[Cite as In re T.W., 2012-Ohio-2361.]




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




IN THE MATTER OF:

        T.W.,                                               CASE NO. 9-10-63

ALLEGED DELINQUENT CHILD,

        [STATE OF OHIO,                                     OPINION
        APPELLANT].




                 Appeal from Marion County Common Pleas Court
                                  Family Division
                            Trial Court No. 10 DL 633

                                        Judgment Affirmed

                             Date of Decision: May 29, 2012




APPEARANCES:

        Brent W. Yager and Megan K. Frericks for Appellant

         Raymond A. Grogan, Jr. for Appellee
Case No. 9-10-63


ROGERS, J.

       {¶1} Plaintiff–Appellant, State of Ohio, appeals from the judgment of the

Court of Common Pleas of Marion County, Family Division, granting Defendant-

Appellee’s, T.W., motion to suppress. On appeal, the State contends that the trial

court erred and abused its discretion in granting T.W.’s motion to suppress. Based

on the following, we affirm the judgment of the trial court.

       {¶2} In July 2010, a complaint was filed against T.W. charging him with a

single count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a

felony of the third degree if committed by an adult. The complaint arose as a

result of an allegation against and subsequent admission by T.W. that he had

inappropriate sexual contact with his four-year-old half-sister, C.W.

       {¶3} On September 27, 2010, T.W. filed a motion to suppress his interview

and written statement made at Marion County Children Services (“Children

Services”) on April 5, 2010. T.W. argued that he was in custody during the

interview, but was not administered Miranda warnings.

       {¶4} On November 17, 2010, the matter proceeded to a suppression

hearing. Prior to hearing testimony, the parties stipulated that T.W. was fourteen-

years-old during the interview, and that T.W. had no prior involvement with law

enforcement. The following facts and testimony were subsequently adduced.

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      {¶5} Brandy Page (“Page”) testified that in April 2010, she was employed

with Children Services as an intake investigator. In February 2010, Children

Services received an allegation that T.W. had “inappropriately” touched C.W.’s

genital region.   In response to the allegation, Page contacted T.W.’s mother,

Michelle Shimp (“Shimp”), via telephone. During her conversation with Shimp,

Page advised her of the allegation against T.W., that Children Services would be

conducting a full investigation of the allegation, the possible charges T.W. may

face if the allegation was substantiated, and scheduled T.W. for an interview at

Children Services.

      {¶6} On April 5, 2010, Shimp and T.W.’s step-father drove T.W. to

Children Services for the interview. Page met with T.W. and his parents in the

lobby, where she advised T.W.’s parents that the agency preferred to interview

children alone, but that the parents may accompany T.W. in the interview or watch

the interview in an adjacent conference room, via a live video feed. Page testified

that T.W. was present when she advised T.W.’s parents that they could accompany

him in the interview, but that she did not communicate the same directly to T.W.

Page continued that she gave T.W.’s parents a “consumer brochure” that explained

their rights, and that Shimp signed a paper memorializing receipt of the brochure.



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           {¶7} Thereafter, Page and Officer Timothy Rowe (“Officer Rowe”), of the

Marion Police Department, escorted T.W. to the interview room. According to

Page and Officer Rowe, the interview room was small and could accommodate

approximately three to four people. The interview room had two doors; one door

opened into an interior hallway, the second door opened into an adjoining

conference room.1 The interview room contained video and audio equipment, a

table, and several chairs.              After Officer Rowe, Page, and T.W. entered the

interview room the door was closed. Although the record does not reveal the

exact seating arrangement, it does reveal that T.W. was seated facing Officer

Rowe, and that either Officer Rowe or Page had their seat positioned near the door

through which they entered the interview room.

           {¶8} Page continued that she, Officer Rowe, and T.W. were the only

individuals present in the interview room, and that she and Officer Rowe were

present for the entire interview. The interview lasted approximately one hour.

Page testified that T.W. was neither placed nor told that he was under arrest

before, during, or after the interview; that she did not advise T.W. about the

possible charges; and, that T.W. never asked for his parents to be present during

the interview.          Fifty-five minutes into the interview T.W. admitted that he

1
    There is no evidence that T.W. was aware that the second door opened into a conference room.

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inappropriately touched C.W.      After T.W. gave a written statement of his

admission he left Children Services with his parents.

