[Cite as State v. Emerson, 2016-Ohio-8509.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

 STATE OF OHIO                                      :
                                                    :   Appellate Case Nos. 2015-CA-24
      Plaintiff-Appellant/Cross-Appellee            :   Appellate Case Nos. 2016-CA-1
                                                    :
 v.                                                 :   Trial Court Case No. 14-CR-287
                                                    :
 RAYMOND R. EMERSON                                 :   (Criminal Appeal from
                                                    :    Common Pleas Court)
      Defendant-Appellee/Cross-Appellant            :
                                                    :

                                               ...........

                                              OPINION

                         Rendered on the 29th day of December, 2016.

                                               ...........

R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, and DEBORAH S. QUIGLEY, Atty. Reg.
No. 0055455, Darke County Prosecutor’s Office, 504 South Broadway Street, Suite No.3,
Greenville, Ohio 45331
      Attorneys for Plaintiff-Appellant/Cross-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, and NICOLE RUTTER-HIRTH, Atty. Reg.
No. 0081004, Rion, Rion & Rion, L.P.A., Inc., 130 West Second Street, Suite 2150, Post
Office Box 10126, Dayton, Ohio 45402
       Attorney for Defendant-Appellee/Cross-Appellant

                                              .............

HALL, J.

         {¶ 1} The State of Ohio appeals from the trial court’s October 5, 2015 judgment
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entry of conviction and sentence, which, following a jury’s guilty verdict, convicted and

sentenced appellee/cross appellant Raymond Emerson on fourth-degree felony

corrupting another with drugs in violation of R.C. 2925.02(A)(3).

         {¶ 2} In two related assignments of error, the State contends the trial court erred

in “amending” the charge against Emerson from a second-degree felony, as charged in

the indictment, to a fourth-degree felony based on a purported lack of proof that fentanyl

was a “Schedule II” controlled substance.

         {¶ 3} In a cross appeal, Emerson advances three assignments of error. First, he

challenges the legal sufficiency and manifest weight of the evidence to sustain his

conviction.1 Second, he contends the trial court erred in denying his Crim.R. 33 motion

for a new trial based on (1) a key prosecution witness presenting “surprise testimony” and

(2) the insufficiency of the State’s evidence. Third, he asserts that the trial court erred in

failing to suppress statements he made to police based on (1) a Miranda violation and (2)

the statements being involuntary.

         {¶ 4} The record reflects that Emerson originally was charged with involuntary

manslaughter, a first-degree felony, and corrupting another with drugs, a second-degree

felony. The charges stemmed from his alleged role in the death of his wife, Angela

Emerson, on January 18, 2014. Prior to trial, the State dismissed the involuntary

manslaughter charge. (Trial Tr. at 5-6). At trial, the State presented evidence that Angela

was addicted to prescription drugs and had also abused non-prescription drugs.2 With



1 Although Emerson’s stated first assignment of error mentions only sufficiency, his
argument thereunder also addresses the manifest weight of the evidence.
2   For purposes of clarity, we will refer to Angela Emerson by her first name.
                                                                                         -3-


regard to the incident at issue, the State presented testimony that Emerson, a nurse, had

admitted to cutting a 50-microgram per hour fentanyl patch and placing half of it on

Angela’s abdomen to relieve her extreme pain. He then went into his bedroom and went

to bed, leaving her alone in the living room. When Emerson later awoke, he found Angela

dead on the couch. (Id. at 297-298).

       {¶ 5} The State introduced evidence that Emerson called in the event as a

“probable drug overdose.” Angela did not have a prescription for the fentanyl. (Id. at 296).

She had “scored” (Emerson’s word) the patch from a drug dealer the previous day. (Id. at

209). Emerson said she had overdosed previously and had a drug addiction problem. (Id.

at 297-298). Fentanyl packaging comes with a strong warning not to alter the patch, which

could defeat the gradual absorption through the permeable membrane and into the skin.

