[Cite as State v. Gideon, 2019-Ohio-2482.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY


STATE OF OHIO,

       PLAINTIFF-APPELLEE,                    CASE NO. 1-18-27

       v.

JAMES A. GIDEON,                              OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,

       PLAINTIFF-APPELLEE,                    CASE NO. 1-18-28

       v.

JAMES A. GIDEON,                              OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,

       PLAINTIFF-APPELLEE,                    CASE NO. 1-18-29

       v.

JAMES A. GIDEON,                              OPINION

       DEFENDANT-APPELLANT.
Case Nos. 1-18-27, 1-18-28, 1-18-29




                    Appeals from Lima Municipal Court
       Trial Court Nos. 17CRB01386, 17CRB01387, and 17CRB01385

                  Judgments Reversed and Causes Remanded

                           Date of Decision: June 24, 2019


APPEARANCES:

       Dennis C. Belli for Appellant

       Anthony L. Geiger for Appellee




ZIMMERMAN, P.J.

       {¶1} Defendant-appellant, James A. Gideon (“Gideon”), appeals the May 11,

2018 judgment entries of sentence of the Lima Municipal Court. For the reasons

that follow, we reverse.

       {¶2} This case stems from an investigation of Gideon for allegedly

inappropriately touching patients in his capacity as a licensed physician. As part of

the investigation, Sergeant Tyler Hochstetler (“Sergeant Hochstetler”) of the

Bluffton Police Department criminally investigated the patient complaints, while

Investigator Chad Yoakam (“Investigator Yoakam”) of the State Medical Board

pursued an administrative investigation for possible violations of the statutes and

rules governing the practice of medicine.

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Case Nos. 1-18-27, 1-18-28, 1-18-29


       {¶3} Sergeant Hochstetler and Investigator Yoakam agreed “to cooperate

with each other” by trading information during the course of their investigations.

(Oct. 13, 2017 Tr. at 51-52). According to Investigator Yoakam, it is advantageous

for state investigators to cooperate with law enforcement under “what they call a

bootstrap on a criminal case” because proving an administrative-sanction case is

easier “from a criminal conviction” as opposed to “through witness testimony.” (Id.

at 15-16). Thus, Investigator Yoakam met with Sergeant Hochstetler “to determine

how [he] was going to proceed with the criminal case.” (Id. at 15). After learning

from Sergeant Hochstetler that Gideon denied the patients’ allegations to Sergeant

Hochstetler, Investigator Yoakam informed Sergeant Hochstetler that he was going

to interview Gideon himself. Importantly, Investigator Yoakam warned Sergeant

Hochstetler against participating in his interview with Gideon—because Gideon

was statutorily obligated to cooperate with his investigation—so that any confession

could be used in a criminal proceeding against Gideon. (See Oct. 13, 2017 Tr. at

28-29, 55-56); (Defendant’s Ex. 4).

       {¶4} In accordance with that agreement, Investigator Yoakam arrived

unannounced at Gideon’s medical office and asked Gideon “if he would have a few

minutes to chat with” him to which Gideon—who was aware of his duty to

cooperate with Investigator Yoakam’s investigation—responded that he did. (Aug.

22, 2017 Tr. at 5). Commensurate with his duty to cooperate and provide truthful


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Case Nos. 1-18-27, 1-18-28, 1-18-29


answers to Investigator Yoakam’s questions, Gideon provided Investigator Yoakam

with an oral and written statement. Thereafter, Investigator Yoakam immediately

shared the information from his interview of Gideon with law enforcement “because

the doctor had [] an interview with [law enforcement] where he denied any

impropriety so I wanted to tell [law enforcement] what happened during [his]

interview.” (Oct. 13, 2017 Tr. at 26-27).

      {¶5} On May 26, 2017, three complaints were filed in the Lima Municipal

Court, each charging Gideon with sexual imposition in violation of R.C.

2907.06(A)(1), third-degree misdemeanors. (Case No. 17CRB01385, Doc. No. 3);

(Case No. 17CRB01386, Doc. No. 3); (Case No. 17CRB01387, Doc. No. 3). The

complaints were assigned case numbers 17CRB01385, 17CRB01386, and

17CRB01387, respectively. (Id.); (Id.); (Id.). Gideon appeared for arraignment and

entered pleas of not guilty on June 6, 2017. (Case No. 17CRB01385, Doc. No. 7);

(Case No. 17CRB01386, Doc. No. 7); (Case No. 17CRB01387, Doc. No. 7).

      {¶6} On July 5, 2017, Gideon filed a motion to suppress evidence. (Case

No. 17CRB01385, Doc. No. 10); (Case No. 17CRB01386, Doc. No. 12); (Case No.

17CRB01387, Doc. No. 11). Specifically, Gideon requested that “his written and

recorded statements given during an interrogation conducted by [Investigator

Yoakam]” be suppressed because “the statements were involuntary and elicited in

violation of [Gideon’s] right to Due Process and the Privilege against Self-


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Case Nos. 1-18-27, 1-18-28, 1-18-29


Incrimination guaranteed under the Fifth and Fourteenth Amendments to the United

States Constitution and Article I, Section 10 of the Ohio Constitution.” (Id.); (Id.);

(Id.). After the conclusion of suppression hearings on August 22, 2017 and October

13, 2017, the trial court determined that Gideon “made voluntary statements during

a noncustodial interview” and denied the motion to suppress his statements. (Case

No. 17CRB01385, Doc. Nos. 12, 14, 17); (Case No. 17CRB01386, Doc. Nos. 14,

17); (Case No. 17CRB01387, Doc. No. 12, 14). (See also Case No. 17CRB01385,

Doc. Nos. 14, 15, 16).

        {¶7} On February 6, 2018, the State filed a motion to join case numbers

17CRB01385, 17CRB01386, 17CRB01387. (Case No. 17CRB01385, Doc. No.

18).1 Gideon filed a memorandum in opposition to the State’s joinder request on

February 23, 2018. (Case No. 17CRB01385, Doc. No. 20). The trial court granted

the State’s motion on April 9, 2018 and joined all of the cases for trial. (Case No.

17CRB01385, Doc. No. 27A); (Case No. 17CRB01386, Doc. No. 18A); (Case No.

17CRB01387, Doc. No. 15A). (See Case No. 17CRB01385, Doc. Nos. 21, 25, 27).

(See also Case No. 17CRB01385, Doc. No. 22).

        {¶8} The cases proceeded to a jury trial on April 18-20, 2018. (Apr. 18, 2018

Tr., Vol. I, at 1); (Apr. 19, 2018 Tr., Vol. II, at 1); (Apr. 20, 2018 Tr., Vol. III, at 1).



1
  The State’s February 6, 2018 motion requesting joinder also requests the joinder of case numbers
17CRB01711, 17CRB01712, 17CRB01713, and 17CRB01765; however, those cases are not before this
court.

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Case Nos. 1-18-27, 1-18-28, 1-18-29


The jury found Gideon guilty of the sexual-imposition charge in case number

17CRB01385, 17CRB01386, and 17CRB01387, respectively.                       (Case No.

17CRB01385, Doc. No. 42); (Case No. 17CRB01386, Doc. No. 22); (Case No.

17CRB01387, Doc. No. 19).

       {¶9} On May 11, 2018, the trial court sentenced Gideon to 60 days in jail in

case number 17CRB01385, 60 days in jail in case number 17CRB01386, and 60

days in jail in case number 17CRB01387. (Case No. 17CRB01385, Doc. No. 45);

(Case No. 17CRB01386, Doc. No. 25); (Case No. 17CRB01387, Doc. No. 22). The

jail terms imposed were ordered to be served consecutively for an aggregate

sentence of 180 days in jail. (Id.); (Id.); (Id.). The trial court also classified Gideon

as a Tier I sex offender. (Id.); (Id.); (Id.).

       {¶10} Gideon filed his notice of appeal on May 11, 2018, and raises four

assignments of error for our review. (Case No. 17CRB01385, Doc. No. 46); (Case

No. 17CRB01386, Doc. No. 26); (Case No. 17CRB01387, Doc. No. 23). Because

it is dispositive, we address only Gideon’s first assignment of error.

