[Cite as State v. Winger, 2017-Ohio-7660.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,
                                                          CASE NO. 9-17-12
       PLAINTIFF-APPELLANT,

      v.

ASHLEE WINGER,                                            OPINION

       DEFENDANT-APPELLEE.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 17-CR-0048

                                      Judgment Affirmed

                          Date of Decision: September 18, 2017



APPEARANCES:

        Kevin P. Collins for Appellant

        Nathan Witkin for Appellee
Case No. 9-17-12


WILLAMOWKSI, J.

       {¶1} Plaintiff-Appellant the State of Ohio (“the State”) brings this appeal

from the judgment of the Court of Common Pleas of Marion County granting the

motion to suppress the statements made by Defendant-Appellee Ashlee Winger

(“Winger”). The State claims that the trial court’s decision was not supported by

competent, credible evidence and that the trial court applied the wrong legal

standard. For the reasons set forth below, the judgment is affirmed.

       {¶2} On February 9, 2017, the Marion County Grand Jury indicted Winger

on one count of Possession of Heroin in violation of R.C. 2925.11(A)(C)(6), a

felony of the fifth degree. Doc. 2. Winger entered a plea of not guilty to the charge.

Doc. 8. On March 10, 2017, Winger filed a motion to suppress. Doc. 18. The State

filed its response on April 3, 2017. Doc. 24. On April 4, 2017, a hearing was held

on the motion to suppress. Doc. 29. At the hearing, the State presented the

testimony of Officer Dylan Reese (“Reese”) of the Marion Police Department.

       {¶3} On January 28, 2017, Reese stopped a vehicle, in which Winger was a

passenger, for making an improper turn. Tr. 4. Winger initially gave the wrong

name, but later admitted her true identity. Tr. 6-8. During the stop, Reese found a

pouch with needles in it between the frame of the car and the back seat on the

driver’s side. Tr. 10. Reese also found a book bag containing some pills which

were later identified as Tramadol. Tr. 12. Winger initially denied that the pouch

and the syringes were hers. Tr. 13. Reese told her that if she admitted the pouch

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was hers, she would not be charged with felony possession, only a misdemeanor.

Tr. 25. Reese only asked her to admit to owning the pouch, not its contents. Tr. 25.

Eventually, she admitted that the pouch was hers. Tr. 24. Reese arrested her on

suspicion of multiple criminal offenses. Tr. 16. When he was searching the pouch

at the police station, Reese found a packet of what he suspected to be heroin that he

had not previously seen.1 Tr. 18-19. Reese admitted that he told Winger that she

would only be charged with a misdemeanor to get her to admit to owning the pouch

to conclusively prove that the contents of the pouch were Wingers. Tr. 24. When

making the offer to Winger, Reese stated that the misdemeanor charge was in return

for her admitting to being the owner of the pouch. Tr. 26 and Ex. 1. The video

showed that although Reese repeatedly asked Winger if the pouch was hers, she

repeatedly denied it. Ex. 1. The video did not show the actual discussion between

Reese and Winger about what would happen if she admitted to owning the pouch.2

Ex. 1.

         {¶4} On April 7, 2017, the trial court denied the portion of the motion to

suppress which requested that the prosecution for felony possession of heroin be

dismissed pursuant to the agreement. Doc. 29. As to the portion of the motion

asking that Winger’s statements admitting to owning the pouch be suppressed, the



1
  At the hearing on the motion to suppress it was indicated that the paper did not contain heroin, but instead
contained carfentanyl. Tr. 34. A supplemental indictment was filed on April 6, 2017 adding a charge of
Aggravated Possession of Drugs in violation of R.C. 2925.11(A)(C)(1), a felony of the fifth degree, as well
as the original charge of Possession of Heroin. Doc. 26.
2
  The discussion may have been at the beginning of the second video, but there was no audio for that portion.

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trial court granted the motion. On April 10, 2017, the State filed its notice of appeal

and its certification that without the admission, the proof regarding the pending

charge was so weak as to destroy any reasonable possibility of an effective

prosecution. Doc. 33. On appeal the State raises the following assignment of error.

       The trial court erred in granting [Winger’s] motion to suppress
       evidence.