(Id. at 252). On December 18, 2013, approximately one month before her death, Angela

was admitted to Wayne Hospital for a fentanyl overdose where it was reported she had

chewed or eaten a fentanyl patch. (Id. at 267-268).

       {¶ 6} In addition to the State’s evidence, in the defense case evidence was

introduced that Angela went to the hospital on October 12, 2012 for an overdose, where

she was signed in by her husband, after she chewed on her husband’s fentanyl patch.

On October 17, 2013 she was admitted for an apparent heroin overdose after her

husband found her non-responsive and he started “ALS” (advanced life support). On

December 18, 2013 she was taken to the hospital for multi-substance abuse, including

chewing on a fentanyl patch, after her husband found her lethargic.

       {¶ 7} An autopsy revealed the presence of multiple drugs in Angela’s system. They

included fentanyl, anti-depressants, benzodiazepines, an anti-psychotic, and a muscle
                                                                                            -4-

relaxer. (Id. at 233). Angela had prescriptions for some but not all of these medications.

Her cause of death was determined to be “multiple drug intoxication.” (Id. at 230).

       {¶ 8} Forensic pathologist Susan Allen, who performed the autopsy, testified that

she could not say whether fentanyl, as opposed to one of the other drugs, caused

Angela’s death. (Id. at 237). Allen stated that 50 micrograms per hour of fentanyl might

be too much for a person to tolerate if the person had “never taken anything like that.” (Id.

at 242). Allen opined that Angela had a “high” level of fentanyl and two other drugs in her

system. (Id. at 239). Allen also stated that fentanyl could be a “killer drug” if misused. (Id.

at 242). She then testified that, in her opinion, fentanyl had “played a role” in Angela’s

death. (Id.). But when then asked whether Angela would have died from just the other

drugs in her system, Allen responded that she did not know. (Id.). Allen also opined that

there was “no way to know” when any of the drugs in Angela’s system had been taken.

(Id. at 242-243).

       {¶ 9} Darke County Coroner Timothy Kathman also testified for the State. He

agreed that Angela’s cause of death was “multiple drug toxicity.” (Id. at 256). He stated

that the multiple drug intoxication “could have occurred minutes to hours” before Angela’s

death. (Id. at 270). Kathman acknowledged that in such a case, he could not determine

“which drugs or combination of drugs caused the death[.]” (Id. at 265). Kathman testified

that the fentanyl in Angela’s system was “was not at an excessive level.” (Id. at 269).

When asked whether the fentanyl found in Angela’s system was at a “therapeutic level,”

Kathman reiterated that “[i]t was not an excessive level.” (Id. at 270). Kathman later

testified unequivocally that the fentanyl found in Angela’s system was not “a deadly dose.”

(Id. at 276). When asked whether she would have died absent the fentanyl, he responded:
                                                                                             -5-

“Well, that’s an excellent question, but I have no way of determining that.” (Id. at 276).

       {¶ 10} In its closing argument, the State maintained that Emerson was guilty of

violating R.C. 2925.02(A)(3), which provides that no person shall knowingly “administer

or furnish to another * * * a controlled substance, and thereby cause serious physical

harm to the other person[.]” The State argued that Emerson knowingly had administered

or furnished the fentanyl patch to his wife. With regard to causing serious physical harm,

the State asserted that the fentanyl in combination with the other drugs in Angela’s system

had stopped her breathing. (Trial Tr. at 393). The State argued that Emerson, who was

himself a registered nurse, knew what would happen if Angela took fentanyl with “all her

other medications” or “all her other drugs.” (Id.). For purposes of this case, the trial court

instructed the jury that “serious physical harm” was “any physical harm that carries a

substantial risk of death.” (Id. at 403).