                              Assignment of Error No. I

       The Denial of Defendant-Appellant’s Motion to Suppress His
       Oral and Written Statements to the Medical Board Investigator
       and the Admission of Those Statements in the State’s Case-In-
       Chief Violated His Rights Under the Fifth and Fourteenth
       Amendments to the United States Constitution and Article I,
       Section 10 of the Ohio Constitution. (Apx.A-7)



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Case Nos. 1-18-27, 1-18-28, 1-18-29


         {¶11} In his first assignment of error, Gideon argues that the trial court erred

by denying his motion to suppress oral and written statements that he made to

Investigator Yoakam as evidence. In particular, Gideon contends that the trial court

erred by concluding that his belief that his statements were coerced was objectively

unreasonable under the circumstances.                    In making that determination, Gideon

argues that the trial court “failed to consider the degree to which [Investigator]

Yoakam’s disciplinary investigation was intertwined with the police department’s

criminal investigation.” (Appellant’s Brief at 8).2

                                          Standard of Review

         {¶12} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as

such, is in the best position to evaluate the evidence and the credibility of witnesses.

Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a

ruling on a motion to suppress, “an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Burnside at

¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s



2
  Gideon also argues that the trial court’s admission of his involuntary confessions into evidence at trial “was
not harmless beyond a reasonable doubt.” (Appellant’s Brief at 14, citing Arizona v. Fulimante, 499 U.S.
279, 295, 111 S.Ct. 1246 (1991)). In other words, Gideon argues that the admission of his involuntary
confessions into evidence at trial amounted to structural error. However, based on our conclusion that
Gideon’s statements should have been suppressed under the Fifth Amendment’s privilege against self
incrimination, we need not address Gideon’s structural-error argument.

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Case Nos. 1-18-27, 1-18-28, 1-18-29


conclusions of law, however, our standard of review is de novo, and we must

independently determine whether the facts satisfy the applicable legal standard. Id.,

citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

                             Due Process Voluntariness

       {¶13} First, we will address Gideon’s argument that his pre-trial statements

“were procured in violation of his right to due process * * *.” (Appellant’s Brief at

5). Separate from the consideration of whether a defendant’s statements should be

suppressed under the Fifth Amendment’s self-incrimination privilege, is the

consideration of whether the defendant’s statements were voluntary. See, e.g.,

Oregon v. Elstad, 470 U.S. 298, 304, 105 S.Ct. 1285 (1985) (“Prior to Miranda, the

admissibility of an accused’s in-custody statements was judged solely by whether

they were ‘voluntary’ within the meaning of the Due Process Clause.”); State v.

Jenkins, 15 Ohio St.3d 164, 231 (1984) (noting that “due process provisions of the

federal Constitution dictate that the state must meet by a preponderance of the

evidence its burden of proving that any inculpatory statement was made

voluntarily”); State v. Tussing, 3d Dist. Logan No. 8-10-11, 2011-Ohio-1727, ¶ 32

(stating that “the Due Process Clause requires an inquiry regarding the voluntariness

of a defendant’s confession, which is a separate inquiry from the considerations

regarding whether a defendant is subject to a custodial interrogation”), citing State

v. Petitjean, 140 Ohio App.3d 517, 526 (2d Dist.2000), citing Dickerson v. United


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Case Nos. 1-18-27, 1-18-28, 1-18-29


States, 530 U.S. 428, 434, 120 S.Ct. 2326 (2000); State v. Scholl, 10th Dist. Franklin

No. 12AP-309, 2012-Ohio-6233, ¶ 7 (“The voluntariness of a confession presents

‘an issue analytically separate from those issues surrounding custodial

interrogations and Miranda warnings.’”), quoting State v. Walker, 10th Dist.

Franklin No. 04AP-1107, 2005-Ohio-3540, ¶ 24, citing State v. Kelly, 2d Dist.

Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 10.             See also United States v.

Goodpaster, 65 F.Supp.3d 1016, 1021-1022 (D.Or.2014). “Using an involuntary

statement against a defendant in a criminal trial is a denial of due process of law.”

State v. Carse, 10th Dist. Franklin No. 09AP-932, 2010-Ohio-4513, ¶ 23, citing

Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408 (1978). Statements are

considered involuntary when, under the totality of the circumstances, the

“defendant’s will was overborne.” Schneckloth v. Bustamonte, 412 U.S. 218, 226,

93 S.Ct. 2041 (1973). Some of the circumstances that are commonly considered

include the defendant’s age, education, intelligence, and knowledge of his rights;

the duration and nature of detention and questioning; and whether physical

punishment was used or threatened. Id.

       {¶14} Although Gideon asserts that he is challenging the admissibility of his

pre-trial statements under the Due Process Clause, he failed to make any argument

in support of that contention. “[A] defendant has the burden of affirmatively

demonstrating the error of the trial court on appeal.” State v. Stelzer, 9th Dist.


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Case Nos. 1-18-27, 1-18-28, 1-18-29


Summit No. 23174, 2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit

No. 20675, 2002-Ohio-2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can

support this assignment of error, it is not this court’s duty to root it out.’” Id.,

quoting Cook at ¶ 27. “App.R. 12(A)(2) provides that an appellate court ‘may

disregard an assignment of error presented for review if the party raising it fails to

identify in the record the error on which the assignment of error is based or fails to

argue the assignment separately in the brief, as required under App.R. 16(A).’”

State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting

App.R. 12(A)(2). “Additionally, App.R. 16(A)(7) requires that an appellant’s brief

include ‘[a]n argument containing the contentions of the appellant with respect to

each assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies.’” Id., quoting App.R. 16(A)(7). Notwithstanding Gideon’s

failure to include an argument regarding how his pre-trial statements were

inadmissible under the Due Process Clause, the voluntariness of his statements are

immaterial to the resolution of his suppression argument because we conclude that

his statements were otherwise per se compelled under the Fifth Amendment to the

United States Constitution.




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Case Nos. 1-18-27, 1-18-28, 1-18-29


                                            Fifth Amendment

         {¶15} “‘The Fifth Amendment to the United States Constitution, made

applicable to the states by the Fourteenth Amendment, states that “[n]o person * *

* shall be compelled in any criminal case to be a witness against himself.”’” State

v. Jackson, 154 Ohio St.3d 542, 2018-Ohio-2169, ¶ 14, quoting State v. Graham,

136 Ohio St.3d 125, 2013-Ohio-2114, ¶ 19, quoting the Fifth Amendment to the

U.S. Constitution. 3 See also Ohio Constitution, Article I, Section 10. “It has long

been held that this prohibition not only permits a person to refuse to testify against

himself at a criminal trial in which he is a defendant, but also ‘privileges him not to

answer official questions put to him in any other proceeding, civil or criminal,

formal or informal, where the answers might incriminate him in future criminal

proceedings.’” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136 (1984),

quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316 (1973).

         {¶16} “The privilege against self-incrimination is generally not self-

executing; a person ‘ordinarily must assert the privilege rather than answer if he



3
  Gideon’s argument necessarily incorporates the procedural safeguards of the Sixth Amendment. See State
v. Jackson, 154 Ohio St.3d 542, 2018-Ohio-2169, ¶ 13. (See also Appellant’s Brief at 13). “‘The Sixth
Amendment, applied to the States through the Fourteenth Amendment, guarantees that “[i]n all criminal
prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.”’” Jackson at ¶ 16,
quoting Kansas v. Ventris, 556 U.S. 586, 590, 129 S.Ct. 1841 (2009). “‘The core of this right has historically
been, and remains today, ‘the opportunity for a defendant to consult with an attorney and to have him
investigate the case and prepare a defense for trial.”’” Id., quoting Ventris at 590, quoting Michigan v. Harvey,
494 U.S. 344, 348, 110 S.Ct. 1176 (1990). However, “‘[t]hat the right extends to having counsel present at
various pretrial “critical” interactions between the defendant and the State, * * * including the deliberate
elicitation by law enforcement officers (and their agents) of statements pertaining to the charge.’” (Emphasis
added.) Id., quoting Ventris at 590.

