[Cite as State v. Fowler, 2016-Ohio-1209.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Sheila G. Farmer, P.J.
                                               :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellant   :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 2015 AP 0054
MICHAEL A. FOWLER                              :
                                               :
                     Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Tuscarawas
                                                   County Court of Common Pleas, Case No.
                                                   2015CR030096



JUDGMENT:                                          Reversed and Remanded

DATE OF JUDGMENT ENTRY:                            March 22, 2016

APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

R. SCOTT DEEDRICK                                  MARK PERLAKY
Assistant Prosecutor                               Assistant Public Defender
125 E. High Avenue                                 153 N. Broadway St.
New Philadelphia, OH 44663                         New Philadelphia, OH 44663
Tuscarawas County, Case No. 2015 AP 0054                                             2

Gwin, J.

       {¶1}   Plaintiff-appellant the State of Ohio appeals September 21, 2015 Judgment

Entry of the Tuscarawas County Court of Common Pleas granting defendant-appellee

Michael A. Fowler’s [“Fowler”] motion to suppress evidence.

                                  Facts and Procedural History

       {¶2}   Fowler was indicted for Rape in violation of R.C. 2907.02(A)(1)(b) and

(A)(2), felonies of the first degree, and Gross Sexual Imposition in violation of R.C.

2907.05(A)(4), a felony of the third degree, on March 30, 2015. The indictment in the

Tuscarawas County Court of Common Pleas alleges that he had engaged in sexual

activity with a minor, A. F., his daughter born March 20, 1994. The sexual activity is

alleged to have occurred from 2004 into 2007.

       {¶3}   On June 12, 2015, Fowler filed a Motion to Suppress Statements. Fowler

sought to suppress admissions made during an interview with the New Philadelphia

Police Department on December 1, 2014. Fowler alleged that his statements were

involuntary as Detective Nelson made misstatements of a factual and legal nature that

directly led to Fowler's confession.

       {¶4}   An evidentiary hearing took place on August 13, 2015.         During the

suppression hearing, the state called one officer, Detective Shawn Nelson with the New

Philadelphia Police Department.

       Detective Shawn Nelson.

       {¶5}   On December 1, 2014, Detectives Nelson and Willett interviewed Fowler at

the New Philadelphia Police Department. The entire interview was recorded and entered

into evidence. See, Joint Exhibit A.
Tuscarawas County, Case No. 2015 AP 0054                                                   3


       {¶6}     Fowler was in custody at the time of the interview on an unrelated matter

and was released after the interview. The interview lasted one hour and fifteen minutes.

(T. Aug. 13, 2015 at 17). Detective Nelson read Fowler his Miranda rights prior to

commencing the interview. Fowler did not ask for the interview to stop. (T. Aug. 13, 2015

at 18). Fowler never requested an attorney. (Id.). Detective Nelson testified that had

Fowler made either request the interview would have terminated. (Id. at 19).

       {¶7}     Fowler told the officers that he suffered two aneurisms that had effected his

memory.       (Joint Exhibit A).   Detective Nelson testified that he did not observe any

indications that Fowler did not understand his situation. (Id. at 20). Detective Nelson

characterized Fowler as articulate and responsive to the questioning. (Id.).

       The trial court’s decision.

       {¶8}     By judgment entry filed September 21, 2015, the trial court agreed that

Detective Nelson read Fowler his Miranda rights prior to questioning Fowler. However,

the trial court noted,

                FINDS, however, that Defendant does not suggest either in his

       Motion to Suppress Statements or in his Legal Memoranda in Support of

       the Motion, that the rights of the Defendant under Miranda v. Arizona, 384

       U.S. 436 (1966) have not been abrogated.

                FINDS that in viewing the DVD (Joint Exhibit A) memorializing the

       12/1/2014 Interrogation of the Defendant by agents of the New Philadelphia,

       Ohio Police Department at the New Philadelphia, Ohio Police Station, it is

       graphically clear that the following occurred:
Tuscarawas County, Case No. 2015 AP 0054                                             4


            Detective Shawn Nelson, prior to asking the Defendant any

     questions, properly read the Defendant's constitutional rights vis a vis

     Miranda, citation above.