       {¶ 11} The jury returned a guilty verdict. The verdict form stated that the jury found

Emerson guilty “of the offense of Corrupting Another with Drugs.” (Doc. #24). The verdict

form did not contain the felony level of the offense or state that the drug involved was

fentanyl, although that is the only drug contained in the indictment and the only drug that

Emerson “administered” to his wife. Following the verdict, the trial court overruled a

Crim.R. 29 motion (which Emerson had made during trial and had renewed afterward and

which the trial court had held in abeyance) and a Crim.R. 33 motion for a new trial. With

regard to the Crim.R. 29 motion, the trial court noted the absence of any “direct testimony”

that fentanyl was a “controlled substance” but concluded that such a fact could be inferred

from the evidence. The trial court also agreed with Emerson that the State had failed to

prove fentanyl was a “Schedule II” controlled substance. It determined, however, that a
                                                                                           -6-


conviction under R.C. 2925.02(A)(3), did not require proof of the applicable “schedule” of

the drug involved. Citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d

735, the trial court held that Emerson could be convicted and sentenced only for fourth-

degree felony corrupting another with drugs because (1) under R.C. 2925.02 the felony

offense level depended on the “schedule” of the drug involved and (2) the verdict form

did not state the degree of the offense or recite any additional element (i.e., the schedule

of the drug fentanyl) elevating the offense from the lowest level, which was a fourth-

degree felony. The trial court also refused the State’s post-trial request to take judicial

notice that fentanyl was a Schedule II controlled substance. Finally, the trial court rejected

Emerson’s argument that the State had failed to prove causation. It reasoned that the jury

could have found causation established based on “multiple drugs combining to cause

death.” (Doc. #34 at 4). With regard to the Crim.R. 33 motion, the trial court held that a

discrepancy between an investigating officer’s police report and his trial testimony did not

warrant a new trial and that Emerson’s conviction was based on sufficient evidence.

       {¶ 12} The trial court later sentenced Emerson to community control but also

imposed a 60-day jail sentence. In addition, it ordered him to pay a $5,000 fine and

imposed other sanctions. This appeal and cross appeal followed.

       {¶ 13} In its first assignment of error, the State contends the trial court erred in

requiring it to prove that fentanyl was a Schedule II controlled substance and in amending

the charge after the verdict to a fourth-degree felony. The State argues that, as a matter

of law, fentanyl is a “Schedule II” controlled substance under R.C. 3719.41 and that the

trial court should have taken judicial notice of that fact. The State insists that it was not

required to prove that fentanyl was a “Schedule II” controlled substance. Instead, it
                                                                                           -7-


asserts that it was required to prove only that the substance at issue here was fentanyl.

The State reasons:

               Corrupting Another with Drugs is a felony of the second degree when

       the drug involved is included in Schedule I or II. The State proved that

       Appellee knowingly, by any means, administered or furnished to Angela

       Emerson Fentanyl and thereby caused serious physical harm to Angela

       Emerson. The jury returned a verdict of guilty to that charge based upon the

       facts. It is a matter of law that Fentanyl is a Schedule II controlled substance.

       R.C. 3719.41. The Court was required to impose the penalty for the violation

       of R.C. 2925.02(A)(3)(C)(1) as a felony of the second degree. The Trial

       Court erred when it misinterpreted the law.

(State’s Appellate Brief at 5).

       {¶ 14} In its second assignment of error, the State asserts that the trial court

abused its discretion in requiring the prosecution to prove the additional element that

fentanyl was a “Schedule II” controlled substance. In support, the State relies on the same

argument supporting its first assignment of error, to wit: that fentanyl is a “Schedule II”

controlled substance by operation of law and that the trial court should have taken judicial

notice of that fact.

       {¶ 15} We agree with the State that fentanyl is a Schedule II drug under R.C.

3719.41(B)(9), which also means that fentanyl unquestionably is a controlled substance

because R.C. 3719.41 establishes “Schedules of controlled substances.” Moreover, we

disagree with the trial court’s application of Pelfrey to the verdict in this case for several

reasons. First, the defense did not object to the wording of the verdict form at any time.
                                                                                           -8-

Second, the post-trial motion for acquittal (Doc. #28) did not raise a Pelfrey challenge.

