[Cite as State v. Fowler, 2016-Ohio-5940.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                :   JUDGES:
                                              :
                                              :   Hon. John W. Wise, P.J.
        Plaintiff-Appellant                   :   Hon. Patricia A. Delaney, J.
                                              :   Hon. Craig R. Baldwin, J.
 -vs-                                         :
                                              :   Case No. 2016AP040024
                                              :
 MICHAEL A. FOWLER                            :
                                              :
                                              :
        Defendant-Appellee                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Tuscarawas County
                                                  Court of Common Pleas, Case No. 2015
                                                  CR 03 0096



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           September 20, 2016




APPEARANCES:

 For Plaintiff-Appellant:                         For Defendant-Appellee:

 RYAN STYER                                       MARK A. PERLAKY
 TUSCARAWAS CO. PROSECUTOR                        153 N. Broadway St.
 R. SCOTT DEEDRICK                                New Philadelphia, OH 44663
 125 E. High Ave.
 New Philadelphia, OH 44663
Tuscarawas Cty., Case No. 2016AP040024                                                 2

Delaney, J.

      {¶1} Plaintiff-appellant state of Ohio appeals the April 20, 2016 judgment

entries of the Tuscarawas County Court of Common Pleas reaffirming its decision to

grant the motion to suppress of defendant-appellee Michael A. Fowler.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} The following facts and procedural history are taken in part from our

decision in State v. Fowler, 5th Dist. Tuscarawas No. 2015 AP 0054, 2016-Ohio-1209

[Fowler I]. The instant appeal arises from our remand order in Fowler I.

      {¶3} Appellee was indicted upon one count of rape in violation of R.C.

2907.02(A)(1)(b) and (A)(2), felonies of the first degree, and one count of gross sexual

imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree, on March 30,

2015. The indictment alleged appellee engaged in sexual activity with a minor female

relative from 2004 into 2007.

      {¶4} On June 12, 2015, appellee filed a motion to suppress statements made

during an interview with the New Philadelphia Police Department on December 1, 2014.

Appellee alleged his statements were involuntary because Detective Nelson made

factual and legal misstatements that directly led to appellee’s confession. Specifically,

appellee argued law enforcement implied the victim said the sexual activity with

appellee was “consensual,” and that consensual sexual activity between family

members is not legally prohibited.

      {¶5} An evidentiary hearing took place on August 13, 2015, and appellant

called one officer, Detective Shawn Nelson of the New Philadelphia Police Department.
Tuscarawas Cty., Case No. 2016AP040024                                                   3


                            Testimony of Detective Shawn Nelson.

       {¶6} On December 1, 2014, Detectives Nelson and Willett interviewed appellee

at the police department. The entire interview was recorded and entered into evidence.

See, Joint Exhibit A.

       {¶7} Appellee was in custody at the time of the interview on an unrelated matter

and was released after the interview. The interview lasted one hour and fifteen minutes.

(T. Aug. 13, 2015 at 17). Nelson read appellee his Miranda rights prior to commencing

the interview. Appellee did not ask for the interview to stop. (T. Aug. 13, 2015 at 18).

Appellee never requested an attorney. (Id.). Nelson testified the interview would have

terminated if appellee made either request. (Id. at 19).

       {¶8} Appellee told the officers he suffered two aneurisms that had affected his

memory. (Joint Exhibit A). Nelson testified he did not observe any indications appellee

did not understand his situation. (Id. at 20). Nelson characterized appellee as articulate

and responsive to the questioning. (Id.).

       {¶9} By entry dated August 14, 2015, the trial court deferred a decision pending

the parties’ submission of post-hearing memoranda.

                        The trial court's decision of September 21, 2015.

       {¶10} By judgment entry filed September 21, 2015, the trial court agreed Nelson

read appellee his Miranda rights prior to questioning. However, the trial court noted,

                    * * * *.

                    FINDS, however, that Defendant does not suggest either in

             his Motion to Suppress Statements or in his Legal Memoranda in
Tuscarawas Cty., Case No. 2016AP040024                                              4


           Support of the Motion, that the rights of the Defendant under

           Miranda v. Arizona, 384 U.S. 436 (1966) have not been abrogated.

