[Cite as State v. O'Leary, 2013-Ohio-5670.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2013-01-009

                                                    :          OPINION
    - vs -                                                      12/23/2013
                                                    :

BRIAN O'LEARY,                                      :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-08-1367



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Brian A. O'Leary, appeals his convictions for rape and

attempted disseminating matter harmful to juveniles from the Butler County Court of

Common Pleas.

        {¶ 2} On July 30, 2012, O'Leary was brought to the Middletown Police Department by

his parole officer, Jane Fisher. Detective Janice Jones conducted two separate interviews

with O'Leary at the police department. Det. Jones read O'Leary his Miranda rights prior to
                                                                      Butler CA2013-01-009

the first interview. That interview lasted approximately 30 minutes. Det. Jones terminated

the interview and left the room after O'Leary stated, "I need an attorney," and indicated that

he no longer wanted to talk.

       {¶ 3} Shortly thereafter, Det. McIntosh messaged Det. Jones to inform her that

O'Leary wished to speak with her again. After Det. Jones re-entered the interview room,

O'Leary asked her how quickly he could be moved to the Butler County Jail if he made a

statement. Det. Jones informed O'Leary that he had not been charged with a crime and

indicated that the decision would be left to the parole officer who had brought him in.

However, she stated that she did not have a problem with O'Leary being moved to the county

jail if they would take him. O'Leary redirected his question to P.O. Fisher, who told him that

he could be moved to the county jail.

       {¶ 4} Det. Jones again read O'Leary his Miranda rights, and he again waived those

rights. O'Leary then admitted that he had vaginal intercourse with the minor victim five to ten

times and had sent her a nude picture of himself.

       {¶ 5} O'Leary was indicted on five counts of rape in violation of R.C.

2907.02(A)(1)(b), first-degree felonies involving a minor who was less than 13 years of age,

and one count of attempted disseminating matter harmful to juveniles in violation of R.C.

2923.02(A) and 2907.31(A)(1), a first-degree misdemeanor.

       {¶ 6} O'Leary sought to suppress the statements he made to Det. Jones on the basis

that he was further interrogated after having requested counsel. Following a hearing, the trial

court denied the motion. O'Leary also sought to have the grand jury testimony of the victim

released, arguing that it was inconsistent with a statement she made to a social worker. That

motion was also denied.

       {¶ 7} On January 14, 2013, O'Leary pled no contest to the charges as indicted. He

was sentenced shortly thereafter.
                                              -2-
                                                                           Butler CA2013-01-009

       {¶ 8} O'Leary now appeals his convictions, raising two assignments of error for our

review.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF [O'LEARY] BY

OVERRULING HIS MOTION TO SUPPRESS EVIDENCE.

       {¶ 11} Within this assignment of error, O'Leary argues that the "trial court erred in

admitting [his] statements, obtained in violation of his Federal and State Constitutional rights

against self-incrimination." Specifically, O'Leary asserts that the trial court erred in denying

his motion to suppress any statements made after he had invoked his right to counsel.

       {¶ 12} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353.

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and

evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to

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

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-

074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's

legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard."

Cochran at ¶ 12.

       {¶ 13} When a suspect in custody expresses "his desire to deal with the police only

through counsel," the suspect "is not subject to further interrogation by the authorities until

counsel has been made available to him." State v. Voss, 12th Dist. Warren No. CA2006-11-

132, 2008-Ohio-3889, ¶ 65, citing Edwards v. Arizona, 451 U.S. 477, 485-485, 101 S.Ct.

1880 (1981). To invoke the right to have an attorney present during interrogation, a suspect

must unambiguously request counsel such that a reasonable officer in the circumstances
                                                -3-
                                                                         Butler CA2013-01-009

could understand the statement to be a request for an attorney. Voss at ¶ 66, quoting Davis

v. United States, 512 U.S. 452, 459, 101 S.Ct. 2350 (1994). However, if the statement is not

clear that the person is requesting an attorney, then the officers are not required to stop

questioning the suspect. Id. Statements such as "I think I need a lawyer" have been found

not to be an unambiguous and unequivocal request for an attorney. See, e.g., Voss at ¶ 69;

State v. Henness, 79 Ohio St.3d 53, 63 (1997).