            Agents of the New Philadelphia Police Department did not obtain a

     lawful waiver from the Defendant of his constitutional rights under the Fifth

     Amendment of the United States Constitution protecting the Defendant in

     this case from being compelled to self-incriminate.

                                          ***

            In explaining Defendant's constitutional rights Detective Nelson did

     not place a printed copy of the constitutional rights form from which he was

     reading before the Defendant notwithstanding that he told the Defendant

     you can "follow along or not" or words to that effect prior to reading the

     constitutional rights form to Defendant. Additionally, upon completing the

     recitation of Defendant's constitutional rights, Detective Nelson did not ask

     the Defendant if he was willing to proceed to answer questions but, instead,

     simply placed what appears to be a document containing the constitutional

     rights and a waiver form in front of the Defendant and said "I need you to

     sign right here" (the waiver form on the document) to which the Defendant

     says "I cannot see.” "I don't have my glasses.” The Defendant then

     proceeded to sign the document without his glasses at the location

     Detective Nelson told him to sign" - "on the X."; and without any verbal

     indication that he knew what he was signing or had any understanding of

     the legal significance of his signature.
Tuscarawas County, Case No. 2015 AP 0054                                                   5


       {¶9}   The court concluded that because the officers did not ask Fowler if he

understood his rights and was willing to proceed with questioning, and did not provide

Fowler with a written explanation of his Miranda rights the state failed to prove that Fowler

made a “knowing and intelligent” decision to waive his rights.

       {¶10} The trial court granted Fowler’s motion to suppress.

                                      Assignments of Error

       {¶11} The state raises two assignments of error,

       {¶12} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

SUPPRESSING STATEMENTS SUA SPONTE ON AN ISSUE NOT RAISED BY THE

PARTIES OR COURT.

       {¶13} “II. APPELLEE'S WAIVER OF HIS MIRANDA RIGHTS WAS KNOWING,

VOLUNTARY AND INTELLIGENT IN THE TOTALITY OF THE CIRCUMSTANCES.”

                                              I. & II.


       {¶14} In the first assignment of error, the state argues the trial court sua sponte

suppressed Fowlers’ statements based upon an issue not raised or addressed by the

Court or parties before, during, or after the hearing on the motion to suppress. In the

second assignment of error, the state contends Fowler voluntarily and intelligently

waived his Miranda rights.

       {¶15} In the case at bar, the trial court required the police to do more than advise

Fowler of his rights. However, the police are not required to provide a written copy of

the Miranda rights to a suspect. Nor are the police required to obtain a written waiver

of the Miranda rights prior to commencing questioning. Fowler never contended that he

did not understand his Miranda rights either in his motion to suppress or in his post-
Tuscarawas County, Case No. 2015 AP 0054                                                  6


hearing memorandum. A review of Joint Exhibit A indicates that Detective Nelson asked

Fowler if he understood “that, right” to which Fowler responded “yeah.” (Joint Exhibit A,

at 16:22:45-46; 004320-4321). Fowler has a history of involvement with law

enforcement. (Joint Exhibit A).

       {¶16} In order for an accused's statement to be admissible at trial, police must

have given the accused a Miranda warning if there was a custodial interrogation. Miranda

v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966). If that condition is

established, the court can proceed to consider whether there has been an express or

implied waiver of Miranda rights. Id., at 476, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694.

       {¶17} In State v. Dailey, 53 Ohio St.3d 88, 559 N.E.2d 459(1990), the Ohio

Supreme Court outlined the manner in which a suspect must be informed of his or her

Miranda rights: “[i]n Miranda, supra, the court indicated that ‘the prosecution may not use

statements, whether exculpatory or inculpatory, stemming from custodial interrogation of

the defendant unless it demonstrates the use of procedural safeguards effective to secure

the privilege against self-incrimination.’ Id. at 444, 86 S.Ct. at 1612. The court indicated

that in the absence of other effective measures the following procedures to safeguard the

Fifth Amendment privilege must be observed:

              Prior to any questioning, the person must be warned that he has a

       right to remain silent, that any statement he does make may be used as

       evidence against him, and that he has a right to the presence of an attorney,

       either retained or appointed.