Finally, we do not believe Pelfrey applies. The Pelfrey decision held an offender found

guilty of tampering with records could not be found guilty of the greater degree of

tampering with government records unless the verdict form contained the degree of the

offense or the aggravating element that the records were government records. The

decision was based on R.C. 2945.75(A)(2), which provides: “[w]hen the presence of one

or more additional elements makes an offense one of more serious degree: * * * A guilty

verdict shall state either the degree of the offense of which the offender is found guilty, or

that such additional element or elements are present. Otherwise, a guilty verdict

constitutes a finding of guilty of the least degree of the offense charged.” Here however it

is not an additional element that changes the degree of the offense; it is the statutorily

classified character of the drug involved. Fentanyl is the drug upon which the charge was

based. In this regard, we find this case more like State v. Eafford, 132 Ohio St.3d 159,

2012-Ohio-2224, 970 N.E.2d 891, in which the Ohio Supreme Court reinstated a felony

conviction for possession of cocaine, rather than a conviction for misdemeanor

possession of drugs, when the unchallenged verdict form referred to possession of drugs

but the only drug in evidence and in the indictment was cocaine. Nonetheless, we need

not resolve whether Pelfrey applies because the State cannot appeal the trial court’s

determination about the degree of the offense.

       {¶ 16} Upon review, we conclude that the State’s appeal is not permitted by R.C.

2945.67(A). This statute sets forth the circumstances under which the State may appeal

in a criminal case. In relevant part, it provides: “A prosecuting attorney * * * may appeal

as a matter of right any decision of a trial court in a criminal case * * * which decision
                                                                                             -9-


grants a motion to dismiss all or any part of an indictment * * * and may appeal by leave

of the court to which the appeal is taken any other decision, except the final verdict, of

the trial court in a criminal case[.]”

       {¶ 17} The State asserts in its reply brief that it is entitled to appeal as a matter of

right because the trial court granted a motion to dismiss part of the indictment (which

alleged that fentanyl was a Schedule II controlled substance and charged a second-

degree felony) when it convicted and sentenced Emerson for a fourth-degree felony. We

disagree. There was no motion to dismiss any part of the indictment. Emerson did file a

Crim.R. 29 motion for judgment of acquittal, not raising a Pelfrey challenge, which the trial

court explicitly overruled. (Doc. # 34 at 5). In the course of its ruling, the trial court noted

the verdict form’s failure to mention that the offense at issue was a second-degree felony

or that the drug at issue was a Schedule II controlled substance.3 The trial court then

cited Pelfrey, supra, and recognized that when a guilty verdict fails to state either (1) the

degree of the offense or (2) the presence of an additional element that elevates the

degree thereof, the verdict “ ‘constitutes a finding of guilty of the least degree of the

offense charged.’ ” Pelfrey, at ¶ 10, quoting R.C. 2945.75(A)(2). Because the verdict form

in this case merely stated that Emerson was guilty “of the offense of Corrupting Another

with Drugs,” the trial court concluded that it constituted a finding of guilty of the least

degree of the offense charged, which was a fourth-degree felony. (Doc. # 34 at 3).

Therefore, under Pelfrey, the trial court did not reduce Emerson’s conviction or amend



3 Under R.C. 2925.02(C)(1), the offense of corrupting another with drugs in violation of
R.C. 2925.02(A)(3) is a second-degree felony if the drug at issue is a Schedule II
controlled substance.
                                                                                           -10-


the charge against him; the trial court concluded that the jury simply found him guilty of a

fourth-degree felony.4 Under these circumstances, the State’s appeal does not constitute

an appeal as a matter of right under R.C. 2945.67(A), and the State did not seek leave to

appeal under that statute. Therefore, the State’s appeal must be dismissed.

       {¶ 18} We turn now to Emerson’s appeal. In his first assignment of error, he

challenges the legal sufficiency and manifest weight of the evidence to sustain his

conviction. Emerson raises the same two issues with regard to the weight and sufficiency

of the evidence. First, he contends the State failed to prove that fentanyl is a controlled

substance. Second, he claims the State failed to prove that his act of administering or

furnishing fentanyl to his wife caused “serious physical harm” as defined by the trial court.