                  FINDS    that   in   viewing   the   DVD (Joint    Exhibit   A)

           memorializing the 12/1/2014 Interrogation of the Defendant by

           agents of the New Philadelphia, Ohio Police Department at the New

           Philadelphia, Ohio Police Station, it is graphically clear that the

           following occurred:

                  Detective Shawn Nelson, prior to asking the Defendant any

           questions, properly read the Defendant's constitutional rights vis a

           vis Miranda, citation above.

                  Agents of the New Philadelphia Police Department did not

           obtain a lawful waiver from the Defendant of his constitutional rights

           under the Fifth Amendment of the United States Constitution

           protecting the Defendant in this case from being compelled to self-

           incriminate.

                  In explaining Defendant's constitutional rights Detective

           Nelson did not place a printed copy of the constitutional rights form

           from which he was reading before the Defendant notwithstanding

           that he told the Defendant you can “follow along or not” or words to

           that effect prior to reading the constitutional rights form to

           Defendant. Additionally,       upon   completing the     recitation of

           Defendant's constitutional rights, Detective Nelson did not ask the

           Defendant if he was willing to proceed to answer questions but,
Tuscarawas Cty., Case No. 2016AP040024                                                  5


                instead, simply placed what appears to be a document containing

                the constitutional rights and a waiver form in front of the Defendant

                and said “I need you to sign right here” (the waiver form on the

                document) to which the Defendant says “I cannot see.” “I don't have

                my glasses.” The Defendant then proceeded to sign the document

                without his glasses at the location Detective Nelson told him to

                sign”—“on the X.”; and without any verbal indication that he knew

                what he was signing or had any understanding of the legal

                significance of his signature.

                       * * * *.

         {¶11} The trial court concluded, e.g., appellant failed to prove appellee made a

“knowing and intelligent” decision to waive his rights and granted appellee’s motion to

suppress all of the statements made during the interview.

                                     Appellant’s First Appeal

         {¶12} Appellant appealed the trial court’s decision and raised two assignments

of error: 1) the trial court committed reversible error by suppressing the statements sua

sponte on an issue not raised by the parties,1 and 2) appellee’s waiver of his Miranda

rights was knowing, voluntary, and intelligent under the circumstances. We found the

trial court incorrectly determined appellee was not properly informed of his Miranda

rights. Fowler I, supra, 2016-Ohio-1209 at ¶ 22. However, we also found the trial court

““never addressed whether [appellee] made a knowing, intelligent and voluntary waiver




1   Fowler I does not expressly address this assignment of error.
Tuscarawas Cty., Case No. 2016AP040024                                                     6


of his rights under the Fifth and Fourteenth Amendments” and remanded the matter to

the trial court for determination of this issue. Id.

       {¶13} On April 11, 2016, the trial court held a remand hearing at which the parties

agreed no additional evidence would be presented.

                          The trial court’s decisions of April 20, 2016.

       {¶14} In a judgment entry dated April 20, 2016, the trial court revisited the findings

of fact from the decision of September 21, 2015 and emphasized the decision was not

premised upon whether the detectives provided a written Miranda waiver. Instead, upon

viewing the DVD of the interview, the trial court was firmly convinced appellee did not

understand the constitutional rights guaranteed by Miranda and did not knowingly,

intelligently, and voluntarily waive those rights.

       {¶15} Thus, the trial court concluded, appellee did not understand his

constitutional rights provided by the 5th and 14th Amendments and did not knowingly,

intelligently, and voluntarily waive those rights.     In a separate entry the trial court

reaffirmed the decision to suppress the statements made in the interview of appellee.

       {¶16} Appellant now appeals from the trial court’s decision of April 20, 2016.

       {¶17} Appellant raises two assignments of error:

                                ASSIGNMENTS OF ERROR

       {¶18} “I. APPELLEE’S WAIVER OF HIS MIRANDA RIGHTS WAS KNOWING,

VOLUNTARY, AND INTELLIGENT IN THE TOTALITY OF THE CIRCUMSTANCES.”

       {¶19} “II.    THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

SUPPRESSING STATEMENTS SUA SPONTE ON AN ISSUES [sic] NOT RAISED BY

THE PARTIES OR COURT.”
Tuscarawas Cty., Case No. 2016AP040024                                                      7


                                        ANALYSIS

                                            I., II.

