[Cite as State v. Woodward, 2019-Ohio-908.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO 5-18-21

        v.

DUSTIN B. WOODWARD,                                      OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2017 CR 269

                                     Judgment Affirmed

                           Date of Decision: March 18, 2019




APPEARANCES:

        William T. Cramer for Appellant

        Lora L. Manon for Appellee
Case No 5-18-21


SHAW, J.

         {¶1} Defendant-appellant, Dustin B. Woodward (“Woodward”), brings this

appeal from the September 25, 2018, judgment of the Hancock County Common

Pleas Court sentencing Woodward to seven years in prison after he pled no contest

to, and was convicted of, six counts of Pandering Sexually Oriented Material

Involving a Minor in violation of R.C. 2907.322(A)(1), all felonies of the second

degree. On appeal, Woodward argues that the trial court erred by denying his

suppression motion.

                            Relevant Facts and Procedural History

         {¶2} On or about August 14, 2017, the Forest Police Department learned of

allegations that Woodward had taken explicit photographs of his six-year old

stepdaughter. On the morning of August 14, 2017, at approximately 11 a.m., before

the police had attempted to contact Woodward, Woodward went to the Forest Police

Department due to the encouragement of his wife and his own “guilt.” Outside of

the station, Woodward met Chief Southward and indicated that he wanted to talk.1

Woodward was taken inside where he was read his Miranda rights and he signed a

written Miranda waiver. He was then interviewed by Chief Southward.




1
  Chief Southward testified at the suppression hearing that Woodward stated he wanted to “confess.”
Woodward disputed that issue, testifying that he had only gone to the police department because his wife told
him that the police were looking for him.

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        {¶3} During the interview, Woodward stated that he had taken a total of ten

to fifteen photographs of his stepdaughter’s genitals over two or three separate

occasions spanning a multi-week period. He stated that he had since deleted the

photographs from his cell phone, but his wife found them in Google photographs,

where he did not know they had still been saved. Woodward agreed to allow the

police to search his phone.

        {¶4} On August 22, 2017, Woodward was indicted for twelve counts of

Gross Sexual Imposition (“GSI”) in violation of R.C. 2907.05(A)(4), all felonies of

the third degree, and twelve counts of Pandering Sexually Oriented Material

Involving a Minor (“Pandering”) in violation of R.C. 2907.322(A)(1), all felonies

of the second degree.           The bill of particulars alleged that the Gross Sexual

Imposition charges stemmed from activity between April 1, 2017, and May 31,

2017, wherein Woodward engaged in sexual contact with his stepdaughter who was

born in February of 2011. It was alleged that Woodward touched the victim’s

“pubic and vaginal region * * * for the purpose of sexually arousing or gratifying

either himself or [the victim].” (Doc No. 79). The Pandering charges stemmed

from Woodward taking photographs, which allegedly included the child’s pubic,

genital and/or vaginal area. (Id.) Woodward originally pled not guilty to the

charges.2


2
  He also pled not guilty by reason of insanity and challenged his competence to stand trial but after a
psychological evaluation, he was found competent.

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      {¶5} On October 31, 2017, Woodward filed a suppression motion seeking to

suppress statements that he made to the police department. He argued that he was

highly intoxicated and suffering from mental illness at the time he made his

statement, rendering the Miranda waiver he signed invalid. In addition, Woodward

argued that any information taken from his cell phone should be suppressed because

the search exceeded the scope of his consent.

      {¶6} On December 5, 2017, the State filed a response contending that

Woodward was never actually in custody during his interview, that there were no

indications that he was under the influence of drugs or alcohol, that his Miranda

waiver was valid even if he was in custody, and that Woodward did not limit the

scope of the search of his cell phone in any manner when he gave it to the police.

      {¶7} The matter proceeded to a hearing on January 2, 2018. At the hearing

the State presented the testimony of Chief Southward, and Detective Lyle Harvitt

of the Hancock County Sheriff’s Office.         Detective Harvitt interacted with

Woodward after he was interviewed by Chief Southward. The State also entered a

copy of the signed, written Miranda waiver into evidence, and a DVD of the

interview with Woodward. Woodward testified on his own behalf.

