[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Barker, Slip Opinion No. 2016-Ohio-2708.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-2708
            THE STATE OF OHIO, APPELLEE, v. BARKER, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Barker, Slip Opinion No. 2016-Ohio-2708.]
Constitutional law—Fifth Amendment—Rights to counsel and due process and
        privilege     against     self-incrimination—R.C.        2933.81(B)—Statutory
        presumption that electronically recorded statements made during
        custodial interrogation in place of detention are voluntary does not affect
        reviewing court’s analysis of whether defendant waived Miranda rights—
        R.C. 2933.81(B) is unconstitutional as applied to juveniles because it
        impermissibly eliminates state’s burden of proving voluntariness of
        custodial statement and places burden on defendant to prove that
        statement was involuntary—Court of appeals’ judgment reversed and
        matter remanded.
   (No. 2014-1560—Submitted November 17, 2015—Decided April 28, 2016.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-130214,
                                   2014-Ohio-3245.
                             SUPREME COURT OF OHIO




                            _____________________
       FRENCH, J.
       {¶ 1} In this appeal, we examine the constitutional rights implicated by the
custodial police interrogation of a juvenile suspect as well as the attendant
constitutional limitations on interrogation that safeguard those rights. We also
consider whether, and to what extent, the General Assembly may legislatively
affect those rights and limitations without running afoul of due process.
       {¶ 2} More specifically, we consider here the interaction between R.C.
2933.81(B) and a juvenile suspect’s Fifth Amendment rights to counsel and
against self-incrimination as articulated in Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his right to due process. As relevant here,
R.C. 2933.81(B) provides as follows:


               All statements made by a person [suspected of enumerated
       crimes] during a custodial interrogation in a place of detention are
       presumed to be voluntary if the statements made by the person are
       electronically recorded. The person making the statements during
       the electronic recording of the custodial interrogation has the
       burden of proving that the statements made during the custodial
       interrogation were not voluntary.


       {¶ 3} Appellant, Tyshawn Barker, argues that R.C. 2933.81(B) does not
affect the analysis of whether a suspect intelligently, knowingly, and voluntarily
waived his Miranda rights and, therefore, that the state retains the burden to prove
a valid waiver. He also argues that as applied to statements a juvenile makes
during a custodial interrogation, the R.C. 2933.81(B) presumption that such
statements are voluntary is unconstitutional because it violates the juvenile’s right
to due process. On both counts, we agree.




                                           2
                                January Term, 2016




                        Facts and procedural background
       {¶ 4} On October 17, 2011, shortly before midnight, Cincinnati Police
Detectives Kurt Ballman and Terry McGuffey questioned 15-year-old Barker at
the offices of the Cincinnati Police Department Homicide Unit, in relation to the
fatal shootings of Ruddell Englemon and Carrielle Conn. Another suspect in the
shootings, Dequantez Nixson, implicated Barker during questioning earlier that
evening, and the police found Barker at Nixson’s residence during the execution
of a search warrant. Barker was undisputedly in police custody when he was
questioned.
       {¶ 5} The detectives began their interrogation, which was electronically
recorded, at 11:57 p.m. by asking Barker his name, address, telephone number,
school, mother’s name, whether he could read and write, whether he had taken
drugs or alcohol that day, and whether he had any health problems.           The
following exchange then occurred:


               DETECTIVE BALLMAN:             I have got to read something
       to you. * * * What I’m going to do is I’m going to read you a
       notification.
               DEFENDANT BARKER:              Um-hmm.
               DETECTIVE BALLMAN:             All right. When we are done
       I’m going to ask you if you understand it.
               DEFENDANT BARKER:              Okay.
               DETECTIVE BALLMAN:             And then I am going to ask
       you to sign it. You’re not admitting to anything. I am just telling
       you it just says that I read you this, okay?
               DEFENDANT BARKER:              Okay.




                                          3
                                 SUPREME COURT OF OHIO




           {¶ 6} Detective Ballman proceeded to read Barker his Miranda rights—
that he had the right to remain silent, that anything he said could be used as
evidence against him, and that he had the right to the presence of an attorney,
either retained or appointed if he could not afford one—as printed on a form
entitled     “CINCINNATI         POLICE       DEPARTMENT         NOTIFICATION     OF
RIGHTS.” Barker said that he understood what Detective Ballman had read, and
he signed the notification-of-rights form below the preprinted statement, “I
understand my rights.” The form does not indicate that Barker was waiving his
rights, nor did the detectives tell Barker that signing the form constituted a
waiver.
           {¶ 7} The detectives then questioned Barker’s understanding of his rights:


                  DETECTIVE McGUFFEY: Tyshawn are you familiar
           with that form? You have heard of Miranda rights before?
                  DEFENDANT BARKER:               No, sir, my first time.
                  DETECTIVE BALLMAN:              First time you have read, but
           you have seen it on t.v., right?
                  DEFENDANT BARKER:               Yes, sir.
                  DETECTIVE McGUFFEY: The whole thing about you
           have the right to remain silent and all that stuff?
                  DEFENDANT BARKER:               Yeah.


