[Cite as State v. Jones, 2014-Ohio-1716.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 13 COA 012
ELMER JONES, III

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 12 CRI 045


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 21, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

RAMONA FRANCESCONI ROGERS                      MELISSA M. PRENDERGAST
PROSECUTING ATTORNEY                           ASSISTANT STATE PUBLIC
PAUL T. LANGE                                  DEFENDER
ASSISTANT PROSECUTOR                           250 East Broad Street
110 Cottage Street, Third Floor                Suite 1400
Ashland, Ohio 44805                            Columbus, Ohio 43215
Ashland County, Case No. 13 COA 012                                                      2

Wise, J.

       {¶1}   Appellant Elmer Jones, III appeals the decision of the Ashland Court of

Common Pleas denying his motion to suppress.

       {¶2}   Appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶3}   In March, 2012, Officer Kim Mager, a child abuse investigator, began

investigating an allegation that a young boy, identified in this case as John Doe, was

sexually molested by Elmer Joseph Jones, the Appellant. (Supp. T. at 8).

       {¶4}   On March 28, 2012, Officer Mager went to Appellant's home to retrieve

some evidence in an unrelated case. (Id. at 11-12). At the start of this encounter, Officer

Mager told Appellant he was not under arrest, that he did not have to talk to her, and

that he could tell her to leave at any time. (Id. at 11). While Officer Mager and Appellant

discussed another individual accused of molesting children, Appellant asked Officer

Mager questions regarding the potential punishment for this other individual and the

investigative process. (Id. at 13-14).

       {¶5}   During this encounter, Officer Mager also told Appellant that the sexual

things that happened between him and John Doe and John Doe's siblings should not

have happened. (Id. at 15). Appellant responded: "I know, Kim, and I can tell you it's not

happening now, because I am staying away from them." Id.

       {¶6}   At the conclusion of this twenty-one minute encounter on March 28, 2012,

Appellant himself ended the encounter by telling Officer Mager that he had to leave. (Id.

at 18-19). Appellant told Officer Mager that if she wanted to speak with him again she

could come and talk to him at the Kroc Center where he was a volunteer. (Id. at 19).
Ashland County, Case No. 13 COA 12                                                     3


       {¶7}   On April 24, 2012, Officer Mager went to the Kroc Center and met with

Appellant. (Id. at 20). She was dressed in plain clothes and used an unmarked law

enforcement vehicle. (Id. at 23). The Kroc Center is a community center located in

Ashland, Ohio. Officer Mager knew Appellant prior to this investigation and it was not

uncommon for her to stop by the Kroc Center. (Id. at 21-22).

       {¶8}   When Officer Mager first encountered Appellant at the Kroc Center, the

two briefly engaged in a casual conversation in a common area. (Id. at 21). Officer

Mager then asked Appellant if he would be comfortable talking to her in her car, which

was parked in close proximity to the Kroc Center, or if there was somewhere else he

would prefer. Id. Appellant said her car was fine. Id.

       {¶9}   During this interview, Officer Mager was seated in the driver's seat and

Appellant was seated in the front passenger seat. (Id. at 24). The doors to the vehicle

were unlocked. Id. Officer Mager advised Appellant that he was not under arrest, that he

did not have to talk to her, and that he could walk away at any time. (Id. at 26).

       {¶10} Appellant replied that he believed Officer Mager and that if she was going

to arrest him, she would have done so inside of the Kroc Center. Id. Appellant further

stated that if he were under arrest, Officer Mager would have handcuffed him. Id.

       {¶11} During her testimony at the suppression hearing, Officer Mager noted that

at one point in time towards the end of this interview, Appellant opened the car door and

went back to the building to smoke a cigarette. (Id. at 24-25).

       {¶12} The interview at the Kroc Center lasted approximately one hour and

sixteen minutes. (Id. at 28). Officer Mager stated that Appellant made his first

incriminating statement within the first sixteen or seventeen minutes. (Id. at 29).
Ashland County, Case No. 13 COA 12                                                       4


       {¶13} Officer Mager testified that, in her experience, it is not uncommon for a

suspect to initially deny the allegations. (Id. at 30). In an attempt to obtain further

information, Officer Mager repeatedly asked Appellant to be honest with her. Id.

Appellant admitted to engaging in oral sex on two separate occasions with the young

child identified as John Doe. Appellant also acknowledged to Officer Mager that he had

the victim perform oral sex on him. (Id. at 17).

       {¶14} Officer Mager did not arrest Appellant at the end of this interview at the

Kroc Center, allowing him to return to work. (Id. at.32). The decision to arrest Appellant

was made by Lieutenant Icenhour because of concerns that Appellant would be around

children, and law enforcement was not certain they would be able to locate Appellant in

the future. (Id. at 36-37).