Id. In Dailey, the Ohio Supreme Court noted,
Tuscarawas County, Case No. 2015 AP 0054                                              7


            The United States Supreme Court has often indicated that there is

     no rigid rule requiring that the content of the Miranda warnings given to an

     accused prior to police interrogations be a virtual incantation of the precise

     language contained in the Miranda opinion. See California v. Prysock

     (1981), 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696; Duckworth v. Eagan

     (1989), 492 U.S. 195, 109 S.Ct. 2875, 2879, 106 L.Ed.2d 166, 176-177.

     The warnings required by Miranda are necessary in the absence of any

     other effective equivalent. Miranda, supra, 384 U.S. at 476, 86 S.Ct. at

     1629; Prysock, supra, 453 U.S. at 359-360, 101 S.Ct. at 2809; Duckworth,

     supra, 492 U.S. at ----, 106 L.Ed.2d at 176-177, 109 S.Ct. at 2879. They

     are simply required to convey to a suspect his rights and are not themselves

     rights protected by the Constitution. Duckworth, supra, at ----, 109 S.Ct. at

     2880, 106 L.Ed.2d at 177. They are measures to insure that the right

     against compulsory self-incrimination is protected. Id. Hence, a reviewing

     court need not examine the warnings as if construing a will or defining the

     terms of an easement. Id.

            In State v. Edwards (1976), 49 Ohio St.2d 31, 37-41, 3 O.O.3d 18,

     21- 24, 358 N.E.2d 1051, 1057-1059, vacated in part (1978), 438 U.S. 911,

     98 S.Ct. 3147, 57 L.Ed.2d 1155 we rejected the defendant's argument that

     the Miranda warnings given to him were inadequate because the police

     officer never explicitly asked him whether he wanted an attorney.          As

     indicated in Moran v. Burbine (1986), 475 U.S. 412, 420, 106 S.Ct. 1135,

     1140, 89 L.Ed.2d 410 the warnings required by Miranda are satisfied where
Tuscarawas County, Case No. 2015 AP 0054                                                     8


       ‘prior to the initiation of questioning, * * * [the police] must fully apprise the

       suspect of the State's intention to use his statements to secure a conviction,

       and must inform him of his rights to remain silent and to 'have counsel

       present * * * if [he] so desires.’ In Duckworth, supra, 492 U.S. at ----, 109

       S.Ct. at 2880, 106 L.Ed.2d at 177, the court approved, as touching all of the

       bases required by Miranda, warnings informing a suspect “that he had the

       right to remain silent, that anything he said could be used against him in

       court, that he had the right to speak to an attorney before and during

       questioning”, that he had “this right to the advice and presence of a lawyer

       even if [he could] not afford to hire one,” and that he had the “right to stop

       answering at any time until [he] talked to a lawyer.”

Dailey, 53 Ohio St.3d at 90-91, 559 N.E.2d at 461-62. (Emphasis in original).

       {¶18} A court may infer from the totality of the circumstances that a defendant

voluntarily, knowingly, and intelligently waived his rights. State v. Clark, 38 Ohio St.3d

252, 261 (1988); State v. Gapen, 104 Ohio St.3d 358, 2004–Ohio–6548, ¶ 52. The totality

of the circumstances includes “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. Dixon,

101 Ohio St.3d 328, 2004–Ohio–1585, ¶ 25, quoting State v. Eley, 77 Ohio St.3d 174,

178 (1996). “Only if the ‘totality of the circumstances surrounding the interrogation’

reveals both an uncoerced choice and the requisite level of comprehension may a court

properly conclude that the Miranda rights have been waived.” Lather at ¶ 7, citing Moran

v. Burbine, 475 U.S. 412, 421 (1986). By definition of “totality,” a court is to look to all of
Tuscarawas County, Case No. 2015 AP 0054                                                  9


the evidence to determine a suspect's understanding, which can be implied by his conduct

and the situation. Id. at ¶ 9.

       {¶19} In State v. Lawson, the court found that the police may question a suspect

after giving the Miranda warnings unless and until the suspect invokes his or her rights,

              A suspect's incriminatory statements ordinarily are admissible if law

       enforcement officers gave the suspect Miranda warnings and if the suspect

       fails to unambiguously invoke the Fifth Amendment right against self-

       incrimination. Berghuis v. Thompkins, 560 U.S. 370, 388–389, 130 S.Ct.