           {¶ 8} The detectives continued their interrogation without inquiring
whether Barker wanted to continue or wanted to speak with an attorney, and
Barker implicated himself in the shootings of Englemon and Conn.
           {¶ 9} The detectives briefly questioned Barker again during the evening of
October 18, 2011. When Detective Ballman stated that he was going to reread
Barker his rights, Barker stated, “I seen an attorney—an attorney, whatever that




                                              4
                                January Term, 2016




is. * * * And she told me if you all to come up here just to ask for an attorney.”
Detective Ballman then asked whether Barker wanted to ask for an attorney, but
Barker responded, “Just go on.” Detective Ballman reread Barker his Miranda
rights, and Barker again indicated that he understood. Detective Ballman wrote
on the notification-of-rights form, “Attorney, still states will answer questions.”
The interview lasted only four minutes and consisted entirely of Barker’s
identification of codefendant Brendan Washington from a photograph.
       {¶ 10} Barker was charged as a juvenile with aggravated murder and
murder in relation to the deaths of Englemon and Conn. The juvenile court found
probable cause to believe that Barker had committed the alleged offenses and
ordered an amenability evaluation.
       {¶ 11} Dr. Paul Deardorff evaluated Barker’s mental health and filed a
report with the juvenile court. Dr. Deardorff noted test evidence suggesting that
Barker was “mildly mentally retarded,” but he opined that Barker appeared to be
“of borderline intelligence.”   Barker informed Dr. Deardorff that he had an
individualized education program at school because “ ‘I can’t comprehend good.’
” Barker’s academic abilities ranged from the third-grade to the fifth-grade level,
and Dr. Deardorff stated that Barker might suffer from a learning disability.
       {¶ 12} Upon consideration of Dr. Deardorff’s report and the evidence
presented at the probable-cause hearing, the juvenile court relinquished
jurisdiction and bound Barker over to the common pleas court.
       {¶ 13} The Hamilton County Grand Jury indicted Barker on four counts of
aggravated murder with firearm specifications and specifications that Barker,
Washington, and Nixson purposefully killed Englemon and Conn to prevent their
testimony in other criminal proceedings. The aggravated-murder counts related to
Conn included additional specifications that Barker and his two codefendants
committed the offense for the purpose of escaping detection, apprehension, trial
or punishment for Englemon’s death. The indictment also included two counts of




                                         5
                                SUPREME COURT OF OHIO




conspiracy to commit, promote or facilitate aggravated murder, two counts of
aggravated robbery, and three counts of tampering with evidence (on the night of
Conn’s murder), all with firearm specifications.
       {¶ 14} Barker moved to suppress the statements he made during his
custodial interrogation, arguing that he did not knowingly, intelligently, and
voluntarily waive his Miranda rights and that his statements were not voluntary.
At the suppression hearing, the state introduced Barker’s custodial statements
through the interrogation transcript, the audio and video recordings, and the
signed notification-of-rights form. Detective Ballman testified that he had no
reason to believe that Barker did not understand his Miranda rights. The state
argued that because Barker’s interrogation was electronically recorded, Barker
had the burden under R.C. 2933.81(B) to demonstrate that his statements were
involuntary. Barker’s counsel cross-examined Detective Ballman but did not
present any affirmative evidence.
       {¶ 15} The trial court denied Barker’s motion to suppress without
mentioning either R.C. 2933.81(B) or the presumption of voluntariness. Although
the trial court did not expressly find that Barker knowingly, intelligently, and
voluntarily waived his Miranda rights, it found that Barker voluntarily made
statements to the police after being properly advised of, and with an
understanding of, his rights.
       {¶ 16} Barker pled no contest to four counts of aggravated murder, two
counts of aggravated robbery, and three counts of tampering with evidence, all
with firearm specifications. The trial court found Barker guilty consistently with
his pleas and sentenced him to an aggregate prison term of 25 years to life.
       {¶ 17} On appeal, Barker initially challenged only his bindover and the
effectiveness of his counsel during the bindover proceedings. In a supplemental
brief, however, Barker additionally argued that the trial court erred by overruling
his motion to suppress because he did not knowingly, intelligently, and




                                          6
                                January Term, 2016




voluntarily waive his Miranda rights. As part of that argument, Barker asserted
that R.C. 2933.81(B) has no bearing on the requirement that a waiver of
constitutional rights must be knowing, intelligent, and voluntary.
        {¶ 18} The First District Court of Appeals affirmed Barker’s convictions.
The First District acknowledged that courts determine whether a defendant has
knowingly, intelligently, and voluntarily waived Miranda rights based on the
totality of the circumstances, but it went on to state that “[w]here, as here, the
interrogation of the defendant is recorded electronically, the statements made are
presumed to have been made voluntarily.”         2014-Ohio-3245, ¶ 12, citing R.C.
2933.81. The court stated that nothing in the record refuted the presumption that
Barker’s statements were voluntary. Id. The court also reviewed the recording of
Barker’s interrogation and stated that it found support for “the trial court’s finding
that [Barker] had voluntarily, knowingly and intelligently waived his Miranda
rights,” id. at ¶ 13, despite the absence of an express finding by the trial court to
that effect.
        {¶ 19} This court accepted jurisdiction to determine whether the
presumption of voluntariness contained in R.C. 2933.81(B) violates due process
when applied to a juvenile and whether that presumption affects a reviewing
court’s analysis of a purported waiver of Miranda rights. See 141 Ohio St.3d
1473, 2015-Ohio-554, 25 N.E.3d 1080.
                                      Analysis
        {¶ 20} The constitutional rights implicated by custodial interrogation and
the procedural safeguards in place to protect those rights guide our determination
of the reach and constitutionality of R.C. 2933.81(B).         This appeal involves
related issues that arise out of separate constitutional rights: whether Barker
intelligently, knowingly, and voluntarily waived his Miranda rights and whether
Barker voluntarily decided to speak with the detectives. Miranda rights arise
from the Fifth Amendment to the United States Constitution, whereas the