       {¶15} Following the arrest, Appellant was taken to the Ashland County Jail

where he was interviewed for a second time by Officer Mager. (Id. at 37-38). At the start

of the interview at the jail, Officer Mager advised Appellant of the Miranda warnings. (Id.

at 38). Initially, Appellant retracted his prior admissions, but ultimately he confessed to

engaging in anal sex and oral sex with the young victim. (Id. at 11).

       {¶16} The total time for both interviews was less than two hours. (Supp.T. at 47-

48).

       {¶17} On April 27, 2012, the Ashland County Grand Jury indicted Appellant on

three counts of rape, all felonies of the first degree, and one count of Gross Sexual

Imposition, a third degree felony.

       {¶18} On July 20, 2012, Appellant filed a motion to suppress.
Ashland County, Case No. 13 COA 12                                                 5


       {¶19} On September 5, 2012, following a hearing on Appellant’s suppression

motion, the trial court denied Appellant’s motion.

       {¶20} In October, 2012, a jury trial commenced in this matter.

       {¶21} On October 24, 2012, the jury found Appellant guilty of all three rape

charges and the charge of gross sexual imposition.

       {¶22} On January 16, 2013, the trial court sentenced Appellant to an aggregate

prison term of thirty (30) years to life.

       {¶23} Appellant now appeals, assigning the following errors for review:

                                    ASSIGNMENTS OF ERROR

       {¶24} “I. THE TRIAL COURT ERRED WHEN IT DENIED MR. JONES'

MOTION TO SUPPRESS. MR. JONES' STATEMENTS WERE OBTAINED

THROUGH THE USE OF A COERCIVE SUCCESSIVE INTERROGATION

TECHNIQUE, AND THE MID-INTERROGATION MIRANDA WARNINGS WERE

INEFFECTIVE. MR. JONES' PRE- AND POST-MIRANDA STATEMENTS

SHOULD        HAVE       BEEN       SUPPRESSED.      FIFTH     AND      FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTION 10,

ARTICLE I OF THE OHIO CONSTITUTION.

       {¶25} “II. MR. JONES WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF

TRIAL COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE

OHIO CONSTITUTION.”
Ashland County, Case No. 13 COA 12                                                         6


                                             I.

       {¶26} In his First Assignment of Error, Appellant argues that the trial court erred

in denying his motion to suppress. We disagree.

       {¶27} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328,

713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of

fact and, as such, is in the best position to resolve questions of fact and to evaluate

witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A

reviewing court is bound to accept the trial court's findings of fact if they are supported

by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d 142, 675

N.E.2d 1268. Accepting these facts as true, the appellate court must independently

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

the trial court's decision meets the applicable legal standard. State v. Williams (1993),

86 Ohio App.3d 37, 619 N.E.2d 1141.

       {¶28} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141

(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th

Dist.1993). Second, an appellant may argue the trial court failed to apply the

appropriate test or correct law to the findings of fact. In that case, an appellate court can

reverse the trial court for committing an error of law. State v. Williams, 86 Ohio App.3d
Ashland County, Case No. 13 COA 12                                                        7


37, 619 N.E.2d 1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact

are not against the manifest weight of the evidence and it has properly identified the law

to be applied, an appellant may argue the trial court has incorrectly decided the ultimate

or final issue raised in the motion to suppress. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as

a general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

      {¶29} In the instant case, Appellant argues the trial court erred in not finding that

the interview at the Kroc Center was a custodial interrogation and that the Miranda

warnings were ineffective, having been read after Appellant’s confession.

      {¶30} Initially, we note that police are not required to give Miranda warnings to

everyone they question, even when that questioning takes place in a police station, and

the person being questioned is a suspect. State v. Biros (1997), 78 Ohio St.3d 426, 440,

678 N.E.2d 891. Instead, Miranda warnings are only required for custodial

interrogations. Id. “The ultimate inquiry is simply whether there is a formal arrest or

restraint on freedom of movement of the degree associated with formal arrest.” Id. An

interrogation is noncustodial if a reasonable person in the suspect’s position would

believe that he or she was free to leave. State v. Gumm, 73 Ohio St.3d 413 (1995),

quoting United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980). In making

such a determination, courts have considered the following factors:

      {¶31} “(1) What was the location where the questioning took place-i.e., was the

defendant comfortable and in a place a person would normally feel free to leave? * * *;
Ashland County, Case No. 13 COA 12                                                         8


         {¶32} “(2) Was the defendant a suspect at the time the interview began (bearing

in mind that Miranda warnings are not required simply because the investigation has

focused);

         {¶33} “(3) Was the defendant's freedom to leave restricted in any way;

         {¶34} “(4) Was the defendant handcuffed or told he was under arrest;

         {¶35} “(5) Were threats made during the interrogation;

         {¶36} “(6) Was the defendant physically intimidated during the interrogation;

         {¶37} “(7) Did the police verbally dominate the interrogation;

         {¶38} “(8) What was the defendant's purpose for being at the place where the

questioning took place? * * *;

         {¶39} “(9) Were neutral parties present at any point during the questioning;

         {¶40} “(10) Did police take any action to overpower, trick, or coerce the

defendant into making a statement.” State v. Estepp (Nov. 26, 1997), Montgomery App.