       {¶5} In the sole assignment of error, the State claims that the trial court erred

in granting Winger’s motion to suppress. To support this claim, the State makes

two arguments: 1) the findings of the trial court were not supported by competent,

credible evidence and 2) the trial court improperly determined that the confession

was not voluntary. “An appellate review of the trial court's decision on a motion to

suppress involves a mixed question of law and fact.” State v. Fittro, 3d Dist. Marion

No. 9-14-19, 2015-Ohio-1884, ¶ 11.

       When considering a motion to suppress, the trial court assumes
       the role of trier of fact and is therefore in the best position to
       resolve factual questions and evaluate the credibility of witnesses.
       State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
       Consequently, an appellate court must accept the trial court's
       findings of fact if they are supported by competent, credible
       evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437
       N.E.2d 583. 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. McNamara (1997), 124 Ohio
       App.3d 706, 707 N.E.2d 539.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Generally, the State may not appeal rulings in criminal prosecutions, but Crim.R.

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Case No. 9-17-12


12(K) does provide a limited right to appeal a granting of a motion to suppress.

State v. Bassham, 94 Ohio St.3d 269, 2002-Ohio-797, 762 N.E.2d 963. The State

must certify that the appeal is not taken for the purpose of delay and that the State’s

case is so weakened that no effective prosecution is possible. Crim.R. 12(K). If the

judgment of the trial court granting the motion to suppress is affirmed, the State is

barred from prosecuting the defendant for the offenses charged. Crim.R. 12(K).

                           Competent Credible Evidence

       {¶6} First, the State argues that the trial court’s decision was not supported

by competent, credible evidence. As discussed above, an appellate court must

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

evidence. The only evidence presented at the hearing was the testimony of Reese,

and the body cam videos in Exhibit 1. The trial court determined that Reese had

specifically told Winger that if she acknowledged ownership of the pouch which

contained the syringes, she would not be prosecuted for a felony drug offense, but

only for a misdemeanor offense of possession of drug paraphernalia with respect to

the contents of the pouch. Doc. 29 at 8. The actual statements of Reese to Winger

were not available for review. However, Reese testified that he told Winger that if

she admitted to owning the pouch, she would only be charged with the misdemeanor

offense of possession of drug paraphernalia rather than a felony charge. Tr. 25.

Upon cross-examination, Reese admitted that he only specifically asked about the

pouch, not the needles. Id. Although Reese testified that he really meant the needles,

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Case No. 9-17-12


not the pouch, that is not what he communicated to Winger. His statement to

Winger was about the pouch according to his own testimony.

       {¶7} The trial court also found that Winger would not have acknowledged

ownership without the promise of Reese. Although Winger did not testify, the video

footage in Exhibit 1 shows that Winger was continuously denying owning the

pouch. Even when Reese told her that she was the one with the best access to the

pouch, Winger still denied the pouch was hers.         Reese testified that Winger

repeatedly denied ownership of the pouch until he told her that she would only be

charged with a misdemeanor rather than a felony if she admitted ownership. Tr. 24-

26. Winger only admitted to the ownership of the pouch after Reese had promised

that she would not be charged with a felony. Id. Given the content of the video and

the testimony of Reese, the trial court’s conclusions were supported by competent,

credible evidence. The fact that different conclusions could possibly be reached, as

is argued by the State, does not necessarily make the trial court’s determinations

unreasonable. The evidence, the credibility of which is determined by the trial

court, does not show that the trial court was incorrect or unreasonable in its

determination. Thus, this court must accept the factual findings of the trial court.

                          Voluntariness of the Admission

       {¶8} The State also argues that if the trial court’s facts are supported by

competent credible evidence, then the trial court misapplied the law. Upon a

challenge to the admissibility of a confession, the prosecution must prove the

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Case No. 9-17-12


voluntariness of the statements by a preponderance of the evidence. State v. Barker,

149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 32. “Constitutional principles

of due process preclude the use of coerced confessions as fundamentally unfair,

regardless of whether the confession is true or false.” Id. at 31. “A reviewing court

must determine whether the totality of the circumstances surrounding the confession

indicates that a defendant's ‘will was overborne and his capacity for [self-

determination] was critically impaired because of coercive police conduct.’ ” State

v. Hazlett, 3d Dist. Logan No. 8-06-04, 2006-Ohio-6927, ¶ 13 quoting State v. Otte,

