[Cite as State v. Oh, 2013-Ohio-4940.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                           :        APPEAL NO. C-130182
                                                  TRIAL NO. B-1206685
         Plaintiff-Appellee,             :

   vs.                                   :
                                                      O P I N I O N.
                                         :
JAEHEE OH,

         Defendant-Appellant.            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: November 8, 2013



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

George A. Katchmer, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}     Defendant-appellant Jaehee Oh appeals the judgment of the trial court

convicting him of rape and aggravated burglary following Oh’s no-contest pleas. Oh

argues that the trial court erred by denying his motion to suppress statements he had

made to police where Oh, a Korean national, had not had previous experience with

the American criminal-justice system, had been “hung over” at the time of the police

interview, and had not been informed of his right to contact the Korean Consulate as

required by the Vienna Convention on Consular Relations, Apr. 24, 1963, (1970) 21

U.S.T. 77, T.I.A.S. No. 6820 (“Vienna Convention”). Oh also argues that the trial

court erred by granting the state’s motion to take the deposition of the victim, Y.Y.S.,

prior to trial. Finding no merit in Oh’s assignments of error, we affirm the trial

court’s judgment.

       {¶2}     Oh was indicted for the rape of Y.Y.S. and the aggravated burglary of

Y.Y.S.’s apartment, both felonies of the first degree.       According to the bill of

particulars, Oh had entered Y.Y.S.’s apartment by force and had obtained a knife

from inside her apartment. Oh then had entered Y.Y.S.’s bedroom while she had

been sleeping and had held a knife to her throat while he had digitally penetrated her

vagina. Oh had attempted to have sexual intercourse with Y.Y.S., but he had been

unsuccessful.

       {¶3}     Oh filed a motion to suppress statements he had made to police. At

the motion-to-suppress hearing, Detective Kimberly Kelley testified that she had first

met Oh at his apartment at around 8:00 or 9:00 p.m., and the offense had occurred

at 5:00 a.m. Detective Kelley had identified herself to Oh as an officer, had informed

him that a female had made a complaint against him, and had requested to speak

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with him in connection with the investigation. Detective Kelley had noticed that Oh

could speak some English, but that she would need an interpreter to interview him.

Once Oh had agreed to go to the police station, Detective Kelley had called a

language service to arrange for a Korean interpreter to meet them at the station. Oh

then had been brought to the station by a uniformed police officer.

       {¶4}    Once Oh and the interpreter had arrived at the station, Detective

Kelley had given Oh his notification-of-rights form, which had been written in

English. The interpreter had orally informed Oh of his rights as laid out in the form,

and then Oh had signed the form. Detective Kelley had interviewed Oh with the aid

of the interpreter, but some of the interview had been conducted in English. Oh had

not indicated at any time that he wanted to stop the interview or get a lawyer.

       {¶5}   Detective Kelley testified that Oh had stated he was tired and “hung

over,” but that he had not appeared to be under the influence of alcohol. Detective

Kelley acknowledged that she had not informed Oh of his right to contact the Korean

Consulate at any time during the interview. Detective Kelley also acknowledged that

Oh had not had a criminal history that she had found.

       {¶6}   Jennifer Kim, a Korean interpreter, also testified at the hearing. Kim

was not the same interpreter that had been with Oh during the police interview. Kim

testified that her review of Oh’s interview showed that Oh’s interpreter had

accurately and fully translated the notification-of-rights form. For example, Kim

testified that, at one point during the interview, Oh had been asked if he knew what a

lawyer did, and he had answered: “Protect me.”

       {¶7}   After the hearing, the trial court denied Oh’s motion to suppress.




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       {¶8}   The state filed three separate pretrial motions, all of which sought to

depose Y.Y.S., also a Korean national, prior to trial. The state contended that Y.Y.S.

would not be able to attend the trial, which at that point had not been scheduled,

because she would be going back to Korea permanently within the next couple of

weeks. Oh objected to the state’s deposition of Y.Y.S., arguing that the state had not

shown Y.Y.S.’s unavailability for trial. Oh contended that Y.Y.S. was a student who

had gone back and forth from Korea before, and that the state had not served Y.Y.S.

with a subpoena while she was still in the country. After discussing the matter on the

record with counsel, the trial court granted the state’s motion to take Y.Y.S.’s

deposition. Oh, Oh’s counsel, and an interpreter attended the deposition, allowing

Oh the opportunity to cross-examine Y.Y.S.

       {¶9}   After Y.Y.S.’s deposition, Oh entered pleas of no contest to rape and

aggravated burglary. The trial court conducted a plea hearing where it accepted Oh’s

pleas and found Oh guilty of both offenses.       The trial court sentenced Oh to

concurrent three-year prison terms on the charges. Oh now appeals.

                      Motion to Suppress Statements to Police

       {¶10} We address Oh’s second assignment of error first, in which Oh argues

that the trial court erred in “failing to dismiss the matter” because Oh had not been

afforded the assistance of the Korean Consulate as required by the Vienna

Convention. Oh’s argument on appeal is broader than his argument before the trial

court in that Oh argued before the trial court that his statements to police should be

suppressed because of the failure to comply with the Vienna Convention and not that

the entire indictment against him should be dismissed.




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       {¶11} In regard to the trial court’s ruling on Oh’s motion to suppress, such a

ruling presents a mixed question of law and fact. See State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept a trial court’s

findings of fact if they are supported by competent, credible evidence, but we review

de novo the application of the law to those facts. Id. By contrast, we review for plain

error Oh’s argument that the trial court should have dismissed the indictment

because Oh did not raise that argument below. See Crim.R. 52(B).

