[Cite as State v. Michael , 2010-Ohio-5296.]


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

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 09CA887
                                :
     vs.                        : Released: October 26, 2010
                                :
ELIZABETH MICHAEL,              : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Lisa Rothwell, West Union, Ohio, for Defendant-Appellant.

Aaron E. Haslam, Adams County Prosecuting Attorney, Kris D. Blanton,
Adams County Assistant Prosecuting Attorney, West Union, Ohio, for
Plaintiff-Appellee.
_____________________________________________________________

McFarland, P.J.:

        {¶1}       Defendant-Appellant, Elizabeth Michael, appeals the decision

of the Adams County Court of Common Pleas finding her guilty of arson

and aggravated arson. Michael states there was error below in that 1) she

did not voluntarily, knowingly and intelligently waive her Miranda rights; 2)

her statement to investigators admitting her guilt was not made voluntarily

knowingly and intelligently; 3) she had ineffective assistance of counsel

because her trial counsel failed to object to the admission of her Miranda

waiver form and her statement admitting guilt; and 4) the jury's verdict was
Adams App. No. 09CA887                                                            2


against the manifest weight of the evidence. We disagree. After a complete

review of the trial record, we find that none of Michael’s assignments of

error are warranted and affirm the decision of the court below.

                                   I. Facts
      {¶2}     In December 2008, the West Union Village Police

Department was called to the scene of an apartment building fire. The fire

caused extensive damage to the multi-unit building. Subsequent

investigation showed that the fire had originated in the apartment of tenant

Anthony Ruben Baca. Appellant Elizabeth Michael and her husband had

been residing with Baca before the fire.

      {¶3}     Investigators asked Michael and her husband to come in for

questioning about the fire. Once at the station, Officer Tim Sanderson

presented Michael with a Miranda rights waiver form. Sanderson went over

the contents of the form with Michael, Michael indicated that she understood

each of her rights, and she then signed the waiver. Michael was then

interviewed by Fire Marshals Robert Dunn and Trace Lawless. During the

interview, Michael initially denied any knowledge of the fire. But within a

relatively short period of time, she verbally admitted to setting the fire. She

then wrote out a statement to that effect. She stated that on the day of the
Adams App. No. 09CA887                                                          3


fire, she discovered that Baca had stolen from her and her husband. She said

she set the fire in Baca’s apartment in retaliation.

      {¶4}     Michael was indicted on multiple counts of arson. In a

pretrial motion, she moved to suppress both the Miranda waiver form and

the self-incriminating statements she had made to Dunn and Lawless. After

an evidentiary hearing, the trial court denied her motion to suppress and the

matter proceeded to trial. The jury subsequently found her guilty of

aggravated arson, under R.C. 2909.02 (A)(2), guilty of arson, under R.C.

2909.03 (A)(1), and not guilty of aggravated arson under R.C. 2909.02

(A)(1). The trial court sentenced her to five years in prison. Following

sentencing, Michael timely filed the current appeal.

                           II. Assignments of Error

First Assignment of Error
      THE TRIAL COURT ERRED BY DENYING APPELLANT’S
      MOTION TO SUPPRESS AS APPELLANT DID NOT
      VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVE
      HER MIRANDA RIGHTS.
Second Assignment of Error

      THE TRIAL COURT ERRED BY DENYING APPELLANT’S
      MOTION TO SUPPRESS AS APPELLANT’S STATEMENTS
      WERE NOT MADE VOLUNTARILY, KNOWINGLY AND
      INTELLIGENTLY.
Adams App. No. 09CA887                                                         4


Third Assignment of Error

       TRIAL COUNSEL WAS INEFFECTIVE IN VIOLATION OF THE
       SIXTH AMENDMENT FOR FAILURE TO OBJECT TO THE
       TRIAL COURT’S ADMISSION OF THE MIRANDA WAIVER
       AND WRITTEN STATEMENT OF THE APPELLANT.
Fourth Assignment of Error