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Case Nos. 1-18-27, 1-18-28, 1-18-29


desires not to incriminate himself.’” Graham at ¶ 19, quoting Murphy at 429. See

also Murphy at 427 (noting that “[t]his principle has been applied in cases involving

a variety of criminal and noncriminal investigations”). Thus, “[i]f a witness—even

one under a general compulsion to testify—answers a question that both he and the

government should reasonably expect to incriminate him, the Court need ask only

whether the particular disclosure was ‘compelled’ within the meaning of the Fifth

Amendment.” Murphy at 428.

       There are well-known exceptions to the requirement of asserting the
       privilege: (1) “custodial interrogation”; (2) situations where the
       assertion is penalized to an extent that a “‘free choice to remain
       silent’” is foreclosed; and (3) situations where parties fail to file tax
       returns rather than identifying themselves as gamblers and asserting
       the Fifth Amendment privilege.

State v. Schimmel, 2d Dist. Clark No. 2017-CA-23, 2017-Ohio-7747, ¶ 17, quoting

Murphy at 429-430, 434, 439, quoting Garner v. United States, 424 U.S. 648, 661,

96 S.Ct. 1178 (1976). See also Goodpaster, 65 F.Supp.3d at 1022-1023 (“Rather

than ask whether statements were actually compelled, a prophylactic rule asks

whether certain other conditions were met and provides that statements made under

those conditions are deemed per se compelled.), citing Elstad, 470 U.S. at 307. “A

prophylactic rule, therefore, ‘sweeps more broadly than the Fifth Amendment itself’

and may exclude even ‘patently voluntary statements.’”               (Emphasis sic.)

Goodpaster at 1023, quoting Elstad at 306-307.



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Case Nos. 1-18-27, 1-18-28, 1-18-29


       {¶17} Here, the trial court addressed two of the exceptions to the requirement

of asserting the privilege: the Miranda and the Garrity rules. Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602 (1966); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct.

616 (1967). Accordingly, we will review the trial court’s application of the Miranda

and Garrity rules to the facts and circumstances presented by this case.

                                      Miranda

       {¶18} The first well-known exception under Miranda excludes “‘statements,

whether exculpatory or inculpatory, stemming from custodial interrogation of the

defendant unless [the state] demonstrates the use of procedural safeguards effective

to secure the privilege against self-incrimination.’” (Emphasis added.) Jackson,

154 Ohio St.3d 542, 2018-Ohio-2169, at ¶ 14, quoting Miranda at 444. “The basic

insight of Miranda is that custody contains ‘inherently compelling pressures which

work to undermine the individual’s will to resist and to compel him to speak where

he would not otherwise do so freely.’” Goodpaster at 1023, quoting Miranda at

467. “To offset this coercion, Miranda mandated that certain warnings be given

before a suspect in custody is interrogated.” Id., citing Miranda at 478-479.

“Absent these warnings, * * * a suspect’s statements made during custodial

interrogation * * * may not be used against him * * *.” Id., citing Elstad at 307 and

Miranda at 478-479.




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Case Nos. 1-18-27, 1-18-28, 1-18-29


      {¶19} “The prophylactic rule of Miranda, therefore, substitutes the totality-

of-the-circumstances voluntariness inquiry with” a four-prong inquiry: First, was

the suspect in custody? Second, was the suspected being interrogated? Third, was

the custodial interrogation conducted by law enforcement? Fourth, if the first three

inquiries produce an affirmative result, were adequate warnings given? See id.

      {¶20} A “custodial interrogation” within the meaning of Miranda “‘means

“questioning initiated by law enforcement after a person has been taken into

custody.”’” (Emphasis added.) Jackson at ¶ 15, quoting State v. Watson, 28 Ohio

St.2d 15 (1971), paragraph five of the syllabus, quoting Miranda at 444, and citing

State v. Bernard, 31 So.3d 1025, 1029 (La.2010) (noting that Miranda applies only

if “the interrogation is conducted by a ‘law enforcement officer’ or someone acting

as their agent”). See also Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct.

1682 (1980) (defining “interrogation” as “express questioning or its functional

equivalent”). “When determining whether an individual is in custody for Miranda

purposes, we must consider whether there was a formal arrest or the functional

equivalent of ‘a restraint of an individual’s freedom of movement commensurate

with that of a formal arrest.’” In re M.H., 8th Dist. Cuyahoga No. 105742, 2018-

Ohio-4848, ¶ 20, quoting State v. Jones, 8th Dist. Cuyahoga No. 83481, 2004-Ohio-

5205, ¶ 39, citing Miranda at 444. “In considering whether an individual is in

custody for Miranda purposes, “courts must first inquire into the circumstances


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Case Nos. 1-18-27, 1-18-28, 1-18-29


surrounding the questioning and, second, given those circumstances, determine

whether a reasonable person would have felt that he or she was not at liberty to

terminate the interview and leave.’” Id. at ¶ 24, quoting State v. Hoffner, 102 Ohio

St.3d 358, 2004-Ohio-3430, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112,

116 S.Ct. 457 (1995). “In so doing, we examine the totality of the circumstances

and how a reasonable person would have understood the circumstances.” Id. at ¶

20, citing State v. Montague, 8th Dist. Cuyahoga No. 97958, 2012-Ohio-4285, ¶ 8,

citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138 (1984). “Relevant

factors to consider in determining whether a custodial interrogation took place are:

(1) the location of the questioning; (2) duration of the questioning; (3) statements

made during the interview; (4) the presence or absence of physical restraints; and

(5) whether the interviewee was released at the end of the interview.” State v.

Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 44, citing Howes v.

Fields, 565 U.S. 499, 132 S.Ct. 1181 (2012).

         {¶21} However, generally, “[t]he Miranda requirements do not apply when

admissions are made to persons who are not law enforcement officers or their

agents, even if an individual’s efforts aid in law enforcement.” 4 In re M.H. at ¶ 19,

citing Jackson at ¶ 15. See also id. at ¶ 21 (“Generally, courts have held that [state


4
  A law enforcement officer is defined under R.C. 2901.01(A)(11)(b) as follows: “An officer, agent, or
employee of the state or any of its agencies, instrumentalities, or political subdivisions, upon whom, by
statute, a duty to conserve the peace or to enforce all or certain laws is imposed and the authority to arrest
violators is conferred * * *.”

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Case Nos. 1-18-27, 1-18-28, 1-18-29


investigators—namely, social workers—]do not have a duty to advise suspects of

their Miranda rights because they are private citizens with no power to arrest.”),

citing Jones at ¶ 40, State v. Coonrod, 12th Dist. Fayette No. CA2009-08-013, 2010-

Ohio-1102, ¶ 9, State v. Thoman, 10th Dist. Franklin No. 04AP-787, 2005-Ohio-

898, ¶ 7, State v. Dobies, 11th Dist. Lake No. 91-L-123, 1992 WL 387356, *3 (Dec.

18, 1992), and State v. Simpson, 4th Dist. Ross No. 1706, 1992 WL 37793, *4 (Feb.

21, 1992).    Nevertheless, when a state investigator acts as an agent of law

enforcement, that investigator may be required to provide Miranda warnings. Id. at

¶ 22. A state investigator is an agent of law enforcement when he or she acts under

the direction or control of law enforcement. Id., citing State v. Bolen, 27 Ohio St.2d

15, 18 (1971). Whether an individual is acting as an agent of law enforcement

depends on the specific facts and circumstances of each case. Jackson at ¶ 17.

       {¶22} In the case before us, the trial court concluded that suppression of

Gideon’s statements was not warranted under Miranda because Gideon was not in

custody. In support of its conclusion that Gideon was not in custody, the trial court

found that (1) the interview with Investigator Yoakam was conducted at Gideon’s

office; (2) Gideon was freely accessible to his staff; (3) Gideon repeatedly left his

office to see patients; (4) Gideon was not physically threatened, intimidated, or

restrained; and (5) Investigator Yoakam did not dominate the interview. The record

reveals that the trial court’s findings are supported by competent, credible evidence.