      {¶9} Officer Rowe testified that he is employed as a police officer with the

Marion Police Department, and that he has held that position for twenty-one years.

Officer Rowe testified that he had conducted approximately a dozen juvenile

interviews at Children Services, and received training in juvenile interview

techniques.

      {¶10} On the day of the interview, Officer Rowe wore his police uniform

and firearm. Officer Rowe testified that, prior to the interview, he met with T.W.

and his parents in the lobby, where he advised them that T.W. was not under arrest

and that he was free to leave. Officer Rowe further testified that he never directly

advised T.W., prior to or during the interview, that he could have his parents

accompany him in the interview room or that he could have an attorney present,

but did testify that T.W. was present when he informed T.W.’s parents that they

could accompany T.W. in the interview room.

      {¶11} The interview lasted approximately one hour. Officer Rowe testified

that the interview’s duration was average considering the allegation.       Officer

Rowe testified that T.W. appeared somewhat relaxed during the interview. Based



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on his prior experience interviewing juveniles, Officer Rowe concluded that T.W.

appeared to understand why he was at Children Services.

           {¶12} Throughout the interview, Officer Rowe repeatedly asked T.W.

whether he inappropriately touched C.W.’s genital region. In response, T.W.

repeatedly denied the allegation. T.W. denied the allegation approximately fifteen

(15) times before admitting that he inappropriately touched C.W.2 Officer Rowe

testified that he continued questioning T.W. despite the repeated denials because

his experience and training lead him to believe that T.W. was not being truthful.

Particularly, Officer Rowe testified that T.W. demonstrated signs of deception

throughout the interview including, but not limited to, shifting his weight in the

seat, pausing after questions, looking off to the side, and dry lips.

           {¶13} Officer Rowe continued that T.W.’s freedom of movement was not

restricted during the interview; that T.W. never asked to leave; that T.W. never

asked to stop the interview; that T.W. never asked for his parents to be present

during the interview; and, that T.W. was never told that he was under arrest.

Officer Rowe advised T.W., at approximately eight minutes and twenty-seven

minutes into the interview, that he was “not going to be arrested,” and that he was

“free to go, and [he is] not going to be arrested” that day, respectively.

2
    The number of denials is based on our independent review of the interview’s audio recording.

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       {¶14} At the conclusion of Officer Rowe’s testimony the State moved to

admit the audio recording of T.W.’s interview and written statement. T.W. did not

object, and the exhibits were admitted. Subsequently, the State rested.

       {¶15} Shimp testified that several days prior to the interview Page

contacted her via telephone. During their conversation, Page advised her of the

allegation against T.W., the possible charges T.W. may face if the allegation was

substantiated, and scheduled T.W. for an interview at Children Services. On April

5, 2010, Shimp and T.W.’s step-father drove T.W. to Children Services for the

interview. Upon arriving at Children Services, Shimp spoke with Page. Shimp

testified that Page only advised her that she and Officer Rowe were going to

interview T.W. Shimp also spoke with Officer Rowe before the interview, but

could not recall the contents of that conversation. As Page and Officer Rowe

escorted T.W. to the interview room, Shimp testified that she and T.W.’s step-

father stood up to follow, but Officer Rowe advised them that they could not

accompany them in the interview room. Shimp further testified that she and

T.W.’s step-father were never presented with an opportunity to watch a live video

feed of the interview.




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Case No. 9-10-63


          {¶16} On December 1, 2010, the trial court filed its judgment entry

granting T.W.’s motion to suppress, finding that T.W.’s interview was custodial in

nature.

          {¶17} It is from this judgment the State appeals, presenting the following

assignment of error for our review.

                               Assignment of Error No. I

          THE JUVENILE COURT ERRED AND ABUSED ITS
          DISCRETION IN GRANTING APPELLEE’S MOTION TO
          SUPPRESS EVIDENCE.

          {¶18} In its sole assignment of error, the State contends that the trial court

erred in granting T.W.’s motion to suppress his interview at Children Services.

Specifically, the State contends that there was no need to administer Miranda

warnings because T.W. was not in custody during the interview. We disagree.