      {¶8} On January 24, 2018, the trial court filed an entry denying Woodward’s

motion to suppress. The trial court determined that Woodward was not subject to a

custodial interrogation as Woodward went to the police station willingly and


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Case No 5-18-21


requested to meet with the Chief. Nevertheless, the trial court found that even if

Woodward was subject to a custodial interrogation, he was advised of his Miranda

rights and voluntarily signed a waiver.

       {¶9} The trial court also found that Woodward displayed no observable signs

of intoxication, that both officers testified that they did not smell alcohol on

Woodward, and that Woodward did not appear intoxicated to them. In fact, the trial

court noted that Woodward himself testified that despite his “buzz” he understood

that he was not required to answer questions and he consented to a search of his

phone. Thus the trial court determined there was no police coercion in this matter

and there was no indication that Woodward’s will was overborne. Finally, the trial

court also determined that Woodward consented to the police searching his cell

phone, and he did not limit this consent in any manner.

       {¶10} After his suppression motion was denied, Woodward entered into a

written, negotiated plea agreement wherein he agreed to plead no contest to six

counts of Pandering as indicted. (Doc. No. 92). In exchange the State agreed to

dismiss the remaining charges against him and to recommend that some of the

prison terms be served concurrently with each other.

       {¶11} The trial court held a Crim.R. 11 hearing and determined that

Woodward’s pleas were knowing, intelligent, and voluntary. The trial court then




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Case No 5-18-21


found Woodward guilty of the six counts of Pandering that comprised the plea

agreement, and the remaining counts against him were dismissed.

       {¶12} On September 25, 2018, the matter proceeded to sentencing. The trial

court imposed seven years in prison on each Pandering conviction, all to be served

concurrently. A judgment entry memorializing Woodward’s sentence was filed the

same day. It is from this judgment that Woodward appeals, asserting the following

assignments of error for our review.

                           Assignment of Error No. 1
       The trial court violated appellant’s due process rights and
       privilege against self-incrimination under the state and federal
       constitutions by finding his Miranda waiver to be voluntary.

                           Assignment of Error No. 2
       The trial court violated appellant’s due process rights and
       privilege against self-incrimination under the state and federal
       constitutions by refusing to suppress involuntary statements.

       {¶13} As the assignments of error are interrelated, we will address them

together.

                      First and Second Assignments of Error

       {¶14} In Woodward’s first and second assignments of error, he argues that

the trial court erred by finding his Miranda waiver to be voluntary. Specifically,

Woodward argues that his intoxication and his history of mental health problems

prevented him from knowingly waiving his rights. He also contends, in passing,




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that the trial court erred by finding that he was not subject to a custodial

interrogation.

                                 Standard of Review

       {¶15} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as

such, is in the best position to evaluate the evidence and the credibility of

witnesses. Id.; see also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When

reviewing a ruling on a motion to suppress, “an appellate court must accept the trial

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

evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With

respect to the trial court’s conclusions of law, however, our standard of review is de

novo, and we must independently determine whether the facts satisfy the applicable

legal standard.    Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th

Dist.1997); State v. Yost, 3d Dist. Seneca No. 13-18-03, 2018-Ohio-2873, ¶ 15.

                                 Relevant Authority

       {¶16} “A suspect in police custody ‘must be warned prior to any questioning

that he has the right to remain silent, that anything he says can be used against him

in a court of law, that he has the right to the presence of an attorney, and that if he

cannot afford an attorney one will be appointed for him prior to any questioning if


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Case No 5-18-21


he so desires.’ ” State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, ¶ 6, quoting

Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Nevertheless, it is well-established that Miranda warnings are not required in

nonthreatening and nonconfining interrogation situations, which are noncustodial in

nature.     State v. Carter, 3d Dist. Allen No. 1-10-01, 2010-Ohio-5189, ¶ 21,

citing State v. Greeno, 3d Dist. No. 13–02–46, 2003–Ohio–3687, ¶ 12, citing State

v. Mason, 82 Ohio St.3d 144, 153, 694 N.E.2d 932 (1988). This is so because “[i]t

is the coercive nature of custodial interrogation that necessitates the Miranda

warnings[.]” Greeno at ¶ 12.