                                         First Interview

       {¶ 14} O'Leary first argues that he requested counsel numerous times during the first

interview with Det. Jones before that interview was finally terminated. At the 11:18 mark of

the interview, O'Leary stated, "if that's what this is about, I've, I've gotta shut down, because I

can't, I can't answer questions with that without an attorney." O'Leary was referencing a prior

investigation conducted by his former parole officer. Det. Jones then indicated to O'Leary

that her interview with him was not related to any prior investigations involving his former

parole officer.

       {¶ 15} Det. Jones then told O'Leary that there were allegations of inappropriate

behavior between him and a minor. She stated that she needed to ask him about it because

she only had one side of the story. O'Leary told her that because he was on parole and a

sex offender, he "can't answer those questions without an attorney present." However,

O'Leary continued to speak without being questioned. Eventually, O'Leary asked Det. Jones

if she needed to ask him more questions, stating that, "I'll do my best to answer them." Det.

Jones then asked O'Leary if he was willing to answer more questions. In so doing, she

expressed concern that she did not want to violate his rights. O'Leary again told Det. Jones

that, "if you want to ask me questions I'll do my best to answer them, but if it gets too close I

have to shut down. I have to get an attorney."

       {¶ 16} O'Leary argues that these statements were unambiguous requests for counsel.
                                                -4-
                                                                      Butler CA2013-01-009

We disagree. O'Leary's first mention of counsel was a qualified request for counsel, "if that's

what this is about." The issue O'Leary was referring to, a prior investigation by a former

parole officer, was not the subject of the interview with Det. Jones. Therefore, there was no

unambiguous request for counsel based on that statement. O'Leary's second "request" for

counsel was directly related to the questions being asked by Det. Jones, whereby O'Leary

stated that he "can't answer those questions without an attorney present." However, O'Leary

continued to speak of his own volition and expressed a desire to know specifically what the

interview was about. Without being asked any further questions, O'Leary voluntary offered to

continue answering questions. He again made a qualified "request" for an attorney, stating

that "if it gets too close I have to shut down. I have to get an attorney." Once again, this

"request" was not an unequivocal and unambiguous request for an attorney. While he states

that he can't answer certain questions without an attorney, he makes this request ambiguous

and equivocal by continuing to speak and expressing a willingness to continue answering

more questions. His qualified "request" for an attorney further illustrates that he was not

making a present, unambiguous and unequivocal request for counsel, but rather was setting

a red line that would cause him to invoke his right to counsel in the future.

       {¶ 17} The first interview concluded when O'Leary unequivocally and unambiguously

requested counsel, stating, "ok, let's just shut it down. * * * I need an attorney."

                                     Second Interview

       {¶ 18} The second interview commenced after Det. Jones was contacted by Det.

McIntosh to inform her that O'Leary had requested to speak to her again. Det. McIntosh

testified that she entered the interview room and asked O'Leary if he needed anything.

According to the testimony, O'Leary asked for water and stated that he wished to speak with

Det. Jones again. Det. Jones returned to the interview room and confirmed that O'Leary had

asked for her. He then asked how quickly he could be moved to the county jail if he made a
                                              -5-
                                                                      Butler CA2013-01-009

statement.

       {¶ 19} As stated supra, Det. Jones informed O'Leary that he had not been charged

with a crime. However, she stated that she did not have a problem with O'Leary being

moved to the county jail if they would take him. P.O. Fisher told O'Leary that he would be

moved to the county jail.