          {¶19} Initially, we note that the State also contends that T.W.’s inculpatory

statements were made voluntarily, and were not the product of coercion. Upon

review of the record, particularly T.W.’s motion to suppress, there is no discussion

concerning the voluntary nature of T.W.’s statements.           Additionally, the trial

court’s judgment entry does not address whether T.W.’s statements were voluntary

or involuntary.      Because this issue was not raised by either party below or

addressed by the trial court we decline to address the issue at this time.

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       {¶20} “Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

The trial court serves as the trier of fact and is the primary judge of the credibility

of the witnesses and the weight to be given to the evidence presented. State v.

Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000).             Therefore, when an

appellate court reviews a trial court’s ruling on a motion to suppress, it must

accept the trial court’s findings of facts so long as they are supported by

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-

3665, ¶ 100, citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). The appellate

court must then review the application of the law to the facts de novo. Roberts,

citing Burnside at ¶ 8.

       {¶21} The Fifth Amendment to the United States Constitution provides

individuals with protection against self-incrimination. See Chavez v. Martinez,

538 U.S. 760, 123 S.Ct. 1994 (2003). “‘Juveniles are entitled both to protection

against compulsory self-incrimination under the Fifth Amendment and to Miranda

warnings where applicable.’” In re Forbess, 3d Dist. No. 2-09-20, 2010-Ohio-

2826, ¶ 27, citing In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428 (1967).

       {¶22} “[W]hen an individual is taken into custody or otherwise deprived of

his freedom by the authorities in any significant way and is subjected to

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Case No. 9-10-63


questioning, the privilege against self-incrimination is jeopardized.” Miranda v.

Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602 (1966). “[T]he prosecution may not

use statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.” Id. at 444.

Police are not required to administer Miranda warnings to everyone whom they

question.   State v. Biros, 78 Ohio St.3d 426, 440 (1997), citing Oregon v.

Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711 (1977). Rather, police are required to

administer Miranda warnings where an individual is subject to “custodial

interrogation.” Id., citing Mathiason at 494.

       {¶23} “In order to determine whether a person is in custody for purposes of

receiving Miranda warnings, courts must first inquire into the circumstances

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.” State v. Hoffner, 102 Ohio St.3d 358, 362,

2004-Ohio-3430, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct.

457 (1995). The first inquiry is distinctly factual. Keohane at 112. “Once the

factual circumstances surrounding the interrogation are reconstructed, the court

must apply an objective test to resolve ‘the ultimate inquiry’ of whether there was

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a ‘‘formal arrest or restraint on freedom of movement’ of the degree associated

with a formal arrest.’” Hoffner at ¶ 27, citing California v. Beheler, 463 U.S.

1121, 1125, 103 S.Ct. 3517 (1983), quoting Mathiason at 495. The subjective

views harbored by either the interrogating officers or the person being questioned

are of no consequence in the Miranda analysis. Stansbury v. California, 511 U.S.

318, 323, 114 S.Ct. 1526 (1994). In resolving “the ultimate inquiry” courts must

consider the totality of the circumstances surrounding the questioning. State v.

Gumm, 73 Ohio St.3d 413, 429 (1995); Beheler at 1125.

                             Reconstruction of Facts

      {¶24} The facts of the present case are relatively undisputed.        After

receiving an allegation that T.W. had inappropriate sexual contact with C.W.,

Page, an intake investigator with Children Services, contacted T.W.’s mother,

Shimp, to schedule T.W. for an interview at Children Services.        During this

conversation Shimp was informed of the possible charges T.W. could face if the

allegation was substantiated and that Children Services would be conducting a full

investigation into the allegation. On the day of the interview, Shimp and T.W.’s

step-father drove T.W. to the interview at Children Services. At this time T.W.

was fourteen-years-old and had no prior experience with law enforcement.



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       {¶25} Upon arriving at Children Services, Page and Officer Rowe, an

officer with the Marion Police Department, met with Shimp, T.W.’s step-father,

and T.W. in the lobby.       Officer Rowe wore a police uniform and firearm

throughout his encounter with T.W.         Prior to the interview, Officer Rowe

informed T.W. and his parents that they could accompany T.W. in the interview,

that he was not under arrest, and that he was free to leave.