                                          7
                             SUPREME COURT OF OHIO




necessity that a suspect’s statement to police is voluntary implicates the guarantee
of due process under the Fourteenth Amendment. See Colorado v. Connelly, 479
U.S. 157, 169-170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Here, Barker has
challenged both whether the statements he made while in police custody were
voluntary and whether he knowingly, intelligently, and voluntarily waived his
Miranda rights before making the statements. We will address those challenges
in reverse order.
                        Fifth Amendment Miranda rights
       {¶ 21} The Fifth Amendment to the United States Constitution guarantees
that “ ‘[n]o person * * * shall be compelled in any criminal case to be a witness
against himself,’ and that ‘the accused shall * * * have the Assistance of
Counsel.’ ” (Ellipses sic.) Miranda, 384 U.S. at 442, 86 S.Ct. 1602, 16 L.Ed.2d
694. The inherently coercive nature of custodial interrogation heightens the risk
that a suspect will be denied the Fifth Amendment privilege not to be compelled
to incriminate himself because custodial interrogation can “ ‘undermine the
individual’s will to resist and * * * compel him to speak where he would not
otherwise do so freely.’ ” (Ellipsis sic.) J.D.B. v. North Carolina, 564 U.S. 261,
131 S.Ct. 2394, 2401, 180 L.Ed.2d 310 (2011), quoting Miranda at 467;
Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405
(2000). That risk is even more troubling and acute when, as here, the subject of
the interrogation is a juvenile. J.D.B. at 2401.
       {¶ 22} In light of the inherent coercion involved in custodial interrogation,
Miranda established “a set of prophylactic measures” to safeguard the
constitutional privilege against self-incrimination. Id. In broad terms, Miranda
held that the state may not use a defendant’s statements from custodial
interrogation “unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.”     Miranda at 444.      Prior to
questioning, the police must warn the suspect “that he has a right to remain silent,




                                          8
                                January Term, 2016




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. The
Supreme Court recognized the importance of a suspect’s “real understanding” of
his rights and his intelligent decision whether to exercise them. Id. at 469.
       {¶ 23} If custodial interrogation continues in the absence of an attorney
after a police officer advises a suspect of his rights, the government bears “a
heavy burden” to demonstrate by a preponderance of the evidence that the suspect
“knowingly and intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel” before speaking to the police. Miranda
at 475, citing Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 12 L.Ed.2d
977 (1964), fn. 14; Connelly, 479 U.S. at 169, 107 S.Ct. 515, 93 L.Ed.2d 473. See
also State v. Treesh, 90 Ohio St.3d 460, 470, 739 N.E.2d 749 (2001) (recognizing
requirement of knowing, intelligent waiver). A court may not presume a valid
waiver either from the suspect’s silence after warnings are given or from the fact
that the suspect eventually confessed. Miranda at 475. Rather, the record must
show “ ‘that an accused was offered counsel but intelligently and understandingly
rejected the offer.   Anything less is not waiver.’ ”      Id., quoting Carnley v.
Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). If the state does
not satisfy its burden, “no evidence obtained as a result of interrogation can be
used.” Id. at 479.
       {¶ 24} To determine whether a suspect knowingly, intelligently, and
voluntarily waived his Miranda rights, courts examine the totality of the
circumstances. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).
When the suspect is a juvenile, the totality of the circumstances includes “the
juvenile’s age, experience, education, background, and intelligence” as well as his
“capacity to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.”                Fare v.
Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).                 A




                                          9
                             SUPREME COURT OF OHIO




juvenile’s access to advice from a parent, guardian or custodian also plays a role
in assuring that the juvenile’s waiver is knowing, intelligent, and voluntary. See
In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 96.
      R.C. 2933.81(B) does not apply to waiver of Fifth Amendment rights
       {¶ 25} Barker’s second proposition of law asserts that the R.C. 2933.81(B)
presumption that an electronically recorded custodial statement is voluntary does
not affect the analysis of whether a suspect waived his Miranda rights, i.e., his
rights to remain silent and to have an attorney. We turn, first, to the statute.
       {¶ 26} R.C. 2933.81(B) states that “[a]ll statements made by a person
* * * during a custodial interrogation in a place of detention are presumed to be
voluntary if the statements made by the person are electronically recorded.”
(Emphasis added.) Nothing in R.C. 2933.81(B) creates a presumption regarding a
waiver of constitutional rights; by its terms, the legislative presumption applies
only to whether a statement itself was voluntary. And the voluntariness of a
custodial statement does not answer whether the suspect knowingly, voluntarily,
and intelligently waived his Miranda rights before making that statement, as those
are distinct inquiries. Connelly, 479 U.S. at 163-164, 169-170, 107 S.Ct. 515, 93
L.Ed.2d 473; State v. Eley, 77 Ohio St.3d 174, 178, 672 N.E.2d 640 (1996).
Absent the state’s compliance with Miranda and a suspect’s valid waiver of his
Fifth Amendment rights, even voluntary statements are inadmissible. Dickerson,
530 U.S. at 444, 120 S.Ct. 2326, 147 L.Ed.2d 405.
       {¶ 27} We have held that there are no presumptions to aid the prosecution
in proving a suspect’s valid waiver of his Fifth Amendment rights. State v.
Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976), vacated on other
grounds, Edwards v. Ohio, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).
See also Miranda, 384 U.S. at 475, 86 S.Ct. 1602, 16 L.Ed.2d 694, quoting
Carnley, 369 U.S. at 516, 82 S.Ct. 884, 8 L.Ed.2d 70. And even if the statutory
presumption in R.C. 2933.81(B) did encompass the voluntariness of a suspect’s