       {¶ 19} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d

Dist.2000). “An appellate court’s function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” State v.


4 Even if the trial court had modified Emerson’s conviction, we note that a trial court’s
post-trial act of altering a jury’s verdict by reducing a conviction to a lesser offense is not
the functional equivalent of dismissing an indicted charge and does not permit the State
to pursue an appeal as of right under R.C. 2945.67(A). See, e.g., State ex rel. Steffen v.
Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d
906, ¶ 34.
                                                                                          -11-

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 20} With the foregoing standards in mind, we conclude that Emerson’s

conviction for corrupting another with drugs is supported by legally sufficient evidence.

As set forth above, the statute at issue provides that no person shall knowingly “administer

or furnish to another * * * a controlled substance, and thereby cause serious physical

harm to the other person[.]” R.C. 2925.02(A)(3). We are unpersuaded by Emerson’s claim

that the State did not present legally sufficient evidence that fentanyl is a controlled

substance. The State presented evidence that Emerson administered or furnished

fentanyl to his wife, and the record establishes beyond doubt that fentanyl was the drug

at issue. As a matter of law, fentanyl is a “controlled substance.” R.C. 3719.41. Therefore,

by presenting evidence that Emerson administered or furnished fentanyl, the State

presented evidence that he administered or furnished a controlled substance. See, e.g.,

State v. Rollins, 3d Dist. Paulding No. 11-05-08, 2006-Ohio-1879, ¶ 30 (reasoning that

“while the State is required to name and prove possession of a specific controlled

substance, the State is not required to provide evidence that the named substance, in this

case methamphetamine, is a controlled substance, because by law, methamphetamine

is a controlled substance”). We note too that the trial court instructed the jury, apparently

without objection, that fentanyl is a controlled substance. (Court’s Exh. 1 at 8).

       {¶ 21} A closer question is whether the State presented legally sufficient evidence

to prove that Emerson’s act of administering or furnishing fentanyl to his wife caused

“serious physical harm.” Although there are several statutory permutations of what

constitutes “serious physical harm,” the trial court’s only instruction to the jury defined it
                                                                                          -12-


as “any physical harm that carries a substantial risk of death.”5 (Trial Tr. at 403). Thus,

the issue is whether the State presented legally sufficient evidence to support a finding

that Emerson’s act of administering or furnishing fentanyl to his wife carried a substantial

risk of death.

       {¶ 22} We note the trial court instructed the jury, without objection, with the part of

OJI 417.25 which states: “[t]here may be one or more causes of an event. However, if a

defendant's act or failure to act was one cause, then the existence of other causes is not

a defense.” We have previously found no error with this instruction. State v. Fair, 2d Dist.

Montgomery No. 24388, 2011-Ohio-4454, ¶ 70. When asked “[d]id fentanyl cause Miss

Emerson to die?” Dr. Allen responded “It played a role in her death.” (Trial Tr. at 242).

This testimony alone is sufficient for the case to be submitted to the jury. But in addition,

there is the evidence that Angela did not have a prescription for fentanyl, she had

prescriptions for multiple drugs she was taking, she had a history of fentanyl abuse, she

had a prior fentanyl overdose requiring hospitalization, and Emerson had knowledge of

these facts.

       {¶ 23} We recognize that the evidence as to the cause of death does not point to

a singular explanation. The testimony addressing the causation issue came from forensic

pathologist Susan Allen and Darke County Coroner Timothy Kathman. Neither expert

presented any testimony to support a finding as to what drugs Angela may have taken or

when she took them. To the contrary, Allen acknowledged that there was “no way to

know” when any of the drugs in Angela’s system had been taken. (Trial Tr. at 242-243).



