[Cite as State v. Spencer, 2012-Ohio-6300.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ROSS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA3293
                               :
     vs.                       :     RELEASED 12/21/12
                               :
DOROTHY L. SPENCER,            : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Lori J. Rankin, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, Chillicothe, Ohio,
for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Dorothy Spencer, appeals her conviction in the Ross

County Court of Common Pleas after she pled no contest to one count of

aggravated robbery. Appellant’s appellate counsel advised this Court that,

after reviewing the record, she cannot find a meritorious claim for appeal.

As a result, Appellant’s counsel has moved to withdraw under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967). After independently

reviewing the record, we find no merit to the sole assignment of error and

further find no additional error prejudicial to the Appellant’s rights in the
Ross App. No. 11CA3293                                                        2


trial court proceedings. Accordingly, this appeal is found to be without

merit and wholly frivolous. Counsel’s motion to withdraw is found well-

taken and is, hereby, granted. The judgment of the trial court is affirmed.

                                      FACTS

      {¶2} On February 5, 2010, Appellant was indicted on one count of

aggravated robbery, a first degree felony in violation of R.C. 2911.01. The

indictment also contained a gun specification. On March 12, 2010,

Appellant filed a motion to suppress her statements made to Detective Chris

King. The motion to suppress hearing took place on April 6, 2010.

      {¶3} At the suppression hearing, Detective King testified he went to

Appellant’s home on January 21, 2010, at East Main Street in Chillicothe,

hoping to interview her regarding a crime which occurred at the Chillicothe

Inn. No one answered Appellant’s door, so he left his business card. Later

that day, Appellant telephoned Detective King at the Law Enforcement

Complex. Detective King explained that he wanted to speak to her about an

incident he was investigating. A short time later, Appellant’s boyfriend

drove her to the police station. She arrived around 11:30 a.m.

      {¶4} Detective King escorted Appellant to the interview room, which,

according to his testimony, was eight or ten feet by ten feet. He was wearing

his uniform, badge, and firearm. Appellant and Detective King were
Ross App. No. 11CA3293                                                           3


approximately two feet apart during the interview. Appellant sat at the end

of a table and Detective King sat at the corner of the table closest to her.

      {¶5} Detective King never told Appellant that she was in custody, that

she was under arrest, that she could be arrested during the interview, or that

she was free to leave the interview. He did recite her Miranda Rights to her

and asked her if she understood those rights. Appellant indicated that she

understood her Miranda Rights and that she was willing to waive them.

Detective King acknowledges he did not provide Appellant with a copy of

the Miranda Rights in written form.

      {¶6} Detective King testified he had ample time to observe

Appellant’s demeanor and physical condition during the interview. She had

no difficulty walking and did not stumble or stagger. Detective King did not

notice slurred speech. Appellant did not appear to have trouble

understanding the questions or formulating answers. She did not seem

confused. Detective King specifically testified Appellant presented no

indicia of intoxication. Detective King acknowledged he never asked

Appellant, before or during the interview, whether or not she was under the

influence of any alcohol and/or drugs. Appellant did inform him she was

under extreme stress due to financial issues.
Ross App. No. 11CA3293                                                         4


      {¶7} The interview lasted approximately two hours. Appellant took

one smoke break and was accompanied the entire time by another detective.

She also had one restroom break, however, Appellant never asked if she

could leave. After the interview was concluded, Detective King advised

Appellant he felt there was probable cause to believe she committed the

crime of aggravated robbery, and he subsequently placed her under arrest.

      {¶8} At the time of the suppression hearing, Detective King had

worked as a detective for approximately one year. Prior to becoming a

detective, he was on road patrol for four years. Detective King testified to

approximately one hundred opportunities to observe different types of

intoxication and impairment and perform field sobriety tests.

      {¶9} At the suppression hearing, Appellant testified she had been up

for three days smoking crack up until shortly before the time he knocked on

her door. She stated: “I was in no condition to face any of them for

anything,” because she was “under the influence of crack cocaine.” She

stated at the time Detective King came to her apartment, a couple of friends

were inside with her. Her friends were in possession of drugs and under the

influence. They would not let her open the door. Appellant testified

Detective King was “beating down the door,” but he did not identify

himself. Later she found his card lying on the floor, picked it up, and called
Ross App. No. 11CA3293                                                            5


him. Appellant eventually presented that same day to Detective King. She

testified when he took her into the interview room, the “first thing out of his

mouth was that I have been talking to your family and your daughter about

your out of control crack problem….” Appellant next testified that she

“vaguely” recalled Detective King reading her the Miranda Rights.