                                          10
                                 January Term, 2016




waiver, as opposed to merely the voluntariness of the suspect’s statement itself,
voluntariness is but one part of the inquiry under the Fifth Amendment. The state
must prove not only that the suspect voluntarily waived his rights but also that the
suspect acted knowingly and intelligently in doing so. See State v. Dailey, 53
Ohio St.3d 88, 91-92, 559 N.E.2d 459 (1990) (separately analyzing whether
waiver was knowing and intelligent despite holding that a waiver is voluntary
“absent evidence that [the suspect’s] will was overborne and his capacity for self-
determination was critically impaired because of coercive police conduct”).
        {¶ 28} A legislature may not supersede the constitutional rule announced
in Miranda. Dickerson at 444. Therefore, R.C. 2933.81(B) cannot lessen the
protections announced in Miranda by removing the state’s burden of proving a
suspect’s knowing, intelligent, and voluntary waiver of rights prior to making a
statement during a custodial interrogation.          Although Miranda allows for
alternative legislative solutions that are “ ‘at least as effective in apprising accused
persons of their right * * * and in assuring a continuous opportunity to exercise
it,’ ” Dickerson at 440, quoting Miranda at 467, the act of recording a suspect’s
custodial statement does nothing to appraise a suspect of, or to protect the
suspect’s opportunity to exercise, his Fifth Amendment rights. While a recording
might identify police coercion or its absence, nothing about the fact of recording
ensures that a suspect understands his rights and knowingly and intelligently
waives them. In short, applying R.C. 2933.81(B) to the question of a suspect’s
waiver of Miranda rights would impermissibly lower the state’s burden of
demonstrating a valid waiver of those rights.
        {¶ 29} In this and other cases, the First District has conflated the questions
of the voluntariness of a suspect’s waiver of Miranda rights and the voluntariness
of a suspect’s custodial statement.         Here, the First District applied R.C.
2933.81(B) in its discussion of the “Waiver of Miranda Rights,” although it
ultimately concluded that “[n]othing in the record refutes the presumption that




                                          11
                            SUPREME COURT OF OHIO




[Barker’s] statements were made voluntarily.” (Emphasis added.) 2014-Ohio-
3245, at ¶ 12. It is not entirely clear from the First District’s opinion how it
applied R.C. 2933.81(B) with respect to the waiver issue in this case. But in other
recent cases, the First District has expressly applied R.C. 2933.81(B) to the
question whether a defendant knowingly, intelligently, and voluntarily waived
Miranda rights and shifted the burden to the defendant to disprove waiver. See In
re K.C., 2015-Ohio-1613, 32 N.E.3d 988, ¶ 25 (1st Dist.) (state bears the burden
of proving knowing, intelligent, and voluntary waiver of Miranda rights where
R.C. 2933.81(B) does not shift that burden to the defendant); State v. Bell, 2015-
Ohio-1711, 34 N.E.3d 405, ¶ 36 (1st Dist.), appeal not accepted, 143 Ohio St.3d
1480, 2015-Ohio-3958, 38 N.E.3d 901 (R.C. 2933.81(B) operates as an exception
to the general rule that the state bears the burden to prove a knowing, intelligent,
and voluntary waiver of Miranda rights).
       {¶ 30} Contrary to the First District, we hold that the statutory
presumption of voluntariness created by R.C. 2933.81(B) does not affect a
reviewing court’s analysis of whether a defendant waived his Miranda rights.
The state retains the burden of proving a knowing, intelligent, and voluntary
waiver by a preponderance of the evidence. Miranda, 384 U.S. at 475, 86 S.Ct.
1602, 16 L.Ed.2d 694; Connelly, 479 U.S. at 169, 107 S.Ct. 515, 93 L.Ed.2d. 473.
Accordingly, we adopt Barker’s second proposition of law.
                                Due-process rights
       {¶ 31} Constitutional principles of due process preclude the use of coerced
confessions as fundamentally unfair, regardless of whether the confession is true
or false. Lego v. Twomey, 404 U.S. 477, 483, 485, 92 S.Ct. 619, 30 L.Ed.2d 618
(1972), citing Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 5
L.Ed.2d 760 (1961). “[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.” Connelly at 167.




