-

4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position

to weigh the evidence in order to resolve factual questions and evaluate witness credibility.

State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. In turn, this

court is bound to accept the trial court's findings of fact if they are supported by competent,

credible evidence. State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447,

¶ 10.    "'Accepting these facts as true, the appellate court must then independently

determine, without deference to the conclusion of the trial court, whether the facts satisfy

the applicable legal standard.'" State v. Runyon, 12th Dist. Clermont No. CA2010-05-032,

2011-Ohio-263, ¶ 12, quoting Burnside.

                                  Custodial Interrogation

        {¶ 18} Gomez initially argues that he was subject to custodial interrogation, thereby

requiring the waiver of his Miranda rights to be knowingly, intelligently, and voluntarily made.

It is well-established that the "'prosecution may not use statements, whether exculpatory or

inculpatory, stemming from a custodial interrogation unless it demonstrates the use of

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procedural safeguards effective to secure the privilege against self-incrimination.'" State v.

Huysman, 12th Dist. Warren No. CA2005-09-107, 2006-Ohio-2245, ¶ 13, quoting Miranda

v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). As a result, this necessarily begs the

question of whether Gomez was, in fact, subject to a custodial interrogation. That is

because "the duty to advise a suspect of constitutional rights pursuant to Miranda is only

required when the police subject a person to custodial interrogation." State v. Byrne, 12th

Dist. Butler Nos. CA2007-11-268 and CA2007-11-269, 2008-Ohio-4311, ¶ 10, citing State

v. Biros, 78 Ohio St.3d 426, 440 (1997).

       {¶ 19} "Miranda defines custodial interrogation as any '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.'" State v. Vansickle, 12th Dist. Fayette No.

CA2013-03-005, 2014-Ohio-1324, ¶ 54, quoting State v. Matthews, 12th Dist. Butler No.

CA2012-09-175, 2013-Ohio-3482, ¶ 10. "Encompassed in this definition are two distinct

concepts: custody and interrogation." State v. Staley, 12th Dist. Madison No. CA99-08-

019, 2000 Ohio App. LEXIS 1939, *8 (May 8, 2000). In this case, however, it is undisputed

that Gomez was questioned by police regarding the significant injuries to his infant

daughter, thereby subjecting him to an interrogation by the police. See State v. Knuckles,

65 Ohio St.3d 494 (1992), paragraph two of the syllabus ("when a statement, question or

remark by a police officer is reasonably likely to elicit an incriminating response from a

suspect, it is an interrogation"). The relevant issue, therefore, is whether Gomez was in

custody at the time he was interrogated by the police.

       {¶ 20} In determining whether an individual was in custody during an interrogation

by the police, the court must examine the totality of the circumstances surrounding the

interrogation. State v. Robinson, 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶

12. As this court has stated previously, a person is in custody if he is formally placed under

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arrest prior to a police interrogation, or, if not formally arrested, when there is a significant

restraint on his freedom of movement. State v. Smith, 12th Dist. Fayette No. CA2006-08-

030, 2009-Ohio-197, ¶ 11. This determination "depends on the objective circumstances of

the interrogation, not on the subjective views harbored by either the interrogating officers or

the person being questioned." State v. Henry, 12th Dist. Preble No. CA2008-04-006, 2009-

Ohio-434, ¶ 13. Therefore, "[i]n judging whether an individual has been placed into custody

the test is whether, under the totality of the circumstances, a 'reasonable person would have

believed that he was not free to leave.'" State v. Gumm, 73 Ohio St.3d 413, 429 (1995),

quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870 (1980).

       {¶ 21} Gomez claims he was subject to a custodial interrogation by the police since

he was "escorted" to the police station by a police cruiser for questioning, where, upon his

arrival with S.O. and her two children, he was immediately separated from S.O. and placed

in a "small locked room for approximately an hour before his interrogation started."

However, while this may very well be true, Gomez conveniently ignores the fact that he

went to the station for questioning voluntarily and that Detective Henson specifically told

him prior to the start of the interview that he was not under arrest, that he was not in custody,

and that he could leave at any time he wanted. The record makes it clear that Gomez never

once asked to leave the interview in question after arriving at the police station voluntarily.

       {¶ 22} "[A] person is not in custody merely because he is questioned at the police

station or because he is considered a suspect." State v. Smith, 12th Dist. Fayette No.

CA2006-08-030, 2009-Ohio-197, ¶ 12. In fact, "[e]ven a clear statement from an officer that

the person under interrogation is a prime suspect, is not, in itself, dispositive of the custody

issue, for some suspects are free to come and go until the police decide to make an arrest."