       {¶26} After meeting in the lobby, T.W. was escorted by Officer Rowe and

Page to the interview room. Shimp and T.W.’s step-father attempted to follow

T.W. back to the interview room, but Officer Rowe advised them that they could

not accompany them in the interview room. The interview room was small and

could accommodate approximately three to four people. The interview room had

two doors; one door opened into an interior hallway, the second door opened into

an adjoining conference room. Upon entering the interview room T.W. took a seat

facing Officer Rowe. Additionally, either Page or Officer Rowe was seated near

the door through which they entered the interview room.

       {¶27} Officer Rowe, Page, and T.W. were the only individuals present in

the interview room, and were present throughout the entire interview.        The

interview lasted approximately one hour. T.W.’s admission, however, did not

occur until fifty-five (55) minutes into the interview. Officer Rowe was the only

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Case No. 9-10-63


individual who asked T.W. questions during the interview.            Based on his

experience in conducting juvenile interviews, Officer Rowe testified that T.W.

was somewhat relaxed and understood why he was at Children Services. At no

time during the interview was T.W. advised that he was under arrest. Rather,

T.W. was advised twice, at approximately eight minutes and twenty-seven minutes

into the interview, that he was “not going to be arrested,” and that he was “free to

go, and [he is] not going to be arrested” that day, respectively. T.W. never asked

to leave the interview or stop the interview. During the course of the interview,

Officer Rowe repeatedly asked T.W. whether he inappropriately touched C.W.’s

genital region. T.W. responded in the negative approximately fifteen (15) times

before admitting that he inappropriately touched C.W. Upon obtaining a verbal

confession, Officer Rowe requested T.W. to give a written statement of his

admission. After T.W. completed the written statement he was released to Shimp

and his step-father, who drove him home.

                           Totality of the Circumstances

       {¶28} At the outset, we note that the instant case contains facts that both

weigh in favor of and against a finding that T.W. was in custody.             Upon

considering all of the facts surrounding T.W.’s interview, we find that a



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reasonable juvenile in T.W.’s position would not have felt free to terminate the

interview and leave.

      {¶29} We begin with a discussion of those facts that weigh in favor of a

finding that T.W. was in custody. Recently, the United States Supreme Court held

that a juvenile’s age may be considered in the Miranda analysis, so long as the

juvenile’s age was known to the officer at the time of questioning or would have

been objectively apparent to a reasonable officer. J.D.B. v. North Carolina, ___

U.S. ___, 131 S.Ct. 2394 (2011). The Supreme Court recognized that in the

specific context of police questioning, events that “would leave a man cold and

unimpressed can overawe and overwhelm a” teen. Id. at 2397, quoting Haley v.

Ohio, 332 U.S. 596, 599, 68 S.Ct. 302 (1948). While a juvenile’s age may be

considered in the Miranda custody analysis, the Supreme Court cautioned that

“this does not mean that a child’s age will be a determinative, or even a

significant, factor in every case * * *.” J.D.B., 131 S.Ct. 2394, syllabus. Bearing

this in mind, at fourteen years of age, a reasonable juvenile in T.W.’s position

would, in all likelihood, be intimidated and overwhelmed. There is no evidence

that T.W. volunteered to go to Children Services. Rather, the evidence reveals

that T.W.’s mother, at Page’s request, agreed to bring T.W. to Children Services,

limiting the extent of his control over his being there, and rendering his presence

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ostensibly involuntary. See Yarborough v. Alvarado, 541 U.S. 652, 665, 124 S.Ct.

2140 (2004). Shortly after arriving at Children Services, T.W. was escorted away

from his mother and step-father by two unfamiliar authoritarian figures, one of

whom was dressed in a police uniform and carried a weapon on his person. See In

re R.H., 2d Dist. No. 22352, 2008-Ohio-773, ¶ 20. As Officer Rowe and Page

escorted T.W. back to the interview room, Shimp and T.W.’s step-father attempted

to follow them back but Officer Rowe advised them that they could not

accompany them in the interview room. Last, upon entering the interview room

the door was closed and T.W. was seated facing Officer Rowe, with either Officer

Rowe or Page sitting near the door through which they entered the interview room.