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Accordingly, although there may a tenable argument that Investigator Yoakam was

acting as an agent of law enforcement, suppression of Gideon’s statements under

Miranda is unavailing. Compare State v. Kuruc, 9th Dist. Medina No. 15CA0088-

M, 2017-Ohio-4112, ¶ 22 (“concluding that suppression was not warranted under

Miranda because, “[e]ven assuming that the Fire Chief and/or the other firefighters

here were acting as agents of the police when they met with Kuruc, the record does

not support his assertion that they subjected him to custodial interrogation). See

also State v. Woods, 4th Dist. Lawrence Nos. 16CA28 and 16CA29, 2018-Ohio-

4588, ¶ 49-50, 52.

                                       Garrity

       {¶23} “The Garrity rule * * * applies when the government threatens to

penalize the assertion of the Fifth Amendment privilege.” (Emphasis added.)

Goodpaster, 65 F.Supp.3d at 1023. Specifically, the Garrity rule applies “when a

person’s assertion of the privilege is penalized in a way that precludes that person

from choosing to remain silent and compels his or her incriminating testimony.”

Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, at ¶ 20. “For instance, a person

need not assert the [self-incrimination] privilege in cases in which the state compels

the person to give up the ‘privilege by threatening to impose economic or other

sanctions “capable of forcing the self-incrimination which the [Fifth] Amendment

forbids.”’” Id., quoting Murphy, 465 U.S. at 434, quoting Lefkowitz v. Cunningham,


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431 U.S. 801, 806, 97 S.Ct. 2132 (1977). “Where it has threatened to do so, the

government has created a ‘classic penalty situation,’ and any answers given by the

suspect are ‘deemed compelled and inadmissible in a criminal prosecution.’”

Goodpaster at 1024, quoting Murphy at 435.

       {¶24} “[T]he constitutional protection ‘against coerced statements prohibits

use in subsequent criminal proceedings of statements obtained under threat of

removal from office, and that it extends to all, whether they are policemen or other

members of our body politic.’” Graham at ¶ 21, quoting Garrity, 385 U.S. at 500.

See Goodpaster at 1024 (noting that the “‘loss of job, loss of state contracts, loss of

future contracting privileges with the state, loss of political office, loss of the right

to run for political office in the future, and revocation of probation all are “penalties”

that cannot be imposed on the exercise of the privilege’”), quoting United States v.

Frierson, 945 F.2d 650, 658 (3d Cir.1991). See also Spevack v. Klein, 385 U.S.

511, 516, 87 S.Ct. 625 (1967) (applying the “classic-penalty-situation” rule to

lawyers and noting that “[t]he threat of disbarment and the loss of professional

standing, professional reputation, and of livelihood are powerful forms of

compulsion to make a lawyer relinquish the privilege”); Moody v. Michigan Gaming

Control Bd., 790 F.3d 669, 674 (6th Cir.2015) (applying the rule to state-license

holders).

       {¶25} In classic-penalty-situation cases,


                                          -18-
Case Nos. 1-18-27, 1-18-28, 1-18-29


       the government is playing two roles. One role is always law
       enforcer—police and prosecutor. Often, as in Garrity, the second role
       is employer, but it need not be. The key is that in these second roles,
       the state has special relationships with certain people—employees,
       probationers, and so on—through which it can apply additional
       pressure to cooperate.

Goodpaster at 1024-1025.

       Corresponding to these dual roles, the Fifth Amendment principle
       implemented by Garrity can be implicated in two distinct contexts. In
       the more common scenario, the individual does not succumb to the
       state’s pressure, but stands upon his privilege and maintains his
       silence; in this context, he appears as a civil plaintiff, seeking to
       prevent the government—employer from “mak[ing] good on its prior
       threat” by penalizing him.

Id., quoting Murphy at 434. “But sometimes, as in Garrity and Murphy, the

individual succumbs to the pressure and discloses incriminating information; in this

context, he appears as a criminal defendant, seeking to prevent the government—

prosecutor from using his statements against him.” Id., citing Murphy at 434.

       {¶26} “Garrity does not, however, discount the important public interest in

obtaining information to ensure effective governmental functioning.” Graham at ¶

21, citing Turley, 414 U.S. at 81, citing Murphy v. Waterfront Comm. of New York

Harbor, 378 U.S. 52, 93, 84 S.Ct. 1594 (1964) (White, J., concurring). “Indeed, the

United States Supreme Court has recognized that Garrity rests on reconciling the

recognized policies behind the privilege against self-incrimination and the

government’s need to obtain information.” Id., citing Turley at 81. See also

Goodpaster at 1025, citing Gardner v. Broderick, 392 U.S. 273, 276, 88 S.Ct. 1913

                                        -19-
Case Nos. 1-18-27, 1-18-28, 1-18-29


(1968) and Murphy at 435. “A state may compel a public employee’s cooperation

in a job-related investigation, so long as the employee is not asked to surrender the

privilege against self-incrimination.” Graham at ¶ 21, citing Turley at 84. “For

example, the state may compel incriminating answers from its employee if neither

those answers nor the fruits thereof are available for use against the employee in

criminal proceedings.” Id., citing Turley at 84 and Jones v. Franklin Cty. Sheriff,

52 Ohio St.3d 40, 44 (1990) (stating that a grant of immunity preserves the self-

incrimination privilege because no statement made in that context is incriminatory).

“But when the state compels testimony by threatening potent sanctions unless the

witness surrenders the constitutional privilege, the state obtains the testimony in

violation of the Fifth Amendment, and it may not use that testimony against the

witness in a subsequent criminal prosecution.” Id., citing Cunningham, 431 U.S. at

805 and State v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621, ¶ 14 (plurality

opinion) (noting that the State may not directly or derivatively use statements that

are compelled under threat of termination).         “This balance ‘provid[es] for

effectuation of the important public interest in securing from public employees an

accounting of their public trust.’” Id., quoting Cunningham at 806.

       {¶27} “Compulsion within the meaning of Garrity is obvious in cases in

which, as in Garrity, the state has expressly confronted the public employee with

the inescapable choice of either making an incriminatory statement or being fired.”


                                        -20-
Case Nos. 1-18-27, 1-18-28, 1-18-29


(Emphasis added.) Id. at ¶ 23. In the absence of an express threat, “‘“for statements

to be considered compelled by threat of discharge, (1) a person must subjectively

believe that he will be fired for asserting the privilege, and (2) that belief must be

objectively reasonable under the circumstances.”’” Id., quoting State v. Brockdorf,

291 Wis.2d 635, 2006 WI 76, ¶ 25, quoting People v. Sapp, 934 P.2d 1367, 1372

(Colo.1997).     “Determining whether an employee’s subjective belief was

objectively reasonable requires a court to examine the totality of the circumstances.”

Id., citing Brockdorf at ¶ 36. “The circumstances must show some demonstrable

coercive action by the state beyond ‘[t]he general directive to cooperate.’” Id.,

quoting United States v. Vangates, 287 F.3d 1315, 1324 (11th Cir.2002).

       {¶28} In this case, after concluding that there was no express threat of

penalty by Investigator Yoakam, the trial court examined whether Gideon

subjectively believed that he would be penalized and, if so, whether that belief was

objectively reasonable. The trial court found that Gideon “testified that he believed

he would be penalized” if he did not answer Investigator Yoakam’s questions. And,

in our review, the trial court’s finding is supported by competent, credible evidence

because Gideon testified as follows:

       “My understanding is that I have a legal obligation to comply with
       questions asked by the Medical Board and my understanding was that
       I have an obligation to comply with Mr. Yoakam’s visit subject to
       penalties if I didn’t, potentially even loss of licensure.”

(Oct. 13, 2017 Tr. at 72).

                                        -21-
Case Nos. 1-18-27, 1-18-28, 1-18-29


        {¶29} Nevertheless, the trial court ultimately concluded that Gideon’s belief

was not objectively reasonable based on the totality of the circumstances.

Specifically, the trial court found that Gideon,

        a well-educated individual, initiated contact with the investigator,
        spoke with him at his medical office after already communicating
        with law enforcement, was given the opportunity to reschedule, took
        the lead in the discussion throughout, treated/examined patients, and
        never sought to invoke his Fifth Amendment rights.