Huysman, 2006-Ohio-2245 at ¶ 16, quoting Stansbury v. California, 511 U.S. 318, 324, 114

S.Ct. 1526 (1994). Moreover, the fact that a police cruiser followed S.O.'s car as she drove

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to the police station is of little significance considering it is well-established that a person is

not in custody even where "they are transported to the police station by a police officer."

Smith, 2009-Ohio-197 at ¶ 12, citing State v. Warren, 2d Dist. Montgomery No. 15202, 1996

Ohio App. LEXIS 4648 (Jan. 20, 2009). This is especially true when the person being

questioned is free to leave at any time, as was Gomez. Therefore, although Gomez was

advised of his Miranda rights, because Gomez was not subject to a custodial interrogation

by Detectives Henson and Nichols, neither Miranda warnings nor a waiver of those rights

were required for Gomez's confession to be admissible. Again, "Miranda warnings are not

required simply because questioning takes place in a courthouse or police station." State

v. Tate, 7th Dist. Mahoning No. 07 MA 130, 2008-Ohio-3245, ¶ 44. Accordingly, Gomez's

first argument is without merit.

             Knowing, Intelligent, and Voluntary Waiver of Miranda Rights

       {¶ 23} Even assuming Gomez was subject to a custodial interrogation by the police,

which we have determined he was not, the record nevertheless firmly establishes that

Gomez was properly advised of his Miranda rights and that he knowingly, intelligently, and

voluntarily waived those rights.

       {¶ 24} "A suspect may waive his Miranda rights provided his waiver is knowing,

intelligent and voluntary." State v. Linnik, 12th Dist. Madison No. CA2004-06-015, 2006-

Ohio-880, ¶ 11, citing Edwards v. Arizona, 451 U.S. 477, 483, 101 S.Ct. 1880 (1981). To

determine whether a valid waiver occurred, we "'consider the totality of the circumstances,

including the age, mentality, and prior criminal experience of the accused; the length,

intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.'" State v. Wesson, 137 Ohio St.3d

309, 2013-Ohio-4575, ¶ 35, quoting State v. Edwards, 49 Ohio St.2d 31 (1976), paragraph

two of the syllabus. In considering whether a waiver is involuntary, the Ohio Supreme Court

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has held that "a waiver is not involuntary unless there is evidence of police coercion, such

as physical abuse, threats, or deprivation of food, medical treatment, or sleep." (Emphasis

sic.) Wesson, citing State v. Cooey, 46 Ohio St.3d 20, 28 (1989). The burden is upon the

state to prove a knowing, intelligent, and voluntary waiver of Miranda by a preponderance

of the evidence. State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, ¶ 107.

       {¶ 25} As noted above, in ruling on Gomez's motion to suppress, the trial court

stated:

              The Court has heard testimony today about the Defendant's
              ability to understand the Miranda rights as read to him. The
              Court notes that the Miranda rights were read to the Defendant
              in Spanish. And while the Defendant, there was testimony that
              the Defendant's first language is not Spanish or English, there
              was ample testimony that he speaks the Spanish language and
              some of the English language.

The trial court also stated:

              [T]he interpreter] directly asked the Defendant if he understood
              her Spanish, and he said yes. Likewise, the Defendant
              affirmatively waived his Miranda rights in writing after they were
              read to him in Spanish.

       {¶ 26} After a thorough review of the record, we find no error in the trial court's

decision finding Gomez was properly advised of his Miranda rights and that he knowingly,

intelligently, and voluntarily waived those rights. The fact that his native language is

Kaqchikel, as opposed to either Spanish or English, is immaterial when considering the

overwhelming evidence that he communicated with S.O., his then girlfriend, almost

exclusively in Spanish during their four-year relationship. This included evidence that

Gomez sent S.O. letters and text messages in Spanish.           The video recording of the

interview further supports the trial court's decision finding Gomez understood the Miranda

rights read to him in Spanish before signing a Miranda waiver card written in Spanish.

Again, when directly asked if he understood the interpreter's Spanish provided to him during


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this interview, Gomez specifically stated that he could. Therefore, finding no error in the

trial court's decision finding Gomez was properly advised of his Miranda rights and that he

knowingly, intelligently, and voluntarily waived those rights, Gomez's second argument is

likewise without merit.

       {¶ 27} In light of the foregoing, finding no merit to either of Gomez's arguments raised

herein, we find no error in the trial court's decision denying Gomez's motion to suppress.

Accordingly, Gomez's single assignment of error is without merit and overruled.

       {¶ 28} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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