       {¶12} Article 36 of the Vienna Convention, a treaty ratified by the United

States, requires that individuals detained by authorities in a foreign country be

informed of their right to request the authorities to contact those individuals’ foreign

consulates. Vienna Convention on Consular Relations, Apr. 24, 1963, (1970) 21

U.S.T. 77, T.I.A.S. No. 6820, Article 36(1)(b). The United States Supreme Court has

held that a failure by police to notify a defendant in accordance with Article 36 prior

to obtaining the defendant’s statement is not a distinct ground for suppression of the

statement. Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d

557, 579 (2006). The Court noted that the exclusionary rule generally applies to

constitutional violations—not treaties—and that a defendant can use an Article 36

violation as a factor in attacking the overall voluntariness of the defendant’s

statement to police. Id. at 577-579.

       {¶13} Detective Kelley’s failure to inform Oh of his rights under Article 36 of

the Vienna Convention is not, in and of itself, a ground to suppress Oh’s statements,

and, likewise, such a failure is not a separate ground to dismiss Oh’s indictment. See

State v. Jamhour, 10th Dist. Franklin No. 06AP-20, 2006-Ohio-4987, ¶ 14 (where

the court determined that counsel was not ineffective for failing to move to suppress

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a criminal defendant’s statement to investigators as a violation of the Vienna

Convention because, under Sanchez-Llamas, even assuming that the Vienna

Convention created a judicially enforceable right, suppression of evidence was not a

remedy).

       {¶14} Therefore, the trial court did not err in overruling Oh’s motion to

suppress on the basis of the Vienna Convention violation, nor did the trial court

commit plain error in failing to dismiss the indictment against Oh. We overrule Oh’s

second assignment of error.

       {¶15} In his first assignment of error, Oh argues that the trial court erred in

overruling his motion to suppress because his statements were not voluntary.

       {¶16} In determining whether a defendant’s pretrial statement is voluntary,

a court “should consider the totality of the circumstances, including 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. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 32, quoting Edwards at paragraph two of the

syllabus. Moreover, police coercion is a prerequisite to a finding of involuntariness.

Id.; State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 113-

114.

       {¶17} The record does not reflect that Oh’s statements were involuntarily

made to Detective Kelley. Although Oh, a Korean national, had not been informed of

his consulate rights and had not had prior experience with the American criminal-

justice system, Oh had been informed of his Miranda rights through an interpreter,

he had indicated that he comprehended those rights, and he had expressly waived

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those rights. Even though Oh contends that he had been “hung over” during the

interview, the interview had not been lengthy or intense, nor had any deprivation or

threats occurred. Considering the totality of the circumstances surrounding Oh’s

statements to Detective Kelley, Oh’s statements were voluntary.

       {¶18} The trial court did not err in failing to suppress Oh’s statements, and

we overrule Oh’s first assignment of error.

                                   Deposition of the Victim

       {¶19} Finally, in Oh’s third assignment of error, he argues that the trial court

erred in allowing the state to depose the victim, Y.Y.S., prior to trial.

       {¶20} The trial court granted the state’s motion to depose Y.Y.S. under

Crim.R. 15. Crim.R. 15(A) states:

               If it appears probable that a prospective witness will be

               unable to attend or will be prevented from attending a

               trial or hearing, and if it further appears that his

               testimony is material and that it is necessary to take his

               deposition in order to prevent a failure of justice, the

               court at any time after the filing of an indictment,

               information, or complaint shall upon motion of the

               defense attorney or the prosecuting attorney and notice

               to all the parties, order that his testimony be taken by

               deposition * * *.

We review a trial court’s decision to grant or deny a party’s request for a pretrial

deposition under Crim.R. 15 for an abuse of discretion. See State v. Lominack, 5th

Dist. Stark No. 2012CA00213, 2013-Ohio-2678, ¶ 57.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21} The trial court did not err in allowing the state to depose Y.Y.S., the

sole complaining witness, prior to trial under Crim.R. 15 where the state contended

that Y.Y.S. intended to move back to Korea permanently within the next couple of

weeks and a trial date had yet to be scheduled, and the state would be prevented

from issuing Y.Y.S. a subpoena once she moved out of the country. As a practical

matter, the state could not issue a subpoena without a trial date.

       {¶22} Oh nevertheless argues that the trial court’s allowance of Y.Y.S.’s

pretrial deposition violated his Sixth Amendment rights under Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Evid.R.

804(B), because the state failed to show that Y.Y.S. was unavailable for trial or that a

reasonable effort had been made to secure Y.Y.S.’s presence at trial. Oh pled no

contest to rape and aggravated burglary prior to any ruling by the trial court

admitting the deposition at trial. As a result, Oh cannot demonstrate that he was

prejudiced by the trial court’s allowance of the pretrial deposition.

       {¶23} We overrule Oh’s third assignment of error.

       {¶24} In conclusion, having overruled Oh’s assignments of error, we affirm

the judgment of the trial court. As noted by the state, the judgment entry states that

Oh was pro se at the time of sentencing; however, the record shows that Oh was

represented by counsel. Therefore, we remand this case to the trial court to correct

the clerical error in the judgment entry.

                                                Judgment affirmed and cause remanded.
CUNNINGHAM, P.J., and DEWINE, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.


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