                                        12
                                 January Term, 2016




       {¶ 32} When a defendant challenges his confession as involuntary, due
process requires that the state prove by a preponderance of the evidence that the
confession was voluntary. Lego at 489. The same standard applies to adults and
juveniles: “ ‘Neither man nor child can be allowed to stand condemned by
methods which flout constitutional requirements of due process of law.’ ” In re
Gault, 387 U.S. 1, 27, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), quoting with
approval Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 92 L.Ed. 224 (1948)
(lead opinion). See also In re Watson, 47 Ohio St.3d 86, 548 N.E.2d 210 (1989),
paragraph one of the syllabus.
       {¶ 33} Barker’s first proposition of law asserts that as applied to a
juvenile, R.C. 2933.81(B) violates due process because juveniles require greater
protections than adults during interrogation.     Barker specifically argues that
application of R.C. 2933.81(B) to a juvenile impermissibly shifts the burden of
proving voluntariness from the state and places on the juvenile the burden of
proving involuntariness, in violation of due-process requirements.        The state
responds that Barker waived his due-process challenge by not raising it in the trial
court or the court of appeals and that a decision on this issue would be merely
advisory.
       {¶ 34} The state introduced R.C. 2933.81(B) into this case by arguing, in
response to Barker’s claim that he did not knowingly, intelligently, and
voluntarily waive his Miranda rights, that the statute imposed upon Barker the
burden of proving that his recorded statements were involuntary. As we have
already held, however, R.C. 2933.81(B) does not affect the resolution of whether
Barker validly waived his Miranda rights. Moreover, the trial court did not rely
on R.C. 2933.81(B) in denying Barker’s motion to suppress. The issue whether
R.C. 2933.81(B)’s burden-shifting paradigm, as applied to juveniles, violated due
process was not apparent in the trial court.




                                         13
                            SUPREME COURT OF OHIO




       {¶ 35} Barker’s argument in the court of appeals mirrored the argument
made in his motion to suppress that he did not knowingly, intelligently, and
voluntarily waive his Miranda rights.           His appellate argument also asserted,
presumably in response to the state’s argument at the suppression hearing, that
R.C. 2933.81(B) has no bearing on the requirement of a knowing, intelligent, and
voluntary waiver. But the First District, while discussing Barker’s argument that
he did not knowingly, intelligently, and voluntarily waive his Miranda rights, held
that R.C. 2933.81(B) placed a burden on Barker to rebut the presumption that his
statements to the police were voluntary.
       {¶ 36} Barker concedes that he did not argue in either the trial court or the
First District that application of R.C. 2933.81(B) to a juvenile would violate due
process. But he claims that he raised that challenge “at the first opportunity—
after the First District merged its analysis of whether [he] knowingly,
intelligently, and voluntarily waived his Miranda rights * * * with the statutory
presumption of voluntariness under R.C. 2933.81.” Indeed, Barker had no reason
to raise an as-applied due-process challenge in the trial court or in his appeal to
the First District because the trial court did not apply R.C. 2933.81(B). It was the
First District that applied R.C. 2933.81(B) in a manner that Barker contends
violates due process. Barker promptly raised that challenge in his memorandum
in support of jurisdiction before this court, and we accepted jurisdiction despite
the state’s assertion of waiver. See 141 Ohio St.3d 1473, 2015-Ohio-554, 25
N.E.3d 1080.
       {¶ 37} Despite the dissent’s charge that a decision on this issue
contravenes our law regarding forfeiture and waiver, we reject the state’s
invitation to sidestep the due-process issue in this case. Even were we to agree
with the state that Barker waived his due-process challenge to the application of
R.C. 2933.81(B) to juveniles, review is appropriate here. In the criminal context,
this court has considered constitutional challenges to the application of statutes




                                           14
                                 January Term, 2016




despite clear waiver “in specific cases of plain error or where the rights and
interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149, 151, 527
N.E.2d 286 (1988). Accord Crim.R. 52(B). The constitutional rights at issue here
and the importance of those rights to juveniles would justify our review even if
Barker had waived a due-process challenge.          Thus, contrary to the dissent’s
imputation, review of Barker’s due-process challenge is consistent with the law of
this state.
          {¶ 38} As applied to juveniles, the R.C. 2933.81(B) presumption violates
due process. To satisfy due process with respect to a challenged confession, the
state must prove by a preponderance of the evidence that the confession was
voluntary. Lego, 404 U.S. at 489, 92 S.Ct. 619, 30 L.Ed.2d 618. The due-process
test for voluntariness takes into consideration the totality of the circumstances.
Dickerson, 530 U.S. at 433-434, 120 S.Ct. 2326, 147 L.Ed.2d 405, citing
Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973).
          {¶ 39} The totality-of-the-circumstances test takes on even greater
importance when applied to a juvenile.          A 14- or 15-year-old “cannot be
compared with an adult in full possession of his senses and knowledgeable of the
consequences of his admissions.” Gallegos v. Colorado, 370 U.S. 49, 53-54, 82
S.Ct. 1209, 8 L.Ed.2d 325 (1962), citing Haley, 332 U.S. 596, 68 S.Ct. 302, 92
L.Ed. 224. The United States Supreme Court has observed:


          [A] 14-year-old boy, no matter how sophisticated, is unlikely to
          have any conception of what will confront him when he is made
          accessible only to the police. That is to say, we deal with a person
          who is not equal to the police in knowledge and understanding of
          the consequences of the questions and answers being recorded and




                                          15
                              SUPREME COURT OF OHIO




        who is unable to know how to protect his own interests or how to
        get the benefits of his constitutional rights.