Appellant further testified she felt like she was not allowed to leave once the

interview started. She testified that she “couldn’t think straight,” and her

mind was “blowed all apart” about (1) “being up there over something I did

not do;” (2) “him telling my family that I was on crack….” She also

testified she was bipolar with borderline personality disorder. Appellant

also stated she was under the influence of prescription medications,

including hydroxine and saphris. Appellant testified she felt she “had to tell

him something to get out of there,” and that Detective King told her when

they were finished with the interview, she could go see her daughter.

      {¶10} On May 4, 2010, the trial court overruled the motion to

suppress, finding that Appellant did knowingly, voluntarily, and intelligently

waive her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602 (1966). Appellant subsequently entered a plea of no contest with the

understanding that she would be preserving her right to appeal the trial

court’s suppression ruling. The appeal is timely. We have allowed
Ross App. No. 11CA3293                                                            6


Appellant sufficient time to respond to counsel’s brief and no response has

been received.

                                ANDERS BRIEF

      {¶11} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967), counsel may ask permission to withdraw from a case when counsel

has conscientiously examined the record, can discern no meritorious claims

for appeal, and has determined the case to be wholly frivolous. Id., at 744;

State v. Adkins, 4th Dist. No. 03CA27, 2004-Ohio-3627, ¶8. Counsel’s

request to withdraw must be accompanied with a brief identifying anything

in the record that could arguably support the client’s appeal. Anders at 744;

Adkins at ¶8. Further, counsel must provide the defendant with a copy of the

brief and allow sufficient time for the defendant to raise any other issues, if

the defendant chooses to. Id.

      {¶12} Once counsel has satisfied these requirements, the appellate

court must conduct a full examination of the trial court proceedings to

determine if meritorious issues exist. If the appellate court determines that

the appeal is frivolous, it may grant counsel’s request to withdraw and

address the merits of the case without affording the appellant the assistance

of counsel. Id. If, however, the court finds the existence of meritorious

issues, it must afford the appellant assistance of counsel before deciding the
Ross App. No. 11CA3293                                                         7


merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,

2007-Ohio-2743, ¶7.

      In the current action, Appellant’s counsel advises that the appeal is

wholly frivolous and has asked permission to withdraw. Pursuant to Anders,

counsel has filed a brief raising one potential assignment of error for this

Court’s review.

                  POTENTIAL ASSIGNMENT OF ERROR

I.    THE TRIAL COURT ERRED IN VIOLATION OF THE
      DEFENDANT-APPELLANT’S RIGHTS UNDER THE FIFTH AND
      SIXTH AMENDMENTS TO THE UNITED STATES
      CONSTITUTION WHEN THE TRIAL COURT OVERRULED THE
      DEFENDANT-APPELLANT’S MOTION TO SUPPRESS.

                             LEGAL ANALYSIS

      {¶13} In her sole assignment of error, Appellant contends that the trial

court erred in violation of her Fifth and Sixth Amendment rights under the

United States Constitution when the motion to suppress was overruled.

Specifically, Appellant contends that her statement, which she argues was

obtained while she was under the influence of crack cocaine, was not

knowingly and intelligently made. Appellant maintains that at the time she

provided a statement to Detective King, her will was overborne by the crack

cocaine she had been smoking during the 72-hour period before the

interrogation.
Ross App. No. 11CA3293                                                         8


      {¶14} Our review of a decision on a motion to suppress “presents

mixed question of law and fact.” State v. McNamara, 124 Ohio App.3d 706,

710, 707 N.E.2d 539 (4th Dist.1997) citing United States v. Martinez (C.A.

11, 1992), 949 F.2d 1117, 1119. At a suppression hearing, the trial court is

in the best position to evaluate witness credibility. State v. Dunlap, 73 Ohio

St.3d 308, 314, 652 N.E.2d 988 (1995). Accordingly, we must uphold the

trial court’s findings of fact if competent, credible evidence in the record

supports them. Id. We then conduct a de novo review of the trial court’s

application of the law to the facts. State v. Anderson, 100 Ohio App.3d 688,

691, 654 N.E.2d 1034 (4th Dist.1995); State v. Fields, 4th Dist. No.

99CA11, WL1125250 (Nov. 29, 1999).

      {¶15} “[E]ven if Miranda warnings were required and given, a

defendant’s statements may be deemed involuntary and thus, be subject to

exclusion.” State v. Marshall, 4th Dist. No. 06CA23, 2007-Ohio-6298,

2007 WL 4180806, ¶42, citing State v. Kelly, 2nd Dist. No. 2004-CA-20,

2005-Ohio-305, 2005 WL 182900, ¶11. “ ‘A suspect’s decision to waive his

Fifth Amendment privilege against compulsory self-incrimination is made

voluntarily absent evidence that his will was overborne and his capacity for

self-determination was critically impaired because of coercive police

conduct.’ ” Colorado v. Spring, 479 U.S. 564, 574, 107 S. Ct. 851, 857-858
Ross App. No. 11CA3293                                                          9


(1987); Kelly, above, at ¶25, quoting State v. Dailey, 53 Ohio St.3d 88, 91,

559 N.E.2d 459 (1990). “ ‘In determining whether a suspect’s statement was

made voluntarily, a court should consider the totality of the circumstances.