No. 16279, citations omitted.

         {¶41} Upon review, we find that the only factors in this list that weigh in favor of

suppression are that Appellant was a suspect and that no neutral parties were present

during the interview. However, those two factors alone are not enough to classify the

interview as custodial. See, e.g., Biros, supra, at 440-41, 678 N.E.2d 891. See, also,

State v. Reeves, Greene App. No. 2002-CA-4810, 2002-Ohio-4810; State v. Abner,

Montgomery App. No. 20661, 2006-Ohio-4510. The remaining factors weigh in favor of

a finding that the confessions in this case were knowingly, intelligently, and voluntarily

given.
Ashland County, Case No. 13 COA 12                                                       9


       {¶42} Contrary to Appellant's claims, we do not find that Officer Mager created a

situation in which Appellant felt that he was not free to leave. Appellant willingly agreed

to speak with Officer Mager and had previously invited her to come to the Kroc Center

and speak with him. Appellant willingly accompanied her to her vehicle, which was an

unmarked car. Officer Mager was in plain clothes. Appellant was not handcuffed or

otherwise restrained and was advised that he was not under arrest and was free to

leave at any time. Appellant did, in fact, eventually leave Officer Mager’s vehicle and

return to work.

       {¶43} For these reasons, we conclude that a reasonable person in Appellant's

position would have understood he was not in custody. Therefore, Miranda warnings

were not necessary, and his statements made during this interview were admissible.

       {¶44} Additionally, we find that the statements made by Appellant in the second

April 24, 2012, interview were also admissible.

       {¶45} Appellant relies on Missouri v. Seibert (2004), 542 U.S. 600, 124 S.Ct.

2601, 159, 159 L.Ed.2d 643 L.Ed.3d 643, in arguing that his second confession was not

admissible because it was tainted by the un-Mirandized first confession. However, we

find this case is distinguishable from Seibert. Seibert challenged a police practice of not

advising a suspect who is being interrogated of his Miranda rights, until after a

confession is made and then promptly Mirandizing the suspect and questioning him

again. The expectation is that the suspect will repeat his confession, and that this

second confession, having been preceded by a recitation of the suspect's Miranda

rights, will be admissible.
Ashland County, Case No. 13 COA 12                                                       10


       {¶46} As set forth above, Appellant was not in custody when he made his initial

confession at the Kroc Center interview, and therefore, Miranda warnings were not

necessary. More importantly, he returned to work following the interview rather than

immediately being Mirandized and questioned a second time. Appellant's second

confession came after Appellant was arrested, transported to the Ashland County Jail

and interviewed a second time, not just minutes later as in Seibert.

       {¶47} In this second interview, Appellant admitted to engaging in additional

sexual acts with the victim in this case. During the Kroc Center interview, Appellant

repeatedly denied engaging in anal sex with the victim, however confessed to same

during the interview at the jail.

       {¶48} Again, because Officer Mager was not obliged to read Appellant his

Miranda warnings prior to the first confession, the absence of such warnings does not

affect the voluntariness of the second confession.

       {¶49} Based on the facts as presented in this case, we find that trial court did not

err in denying Appellant's motion to suppress.

       {¶50} Based on the foregoing, we find Appellant’s First Assignment of Error not

well-taken and overrule same.

                                                 II.

       {¶51} In his Second Assignment of Error, Appellant argues that he was denied

the effective assistance of counsel. We disagree.

       {¶52} Appellant insists that his counsel was ineffective for failing to cite Missouri

v. Seibert, supra, in support of his motion to suppress.
Ashland County, Case No. 13 COA 12                                                      11


       {¶53} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to Appellant. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). The second prong is whether Appellant was prejudiced by counsel's

ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). “The benchmark for judging any claim of ineffectiveness must be whether

counsel's conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Id.

       {¶54} Based on our disposition of Appellant’s First Assignment of Error, we do

not find that counsel was ineffective for failing to cite Missouri v. Seibert in support of

the motion to dismiss in this case. We further find that even if such was error, Appellant

was not prejudiced by same.

       {¶55} Appellant’s Second Assignment of Error is overruled.

       {¶56} For the foregoing reasons, the judgment of the Court of Common Pleas of

Ashland County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.



JWW/d 040
Ashland County, Case No. 13 COA 012   12