          {¶17} In determining whether an interrogation is custodial, courts must

inquire into “ ‘how a reasonable man in the suspect’s position would have

understood his situation.’ ”    Mason, 82 Ohio St.3d at 154, 694 N.E.2d 932,

quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317

(1984). The Supreme Court of Ohio has directed that, “[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, 653 N.E.2d 253, 1995–Ohio–24,

quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d

497 (1980).




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Case No 5-18-21


       {¶18} If it is determined that an interrogation is custodial, determining

whether a valid waiver of Miranda rights occurred also requires a consideration of

the totality of the circumstances surrounding the interrogation as to whether

statements were made knowingly and voluntarily, and whether defendant decided

to forgo his rights to assistance of counsel and to remain silent. Fare v. Michael C.,

442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); State v. Chester, 10th Dist.

Franklin No. 08AP-1, 2008-Ohio-6679, ¶ 22. Voluntariness factors to consider

include: 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. Twyford, 94 Ohio

St.3d 340, 360 (2002), citing State v. Edwards, 49 Ohio St.2d 31 (1976), paragraph

two of the syllabus.

       {¶19} Coercive police activity is a necessary predicate to finding that a

suspect involuntarily waived his Miranda rights. Colorado v. Connelly, 479 U.S.

157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Absent evidence that a suspect’s

will was overborne and his capacity for self-determination was critically impaired

because of coercive police conduct, a suspect’s decision to waive his Miranda rights

and confess will be deemed to be voluntary. Culombe v. Connecticut, 367 U.S. 568,

602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).




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Case No 5-18-21


       {¶20} Notably, intoxication, unto itself, is insufficient to render a statement

per se inadmissible. State v. Cameron, 11th Dist. Lake No. 2007-L-004, 2007-Ohio-

6935, ¶ 19, citing State v. Stanberry, 11th Dist. No.2002-L-028, 2003-Ohio-5700,

at ¶ 30; State v. Fairley, 3d Dist. Hancock No. 5-03-41, 2004-Ohio-2616, ¶ 21.

Rather, the presence of drugs or alcohol should be considered, but the amount must

sufficiently impair the confessor’s abilities to reason. State v. Stewart, 11th Dist.

Portage No.2001-P-0035, 2002-Ohio-7270, ¶ 49; Fairley at ¶ 21.

                              Custodial Interrogation

       {¶21} Evidence presented at the suppression hearing established that

Woodward approached the Forest Police Department on his own accord, indicating

he wanted to talk. He was led through a shared municipal building to a room where

he could be interviewed. The door was not locked and Woodward was not placed

under arrest. However, Woodward was still read his Miranda rights and he signed

a written waiver, agreeing to speak with Chief Southward. The entire interview was

recorded on Chief Southward’s body camera.

       {¶22} During the interview, Woodward provided short answers to Chief

Southward’s questions, but he did admit to taking ten to fifteen inappropriate

photographs of his stepdaughter’s genetalia. Woodward also stated that he came to

the police department that morning because his wife pressured him and because of

the guilt he was feeling.


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Case No 5-18-21


       {¶23} Based on the events that transpired, and the circumstances surrounding

the interview, the trial court found that Woodward was “not subject to a custodial

interrogation.” (Doc. No. 45). The trial court reasoned that Woodward freely

walked to the police station even though there was no warrant for his arrest. The

trial court noted that while the door to the interview room was closed, it was in a

loud, shared municipal building, and that the door was not locked. Woodward was

also told initially he did not have to talk to the police. Thus the trial court found no

custodial interrogation occurred.

       {¶24} In reviewing the issue of whether there was a custodial interrogation

on appeal, we agree with the trial court’s analysis. Woodward appeared at the police

station voluntarily. There is no indication of pressure by the police; rather, the

pressure came from Woodward’s wife and his conscience. Woodward was also not

restrained and no threats were made to him. Although Woodward did not have a

significant criminal history of interaction with the law, this factor alone does not

outweigh the others indicating that the matter was not a custodial interrogation.