Id. at 54.
        {¶ 40} The United States Supreme Court’s analysis in Fare, 442 U.S. at
724-725, 99 S.Ct. 2560, 61 L.Ed.2d 197, is instructive. There, the Supreme Court
refused to deviate from the totality-of-the-circumstances test when the question
was whether a juvenile had waived his Miranda rights.                  The totality-of-the-
circumstances test allows courts necessary flexibility to consider a juvenile’s age
and experience. Id. at 725. The court stated as follows:


        The totality approach permits—indeed, it mandates—inquiry into
        all the circumstances surrounding the interrogation, [including]
        evaluation    of   the   juvenile’s     age,     experience,     education,
        background, and intelligence, and into whether he has the capacity
        to understand the warnings given him, the nature of his Fifth
        Amendment rights, and the consequences of waiving those rights.


Id. It is these very features of the totality test that the statutory presumption in
R.C. 2933.81(B) strips from the determination of whether a juvenile’s statement
was voluntary.
        {¶ 41} “ ‘It is now commonly recognized that courts should take “special
care” in scrutinizing a purported confession or waiver by a child.’ ” In re C.S.,
115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 106, quoting In re
Manuel R., 207 Conn. 725, 737-738, 543 A.2d 719 (1988), citing Haley, 332 U.S.
at 599, 68 S.Ct. 302, 92 L.Ed. 224. When an admission is obtained from a
juvenile without counsel, “the greatest care must be taken to assure that the
admission was voluntary, in the sense not only that it was not coerced or




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suggested, but also that it was not the product of ignorance of rights or of
adolescent fantasy, fright or despair.” In re Gault, 387 U.S. at 55, 87 S.Ct. 1428,
18 L.Ed.2d 527.
       {¶ 42} The totality of the circumstances from which a court must
determine the voluntariness of a juvenile’s statement includes not only the details
of the interrogation but also the juvenile’s unique characteristics. That analysis
here would necessarily include consideration of factors such as Barker’s age, the
late-night time of the interrogation, the absence of a parent or guardian, Barker’s
“borderline intelligence” and third-grade reading level, Barker’s statement that he
was not familiar with Miranda rights other than having heard of them from
television, and Barker’s apparent confusion about what an attorney was.
Application of the statutory presumption would remove all consideration of the
juvenile’s unique characteristics from the due-process analysis unless the juvenile
introduced evidence to disprove voluntariness when the interrogation was
electronically recorded.    But there is no rational relationship between the
existence of an electronic recording and the voluntariness of a suspect’s
statement. This is especially true where, as with R.C. 2933.81(B), the statute
requires only that the statement sought to be admitted, not the entire interrogation,
be recorded.
       {¶ 43} In the end, the burden of establishing the voluntariness of a
juvenile’s custodial statement falls on the state. The General Assembly may not
remove that burden via a presumption based on the existence of an electronic
recording without running afoul of the due-process protections owed the child.
States may adopt a higher standard under their own law, Lego, 404 U.S. at 489, 92
S.Ct. 619, 30 L.Ed.2d 618, but they may not lessen the standard that the United
States Constitution requires.    R.C. 2933.81(B) impermissibly eliminates the
state’s burden of proving the voluntariness of a custodial statement when the
statement was electronically recorded and, instead, places the burden on the




                                         17
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defendant to prove that the statement was involuntary. For these reasons, we
conclude that R.C. 2933.81(B), as applied to juveniles, is unconstitutional.
Accordingly, we adopt Barker’s first proposition of law.
                                      Conclusion
       {¶ 44} The statutory presumption of voluntariness created by R.C.
2933.81(B) does not affect the analysis of whether a suspect knowingly,
intelligently, and voluntarily waived his Miranda rights prior to making a
statement to the police.           As applied to juveniles, that presumption is
unconstitutional. We therefore reverse the First District’s judgment and remand
this matter to that court to consider Barker’s supplemental assignment of error
without the R.C. 2933.81(B) presumption and with the understanding that the
burden rested squarely on the state to demonstrate both that Barker knowingly,
intelligently, and voluntarily waived his Miranda rights and that his statements to
the police were voluntary.
                                                                   Judgment reversed
                                                                  and cause remanded.
       O’CONNOR, C.J., and PFEIFER, LANZINGER, and O’NEILL, JJ., concur.
       O’DONNELL, J., dissents with an opinion that KENNEDY, J., joins.
                                   _________________
       O’DONNELL, J., dissenting.
       {¶ 45} Respectfully, I dissent.
       {¶ 46} The majority opinion is another example of the court’s haste to
change the law regarding juveniles in Ohio. This rush to judgment tramples our
law regarding the forfeiture of matters not raised in the trial court or otherwise
presented for appeal or properly considered by an appellate court and what should
be considered in a plain error analysis.
       {¶ 47} In    this   case,     Tyshawn    Barker   failed   to   challenge   the
constitutionality of R.C. 2933.81(B) in either his motion to suppress his