       {¶20} Appellant’s two assignments of error are related and will be considered

together.   Appellant argues appellee’s waiver of his Miranda rights was knowing,

voluntary, and intelligent, and that the trial court committed reversible error in raising the

issue sua sponte. We disagree on both counts and for the following reasons affirm the

trial court’s decisions of April 20, 2016 sustaining appellee’s motion to suppress.

                                Scope of the Suppression Hearing

       {¶21} First, the trial court did not impermissibly exceed the scope of the

suppression hearing or the remand order in determining whether appellee’s waiver of his

rights pursuant to Miranda (and by extension, the 5th and 14th Amendments) was

knowing, voluntary, and intelligent.

       {¶22} Appellant is entitled to know the issues presented in advance of a

suppression hearing. In general, the state is not expected to anticipate specific legal and

factual grounds upon which a defendant relies in a motion to suppress. See, Xenia v.

Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). Under the general rule of

Crim.R. 47, a motion to suppress “shall state with particularity the grounds upon which it

is made,” and the state's burden of proof is limited to those contentions asserted with

sufficient particularity to place the prosecutor and court on notice of the issues to be

decided. State v. Todd, 5th Dist. Ashland No. 14 COA 005, 2014-Ohio-4489, ¶ 23, citing

Johnstown v. Jugan, 5th Dist. Licking No. 95CA90, 1996 WL 243805 (Apr. 24, 1996).

       {¶23} The trial court is not required to sit on its proverbial hands if an issue

germane to the suppression argument arises. A trial court “is free to expand the scope
Tuscarawas Cty., Case No. 2016AP040024                                                    8


of a suppression hearing beyond the issues specified in the motion to suppress ‘so long

as the matters within the expanded scope were material to the suppression sought, and

so long as the State had a reasonable opportunity to prepare itself for the hearing.’” State

v. Byrnes, 2nd Dist. Montgomery No. 25860, 2014-Ohio-1274, at ¶ 12, quoting State v.

Blackburn, 2d Dist. Clark No. 3084, 1994 WL 95224, *4 (Mar. 23, 1994). Conversely, “[a]

trial court's rogue detour at a suppression hearing does not put the State on notice of an

issue to be decided.”   Byrnes, 2014-Ohio-1274 at ¶ 9, citing State v. Dabney, 99 Ohio

App.3d 32, 39, 649 N.E.2d 1271 (2d Dist.1994. The question of the voluntariness of

appellee’s waiver in the instant case is not a “rogue detour.”

       {¶24} If a trial court grants a motion to suppress based on an issue that falls

outside the scope of the motion, the state may not have been provided with an opportunity

to adequately prepare arguments and present evidence on that issue and the trial court

would err in granting the motion to suppress on that basis. State v. Duke, 9th Dist. Lorain

No. 12CA10225, 2013-Ohio-743, ¶ 11. The question, therefore, is whether the trial court

indicated the issue it was considering, and whether the parties were given an opportunity

to prepare and present arguments on that issue. State v. Tyson, 3rd Dist. Marion No. 9-

14-49, 2015-Ohio-3530, 41 N.E.3d 450, ¶ 35.

       {¶25} In the instant case, appellant was afforded sufficient opportunities to

adequately prepare arguments and to present evidence as to whether appellee’s waiver

of his right to remain silent was knowing, voluntary, and intelligent.           Appellee’s

suppression motion went to whether he was deceived by police and what effect any

deception may have had on the voluntariness of the waiver. The sole witness at the

suppression hearing was Detective Nelson; the content of his testimony focused on the
Tuscarawas Cty., Case No. 2016AP040024                                                    9


totality of the circumstances surrounding appellee’s statements; and the prosecutor

acknowledged calling Detective Willett would serve no purpose because he could only

reiterate Nelson’s testimony. The only exhibit admitted was Joint Exhibit 1, the DVD of

the interview, which was not played by either party during the hearing. The trial court

stated it would defer ruling on the motion to suppress pending review of the DVD and

gave the parties the opportunity to present post-hearing memoranda.