       {¶ 20} At that point, Det. Jones again advised O'Leary of his Miranda rights, which

O'Leary waived. Det. Jones asked O'Leary if he was making the statement of his own free

will, to which he responded affirmatively. Det. Jones further confirmed with O'Leary that she

was making no promises in return for his statement. O'Leary gave a statement wherein he

admitted that he had vaginal intercourse with the minor victim "more than five, but less than

ten times," and had sent her a nude picture of himself.

       {¶ 21} O'Leary explained his reasoning for making the confession, stating that "it

would've came out eventually anyway," and conveyed an interest in protecting the victim and

her mother from having to testify against him at trial. Det. Jones then verified with O'Leary

that no one came in and "threatened you or told you you had to tell me something or made a

promise that, that you won't be charged or that you won't go to prison?" O'Leary adamantly

stated that this had not happened, instead asserting that "sometimes your conscience gets to

you. You know what I mean? If you care about the girl, then you would come clean. You

know? And the more I thought about it, it's like the more, why would I want to put her through

that. It's already happened, it's over with, so let her move on with her life, go through

counseling, whatever she needs."

       {¶ 22} O'Leary argues that the state did not prove he re-initiated the interview because

there is a 22-minute portion of the time he spent in the interview room between the two

interviews that was not recorded. He further argues that the state made promises in return

for his statement by agreeing to have him moved to the county jail.
                                              -6-
                                                                      Butler CA2013-01-009

       {¶ 23} If a suspect in a criminal investigation invokes his right to counsel at any time

during a custodial interrogation, the police must cease all questioning until a lawyer has been

made available or until the suspect reinitiates the conversation. State v. Gulley, 12th Dist.

Clermont No. CA2005-07-066, 2006-Ohio-2023, citing Edwards v. Arizona, 451 U.S. 477,

484-485, 101 S.Ct. 1880 (1981). In the present case, the only testimony was that O'Leary

specifically asked to speak with Det. Jones again between the first and second interview.

While a portion of O'Leary's time spent in the interview room was unrecorded, there is

nothing in the record to indicate that he was threatened or coerced during this time. In fact,

O'Leary is quite clear in his statement that he was not threatened or promised anything in

return for his statement, but rather gave a well-reasoned explanation for his choice to make a

confession. Accordingly, we cannot find error in the trial court's denial of the motion to

suppress those statements made during the second interview where O'Leary voluntarily

reinitiated the conversation.

       {¶ 24} We also cannot find error with the trial court's finding that Det. Jones did not

make any promises to O'Leary. Det. Jones made clear in the interview that she was not

promising anything to O'Leary, and he indicated that he understood that. On the other hand,

P.O. Fisher did tell O'Leary that she would move him to the Butler County Jail. "However, a

promise made by a police officer is merely one factor to be considered along with other

circumstances in determining whether a defendant's statement was voluntary. It does not

matter that the accused confessed in response to the promise so long as the promise did not

overwhelm his will." State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, ¶ 28 (internal

citations omitted). Given the circumstances, we cannot find that P.O. Fisher's promise to

have O'Leary held in a different jail overwhelmed his will.

       {¶ 25} Finally, O'Leary asserts that some sort of nefarious insinuations should be

drawn from the movement of the confession form from one side of the table to a position
                                              -7-
                                                                          Butler CA2013-01-009

directly in front of him during the period which the recording was turned off. Each of the

state's witnesses testified that they did not put the confession form in front of O'Leary. The

video indicates that nothing had been written on the form until after O'Leary gave his

confession and Det. Jones advised him to write it down on said form. Absent any further

evidence, we cannot find that an unexplained movement of the form during the unrecorded

portion of his time in the interview room indicates that O'Leary's rights were in any way

violated.

          {¶ 26} In light of the foregoing, having found that there is competent, credible evidence

to support he trial court's findings that (1) the first interview was halted upon O'Leary's clear

and unambiguous invocation of his right to counsel, and (2) that O'Leary reinitiated contact

with Detective Jones and again waived his right to counsel, O'Leary's first assignment of error

is overruled.