5In light of this single definition provided by the trial court, we need not consider whether
any alternative statutory definitions might apply.
                                                                                            -13-


But given her history of overdose, we need not resolve whether Emerson’s singular act

was the only cause of any lethal combination of drugs in her system. The record reflects

that after placing the fentanyl patch on Angela’s abdomen, Emerson went to bed. Whether

she previously or subsequently took the other additional drugs of her own volition, then

she herself contributed to the multiple drug intoxication that resulted in her death.

Likewise, neither expert testified that the fentanyl alone created a substantial risk of death.

Allen did opine that Angela had a non-specified “high” level of fentanyl and other drugs in

her body. She also opined that fentanyl had “played a role” in Angela’s death. (Trial Tr. at

239, 242). This opinion was based on Angela having a multi-drug cocktail in her system

that included fentanyl. Allen also did not testify that the fentanyl by itself carried with it a

substantial risk of death in this case. The closest she came was saying that a 50

microgram per hour dose of fentanyl could be “too much” for a user who had no tolerance

for the drug and who never had “taken anything like that.” (Id. at 242). However, Allen

was not testifying specifically about Angela, who previously had used fentanyl on multiple

occasions. Coroner Kathman, the State’s other expert, provided testimony that fentanyl

alone did not cause the death. He definitively opined that the fentanyl detected in Angela’s

system after her death was “was not at an excessive level” and that the fentanyl was not

“a deadly dose.” (Id. at 269-270, 276).

       {¶ 24} We reiterate, though, that an offender’s criminal act does not have to be the

sole cause of harm. In State v. Carter, 2d Dist. Montgomery No. 21820, 2007-Ohio-5570,

Carter was an intoxicated driver who lost control at high speed and struck a pole killing

his passenger. Carter argued that the cause of the accident was that the passenger was

flailing about, attempting to get out of the car, and had struck Carter’s hand on the steering
                                                                                              -14-


wheel. In our analysis we stated:



                 “ ‘It is well established that the definition of ‘cause’ in criminal cases

       is identical to the definition of ‘proximate cause’ in civil cases. * * * The

       general rule is that a defendant's conduct is the proximate cause of injury

       or death to another if the defendant's conduct (1) is a ‘substantial factor’ in

       bringing about the harm and (2) there is no other rule of law relieving the

       defendant of liability. * * *

                 “ ‘A defendant cannot be relieved of criminal liability merely because

       factors other than his acts contributed to the death, provided such other

       factors are not the sole proximate cause of death. * * * Indeed, we have

       specifically stated that the alleged contributory negligence of a victim may

       not be used as a defense in a subsequent aggravated vehicular homicide

       prosecution unless it is the sole proximate cause of death.”               State v.

       Filchock, 166 Ohio App.3d 611, 624, 852 N.E.2d 759, 2006-Ohio-2242

       [(11th Dist.)], citing State v. Flanek (Sept. 2, 1993), Cuyahoga App. No.

       63308 [1993 WL 335601].

Id., ¶¶ 26-27.

       {¶ 25} Construing the evidence in the light most favorable to the prosecution, we

determine that the evidence was sufficient such that a reasonable juror could conclude

that administration of the fentanyl to Angela, a person known to take other drugs with a

history of abuse and overdose, created a substantial risk of death and was a contributing

cause of Angela’s death.
                                                                                        -15-


       {¶ 26} Our analysis of whether the evidence is against the manifest weight of the

evidence is based on a different standard and different, or rather additional, evidence. In

determining whether a conviction is against the manifest weight of the evidence, we must

review the entire record, weighing all the evidence presented and decide whether 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 ordered. The discretionary power to grant a

new trial should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997).

       {¶ 27} The entire record includes the additional medical record information

revealing that Angela had been hospitalized for overdoses three times within 15 months

of her death, the last of which was just one month before her demise. Two of the

overdoses involved fentanyl. Her husband had found her unresponsive or lethargic.

Under these circumstances we cannot say that the jury lost its way by finding Emerson

guilty of the charge of corrupting another with drugs. Because we found the evidence to

be sufficient and not against the manifest weight, Emerson’s first assignment of error is

overruled.