       {¶26} Furthermore, upon our remand order for further consideration of the 5th and

14th Amendment issues, both parties agreed no additional evidence would be presented

and they relied upon the memoranda already filed. Appellant does not suggest, and we

will not speculate, what additional evidence or arguments appellant would have presented

to further illustrate the circumstances surrounding appellee’s interrogation.

       {¶27} The trial court permissibly expanded the scope of the suppression inquiry

beyond the alleged deception by police because the matters within the expanded scope

were material to suppression and appellant had a reasonable opportunity to prepare and

present arguments on the issue of the voluntariness of the waiver.

                                        Appellee’s Waiver

       {¶28} Next, turning to the substantive issue presented by our remand order and

the trial court’s decisions of April 20, 2016, we begin with the intersection of Miranda and

the rights of a criminal suspect pursuant to the Fifth and Fourteenth Amendments. The

5th Amendment to the United State Constitution provides that “[n]o person ... shall be

compelled in any criminal case to be a witness against himself.” The privilege against

self-incrimination prohibits the state from using any statement against a criminal

defendant “stemming from custodial interrogation of the defendant unless it demonstrates
Tuscarawas Cty., Case No. 2016AP040024                                                 10


the use of procedural safeguards effective to secure the privilege against self-

incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). “[B]y

custodial interrogation, we mean questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in any

significant way.” Id. A person being questioned in a custodial interrogation must be

warned “that he has the right to remain silent, that any statement he does make may be

used as evidence against him, and that he has the right to the presence of an attorney,

either retained or appointed.” Id.

       {¶29} The 14th Amendment Due Process guarantee is also implicated when a

criminal suspect is interrogated. “The issues of whether a confession is voluntary, and

whether a suspect has been subjected to custodial interrogation so as to require Miranda

warnings, are analytically separate issues. The due process clause continues to require

an inquiry, separate from custody considerations, concerning whether a defendant's will

was overborne by the circumstances surrounding the giving of his confession.” State v.

Jackson, 2d Dist. Greene No. 02CA0001, 2002–Ohio–4680, ¶ 19, citing Dickerson v.

United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). This due process

test takes into consideration the totality of all the surrounding facts and circumstances,

including the characteristics of the accused and the details of the interrogation. Factors

to be considered include the age, mentality, and prior criminal experience of the accused;

the length, intensity and frequency of the interrogation; the existence of physical

deprivation or mistreatment; and the existence of threats or inducements. State v.

Malone, 5th Dist. Licking No. 14CA89, 2015-Ohio-3436, ¶ 31, citing State v. Edwards, 49

Ohio St.2d 31, 358 N.E .2d 1051 (1976).
Tuscarawas Cty., Case No. 2016AP040024                                                     11

       {¶30} As the Ohio Supreme Court succinctly summarized, “Miranda rights arise

from the Fifth Amendment to the United States Constitution, whereas the necessity that

a suspect's statement to police is voluntary implicates the guarantee of due process under

the Fourteenth Amendment.”        State v. Baker, Slip Opinion No. 2016-Ohio-2708, ---

N.E.3d ----, ¶ 20, citing Colorado v. Connelly, 479 U.S. 157, 169–170, 107 S.Ct. 515, 93

L.Ed.2d 473 (1986).

       {¶31} Our remand for consideration of whether “[appellee] made a knowing,

intelligent and voluntary waiver of his rights under the Fifth and Fourteenth Amendments”

is not an implied rebuke of the trial court’s decision to grant the motion to suppress on the

basis of Miranda when Miranda itself was never invoked. Instead, we ordered the trial

court to consider whether appellee’s statement was knowing, voluntary, and intelligent

with regard to the 5th and 14th Amendment guarantees. The trial court did exactly that

in finding appellee neither understood those rights nor knowingly, intelligently, and

voluntarily waived them.

       {¶32} It is axiomatic that we are bound to accept the trial court’s findings of fact if

they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d

142, 145, 675 N.E.2d 1268 (4th Dist.1996). 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, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on

other grounds.

       {¶33} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
Tuscarawas Cty., Case No. 2016AP040024                                                       12


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

court’s findings of fact are against the manifest weight of the evidence. See, 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). 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. See, Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court’s conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

       {¶34} In Fowler I, appellant challenged the trial court’s decision upon the ultimate

issue, to wit, whether appellee’s Miranda waiver was knowing, voluntary, and intelligent.