                             Voluntary Miranda Waiver

       {¶25} Even assuming arguendo that Woodward’s situation amounted to a

custodial interrogation, the trial court also found that Woodward validly and

voluntarily waived his right against self-incrimination. Woodward challenges the

trial court’s finding on this issue on appeal, claiming that his mental state was


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Case No 5-18-21


impaired by his tequila consumption, his marijuana use, and his history of mental

problems, specifically PTSD arising from his experiences with the Marines.

        {¶26} More specifically, Woodford claims that before he spoke with the

Chief at the police station he had consumed twenty ounces of tequila and smoked

marijuana, despite it only being roughly 11 a.m. In fact, he actually contended that

he was drinking tequila from a water bottle during the interview itself. Finally,

Woodward argues that he was new to the criminal process and the Chief asked

leading questions, further coercing his responses. Woodford contends that all these

issues led to his statement being involuntary, rendering his Miranda waiver invalid.

        {¶27} The State presented testimony disputing Woodward’s claims. Chief

Southward and Detective Harvitt, who both interacted with Woodward on the day

of his interview, indicated that they did not smell any alcoholic beverages or

marijuana on Woodward, and they both testified that Woodward did not appear

intoxicated. Chief Southward was in a small room in relatively close proximity to

Woodward, yet he noted neither signs of intoxication nor odors of an alcoholic

beverage.3 The video similarly reveals no clear signs of intoxication, though

Woodward suggests otherwise in his brief.4


3
  At some points during the interview, Woodward can be seen taking sips from a plastic water bottle that he
brought into the room with him. Although there was no indication the bottle contained anything but water,
particularly given that it was a hot day in August (as Chief Southward testified), Woodward stated at the
suppression hearing that the plastic bottle was actually filled with silver, 1800 tequila, but there is no
indication that was true.
4
  Woodward contends that his movements were slow and his responses were brief; however, the conversation
and subject matter were clearly uncomfortable for Woodward.

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Case No 5-18-21


       {¶28} The trial court determined that the testimony and evidence produced

did not show that Woodward was intoxicated such that his ability to reason was

sufficiently impaired. See State v. Stewart, 11th Dist. Portage No.2001-P-0035,

2002-Ohio-7270, ¶ 49; Fairley, supra, at ¶ 21. In our own review of the matter,

giving deference to the trial court’s factual findings, but reviewing the legal issues

de novo, we agree with the trial court.

       {¶29} The only evidence to support Woodward’s claims are his own self-

serving statements. As the trier-of-fact, the trial court was free to find these claims

not to be credible, particularly given that the trial court saw and heard Woodward’s

testimony at the suppression hearing and reviewed his interview with Chief

Southward. Moreover, two officers directly contradicted Woodward by testifying

that he did not appear intoxicated and that they noted no indicators of impairment.

Furthermore, although Woodward suggests otherwise, the body camera footage

from the interview does not show any clear indication of intoxication.

       {¶30} Finally, even if we assumed that Woodward was intoxicated to some

degree, intoxication itself does not render a statement involuntary; rather, the

intoxicants have to limit Woodward’s ability to reason. State v. Stewart, 11th Dist.

Portage No.2001-P-0035, 2002-Ohio-7270, ¶ 49; Fairley, supra, at ¶ 21. The

interview itself showed Woodward recalling the events in question, though not the

specific dates. He recalled roughly how many photographs he took, where he took


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them, and that he took them on multiple occasions. He also specifically declined to

provide a written statement because he was worried if he said something different

in it than he had in his interview, his contradictions would be used against him. This

further establishes his ability to reason at the time.

        {¶31} Woodward may have regretted speaking with police after-the-fact, but

there is simply no indication of police coercion in this case, and no indication that

Woodward’s statement was anything but voluntary.5 Based on the record before us,

we cannot find that the trial court erred in overruling Woodward’s suppression

motion.      Therefore, Woodward’s first and second assignments of error are

overruled.

                                             Conclusion

        {¶32} For the foregoing reasons, Woodward’s assignments of error are

overruled and the judgment of the Hancock County Common Pleas Court is

affirmed.

                                                                               Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




5
  It does not appear in his brief that Woodward renews his argument on appeal that the search of his cell
phone exceeded the scope of his consent. However, even if he did argue it, we can find no error with the
trial court’s ruling on the matter.

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