These circumstances 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.’” Id. quoting State v. Sneed, 166 Ohio

App.3d 492, 2006-Ohio-1749, 851 N.E.2d 532 (1st Dist.1996), ¶31, quoting

State v. Edwards , 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), at paragraph

two of the syllabus, (overruled on other grounds by Edwards v. Ohio 438

U.S. 91, 98 S. Ct. 3147, (1978).

      {¶16} The 11th District Court of Appeals addressed the issue

Appellant raises, essentially that she was up three days smoking crack and

this alleged activity negated her ability to make a knowing, voluntary, and

intelligent waiver of Miranda rights, in State v. Klapka, 11th Dist. No. 2003-

L-044, 2004-Ohio-2921, 2004 WL 1238411. There, Defendant-Appellant

was convicted of possession of heroin and complicity to illegal conveyance

of drug abuse onto the grounds of a detention facility. On appeal, Klapka

claimed that the trial court should have granted her motion to suppress

because she was under the influence of heroin at the time she made certain
Ross App. No. 11CA3293                                                         10


statements. Citing Edwards and Dailey above, the appellate court noted that

the evidence presented at the suppression hearing indicated that Klapka’s

will was not overborne by any police conduct and that her statement was

voluntary. Specifically, at the suppression hearing, two detectives testified

that they did not notice any behavior that would indicate Klapka was under

the influence of any intoxicating substance. They testified she was

coherent, attentive, responsive, and fully- oriented to her surroundings and

situation. The appellate court opined at ¶20:

      “Even if Klapka had ingested heroin prior to the interview, this,
      alone, would not render her statement involuntary. Since she
      exhibited no outward signs of intoxication and since she admits
      that she did not tell either Det. Sherwood or Lt. Walters that she
      had ingested the heroin, her purported ingestion of the heroin
      would not render her statements involuntary.” See State v.
      Smith, 80 Ohio St. 3d 89, 112, 1997-Ohio-355, 684 N.E.2d 668,
      (1997), (“Intoxication affecting one’s state of mind, absent
      coercive police activity, would be an insufficient reason to
      exclude [a] voluntary confession.”).

      The 11th District court further concluded:

      “In fact, viewing the totality of the circumstances, we conclude
      that Klapka’s statement was voluntary in nature. Klapka is a
      twenty-two year old female with a high school education and
      some college experience. The single interview was no longer
      than 90 minutes and was conducted in an office at the Lake
      County Sheriff’s Office. Klapka was properly Mirandized and
      waived her rights both orally and in writing. There were no
      claims or evidence of physical deprivation or mistreatment.
      Finally, Klapka was not threatened, nor was she induced, as
      discussed above, into making the statement. We, therefore, find
      that Klapka’s will was not overborne by any police conduct and
Ross App. No. 11CA3293                                                            11


      that Klapka’s statement was voluntary. See Edwards, 49 Ohio
      St.2d at 41, 358 N.E.2d 1051; State v. Comstock, 11th Dist. No.
      96-A-0058, 1997 WL 531304 (Aug.29, 1997).”

      {¶17} A similar issue was addressed in State v. Williams, 8th Dist.

No. 82094, 2003-Ohio-4811, 2003 WL 22100230. There, defendant-

appellant was convicted in the Cuyahoga County Common Pleas Court of

aggravated murder, attempted murder, aggravated robbery, possession of

drugs, and having a weapon while under disability. On appeal, appellant

claimed that his drug intoxication (being under the influence of PCP at the

time he made certain statements) rendered his waiver of Miranda rights

involuntary. The appellate court disagreed, however, concluding that based

on a totality of the circumstances, the State met its burden of demonstrating

that defendant’s confession was voluntary. The appellate court noted that

although there was evidence that the defendant may have been under the

influence of drugs at the time he made his statement, there was no evidence

that the drugs affected his ability to understand his rights or his decision to

waive them. Williams,¶ 18. All of the police officers involved testified that

defendant was coherent, seemed aware of what was going on, listened to the

explanation of his rights, and seemed to understand what was told to him. Id.

“Thus, there is no evidence that defendant’s possible drug usage affected his
Ross App. No. 11CA3293                                                        12


ability to understand his rights, and he could knowingly and intelligently

waive them. Id. See Edwards and Dailey, above.