       THE JURY VERDICT OF GUILTY ON THE AGGRAVATED
       ARSON IN VIOLATION OF OHIO REVISED CODE § 2909.02
       (A)(2) AND ARSON IN VIOLATION OF OHIO REVISED CODE §
       2909.03 (A)(1), WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE DENYING APPELLANT DUE PROCESS OF
       LAW.
                 III. First and Second Assignments of Error
       {¶5}    As Michael’s first and second assignments of error both argue

that the trial court improperly denied her motion to suppress, we address

them together. In her first assignment of error she states the trial court

improperly denied her motion to suppress because she did not voluntarily,

knowingly and intelligently waive her Miranda rights. In her second

assignment of error she states the trial court improperly denied her motion to

suppress because her statements incriminating herself were also not made

voluntarily, knowingly and intelligently.

       {¶6}    Appellate review of a motion to suppress presents a mixed

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

5372, 797 N.E.2d 71, at ¶8. In a motion to suppress, the trial court assumes

the role of trier of fact and, as such, is in the best position to resolve
Adams App. No. 09CA887                                                           5


questions of fact and evaluate witness credibility. State v. Mills (1992), 62

Ohio St.3d 357, 366, 582 N.E.2d 972, citing State v. Fanning (1982), 1 Ohio

St.3d 19, 20, 437 N.E.2d 583. Accordingly, in our review, we are bound to

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

credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594, 621

N.E.2d 726. Accepting those facts as true, we must independently determine

as a matter of law, without deference to the trial court's conclusion, whether

they meet the applicable legal standard. State v. Klein (1991), 73 Ohio

App.3d 486, 488, 597 N.E.2d 1141.

      {¶7}     During the suppression hearing, Officer Tim Sanderson, the

officer who informed Michael of her Miranda rights, testified to the

following: Michael voluntarily came to the police station; because Michael

did not have a way to get to the station, a deputy drove to where she was

staying and brought her to the interview; at no time was Michael handcuffed

or restrained in any manner; she was not placed under arrest; before going

over the waiver form with her, Sanderson asked her if she could read, if she

was taking prescription medication, or if she was under the influence of

drugs or alcohol; she appeared to understand everything he said and she did

not appear to be under the influence of drugs or alcohol; Sanderson read

each right listed on the Miranda waiver form to Michael; after he read each
Adams App. No. 09CA887                                                            6


right, he asked her if she understood the right, and if she did, to place her

initials beside it; Michael initialed each right and also verbally told

Sanderson that she understood each right; she also signed the waiver itself,

saying that she understood each of the rights and that she waived those rights

and was willing to make a statement; again, she verbally indicated that she

understood those rights and the function of the waiver form; she signed the

form at about 1 a.m.; Michael had only been in the squad room for five or

ten minutes before she executed the waiver form.

      {¶8}     In her brief, Michael presents very little support as to why she

believes she did not voluntarily, knowingly and intelligently waive her

Miranda rights. She states that there is nothing in the record to indicate that

the Miranda form was read to her and nothing to indicate that Officer

Sanderson believed that she understood the waiver. Those assertions are

flatly contradicted by the testimony of Sanderson related above. It is true

that Sanderson, himself, did not discuss the allegations of arson with her, but

it is also clear that she knew why she was being questioned: at the beginning

of her interview, which took place immediately after she had signed the

Miranda waiver form, she stated that she knew she was there because of the

fire, and because the authorities thought she and her husband might be

involved. Further, Michael acknowledged that she initialed each Miranda
Adams App. No. 09CA887                                                          7


right and executed the waiver form. But our analysis of whether a defendant

has voluntarily, knowingly and intelligently waived her Miranda rights does

not end simply at whether she has been informed of those rights.

      {¶9}    The Court has concluded that even if Miranda warnings are

required and given, a defendant's statements may be deemed involuntarily

and, thus, be subject to exclusion. State v. Kelly, 2nd Dist. No. 2004-CA-20,

2005-Ohio-305, at ¶11. “The test for voluntariness under a Fifth

Amendment analysis is whether or not the accused's statement was the

product of police overreaching.” State v. Finley (June 19, 1998), 2nd Dist.