                                           18
                                January Term, 2016




statements to police or in an assignment of error in the court of appeals, and he
concedes in this court that “when the trial court overruled the motion to suppress,
it did not apply the statutory presumption of voluntariness set forth in R.C.
2933.81(B).”
       {¶ 48} The failure to challenge the constitutionality of a statute in the trial
and appellate courts forfeits all but plain error on appeal, and the burden of
demonstrating plain error is on the party asserting it. However, Barker has failed
to demonstrate that the outcome would have been different, and there is nothing to
suggest that but for the statutory presumption, his statement to police would have
been suppressed.
       {¶ 49} Accordingly, because the constitutionality of R.C. 2933.81(B) is
not properly before the court, I would dismiss this appeal as improvidently
accepted.
                          Facts and Procedural History
       {¶ 50} Barker, Dequantez Nixson, Brendan Washington, and Carrielle
Conn went to an apartment building intending to shoot Samuel Jeffries, who had
recently filed domestic violence charges against Nixson’s mother. Barker and
Nixson waited in the hallway while Washington and Conn knocked on Jeffries’s
door. However, Ruddell Englemon answered the door, and according to Barker,
Nixson, and Washington, Conn shot him before the group fled the scene.
Englemon later died from his injuries.
       {¶ 51} Two days later, Nixson, Barker, and Washington, concerned that
Conn would go to the police, lured her out into an isolated wooded area near some
railroad tracks and shot her several times, killing her.
       {¶ 52} The next day, the police took Barker, who was 15 years old at the
time, into custody, and Detective Kurt Ballman read him his Miranda rights and
confirmed that he understood them before questioning Barker about the shootings.
After Barker responded, “Yes, sir,” and signed a form acknowledging that he had




                                          19
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been informed of his rights, he made statements incriminating himself in both
shootings.
          {¶ 53} During a second interview, Barker informed detectives that he had
seen an attorney, and when asked whether he wanted an attorney to be present,
Barker stated, “I do want to talk to make the situation a little bit more better for
you all, but—.” Ballman replied to Barker, “Okay. You tell us what you want to
do. * * * Are you asking for an attorney?” Barker answered, “Just go on.”
Ballman then reread Barker his Miranda rights and asked whether Barker
understood. Barker replied, “Yes, sir.” He then identified Washington from a
photograph.
          {¶ 54} The state filed a complaint in the juvenile court, alleging that
Barker was delinquent for committing the aggravated murders of Conn and
Englemon.      The juvenile court found probable cause to believe that Barker
committed these crimes and that he was not amenable to rehabilitation in the
juvenile system, and it bound him over to the common pleas court.
          {¶ 55} A grand jury indicted Barker for the aggravated murders of
Englemon and Conn, with firearm specifications. There were also specifications
that he and his two codefendants purposefully killed Englemon and Conn to
prevent their testimony in other criminal proceedings and that they murdered
Conn to escape detection, apprehension, trial, or punishment for Englemon’s
death.     Barker was also indicted for conspiracy, aggravated robbery, and
tampering with evidence, all with firearm specifications.
          {¶ 56} Barker moved the trial court to suppress statements he made during
the interrogation, asserting that he had not knowingly, intelligently, and
voluntarily waived his Miranda rights.        He did not, however, challenge the
constitutionality of R.C. 2933.81(B). The trial court denied the motion, finding
that Barker understood his rights and had voluntarily made statements to the
police.




                                         20
                                 January Term, 2016




          {¶ 57} Barker pleaded no contest to the charges against him. The trial
court found him guilty of four counts of aggravated murder, two counts of
aggravated robbery, and three counts of tampering with evidence, all with firearm
specifications, and sentenced him to an aggregate term of 25 years to life in
prison.
          {¶ 58} Barker appealed to the First District Court of Appeals, arguing that
defense counsel was ineffective for failing to present evidence on his behalf at his
amenability hearing and that the juvenile court had abused its discretion when it
bound him over for trial as an adult. He also filed a supplemental brief in which
he argued that the trial court erred when it overruled his motion to suppress,
asserting that he did not knowingly, intelligently, or voluntarily waive his
Miranda rights.        Barker did not challenge the constitutionality of R.C.
2933.81(B).
          {¶ 59} The court of appeals affirmed Barker’s convictions and held that
the trial court’s finding that Barker had knowingly, intelligently, and voluntarily
waived his Miranda rights was supported by the record. The court of appeals
stated that “[n]othing in the record refutes the presumption that Tyshawn’s
statements were made voluntarily” and that “[b]ased on our review of the
recording, we conclude that the trial court’s finding that Tyshawn had voluntarily,
knowingly and intelligently waived his Miranda rights was supported by the
record. The court properly denied the motion to suppress.” 2014-Ohio-3245,
¶ 12-13.
                               Positions of the Parties
          {¶ 60} On appeal to this court, Barker asserts that the court of appeals’
application of R.C. 2933.81(B) is plain error because it implicates the
constitutional protections of the Due Process Clause as applied to a juvenile and
violates the constitutional protections set forth in Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. He argues for the