       {¶18} In State v. Banford, 6th Dist. No. L-05-1334, 2007-Ohio-3821,

2007 WL 2164002, appellant appealed his conviction after a jury trial for

aggravated robbery with a firearm specification. The appellant specifically

argued his statement was not voluntary because at the time of arrest and

police interview, he had previously injected himself with morphine. During

the suppression hearing, a videotaped interview was played and a detective

who testified admitted that appellant was a little “jumpy.” The appellate

court noted that even if arm scratching and “jumpiness” was caused by

“coming down from a morphine high,” there was no indication that the

morphine affected appellant’s ability to understand his rights and his

decision to waive them. Id. ¶ 14. The appellate court further noted that

appellant was able to recite his name, age, address, and answer the

detective’s questions, (although it was clear he did not wish to implicate

others.) Id.

       {¶19} More recently, this Court addressed the test for voluntariness

under Fifth Amendment analysis in State v. Michael, 4th Dist. No.

09CA887, 2010-Ohio-5296, 2010 WL 4273225. Michael was convicted of

arson and aggravated arson. Although Michael did not allege that she was
Ross App. No. 11CA3293                                                         13


under the influence of drugs or alcohol, she argued the trial court erred by

denying her motion to suppress statements that, allegedly, were not made

voluntarily, knowingly, or intelligently. Relying on the law in Edwards

and Dailey above, this Court considered the totality of the circumstances and

fully agreed with the trial court’s analysis of the facts and circumstances

which surrounded Michael’s interview, which were set forth at ¶11 of the

opinion as follows:

             "Michael was advised of the allegations against
      her; she was apprised of her Miranda rights and she
      waived those rights; though only 19 years old and though
      her education was limited to completing the eighth grade,
      she communicates and writes very well; she was not
      under the influence of any alcohol or drugs; she
      voluntarily came to the police station to give her
      statement; the interview lasted, at most, 45 minutes; she
      was not subjected to physical or mental deprivation and
      there were no allegations of mistreatment; the intensity of
      the questioning was ‘at best de minimus, if not void of
      intensity.’ ”

      {¶20} Based upon our independent review of the suppression hearing,

we agree with the trial court’s conclusion that Appellant’s statements were

voluntarily, knowingly, and intelligently made. Reviewing the totality of the

circumstances, the record reflects that Appellant is 37 years old, able to read

and write, and actually has an associate degree in business management.

She voluntarily made arrangements to go to the Law Enforcement Complex

and speak with Detective King. Detective King recited her Miranda Rights
Ross App. No. 11CA3293                                                       14


to her at the beginning of the interview. The record also indicates that

Appellant has prior knowledge of the criminal justice system as she was

convicted of 3 felonies in 2004.

      {¶21} Detective King was wearing a uniform, badge, and firearm. The

interview itself was conducted in a small room and lasted approximately two

hours. However, there was also evidence that Appellant had two breaks, one

to smoke and one to use the restroom. She was not physically deprived and

she makes no claim that she was mistreated.

      {¶22} Also relevant is Detective King’s testimony that Appellant

presented no indications of being legally intoxicated or under the influence

of any drugs or alcohol. He testified to his experience recognizing these

indicators and performing field sobriety tests. He specifically noted she had

no problems walking. Her speech was not slurred, and she did not seem

confused or unable to formulate answers. Importantly, she did not tell him

that she was under the influence of drugs or alcohol or, as she now advises,

had been up smoking crack cocaine for three days.

      {¶23} Nor do we find it problematic that if, as Appellant testified,

Detective King told her she could leave and go see her daughter after the

interview was finished. The trial court observed a possible question as to

whether or not there was even a custodial interrogation, given that Appellant
Ross App. No. 11CA3293                                                       15


appeared voluntarily. The evidence indicates Appellant never made a request

to leave. Given our previous conclusions regarding Appellant’s age and

education, the lack of physical deprivation and absence of any allegations of

mistreatment, even if Detective King did tell her she could see her daughter

after the interview, we do not discern this possible inducement to be a

prevailing factor. We believe this case to be similar to Klapka. Appellant

exhibited no outward signs of intoxication and since she apparently did not

tell Detective King that she had been smoking crack for three days

immediately prior to her interview, her purported drug usage would not

render her statements involuntary.

      {¶24} Pursuant to our de novo review of the record, we agree with the

trial court’s findings that Appellant’s statements were voluntarily,

knowingly, and intelligently made pursuant to Miranda v. Arizona. We

therefore conclude that the potential assignment of error advanced by

appellate counsel is without merit, and this appeal is found to be wholly

frivolous. The motion of counsel for Appellant requesting to withdraw as

counsel is hereby granted and the judgment of the Ross County Court of

Common Pleas is affirmed.

                                              JUDGMENT AFFIRMED.
Ross App. No. 11CA3293                                                        16


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, P.J. and Harsha, J.: Concur in Judgment and Opinion.

                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