Regardless of who sat near the door, a reasonable juvenile in T.W.’s position

would likely not feel free to stand, walk past the authoritarian figure seated near

the door and out of the interview room.

      {¶30} While the foregoing facts tend to weigh in favor of a finding that

T.W. was in custody, other facts tend to weigh against a finding that T.W. was in

custody. T.W. was not transported to the interview by a police officer. See

Yarborough at 664. The interview occurred at Children Services as opposed to a

police department. But see In re K.W., 3d Dist. 9-08-57, 2009-Ohio-3152, ¶ 14

(child found to be in custody during interview at children services agency). The

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Case No. 9-10-63


parents waited in the lobby during the interview, suggesting that the interview

would be brief. See Yarborough at 664. In the lobby, prior to the interview,

Officer Rowe testified that he informed T.W., Shimp, and T.W.’s step-father that

T.W. was not under arrest and free to go. Review of the taped interview and

Officer Rowe’s testimony reveals that T.W. was relaxed during much of the

interview. Last, during the interview, at approximately eight and twenty-seven

minutes into the interview, Officer Rowe informed T.W. that he was “not going to

be arrested,” and that he was “free to go, and [he is] not going to be arrested” that

day, respectively.

       {¶31} Upon balancing the foregoing facts, we find that the trial court did

not err in granting T.W.’s motion to suppress. In so finding, we recognize that

fair-minded jurists could disagree over whether T.W. was in custody, as evidenced

by the dissent’s opinion. However, under the circumstances of the instant case we

agree with the trial court, that a reasonable juvenile in T.W.’s position would not

have felt free to terminate the interview and leave the premises. Accordingly, we

find that the trial court did not err in determining that T.W. was in custody.

       {¶32} Since T.W. was in custody during the interview he should have been

administered Miranda warnings. Upon review of the record, there is no evidence

that T.W. was administered Miranda warnings or voluntarily waived the same.

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Consequently, the State may not use any statements made during T.W.’s interview

at trial. Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

       {¶33} Accordingly, we overrule the State’s sole assignment of error.

       {¶34} Having found no error prejudicial to the State herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr




SHAW, P.J., DISSENTS


       {¶35} I respectfully dissent from the majority’s decision to affirm this case

based upon its determination that T.W. was in custody. I would reverse the

decision of the trial court, not because its findings of fact were unsupported by the

record, but because its decision to suppress T.W.’s statements was based upon

misconceptions of the law and T.W.’s rights thereunder. Furthermore, I believe

the majority in reviewing this case has also relied upon erroneous suppositions in

order to draw conclusions which are not consistent with the actual evidence

presented in this case. Having reviewed the record and the law, I would find that
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T.W. was not in custody, and accordingly, Officer Rowe was not required to

advise T.W. of his Miranda rights.

                             The Trial Court’s Findings

       {¶36} As the majority correctly notes, our review of a trial court’s decision

on a motion to suppress presents a mixed question of law and fact, which requires

that we accept the trial court’s findings of facts as long as they are supported by

competent, credible evidence and that we then conduct a de novo review of the

trial court’s application of the law to those facts.

       {¶37} In this case, the audio of the interview was recorded and its content is

unchallenged. There is no dispute that T.W. was brought to Children Services by

his mother and step-father, that the mother and step-father were not present for the

actual interview, or about the description of interview room and what Officer

Rowe was wearing at the time. The only facts in dispute between T.W. and the

State concerned what was said by Page and/or Officer Rowe to T.W. and his

mother and step-father regarding whether his mother could be present for the

interview and T.W.’s right to an attorney.

       {¶38} In resolving this dispute, the trial court found that T.W.’s mother was

advised of her ability to be present for the interview and of T.W.’s right to an

attorney. However, the trial court found that these were T.W.’s rights, not his

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mother’s, and that there was no evidence to indicate that T.W. affirmatively

waived these either orally or in writing. The trial court then proceeded to rule that

a juvenile should have a parent or legal guardian present when being interviewed

for purposes of a possible delinquency prosecution and that an attorney should be

present with them unless both parent and juvenile sign a written waiver of legal

representation, which clearly advises both of the juvenile’s right to an attorney and

evidences their waiver of this right.