       2250, 176 L.Ed.2d 1098 (2010).         Once a suspect has received and

       understood the Miranda warnings, law enforcement officers may continue

       questioning “until and unless the suspect clearly [invokes the right to remain

       silent].” Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129

       L.Ed.2d 362; Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d

       313 (1975); see Berghuis, 560 U.S. at 389 (explaining that officers need not

       obtain a waiver of Miranda rights before interrogating a suspect). “If * * *

       the right to remain silent is invoked at any point during questioning, further

       interrogation must cease.” Berghuis at 388; Mosley (stating that once a

       suspect invokes the right to remain silent, officers must stop questioning);

       State v. Murphy, 91 Ohio St.3d 516, 520, 747 N.E.2d 765 (2001).

4th Dist. Pickaway No. 14CA20, 2015-Ohio-4394, ¶ 17.

       {¶20} There is no requirement that an accused be given a written version of his or

her Miranda rights. The fact that a defendant did not sign a rights waiver form or expressly

state that he was waiving his rights is not controlling.      “An express written or oral
Tuscarawas County, Case No. 2015 AP 0054                                                    10


statement of waiver of the right to remain silent or the right to counsel is usually strong

proof of the validity of that waiver, but is not inevitably either necessary or sufficient to

establish waiver. The question is not one of form, but rather whether the defendant in

fact knowingly and voluntarily waived the rights delineated in Miranda.” State v. Scott, 61

Ohio St.2d 155 (1980), paragraph one of the syllabus; State v. Haynes, 10th Dist. Franklin

No. 01AP–430, 2002–Ohio–4389, ¶53.

           {¶21} Further, an accused’s mental state, in and of itself does not mandate a

finding that the accused did not understand and waive his or her Miranda rights. As the

court in State v. Valentine, noted,

                  An accused's mental condition, although a relevant consideration,

           does not by itself prevent an effective waiver of constitutional rights. State

           v. Rosales, 4th Dist. No. 01CA2588, 2002–Ohio–6132, ¶ 55, citing

           Colorado v. Connelly, 479 U.S. 157 (1986). See also State v. Worley, 11th

           Dist. No. 2001–T–0048, 2002–Ohio–4516, ¶ 166 (defendant who had

           been “in and out of several hospitals on suicide watch” properly waived his

           rights where nothing unusual about his mental state during the interview).

           See also State v. Kirk, 3d Dist. No. 3–12–09, 2013–Ohio–1941, ¶ 29–30

           (noting that diminished mental capacity alone does not prevent waiver of

           rights, but is one factor considered in totality of the circumstances).

10th Dist. Franklin No. 14AP-893, 2016-Ohio-277, ¶16.

           {¶22} In the case at bar, we find that the trial court incorrectly concluded that

Fowler was not properly advised of his Miranda rights. In doing so, the trial court stated

that it,
Tuscarawas County, Case No. 2015 AP 0054                                                11


              Need not reach Defendant's Fifth and Fourteenth Amendment

       arguments (United States Constitution) cited in his initial Memorandum in

       Support of the Motion to Suppress filed 6/12/2015 or in the Post-Hearing

       Memorandum filed 9/8/2015.

Judgment Entry-Further Non-Oral Consideration Conducted on 9/17/2015 Pertaining to

Defendants’ 6/12/2015 Motion to Suppress Statements, Oral/Evidentiary Hearing

Conducted on 8/13/2015, and Post-Hearing Legal Memorandum Filed by State Ohio

[sic.] and Defendant-Motion to Suppress Statements Granted-Orders Entered, filed

Sept. 21, 2015 at 5. As such, the court never addressed whether Fowler made a

knowing, intelligent and voluntary waiver of his rights under the Fifth and Fourteenth

Amendments. Accordingly, we remand this case to the trial court for a determination of

this issue.

       {¶23} Section 3(B) (2), Article IV of the Ohio Constitution gives an appellate court

the power to affirm, reverse, or modify the judgment of an inferior court.
Tuscarawas County, Case No. 2015 AP 0054                                       12


      {¶24} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas is reversed and this case is remanded for proceedings in accordance with our

opinion and the law.

By Gwin, J.,

Farmer, P.J., and

Delaney, J., concur