       {¶ 28} In his second assignment of error, Emerson contends the trial court erred

in overruling his new-trial motion. He argues that a new trial was required because the

State’s “star” witness presented “surprise testimony” at trial.6

       {¶ 29} Emerson’s argument concerns the testimony of Arcanum police officer


6 Emerson also asserts that a new trial was required based on the same evidentiary
arguments raised in his first assignment of error. We need not repeat our analysis of
that assignment of error.
                                                                                           -16-


David Kiser. At trial, Kiser testified that he interviewed Emerson as part of his investigation

into Angela’s death. According to Kiser, Emerson told him Angela had purchased a 50-

microgram per hour fentanyl patch from a drug dealer and that Emerson admitted cutting

the patch and placing it on Angela’s abdomen. (Trial Tr. at 296-297, 324-325). On cross

examination, Kiser acknowledged that a typed police report he completed after the

interview stated that Angela had purchased a 25-microgram fentanyl patch, not a 50-

microgram patch. (Id. at 325-326). Kiser denied defense counsel’s suggestion that he had

written a “false report” and explained that his typed reference to a 25-microgram fentanyl

patch being involved was an “error” and that his earlier handwritten notes correctly had

referenced a 50-microgram patch. (Id. at 325-326).

       {¶ 30} On appeal, Emerson argues that Kiser’s trial testimony about a 50-

microgram fentanyl patch being involved constituted “surprise testimony” that deprived

him of a fair trial. This argument lacks merit. Kiser’s handwritten notes referenced a 50-

microgram patch being involved. His subsequent typed report mistakenly referenced a

25-microgram patch (possibly because a 25-microgram fentanyl patch wrapper had been

found in the house). The handwritten notes and the typed report both were provided to

Emerson during discovery. At trial, Kiser explained the discrepancy, and defense counsel

cross examined him about it. We see no basis for ordering a new trial under Crim.R. 33.

The trial court’s refusal to grant a new trial based on Kiser’s mistake about a 25-

microgram or 50-microgram fentanyl patch being involved did not constitute an abuse of

discretion. The second assignment of error is overruled.

       {¶ 31} In his third assignment of error, Emerson challenges the trial court’s refusal

to suppress his statements to Kiser about administering the fentanyl patch to Angela.
                                                                                       -17-

Specifically, Emerson contends the trial court erred in finding (1) that Miranda warnings

were not required because he was not in custody and (2) that his statements to Kiser

were voluntary.

      {¶ 32} With regard to the Miranda issue, the trial court noted the parties’

disagreement about whether Emerson had been advised of his rights. The trial court

found no need to resolve that issue, however, because it determined that Emerson was

not in custody when Kiser interviewed him. It is well settled that Miranda applies only to

“custodial interrogation.” State v. Mobley, 2d Dist. Montgomery No. 26044, 2014-Ohio-

4410, ¶ 20. To determine whether a defendant was in custody when police questioning

occurred, the relevant inquiry is how a reasonable person in the defendant’s position

would have understood the situation. State v. Lewis, 2d Dist. Montgomery No. 18098,

2000 WL 1867568, *3 (Dec. 22, 2000). More specifically, the question is whether a

reasonable person would have felt that he was under arrest or that his freedom of

movement was restrained to an extent associated with a formal arrest. State v. Knight,

2d Dist. Montgomery No. 24130, 2011-Ohio-3284, ¶ 14.

      {¶ 33} Here we agree with the trial court that Kiser’s interrogation of Emerson was

not “custodial.” At Kiser’s request, Emerson drove himself to the Arcanum City Building a

few days after Angela’s death. The building housed the police department and other

municipal departments. Emerson and Kiser met in a common council room that was not

part of the police department’s offices. (Suppression Tr. at 11-12). The two men met

alone, and the door was not locked. (Id. at 13). At that time, police were “looking at

everybody,” but Emerson was not a “primary suspect.” (Id.). Kiser mostly wanted to find

out “what happened with Angela.” (Id.). According to Kiser, he agreed not to record the
                                                                                         -18-

conversation at Emerson’s request. (Id. at 14). Kiser testified that the interview lasted an

hour or a little more. (Id. at 15). Kiser also testified that he offered Emerson water and a

break. (Id. at 18). After the interview, the two men shook hands, and Emerson left. (Id. at

17).