(Case No. 17CRB01385, Doc. No. 17); (Case No. 17CRB01386, Doc. No. 17);

(Case No. 17CRB01387, Doc. No. 14). Even though the trial court’s findings are

primarily supported by competent, credible evidence, the trial court’s totality-of-

the-circumstances analysis necessarily applies to whether Gideon’s statements were

voluntary within the meaning of the Due Process Clause, or whether his statements

should be suppressed under Miranda.5 See, e.g., Schneckloth, 412 U.S. at 226

(noting that a court may consider a defendant’s age, education, intelligence, and

knowledge of his rights; the duration and nature of the detention and questioning;

and whether physical punishment was used or threatened to determine whether the

defendant’s statements were voluntary); Billenstein, 2014-Ohio-255, at ¶ 44 (noting

that the factors to consider when determining whether a custodial interrogation took



5
  The trial court’s finding that Gideon “was given the opportunity to reschedule” is not supported by
competent, credible evidence. (Case No. 17CRB01385, Doc. No. 17); (Case No. 17CRB01386, Doc. No.
17); (Case No. 17CRB01387, Doc. No. 14). Rather, the record reflects that Investigator Yoakam asked
Gideon “if he would have a few minutes to chat with” him, which is different than offering Gideon the
opportunity to reschedule. (See Oct. 13, 2017 Tr. at 5). (See also State’s Ex. A). Indeed, Gideon testified
that Yoakam did not explicitly offer him the opportunity to reschedule. (Oct. 13, 2017 Tr. at 73).

                                                  -22-
Case Nos. 1-18-27, 1-18-28, 1-18-29


place includes “(1) the location of the questioning; (2) duration of the questioning;

(3) statements made during the interview; (4) the presence or absence of physical

restraints; and (5) whether the interviewee was released at the end of the interview”).

       {¶30} In considering the totality of the circumstances as to whether a person

was compelled to make statements against his or her own interest within the

meaning of Garrity—that is, whether the subject’s subjective belief that he or she

would be penalized for remaining silent was objectively reasonable—a trial court

must consider the circumstances surrounding the subject’s “‘duty to cooperate’ and

the threat of ‘administrative discipline.’” Goodpaster, 65 F.Supp. at 1032. See also

Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, at ¶ 27. As to those circumstances,

the trial court specifically found that

       the Board of Medical Examiners may consider a refusal to cooperate
       with their investigations when reviewing Complaints, this does not
       necessarily lead to a termination of his medical license. It just may be
       one of the many considerations taken into account by the Board.

(Case No. 17CRB01385, Doc. No. 17); (Case No. 17CRB01386, Doc. No. 17);

(Case No. 17CRB01387, Doc. No. 14). See R.C. 4731.22 (Apr. 4, 2017) (current

version at R.C. 4731.22 (Mar. 20, 2019)).

       {¶31} In our view, the trial court did not capture the concept of the statute

and, more importantly, failed to consider the totality of the circumstances

surrounding Gideon’s interview with Investigator Yoakam to determine whether

suppression is warranted under Garrity. Indeed, we cannot turn a blind eye to the

                                          -23-
Case Nos. 1-18-27, 1-18-28, 1-18-29


totality of the evidence presented at the suppression hearing supporting that

Gideon’s belief (that he would be penalized if he remained silent) was objectively

reasonable. The requirements of R.C. 4731.22 are but one piece of the puzzle.

                                  R.C. Chapter 4731 and Garrity

         {¶32} “R.C. Chapter 4731 provides for the establishment of the State

Medical Board and contains provisions concerning the licensing and disciplining of

physicians.” State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 557 (2001). In general,

the board “has authority to investigate possible violations of the statutes and rules

governing the practice of medicine, to hold hearings, and to share its information

with other licensing boards and with law enforcement agencies.” 1999 Ohio

Atty.Gen.Ops. No. 1999-044, citing R.C. 4731.22(F). See also R.C. 4731.22(F)(1)

(April 6, 2017) (“The board shall investigate evidence that appears to show that

person has violated any provision of this chapter or any rule adopted under it.”)

(current version at R.C. 4731.22(F)(1) ((Mar. 20, 2019)).. “All investigations that

are conducted by the Board are conducted in accordance with R.C. 4731.22 and the

rules adopted by the Board under R.C. 4731.05.” State ex rel. Corn v. Russo, 8th

Dist. Cuyahoga No. 76730, 1999 WL 1085519, *8 (Nov. 24, 1999), rev’d on other

grounds, 90 Ohio St.3d at 557-558.6 In accordance with those investigations, the


6
  This court could not find any administrative rules adopted by the State Medical Board pertaining to the
conduct of its investigators during the course of an investigation under R.C. 4731.22. See Ohio Adm.Code
4731-1-01, et seq. But see R.C. 4731.05(C) (stating that “[t]he state medical board shall develop requirements
for and provide appropriate initial and continuing training for investigators employed by the board to carry

                                                    -24-
Case Nos. 1-18-27, 1-18-28, 1-18-29


board “is authorized to limit, revoke, or suspend a certificate or otherwise discipline

the holder of a certificate who commits any of a number of violations.” 1999 Ohio

Atty.Gen.Ops. No. 1999-044, citing R.C. 4731.22(A), (B).

        {¶33} In particular, regarding the board’s disciplinary procedure, R.C.

4731.22(B) provides, in its relevant part, as follows:

        The board, by an affirmative vote of not fewer than six members,
        shall, to the extent permitted by law, limit, revoke, or suspend an
        individual’s certificate to practice * * * or reprimand or place on
        probation the holder of a certificate for one or more of the following
        reasons:

        ***

        (11) A plea of guilty to, a judicial finding of guilt of, or a judicial
        finding of eligibility for intervention in lieu of conviction for, a
        misdemeanor committed in the course of practice;

        (12) Commission of an act in the course of practice that constitutes a
        misdemeanor in this state, regardless of the jurisdiction in which the
        act was committed;

        (13) A plea of guilty to, a judicial finding of guilt of, or a judicial
        finding of eligibility for intervention in lieu of conviction for, a
        misdemeanor involving moral turpitude;

        (14) Commission of an act involving moral turpitude that constitutes
        a misdemeanor in this state, regardless of the jurisdiction in which the
        act was committed;

        ***



out its duties under Chapter 4731. of the Revised Code. The training and continuing education may include
enrollment in courses operated or approved by the Ohio peace officer training commission that the board
considers appropriate under conditions set forth in section 109.79 of the Revised Code.”).

                                                 -25-
Case Nos. 1-18-27, 1-18-28, 1-18-29


       (34) Failure to cooperate in an investigation conducted by the board
       under division (F) of this section, including failure to comply with a
       subpoena or order issued by the board or failure to answer truthfully
       a question presented by the board in an investigative interview, an
       investigative office conference, at a deposition, or in written
       interrogatories, except that failure to cooperate with an investigation
       shall not constitute grounds for discipline under this section if a court
       of competent jurisdiction has issued an order that either quashes a
       subpoena or permits the individual to withhold the testimony or
       evidence in issue.

R.C. 4731.22(B)(11)-(14), (34) (Apr. 4. 2017) (current version at R.C.

4731.22(B)(11)-(14), (34) (Mar. 20, 2019)).

       {¶34} On appeal, the State argues that the trial court correctly concluded that

Gideon’s belief that he would suffer a penalty if he remained silent was not

objectively reasonable—that is, the State argues that the trial court correctly

concluded that Gideon’s belief was not objectively reasonable because R.C.

4731.22(B) does not result in an automatic penalty. In support of its argument, the

State contends that the word “shall” as used in R.C. 4731.22(B) “does not mandate

a medical license revocation, because the statute (1) requires an affirmative vote of

six board members; (2) provides limiting language on the board’s powers (‘to the

extent permitted by law’); and, (3) provides a variety of disciplinary options short

of revocation.” (Emphasis sic.) (Appellee’s Brief at 5-6).

       {¶35} The State’s argument is problematic for a several reasons. The State’s

argument that Gideon’s belief could not be objectively reasonable because R.C.