                                          21
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first time in this case that the statutory presumption that a custodial statement is
voluntary under R.C. 2933.81(B) is unconstitutional because it shifts the burden
of proving that statements were voluntarily made from the state to the accused.
He contends that a juvenile’s will is more easily overborne by police pressure and
inducements than an adult’s and that requiring a juvenile to prove that a
videotaped interrogation is involuntary thus violates due process. Barker further
argues that the statutory presumption of voluntariness does not affect a reviewing
court’s analysis of whether the accused waived Miranda rights. He maintains that
the court of appeals improperly applied the presumption from R.C. 2933.81(B)
rather than the Miranda totality of the circumstances test.
       {¶ 61} The state contends that res judicata bars Barker’s claim that R.C.
2933.81(B) is unconstitutional because he did not raise the issue in the trial court
or the court of appeals. It therefore maintains that Barker’s request for this court
to rule on the constitutionality of R.C. 2933.81(B) is tantamount to a request for
an advisory opinion, because the trial court never presumed that Barker’s
statement was voluntary when it ruled on his motion to suppress, and the court of
appeals did not apply the statute when considering whether Barker waived his
Miranda rights but rather, reviewed the totality of the circumstances surrounding
his interrogation.
       {¶ 62} Barker responds that the constitutionality of R.C. 2933.81(B) was
properly preserved, because he filed a motion to suppress the statements made
during his interrogation and the appellate court reviewed that issue.
       {¶ 63} Accordingly, before this court addresses Barker’s challenge to R.C.
2933.81(B), a determination should be made regarding whether the matter is
properly before this court for review.
                                Law and Analysis
       {¶ 64} In State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, we noted the “well-established rule that ‘ “an appellate court will not




                                         22
                                 January Term, 2016




consider any error which counsel for a party complaining of the trial court’s
judgment could have called but did not call to the trial court’s attention at a time
when such error could have been avoided or corrected by the trial court.” ’ ” Id.
at ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986),
quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three
of the syllabus. And this court “will not ordinarily consider a claim of error that
was not raised in any way in the Court of Appeals and was not considered or
decided by that court.” State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979),
paragraph two of the syllabus.
       {¶ 65} Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain
errors or defects affecting substantial rights” notwithstanding the accused’s failure
to meet his obligation to bring those errors to the attention of the trial court.
However, the accused bears the burden of proof to demonstrate plain error on the
record, Quarterman at ¶ 16, and must show “an error, i.e., a deviation from a legal
rule” that constitutes “an ‘obvious’ defect in the trial proceedings,” State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v. Sanders,
92 Ohio St.3d 245, 257, 750 N.E.3d 90 (2001). However, even if the error is
obvious, it must have affected substantial rights, and “[w]e have interpreted this
aspect of the rule to mean that the trial court’s error must have affected the
outcome of the trial.” Id. Thus, as we recently clarified in State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, the accused is “required to
demonstrate a reasonable probability that the error resulted in prejudice.”
(Emphasis sic.)
       {¶ 66} But even where the accused demonstrates that a plain error affected
the outcome of the proceeding, “an appellate court is not required to correct it; we
have ‘admonish[ed] courts to notice plain error “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” ’




                                         23
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” (Emphasis sic.) Id. at ¶ 23, quoting Barnes at 27, quoting State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
       {¶ 67} Here, Barker did not raise any challenge to R.C. 2933.81(B) in his
motion to suppress filed in the trial court or in an assignment of error on appeal.
Rather, he argued only that he did not knowingly, intelligently, or voluntarily
waive his Miranda rights, and although he briefly addressed the statutory
presumption of voluntariness in his appellate brief, he nonetheless did not
question the statute’s constitutionality before the appellate court. Accordingly,
Barker has forfeited all but plain error, and it is his burden to demonstrate a
reasonable probability that but for an error in applying R.C. 2933.81(B), his
statements would have been suppressed.
       {¶ 68} In my view, there is no reasonable probability that Barker’s
statements to police would have been suppressed, and reversal here is not
necessary to correct a manifest miscarriage of justice.         Importantly, Barker
concedes that the trial court did not apply R.C. 2933.81(B) when it denied his
motion to suppress, and therefore he cannot demonstrate that it committed any
error, much less plain error, in this regard. And although the court of appeals
acknowledged the existence of R.C. 2933.81(B), there is no indication that it
would have ordered Barker’s statements suppressed but for the statutory
presumption that statements made during an electronically recorded interrogation
of a suspect are voluntary. As the appellate court recognized, it had the duty to
defer to the trial court’s factual findings, and based on its independent review of
the interrogation recording, it upheld the trial court’s finding that Barker
knowingly, intelligently, and voluntarily waived his Miranda rights. Nothing in
the record shows that the statutory presumption materially impacted the appellate
court’s analysis or that the trial court erred in denying the motion to suppress.
       {¶ 69} Thus, this is not a case in which the accused’s statement to police
would have been suppressed but for the presumption of voluntariness established




                                         24
                                  January Term, 2016




by R.C. 2933.81(B), and because the constitutional question at issue here has not
been presented for consideration by the trial and appellate court in the first
instance, it is not properly before our court. For these reasons, I would dismiss
the appeal as improvidently accepted.
       KENNEDY, J., concurs in the foregoing opinion.
                              _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel
Lipman Curran, Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Sheryl Trzaska, Assistant
Public Defender, for appellant.
       Marsha L. Levick and Steven A. Drizin, urging reversal for amici curiae,
Juvenile Law Center and Center on Wrongful Convictions of Youth, Bluhm Legal
Clinic, Northwestern University School of Law.
                              _________________




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