       {¶ 34} Emerson also testified at the suppression hearing, and his testimony

differed from Kiser’s in some respects. According to Emerson, the interview lasted five to

six hours. (Id. at 47, 49). He denied Kiser offering him water or a break. (Id. at 48).

Emerson stated that he felt compelled to be there and not free to leave. (Id. at 49). He

additionally asserted that he requested a lawyer during the interview—a claim Kiser

disputed. (Id. at 16-17, 49). Emerson also denied requesting that the interview not be

recorded. (Id. at 50). He acknowledged that he drove home after the interview. (Id. at 53).

       {¶ 35} The trial court’s suppression ruling does not resolve most of the foregoing

factual disputes. But even if we assume, arguendo, that the interview lasted five hours,

that Kiser did not offer water or a break, that Emerson requested counsel (a claim the trial

court did reject), and that Emerson did not object to the interview being recorded, we see

no reasonable, objective grounds for Kiser’s subjective belief that he was not free to leave

any time he wished. Emerson arrived voluntarily for the one-on-one meeting with Kiser in

an unlocked conference room at the Arcanum City Building and freely left when the

meeting ended. The record contains no evidence of threats during the meeting. Nor was

Emerson’s freedom of movement restricted. He was not told that he could not leave.

There is no evidence that Kiser intimidated Emerson or dominated the meeting. See

Knight at ¶ 15-25. Accordingly, we conclude that Emerson was not in custody during the

interview and that Miranda warnings were not required.
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       {¶ 36} The only remaining issue is whether Emerson’s statements to Kiser were

involuntary. “[C]oercive police activity is a necessary predicate to the finding that a

confession is not ‘voluntary’ within the meaning of the Due Process Clause of the

Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93

L.Ed.2d 473 (1986). “Absent police conduct causally related to the confession, there is

simply no basis for concluding that any state actor has deprived a criminal defendant of

due process of law.” Id. at 164.

       {¶ 37} In support of his argument that his statements were coerced, Emerson

points to his testimony that the interview lasted hours without a break. He also cites his

“medical issues.” His primary argument, however, is that Kiser discouraged him from

obtaining counsel and continued questioning him after he requested counsel.

       {¶ 38} Upon review, we see no coercive police activity. Given our determination

above that Emerson was not in custody, he could have stopped talking if he thought the

interview was too long or wanted a break. With regard to medical issues, the record

reflects that he arrived for the interview on crutches and was taking various medications.

(Suppression Tr. at 46, 51). We fail to see, however, how these facts establish any police

coercion. With regard to Emerson’s request for counsel, we make two observations. First,

the trial court found his testimony about requesting counsel not credible. (Doc. # 17 at 4).

Second, even if Emerson did request counsel, Kiser was not obligated to honor the

request or cease questioning given that Emerson was not in custody. If Emerson did not

want to talk without counsel, he simply could have left. See, e.g., State v. Brantley, 9th

Dist. Wayne No. 27466, 2016-Ohio-4680, ¶ 52 (recognizing that a police officer may

continue questioning after a request for counsel in a non-custodial situation and that doing
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so does not necessarily render a suspect’s statements involuntary). Emerson’s third

assignment of error is overruled.

       {¶ 39} For the reasons set forth above, we hereby dismiss the State’s appeal as

not authorized by R.C. 2945.67(A). With regard to Emerson’s cross-appeal, we affirm his

conviction for fourth-degree felony corrupting another with drugs.

       {¶ 40} Accordingly, the State’s appeal is dismissed; and with regard to Emerson’s

cross-appeal, the trial court’s judgment is affirmed.

                                     .............



FAIN, J., and WELBAUM, J., concur.


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