       {¶39} In determining that T.W. was in custody, the trial court relied upon

T.W.’s age of fourteen, lack of prior criminal history, and the length of the

interview and repeated denials by T.W. of any wrongdoing. The trial court also

concluded that T.W. was not given an opportunity to end the interview or to

consult with his mother or an attorney and that his mother should have been

present along with an attorney (or a written waiver of his right to an attorney).

          Problems with the Trial Court’s Determination of Custody

       {¶40} Contrary to the foregoing factors relied upon by the trial court, the

law provides no right to have a parent present when a juvenile is questioned by

law enforcement about a possible delinquency prosecution. See In re Watson

(1989), 47 Ohio St.3d 86, 89-90, 548 N.E.2d 210. Nor does the trial court or the

majority identify any authority that renders an interview “custodial” because a

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juvenile’s parent or attorney is not present and the juvenile is not informed that he

may have a parent and/or attorney present.

       {¶41} As noted by the majority, a “determination of custody depends on the

objective circumstances of the interrogation, not on the subjective views harbored

by either the interrogating officers or the person being questioned.” Stansbury,

511 U.S. at 323. In addition, as noted by the majority, while the juvenile’s age,

when an officer is aware of it or it is objectively apparent to a reasonable officer,

may be taken into consideration in determining custodial status, a person’s prior

inexperience with law enforcement may not. See Alvarado, supra; J.D.B., supra.

However, the primary question remains whether the circumstances surrounding

the interrogation would lead a reasonable person to believe that he was not at

liberty to terminate the interview and leave. Stansbury, supra.

                     Problems with the Majority’s Analysis

       {¶42} Here, the majority finds it unreasonable to conclude that a child

brought to Children Services by parents and then interviewed by a uniformed

officer wearing a firearm would believe he had the option of terminating the

interview and leaving the premises. The majority further finds that a collective

advisement to the juvenile and his parent prior to the interview that the juvenile

was free to leave and not under arrest, was not sufficient to support a finding that a

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reasonable juvenile would have felt free to terminate the interview and leave the

premises. They also conclude that a reasonable juvenile in an interview room with

two authoritarian figures with whom he is not familiar, one of whom sat near the

door, would not feel free to stand, walk past the adult, and out of the interview

room.    Lastly, the majority finds that Officer Rowe’s statements during the

interview again informing T.W. that he was not going to be arrested and that he

was free to go, was not sufficient to convince a reasonable juvenile that he was

actually free to leave the interview. I take exception to each of these conclusions.

        {¶43} First, T.W.’s mother brought him to Children Services, not a police

station, and, unlike the mothers in In re T.F., 9th Dist. No. 08CA009449, 2009-

Ohio-3141 , and In re K.W., supra, she did not testify that she felt she had no other

choice but to bring him for the interview.

        {¶44} Second, although the majority relies upon the fact that Officer Rowe

was armed, which he testified he was, there is no evidence in the record to indicate

where his gun was located on his person, that the weapon was visible to T.W., or

that Officer Rowe otherwise displayed and/or brandished it. Rather, Officer Rowe

testified that he was on light duty so he was not wearing his gun belt or outside

vest but that he did have his weapon on him. In fact, Page testified that she did not

believe that Officer Rowe was wearing his gun during the interview, so she most

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likely would not have seen it. Additionally, the trial court did not make any

finding about the officer’s weapon and its visibility to T.W. or even reference the

weapon in its decision. Thus, without any additional information whatsoever as to

the visibility of the weapon, I believe the majority improperly relies on the fact

that Officer Rowe was armed to support its decision that a reasonable person

would not feel at liberty to terminate the interview and leave because of the

presence of a weapon.

        {¶45} Third, the majority apparently questions, absent any direct evidence,

whether a fourteen-year-old, such as T.W., who is in a lobby with his mother and

step-father and is collectively advised along with his mother and step-father that

he is free to leave and is not under arrest, could have heard and appreciated such

advisements. However, under these circumstances outlined above, I find that the

record amply supports an inference that T.W. was able to hear and comprehend

such advisements.3

        {¶46} For example, there is no evidence that T.W. was far away from this

conversation or to otherwise indicate that he somehow would not be paying

attention to what was said regarding an interview he was about to give with “two

3
  Notably, the trial court made no finding that T.W. did not hear this conversation. The only finding by the
trial court in this regard was that T.W. had the right to have a parent and/or an attorney present for the
interview and that there was no evidence that T.W. affirmatively waived these rights.