          {¶ 27} Assignment of Error No. 2:

          {¶ 28} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

OVERRULING HIS MOTION REQUESTING GRAND JURY TESTIMONY.

          {¶ 29} Within this assignment of error, O'Leary argues that the "trial court erred in

failing to conduct an in camera review of the victim's grand jury testimony when [O'Leary]

stated a particularized need, based on an exculpatory statement the same victim had made

to a social worker at a rape kit examination." O'Leary asserts that the victim's statement to a

social worker contradicts both her grand jury testimony and written statement made to the

police.

          {¶ 30} The decision whether to release grand jury testimony is within the discretion of

the trial court and will not be reversed absent an abuse of discretion. State v. Coley, 93 Ohio

St.3d 253, 261, 2001-Ohio-1340. "The term 'abuse of discretion' connotes more than an

error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or
                                                 -8-
                                                                          Butler CA2013-01-009

unconscionable." State v. Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-

2394, ¶ 34; State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

       {¶ 31} First, we address O'Leary's assertion that Crim.R. 16 affords him protections

beyond those in Crim.R. 6. To the contrary, Crim.R. 16(J)(2) specifically enumerates that

transcripts of grand jury testimony are not subject to disclosure under Crim.R.16, but rather

are governed by Crim.R. 6.

       {¶ 32} Crim.R. 6(E) provides that,

                [a] prosecuting attorney * * * may disclose matters occurring
                before the grand jury, other than deliberations of a grand jury or
                the vote of a grand juror, but may disclose matters only when so
                directed by the court preliminary to or in connection with a judicial
                proceeding, or when permitted by the court at the request of the
                defendant upon a showing that grounds may exist for a motion to
                dismiss the indictment because of matters occurring before the
                grand jury.

       {¶ 33} Grand jury proceedings are secret, and a defendant has no right to inspect

grand jury transcripts either before or during trial unless the "ends of justice require it and

there is a showing by the defense that a particularized need for the disclosure exists which

outweighs the need for secrecy." State v. Greer, 66 Ohio St.2d 139 (1982), paragraph two of

the syllabus.     A particularized need is established when the circumstances reveal a

probability that "the failure to disclose the testimony will deprive the defendant of a fair

adjudication of the allegations placed in issue by the witness' trial testimony." Id. at

paragraph three of the syllabus.

       {¶ 34} We find that O'Leary's assertions fall short of meeting the burden for grand jury

disclosure. While O'Leary alleges that the grand jury testimony may contradict the statement

that the victim made to the social worker, he does not argue that the grand jury testimony

contradicts the written statement the victim gave to the police. O'Leary already has access to

the written statement made to police which he purports is contradictory to the statement the


                                                 -9-
                                                                       Butler CA2013-01-009

victim made to a social worker. Therefore, we cannot find that O'Leary demonstrated a

particularized need for the disclosure of the grand jury testimony when the allegedly

contradictory statement contained therein is readily available in the written statement given to

the police.

       {¶ 35} Furthermore, the record indicates that the written statement was simply more

specific than the statement to the social worker, rather than contradictory. O'Leary is merely

speculating that the grand jury testimony would prove contradictory rather than

complimentary. When a defendant speculates that grand jury testimony might contain

material evidence or might aid his cross-examination by revealing contradictions or

inconsistencies, a trial court does not abuse its discretion by finding the defendant has not

shown a particularized need. State v. Leach, 12th Dist. Clermont No. CA2000-05-033, 2001-

Ohio-4203, State v. Mack, 73 Ohio St.3d 502, 508 (1995); State v. Webb, 70 Ohio St.3d 325,

337 (1994). Accordingly, we cannot find that the trial court abused its discretion in denying

O'Leary's motion for release of grand jury testimony.

       {¶ 36} In light of the foregoing, having found that O'Leary did not demonstrate a

particularized need for disclosure of the grand jury testimony, O'Leary's second assignment

of error is overruled.

       {¶ 37} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




                                             - 10 -