4731.22(B) authorizes the board to institute a “variety of disciplinary options short

                                         -26-
Case Nos. 1-18-27, 1-18-28, 1-18-29


of license revocation” is misguided. Rather, the disciplinary options authorized by

the statute—namely, the authority to limit, revoke, suspend, reprimand, or place on

probation the holder of a medical license—are penalties for conduct, such as the

failure to cooperate in an investigation, that resemble the “classic penalty situation”

prohibited by Garrity and its progeny. See Schimmel, 2017-Ohio-7747, at ¶ 38

(recognizing that the Supreme Court of Ohio has not adopted a “narrow view” of

what constitutes a penalty within the meaning of Garrity), citing Graham, 136 Ohio

St.3d 125, 2013-Ohio-2114, at ¶ 27 (considering “disciplinary action up to and

including termination” as a penalty within the meaning of Garrity). See also

Murphy, 465 U.S. at 434 (“In each of the so-called ‘penalty’ cases, the state not only

compelled an individual to appear and testify, but also sought to induce him to forgo

the Fifth Amendment privilege by threatening to impose economic or other

sanctions ‘capable of forcing the self-incrimination which the Amendment

forbids.’”), quoting Cunningham, 431 U.S. at 806 (noting that the Fifth Amendment

protects against state-imposed “potent sanctions” or “substantial penalties”).

       {¶36} Next, suppression under Garrity does not fail in the absence of a

statute clearly mandating an automatic penalty. See Goodpaster, 65 F.Supp. at 1029

(stating that “a clear-statement rule is foreclosed [because] threatening a penalty ‘by

implication’ is sufficient to create a penalty situation”), quoting United States v.

Saechao, 418 F.3d 1073, 1076-1080 (9th Cir.2005). See also Graham at ¶ 25


                                         -27-
Case Nos. 1-18-27, 1-18-28, 1-18-29


(considering a notice, which provided that the “failure to answer truthfully ‘may

lead to disciplinary action up to and including termination’”); United States v.

Camacho, 739 F.Supp. 1504, 1517, 1520 (S.D.Fla.1990) (considering a statute,

which provided “that a city employee who is guilty of insubordination may be

subject to dismissal, suspension, or demotion” when considered in combination with

the state’s conduct). “[E]vidence of an express threat of termination or a statute,

rule, or policy demanding termination will almost always be sufficient to show

coercion”; however, it is not the only evidence that can be considered. (Emphasis

added.) See Graham at ¶ 24; Walker v. State Med. Bd. of Ohio, 10th Dist. Franklin

No. 01AP-791, 2002 WL 243318, *5 (Feb. 21, 2002) (“The potential loss of her

medical license does not, in and of itself, raise a claim of compulsion by the state.”);

State v. Connor, 124 Idaho 547, 548, 861 P.2d 1212 (1993) (stating that evidence

of a “policy, rule, or regulation concerning the effect on the employment of a state

police officer who refuses to cooperate in an investigation” is evidence of “an

objectively reasonable belief that [the] use of the Fifth Amendment in response to

questions would result in” the loss of a job).

       {¶37} Further, the State’s contention that “the mere possibility of license

revocation is insufficient to show that the person had an objectively reasonable

expectation of discharge” misconstrues the Supreme Court of Ohio’s recitation in

Graham. (Appellee’s Brief at 6, citing Graham at ¶ 23, citing Sapp, 934 P.2d at


                                         -28-
Case Nos. 1-18-27, 1-18-28, 1-18-29


1372). In Graham, the court offered that “‘ordinary job pressures, such as the

possibility of discipline or discharge for insubordination, are not sufficient to

support an objectively reasonable expectation of discharge.’” (Emphasis added.)

Graham at ¶ 23, quoting Sapp at 1372. The case to which the court cited in

Graham—Sapp—follows its “ordinary-job-pressures” statement with the rule that

for a “subjective belief that [a person] might be fired to be considered objectively

reasonable for purposes of Garrity immunity, it must be supported by some

demonstrable action of the state.”7 Sapp at 1372. Thus, a subjective belief will be

considered objectively reasonable if the state played a role in creating an impression

that the refusal to give a statement will be met with the type of penalty prohibited

under Garrity. Camacho at 1515, citing United States v. Solomon, 509 F.2d 863,

871-872 (2d Cir.1975) and United States v. Montanye, 500 F.2d 411, 415 (2d

Cir.1974).

        {¶38} The evidence in the record reflects that the circumstances surrounding

the administrative investigation at issue in this case show some demonstrable,

coercive action by the state beyond the general directive to cooperate. Indeed, the

combination of Gideon’s duty to cooperate under R.C. 4731.22(B)(34) and

Investigator Yoakam’s process in this case exceeded an ordinary job pressure to



7
 The Supreme Court of Ohio was not presented in Graham with a situation involving a subjective belief that
a person might suffer a penalty because the sanction in that case was expressly conveyed. See State v.
Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, ¶ 25.

                                                  -29-
Case Nos. 1-18-27, 1-18-28, 1-18-29


cooperate. As we have noted, R.C. 4731.22(B)(34) requires licensees to cooperate

with investigations of the board.8 Compare Goodpaster at 1029 (noting that

“Goodpaster was subject to a regulation * * * requiring that he ‘cooperate with all

audits, reviews, and investigations conducted by the Office of Inspector General’”),

quoting 39 C.F.R. 230.3(a). R.C. 4731.22(B) puts licensees on notice that their

failure to cooperate, amongst other reasons, will penalize their license (by a vote of

no fewer than six members of the board). Compare id. (“The same regulation

provides that ‘failing to cooperate [* * *] may be grounds for disciplinary or other

legal action.’”), quoting 39 C.F.R. 230.3(a).

         {¶39} Further, in addition to R.C. 4731.22(B)(34)’s directive to cooperate

with the board’s investigation, the record reflects “some demonstrable action of the

state” supporting Gideon’s subjective belief. See Sapp at 1372; Camacho at 1518.

In this case, the demonstrable action of the State lies with Investigator Yoakam’s

conduct and his intent underlying that conduct. Compare Camacho, 739 F.Supp. at



8
  It appears that the State contends that R.C. 4731.22(B)(34)’s duty to cooperate requires only that a subject
answer truthfully questions posed by an investigator of the board during an interview. Compare United
States v. Goodpaster, 65 F.Supp.3d 1016, 1029 (D.Or.2014) (noting that “[a]n order to ‘cooperate’ demands
more of the reasonable employee than an order merely to be ‘truthful’”), citing Minnesota v. Murphy, 465
U.S. 420, 434, 104 S.Ct. 1136 (1984) (observing that “Murphy’s probation condition [to be truthful]
proscribed only false statements”). That is, the State argues that “[t]elling falsehoods * * * is different than
remaining silent, and the Fifth Amendment is not implicated.” (Appellee’s Brief at 6). However, the text of
that subsection of the statute states that a subject must cooperate in investigations of the board. R.C.
4731.22(B)(34) proceeds to provide a non-exhaustive list of ways in which a subject must cooperate with an
investigation of the board—only one of which is to provide truthful answers to questions presented by the
board in an investigative interview. See In re Hartman, 2 Ohio St.3d 154, 155-156 (1983) (noting that the
word “‘including’ implies that that which follows is a partial, not an exhaustive listing of all that is subsumed
within the stated category. ‘Including’ is a word of expansion rather than one of limitation or restriction.”).

                                                     -30-
Case Nos. 1-18-27, 1-18-28, 1-18-29


1518-1519 (construing the evidence in the record reflecting the “actions of the

investigators” to determine whether there was “demonstrable state conduct” and,

thus, whether the defendants’ beliefs that they would penalized for asserting their

Fifth Amendment rights were objectively reasonable).

       {¶40} At the suppression hearing, Investigator Yoakam testified to the extent

that he collaborated with law enforcement as part of his investigation—that is, he

specifically stated that the investigation of Gideon “turned into a joint

investigation.” (Aug. 22, 2017 Tr. at 4); (Oct. 13, 2017 Tr. at 7, 20-21). Indeed,

Sergeant Hochstetler concurred that he and Investigator Yoakam agreed “to

cooperate with each other” during the course of their investigations. (Oct. 13, 2017

Tr. at 51-52). By cooperating, Sergeant Hochstetler clarified that meant that he and

Investigator Yoakam would share information. Investigator Yoakam elaborated

that the Revised Code permits him to share information obtained as part of his

investigations with law enforcement and that he will share such information if there

is “a shared interest.” (Id. at 19-20). Investigator Yoakam further testified that he

shared the information he collected (regarding Gideon) with the Bluffton Police

Department.