No. 96-CA-30, at *8. “A suspect's decision to waive his Fifth Amendment

privilege is made voluntarily absent evidence that his will was overborne

and his capacity for self-determination was critically impaired because of

coercive police conduct.” State v. Dailey (1990), 53 Ohio St.3d 88, 91, 559

N.E.2d 459. “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.’” State v. Sneed, 166 Ohio App.3d 492, 2006-Ohio-1749,
Adams App. No. 09CA887                                                          8


851 N.E.2d 532, at ¶31, quoting State v. Edwards (1976), 49 Ohio St.2d 31,

3 O.O.3d 18, 358 N.E.2d 1051.

      {¶10}      As previously stated, during her interview with Fire

Marshals Robert Dunn and Trace Lawless, Michael at first denied

involvement with the fire, but soon admitted that she was responsible. She

also drafted a written statement admitting her guilt. The suppression hearing

transcript shows that the trial court engaged in a thorough analysis as to

whether those statements were made knowingly, intelligently and

voluntarily. The trial court found the following:

      {¶11}      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.”

      {¶12}      The court also noted that Michael had testified about a

statement Lawless allegedly made to her during her interview. Michael
Adams App. No. 09CA887                                                                9


stated that Lawless told her that if she did not make a statement, they would

be there all night, but if she did make a statement she could go home.

Investigator Dunn denied that Lawless had made such a statement to

Michael.1 Taking into consideration its previous findings regarding the short

duration of the interview, the lack of intensity, and Michael's competency,

the trial court stated the following about the issue: “[T]he Court does not

find that the inducement of hey, we’re going to, either you give a statement

and tell us what happened, or we are going to be here all night or a while.

The Court does not find that, that would be something that would have been

in violation.”

           {¶13}         We fully agree with the trial court's thorough analysis of the

facts and circumstances surrounding Michael's interview. After a complete

review of the suppression hearing, and considering the totality of the

circumstances, we find the evidence overwhelmingly shows that Michael

voluntarily, knowingly and intelligently waived her Miranda rights and that

she voluntarily, knowingly and intelligently stated that she was responsible

for the fire. Accordingly, we overrule her first and second assignments of

error.




1
    Lawless did not testify at the suppression hearing.
Adams App. No. 09CA887                                                         10


                       IV. Third Assignment of Error

      {¶14} In her third assignment of error, Michael argues that she had

ineffective assistance of counsel because her trial counsel failed to object

when the Miranda waiver form and her written statement admitting her guilt

were entered into the record during the suppression hearing.

      {¶15} In order to establish ineffective assistance of counsel, an

appellant must show that counsel’s representation was both deficient and

prejudicial. In re Sturm, 4th Dist. No. 05CA35, 2006-Ohio-7101, at ¶77;

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052.

Deficient representation means counsel’s performance was below an

objective standard of reasonableness. Id. To show prejudice, an appellant

must show it is reasonably probable that, except for the errors of his counsel,

the proceeding’s outcome would have been different. Id.

      {¶16} Michael argues that her trial counsel should have objected to

the admission of her Miranda waiver form and her written statement, but she

does not state the basis upon which the objection should have been made.

As the State points out in its brief, this assignment of error seemingly refers

solely to the proffer at the suppression hearing. If it is Michael’s contention

that the documents were not properly authenticated, she presents no

evidence upon which her trial counsel could have supported that claim. She
Adams App. No. 09CA887                                                                      11


admitted that the proffered form had her initials and her signature on it.

Similarly, she admitted that she drafted and signed the statement admitting

her guilt. And she did not allege that the either statement had been altered in

any way. Neither did she allege that either form was anything other than

what it was purported to be.