74 Ohio St.3d 555, 562, 1996-Ohio-108, 660 N.E.2d 711. The circumstances to be

reviewed include many factors, such as the age, mentality, prior criminal experience

of the accused, the circumstances of the interrogation, and the existence of a threat

or inducement. State v. Tussing, 3d Dist. Logan No. 8-10-11, 2011-Ohio-1727, ¶

33.   The “test for voluntariness is whether, in light of the totality of the

circumstances, the police obtained the incriminating statements by coercion or

improper inducement.” State v. Arrington, 14 Ohio App.3d 111, 470 N.E.2d 211

(6th Dist. 1984) (emphasis added) citing Haynes v. Washington, 373 U.S. 503, 513-

514, 83 S.Ct. 1336, 10 L.E.d2d 513. “Consequently, a confession ‘must not be

extracted by any sort of threats or violence, nor obtained by any direct or implied

promises, however slight, nor by the exertion of any improper influence.”

Arrington, supra at 114.



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      The line to be drawn between permissible police conduct and
      conduct deemed to induce or tend to induce an involuntary
      statement does not depend upon the bare language of inducement
      but rather upon the nature of the benefit to be derived by a
      defendant if he speaks the truth, as represented by the police. * *
      *

      “ ‘When the benefit pointed out by the police to a suspect is merely
      that which flows naturally from a truthful and honest course of
      conduct, we can perceive nothing improper in such police activity.
      On the other hand, if in addition to the foregoing benefit, or in the
      place thereof, the defendant is given to understand that he might
      reasonably expect benefits in the nature of more lenient treatment
      at the hands of the police, prosecution or court in consideration of
      making a statement, even a truthful one, such motivation is
      deemed to render the statement involuntary and inadmissible.
      The offer or promise of such benefit need not be expressed, but
      may be implied from equivocal language not otherwise made
      clear.’ ”

Id. at 115 quoting People v. Flores, 144 Cal.App.3d 459, 192 Cal.Rptr 772, 776-

777 quoting People v. Hill, 66 Cal.2d 536, 549, 58 Cal.Rptr. 340, 426 P.2d 908

(1967). See also, State v. Booher, 54 Ohio App.3d 1, 560 N.E.2d 786 (3d Dist.

1988), State v. Phillips, 2d Dist. Clark No. 2003-CA-15, 2004-Ohio-4688 and State

v. Leonard, 4th Dist. Ross No. 16CA3573, 2017-Ohio-1541. The voluntariness of a

confession depends upon the absence of police overreaching rather than “free

choice”. State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d

1081, ¶ 62 and State v. Scholl, 10th Dist. Franklin No. 12AP-309, 2012-Ohio-6233.

      {¶9} Here, the State argues that the trial court erred in determining that

Winger was coerced by Reese into admitting ownership. Instead, according to the

State, the promise made by Reese was an offer of leniency meant to persuade or

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influence, not to coerce. This court does not doubt that the promise made by Reese

was intended to persuade and influence Winger into admitting ownership of the

pouch and the contents. However, persuasion and influence of a suspect crosses the

line into coercion when a promise is made that if a suspect confesses, he or she will

face a reduced charge. See Arrington, supra (police told defendant that if he

confessed, certain charges would not be brought and others would be dropped);

Tussing, supra (police told defendant that if he confessed, he would not go to jail);

State v. Wilson, 117 Ohio App.3d 290, 690 N.E.2d 574 (1st Dist. 1996) (police told

defendant that if he confessed, he would only face a theft charge, not one for

aggravated robbery); and State v. Phillips, supra (police told defendant that if he

confessed he would only be charged with a misdemeanor, not a felony). As

discussed above, the trial court made specific findings of fact that Winger would not

have confessed to being the owner of the pouch without the promise that she would

not face felony charges if she did so. The circumstances, as seen through the

recording in Exhibit 1, show that until that promise was made, Winger repeatedly

denied that she owned the pouch. Reese admitted in his testimony that he made the

promise in order to get her to admit ownership.3 The video showed that Winger

understood the difference between a felony charge and a misdemeanor charge and

wanted to avoid felony charges. Given the facts, as determined by the trial court,



3
 In the video Reese stated that although Winger was denying ownership of the pouch, she was still going to
be charged because she was the one with the access.

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we agree that Reese made a specific promise to induce Winger to confess. The trial

court’s determination that this inducement was sufficient to make the confession

involuntary is supported by the evidence and the law. Therefore, the trial court did

not err in reaching the conclusions it did. The assignment of error is overruled.

       {¶10} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Marion County is affirmed.

                                                                Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




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