       {¶41} Undeniably, R.C. 4731.22(F) provides, in relevant part, the following:

       (3) In investigating a possible violation of this chapter or any rule
       adopted under this chapter, * * * the board may question witnesses,
       conduct interviews, administer oaths, order the taking of depositions,
       inspect and copy any books, accounts, papers, records, or documents,

                                        -31-
Case Nos. 1-18-27, 1-18-28, 1-18-29


         issue subpoenas, and compel the attendance of witnesses and
         production of books, accounts, papers, records, documents, and
         testimony, except that a subpoena for patient record information shall
         not be issued without consultation with the attorney general’s office
         and approval of the secretary and supervising member of the board.

         ***

         (4) All * * * investigations * * * of the board shall be considered civil
         actions for the purposes of section 2305.252 of the Revised Code.

         (5) * * *

         The board may share any information it receives pursuant to an
         investigation * * * with law enforcement agencies, other licensing
         boards, and other governmental agencies that are prosecuting,
         adjudicating, or investigating alleged violations of statutes or
         administrative rules.

R.C. 4731.22(F)(3)-(5) (Apr. 6, 2017) (current version at R.C. 4731.22(F)(3)-(5)

(Mar. 20, 2019)).9

         {¶42} Thus, while there is nothing inherently wrong with Investigator

Yoakam and law enforcement’s agreement to share information, the evidence in the

record reveals that Investigator Yoakam exceeded statutorily permissible

collaboration by taking demonstrable steps to coerce Gideon to provide him an




9
  R.C. 2305.252 applies to peer-review privilege. See, e.g., Cousino v. Mercy St. Vincent Med. Ctr., 6th Dist.
Lucas No. L-17-1218, 2018-Ohio-1550, ¶ 15 (“The purpose of this statute is to protect the integrity and
confidentiality of the peer review process so that health care entities have the freedom to meaningfully review
and critique—and thereby improve—the overall quality of the healthcare services they provide.”). The
statute also applies the peer-review privilege to only the Bureau of Workers’ Compensation (“BWC”);
however, the statute excepts the BWC to “share proceedings and records within the scope of the peer review
committee * * * with law enforcement agencies, licensing boards, and other governmental agencies that are
prosecuting, adjudicating, or investigating alleged violations of applicable statutes or administrative rules”.
R.C. 2305.252(B).

                                                    -32-
Case Nos. 1-18-27, 1-18-28, 1-18-29


incriminating, oral and written statement in reliance on Gideon’s duty to cooperate.

In other words, Investigator Yoakam was posing as a “straw man” to effectuate law

enforcement’s criminal investigation. See State v. Gradisher, 9th Dist. Summit No.

24716, 2009-Ohio-6433, ¶ 23 (Belfance, J., dissenting) (approving the “concern that

government agents should not pose as ‘straw men’ in order to effectuate police

investigations”). Specifically, Investigator Yoakam contacted Sergeant Hochstetler

prior to interviewing Gideon, and “discussed that [he] was going to hold off on the

administrative investigation until [law enforcement determined] that [Investigator

Yoakam] could interview [Gideon].” (Oct. 13, 2017 Tr. at 7-8). Investigator

Yoakam’s intention for sharing his investigative plan with law enforcement was to

“determine how [law enforcement] was going to proceed with the criminal case”

because proving an administrative-sanction case is easier “from a criminal

conviction” as opposed to “through witness testimony.” (Id. at 15-16). That is, he

elaborated that his method is “what they call a bootstrap on a criminal case that’s

where a physician * * * is criminally charged, and the Board takes action on that

criminal disposition, and the other [is] based on information gathered in the course

of an investigation. Action that’s taken based on that.” (Id. at 15).

       {¶43} Prior to Investigator Yoakam’s interview of Gideon, Sergeant

Hochstetler told Investigator Yoakam that Gideon “denied any improprieties during

[law enforcement’s] interview” of Gideon. (Oct. 13, 2017 Tr. at 21, 55). And, after


                                        -33-
Case Nos. 1-18-27, 1-18-28, 1-18-29


discussing Gideon’s denials to law enforcement with Sergeant Hochstetler,

Investigator Yoakam informed Sergeant Hochstetler that it would not be

“appropriate” for law enforcement to jointly interview Gideon with Investigator

Yoakam. (Id. at 28, 55-56). Specifically, Investigator Yoakam testified that

       doctor’s [sic] are obligated to cooperate in our investigation. So [he]
       did not want that to * * * impede in * * * any of the criminal
       proceedings…And [he] didn’t want * * * there to be an issue that the
       doctor provided a statement with law enforcement present because the
       provider is obligated to cooperate in our investigations.

(Emphasis added.) (Id. at 29). (See also Oct. 13, 2017 Tr. at 55); (Defendant’s Ex.

4). In other words, Investigator Yoakam’s method was to avoid a scenario in which

his interview (of Gideon) could not be used as part of the criminal case because (as

indicated by Investigator Yoakam) the lack of a criminal conviction would make his

administrative-sanction case more cumbersome.            Compare Gradisher at ¶ 23

(Belfance, J., dissenting) (expressing concern that “government overreaching could

easily occur by pushing off criminal investigations to state agents so as to bypass

protection against the abridgement of an individual’s Fifth Amendment rights”);

Camacho, 739 F.Supp. at 1519 (noting that the investigator’s action in purposely

omitting “his preamble regarding voluntariness and compulsion * * * in order to

avoid flagging the issue of voluntariness” “speaks louder” than any belief that the

statements were voluntary and concluding that “the investigators’ central aim was

to take a statement first and litigate its admissibility later”).


                                           -34-
Case Nos. 1-18-27, 1-18-28, 1-18-29


       {¶44} Moreover, based on our review of the record, Investigator Yoakam’s

intent for the investigation reflects the demonstrable state action necessary to

support Gideon’s subjective belief that his medical license would be penalized if he

failed to cooperate with Investigator Yoakam’s investigation. Specifically,

Investigator Yoakam’s interview of Gideon reflects his intent to assist law

enforcement in obtaining a criminal conviction of Gideon for purposes of

influencing the outcome the administrative-sanction case against Gideon.

       {¶45} Even though he is not a law enforcement officer, Investigator Yoakam

testified that he had law enforcement training and is familiar with the elements of

offenses under the Revised Code, including sexual imposition. Keeping his training

in mind, Investigator Yoakam arrived unannounced to Gideon’s medical office to

conduct his interview to catch him “off guard” “to get the truth out of [him].” (Oct.

13, 2017 Tr. at 5, 32-33). Despite Gideon having patient appointments at the time

of the visit, Investigator Yoakam did not advise Gideon that he did not have to speak

with him that day or otherwise offer to reschedule—he merely asked Gideon “if he

would have a few minutes to chat with” him. (Id. at 5). (See also State’s Ex. A).

In other words, Investigator Yoakam did nothing to dissuade Gideon’s belief that

he was statutorily obligated to cooperate with his investigation, which included

consenting to Investigator Yoakam’s request to “chat.” Compare Camacho at 1511

(“At no time during the interview or after did either Sergeant Green or Assistant


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Case Nos. 1-18-27, 1-18-28, 1-18-29


State Attorney DiGregory make any effort to dissuade Sinclair of his view that he

was compelled to give a statement or answer his question.”).

         {¶46} Likewise, and unbeknownst to Gideon, Investigator Yoakam recorded

the interview even though it is not the board’s “protocol” to surreptitiously record

interviews of subjects. (See Aug. 22, 2017 Tr. at 5-6); (State’s Ex. A). (See also

Oct. 13, 2017 Tr. at 7, 13). Rather, as a “general practice” of his office, Investigator

Yoakam secretly records interviews of subjects involving sexual-impropriety

allegations. (Aug. 22, 2017 Tr. at 5-6). (See also Oct. 13, 2017 Tr. at 7, 33-34).