           {¶17} Further, it is undisputed that Michael's trial counsel properly

filed a motion to suppress the documents, properly argued against their

inclusion during the suppression hearing, and properly renewed the

objection at all relevant times. The trial court acknowledged this fact when

the exhibits were admitted during trial:

           {¶18} “Counsel the Court will note, and just for clarification of the

record, from the time of the motion to suppress throughout this entire

proceeding of this trial, that the, there have been timely objections noted by

defense counsel in regard to State’s Exhibits 8, 8 and 9 * * * but the Court

will also admit State’s Exhibit 8, 8 and 9 over the objections of defense

counsel.”2

           {¶19} Accordingly, we find no basis for Michael's claim that she

was denied effective assistance of counsel and we overrule her third

assignment of error.


2
    State’s Exhibit 8 is the Miranda waver form, Exhibit 9, Michael’s written confession.
Adams App. No. 09CA887                                                         12


                       V. Fourth Assignment of Error

      {¶20} In her fourth assignment of error, Michael argues that the

jury's verdict was against the manifest weight of the evidence. “The legal

concepts of sufficiency of the evidence and weight of the evidence are both

quantitatively and qualitatively different.” State v. Thompkins (1997), 78

Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency tests the

adequacy of the evidence, while weight tests “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other[.]” State v. Sudderth, 4th Dist. No. 07CA38,

2008-Ohio-5115, at ¶27, quoting Thompkins at 387.

      {¶21} “Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is much broader than

that for sufficiency of the evidence.” State v. Smith, 4th Dist. No. 06CA7,

2007-Ohio-502 at ¶41. When determining whether a criminal conviction is

against the manifest weight of the evidence, we “will not reverse a

conviction where there is substantial evidence upon which the [trier of fact]

could reasonably conclude that all the elements of an offense have been

proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d

56, 526 N.E.2d 304, paragraph two of the syllabus. See, also, Smith at ¶41.
Adams App. No. 09CA887                                                          13


We “must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether,

in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial granted.” Smith at ¶41, citing State v. Garrow

(1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. However, “[o]n the trial

of a case, * * * the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” DeHass at paragraph one

of the syllabus.

      {¶22} For the following reasons, we find there was ample evidence

for the jury to find Michael guilty of arson and aggravated arson. First, and

most obviously, there is her confession. During trial, Michael testified in her

own defense and claimed that she did not set the fire and that she confessed

only in order to protect her husband. But Dunn and Lawless, her

interviewers, testified that she had information about the fire that only the

perpetrator would know. Though they told her the fire had multiple origins,

they did not tell where the fire had originated. Both Dunn and Lawless

testified that Michael told them two specific places where she set the fire - in

the oven and in a box in the living room. And this was consistent with the
Adams App. No. 09CA887                                                              14


evidence they found at the scene. Michael testified otherwise. She stated

that they told her exactly where the fire had started. But Lawless stated that

it was his standard procedure not to give such information to suspects. “I

want them to tell me that, that way I know if they’re telling the truth or not.”

      {¶23} The jury also heard other testimony that could reasonably be

construed as implicating Michael. Michael had been living in the apartment

immediately before the fire was set. She admitted that she was angry with

the apartment’s tenant, Ruben Baca, for allegedly stealing her personal

property earlier that day. She admitted that she left the apartment

immediately before the fire started - in fact, she was close enough to hear the

apartment fire alarm going off. And she admitted that she removed all of her

property from the apartment and was leaving for good immediately before

the fire took place.

      {¶24} To the extent that Michael's testimony differs from that of

other witnesses, such as Dunn and Lawless, such determinations of

credibility are primarily for the trier of fact. This is particularly true in the

present matter, where Michael’s testimony flatly contradicts that of Dunn

and Lawless on such vital issues as to whether or not Michael already knew

the specific origins of the fire and whether or not she was told that she could
Adams App. No. 09CA887                                                      15


go home if she confessed - a claim that both Dunn and Lawless vehemently

deny.

        {¶25} Accordingly, after a complete examination of the record

below, we find that there was substantial evidence for the jury's decision and

that the jury could have reasonably concluded that all the elements of arson

and aggravated arson were proven beyond a reasonable doubt. As such, we

overrule Michael's fourth and final assignment of error.

                                                JUDGMENT AFFIRMED.
Adams App. No. 09CA887                                                         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 Adams 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.

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

                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland
                                            Presiding 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.