In the instant appeal, appellant argues appellee’s waiver of his Miranda rights was

knowing, voluntary, and intelligent under the circumstances. We are required to accept

the trial court’s findings of fact if they are supported by competent, credible evidence. To

that end, we have again reviewed the DVD of appellee’s interview and find that the trial

court’s findings of fact are supported by competent, credible evidence, to wit:

                      * * * *.

                      In explaining [appellee’s] Constitutional Rights, Detective

              Nelson did not place a printed copy of the Constitution Rights Form

              from which he was reading before [appellee], notwithstanding that he

              told [appellee] you can “follow along or not” or words to that effect
Tuscarawas Cty., Case No. 2016AP040024                                                   13


           prior to reading the Constitutional Rights Form to [appellee].

           Additionally,      upon   completing   the   recitation   of   [appellee’s]

           Constitutional Rights, Detective Nelson did not ask [appellee] if he

           was willing to proceed to answer questions but, instead, simply

           placed what appears to be a document containing the Constitutional

           Rights and a Waiver Form in front of [appellee] and said “I need you

           to sign right here” (the Waiver Form on the document) to which

           [appellee] said “I cannot see.” “I don’t have my glasses.” [Appellee]

           then proceeded to sign the document without his glasses at the

           location Detective Nelson told him to sign—“on the X;” and without

           any verbal indication that he knew what he was signing or had any

           understanding of the legal significance of his signature. [Emphasis

           in original.]

                   * * * *.

                   In this case there simply was never any lawful Waiver by

           [appellee] of his Constitutional Rights, for the reasons mentioned

           above, and consequently, all of the statements of [appellee] taken at

           the interrogation on 12/1/2014 must be suppressed. [Emphasis in

           original.]

                   * * * *.

                   * * * [Appellee], at no time, was ever asked by Detective

           Nelson on 12/1/2014 if [appellee] understood the just completed,

           rapid-fire reading of the Miranda rights. To the contrary, [appellee]
Tuscarawas Cty., Case No. 2016AP040024                                                 14


             was agitated and distracted about his residence being unlocked and

             unsecured and the fact that his elderly mother was being kept waiting

             at the Police State [sic] when he was supposed to be released on

             another matter. [Emphasis in original.]

                    It is overwhelmingly clear that it was never established, by

             words or conduct, that [appellee] understood the Miranda rights or

             that he knowingly, voluntarily, or intelligently waived them.

             [Emphasis in original]. * * * *.

                    [Appellee] was forced to sign the purported waiver by

             Detective Nelson. If one watches the DVD, it is abundantly clear that

             [appellee] was given no choice other than to sign the waiver.

             [Emphasis in original.] * * * *.

                    * * * *.

                    Decision on Remand from Court of Appeals for Tuscarawas

             County, Ohio Issued 3/22/2016 in Appellate Case No. 2015 AP 09

             0054, April 20, 2016.

       {¶35} We find appellant failed to meet its burden to show that appellee’s waiver

of his rights was knowing, intelligent, and voluntary. “[E]ven if Miranda warnings were

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

subject to exclusion.” State v. Marshall, 4th Dist. Lawrence No. 06CA23, 2007–Ohio–

6298, 2007 WL 4180806, ¶ 42, citing State v. Kelly, 2nd Dist. Greene No. 2004–CA–20,

2005–Ohio–305, 2005 WL 182900, ¶ 11.            We agree the evidence does not show

appellee’s decision “not to rely on his rights was uncoerced, that he at all times knew he
Tuscarawas Cty., Case No. 2016AP040024                                                15


could stand mute and request a lawyer, and that he was aware of the State's intention to

use his statements to secure a conviction[.]” See, State v. Dailey, 53 Ohio St.3d 88, 91,

559 N.E.2d 459 (1990).

       {¶36} We thus overrule appellant’s two assignments of error and affirm the trial

court's decision granting the motion to suppress.

                                    CONCLUSION

       {¶37} Appellant’s two assignments of error are overruled and the judgment of the

Tuscarawas County Court of Common Pleas is affirmed.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.