Further, Investigator Yoakam testified that he does not inform providers that they

are being recorded because “[s]ometimes if * * * a provider knows that they’re

being recorded then they’re more guarded in what they say.” (Oct. 13, 2017 Tr. at

34). Moreover, Investigator Yoakam chose not to inform Gideon that he intended

to share with law enforcement Gideon’s statements despite it being his intention to

do so.

         {¶47} During the two-hour “chat,” Investigator Yoakam pressured Gideon

“that [he] wanted to get [the] interview done there * * * on all the subjects [he]

wanted to address, because [he] did not want to return” and that he “did not want to

drag him through the mud by interviewing multiple people.” (Emphasis added.)

(Id. at 39). Compare Camacho, 739 F.Supp. at 1518 (considering the evidence that

the defendants were not asked to provide statements, but rather, directed to provide


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Case Nos. 1-18-27, 1-18-28, 1-18-29


statements and the evidence that the investigators would not “even answer [the]

question as to whether the inquiry was administrative or criminal in nature”).

       {¶48} In addition, during the interview, Investigator Yoakam advised

Gideon at multiple points to “to go back to [law enforcement] and change his

statement” to avoid facing possible falsification charges. (Oct. 13, 2017 Tr. at 22).

Investigator Yoakam’s insistence that Gideon return to law enforcement to change

his statement is also evidence supporting Gideon’s belief that a refusal to give a

statement will be met with a licensure penalty. That is, Investigator Yoakam’s

insistence that Gideon provide law enforcement with a statement reflects an intent

to coerce Gideon to cooperate with the investigation. Indeed, (as raised during

cross-examination) if Investigator Yoakam was “just concerned about [the] medical

investigation there would be no need to tell [Gideon] to go back to the police

department and change his statement * * *.” (Id. at 22).

       {¶49} The record also reflects that Gideon and Investigator Yoakam

possessed an implicit, trust-like relationship and that Investigator Yoakam exploited

that relationship to satisfy his ulterior motive of coercing Gideon into making

statements against his interest for law enforcement to ultimately obtain a criminal

conviction against him. That is, Gideon and Investigator Yoakam had a 15-year

relationship during which Investigator Yoakam investigated a prior complaint

against Gideon (which was determined to be unsubstantiated). Based on their prior


                                        -37-
Case Nos. 1-18-27, 1-18-28, 1-18-29


relationship, Gideon initially contacted Investigator Yoakam by text message to

inform him of the complaints at issue in this case. Likewise, Investigator Yoakam

can be heard during the beginning of the interview recalling their past relationship

by reminding Gideon that he has never “judged” him in their past dealings—a

characterization to which Gideon agrees.         The record further reflects that

Investigator Yoakam was aware of Gideon’s religious beliefs and, as such, used the

words “confession” and “reconciliation” during his interview of Gideon because

Investigator Yoakam “figured he could relate to that.” (Oct. 13, 2017 Tr. at 41).

       {¶50} At the conclusion of the interview, instead of reporting back to the

board, Investigator Yoakam immediately went to the Bluffton Police Department to

report Gideon’s confessions to law enforcement. (See Defendant’s Ex. 2). Despite

his employment responsibilities with the State Medical Board, Investigator Yoakam

chose to immediately share Gideon’s confessions with law enforcement “because

the doctor had [] an interview with [law enforcement] where he denied any

impropriety so [he] wanted to tell [law enforcement] what happened during [his]

interview.” (Oct. 13, 2017 Tr. at 26-27). Moreover, Investigator Yoakam agreed

that he “wanted to assist [law enforcement] in that criminal investigation by

providing [law enforcement] with statements made by Dr. Gideon during an

interview that same day * * *[.]” (Id. at 27).




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Case Nos. 1-18-27, 1-18-28, 1-18-29


       {¶51} Accordingly, we conclude that, based on the facts and circumstances

presented by this case, Investigator Yoakam’s actions created an impression that

Gideon’s refusal to cooperate with his investigation would result in the type of

penalty prohibited under Garrity. See Camacho at 1520 (concluding “that the

actions of the State were directly implicated in creating [the] belief” that the

defendants’ subjective belief “that failure to answer would result in termination”).

Therefore, Gideon’s belief that his medical license would be penalized if he did not

cooperate with Investigator Yoakam’s investigation was objectively reasonable.

See id. Thus, Gideon’s statements were not voluntary within the meaning of

Garrity.   Accord Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, at ¶ 30

(“Statements extracted under these circumstances cannot be considered voluntary

within the meaning of Garrity.”); Goodpaster, 65 F.Supp. at 1033 (Under the facts

presented, the Government created a ‘classic penalty situation’ by threatening to

punish Goodpaster for remaining silent. Accordingly, under the Supreme Court’s

decision in Garrity v. New Jersey and its progeny, Goodpaster’s statements must be

suppressed.”).

       {¶52} For these reasons, we conclude that the trial court erred by denying

Gideon’s motion to suppress oral and written statements that he made to Investigator

Yoakam as evidence. His first assignment of error is sustained.




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Case Nos. 1-18-27, 1-18-28, 1-18-29


                            Assignment of Error No. II

       The Trial Court’s Order Consolidating the Separately-Docketed
       Sexual Imposition Charges for the Trial Exposed Defendant-
       Appellant to a Substantial Likelihood that the Jury Would
       “Bootstrap” the Allegations of Different Patients in
       Contravention of Evid.R. 404(B) and R.C. 2907.06(B), and
       Thereby Violated His Sixth and Fourteenth Amendment Right to
       a Fundamentally Fair Jury Trial. (Apx. A-19; 04/20/18 Tr. 82-84;
       04/21/18 Tr. 20-21)

                           Assignment of Error No. III

       The Trial Court’s Instructions and the Prosecutor’s Closing
       Argument Encouraged the Jurors to Consider the Testimony of
       One Alleged Victim as Corroboration of the Testimony of
       Another Alleged Victim in Contravention of Evid.R. 404(B) and
       R.C. 2907.06(B), and Thereby Violated Defendant-Appellant’s
       Right to a Fundamentally Fair Jury Trial Under the Sixth and
       Fourteenth Amendments to the United States Constitution.
       (04/18/18 Tr. 115-17; 04/21/18 44, 104-05, 114-15)

                           Assignment of Error No. IV

       Defendant-Appellant’s Conviction for Sexual Imposition as to
       Former Patient [M.M.] is Not Supported by Sufficient Evidence
       to Satisfy the Requirements of the Due Process Clause of the
       Fourteenth Amendment to the United States Constitution.
       Alternatively, the Jury’s Guilty Verdict is Against the Manifest
       Weight of the Evidence. (04/20/18 Tr. 79; 04/21/18 Tr. 20-21).

       {¶53} In his second, third, and fourth assignments of error, Gideon argues

that: (1) he was unfairly prejudiced by the trial court’s order consolidating the cases

for purposes of trial; (2) the trial court and the State improperly encouraged the jury

to consider the testimony of one victim as corroborating evidence of the veracity of



                                         -40-
Case Nos. 1-18-27, 1-18-28, 1-18-29


another victim’s testimony; and (3) his conviction in case number 17CRB01385 is

based on insufficient evidence and is against the manifest weight of the evidence.

       {¶54} In light of our decision to sustain Gideon’s first assignment of error,

his second, third, and fourth assignments of error are rendered moot, and we decline

to address them. App.R. 12(A)(1)(c); State v. Unger, 5th Dist. Stark No. 2016 CA

00148, 2017-Ohio-5553, ¶ 22; State v. Caldwell, 4th Dist. Jackson No. 97-CA-802,

1998 WL 8847, *2 (Jan. 8, 1998). See also State v. Ecker, 9th Dist. Summit No.

28431, 2018-Ohio-940, ¶ 10-12 (suggesting that joinder decisions are ripe for

review after the trial court has had the opportunity to evaluate a defendant’s Crim.R.

14 motion for severance at trial).

       {¶55} Having found error prejudicial to the appellant herein in the particulars

assigned and argued in his first assignment of error, we reverse the judgments of the

trial court and remand for further proceedings.

                                                           Judgments Reversed and
                                                                Causes Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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