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unfamiliar, authoritarian figures.” To the contrary, both Officer Rowe and Page

indicated that they spoke to the family, including T.W. The family was advised

that T.W. was not under arrest and was free to leave.

       {¶47} In sum, there is simply no basis in the record for the majority to

conclude that a fourteen-year-old, who is the object of this type of discussion,

under these circumstances would somehow not be paying attention and fail to

understand that he is not under arrest and is free to leave. This case does not

involve a young child who may not appreciate the nature of the interview or what

it means to be free to leave and not under arrest. In fact, throughout the interview,

T.W. was able to easily follow the conversation, answer questions without any

problems, repeatedly assert his innocence, and in no way seemed incapable of

hearing and understanding the conversation.

       {¶48} Fourth, the majority’s conclusion that a reasonable juvenile would

not feel free to stand, walk past the authoritarian figures, and out of the interview

room also ignores the evidence in the record.        Page testified that during the

conversation she had with the family that T.W. was instructed that if he ever felt

uncomfortable or wanted to leave the room, he was welcome to do that. T.W. was

also told that if he needed to take a break because things got too emotional for

him, he could take a break. Additionally, T.W. knew his mother and step-father

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were waiting in the lobby, and the family had been told that T.W.’s mother could

be present for the interview but that the agency preferred that parents not be

present. However, at no point did T.W. ask for a break, ask to speak to his mother

or step-father, indicate that he did not want to talk any longer, or otherwise

indicate that he wanted to terminate the interview and/or leave. Furthermore,

Officer Rowe testified that T.W. was somewhat relaxed during the interview and

understood what was happening. A review of the audio recording also reveals that

T.W.’s tone of voice is conversational, and he does not appear tired or emotionally

stressed.

       {¶49} Lastly, the majority concludes that Officer Rowe’s statements to

T.W. during the interview at eight minutes and again at twenty-seven minutes,

respectively, informing T.W. for the third time that day that he was not going to be

arrested and that he was free to go, was still not sufficient to convince a reasonable

juvenile that he was actually free to leave the interview. Such a conclusion is pure

conjecture and is not remotely supported by the record in this case.

       {¶50} These statements, while in the midst of a line of questioning, were

not rushed or made in a way that was confusing or misleading. They were plain

and simple statements made to a fourteen-year-old who was more than capable of

following along with the conversation, answering questions thoroughly, asking

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questions when needed, and able to comprehend what was being said to him.4 The

interview was civil, voices were not raised, and the language used by Officer

Rowe was never complicated.

        {¶51} In addition, when Officer Rowe made the second statement during

the interview regarding T.W.’s custodial status, he not only told T.W. that he was

free to go but that he was not going to be arrested and would return home with his

parents or to school that day, or “wherever your day takes you.” He then told

T.W. that he would like for him to tell him the truth today before he went to the

trouble of a lie detector test in a couple of weeks. He advised him, however, that

he was not threatening T.W. and was not telling T.W. that he was going to take

T.W. “to jail or anything like that.” To find that a reasonable juvenile would not

feel free to terminate the interview and leave after being told in no uncertain terms

that he was not under arrest and free to leave prior to an interview in the company

of his parents and again at two separate and distinct points in an interview

presumes that fourteen-year-olds are incapable of discerning sincerity or




4
 Although T.W. was not able to accurately spell the words “touch” or “Dakota” in his written statement,
everything else in his interview with Officer Rowe demonstrated that he was able to comprehend what was
being said and asked of him. We note that many adults from ages 18 to 80 have trouble spelling, but this
does not render them incapable of comprehending what is said to them.

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comprehending what these statements mean, a presumption totally unsupported by

any facts in the record.

       {¶52} More importantly, under the majority’s view, an officer would have

to essentially engage in a Miranda-like analysis to determine whether a juvenile is

in custody, i.e. like each right of Miranda, the officer would have to ask whether

the juvenile understood he was not in custody. Neither the Constitutions of the

United States or Ohio nor the case law interpreting them requires that an officer

make such an affirmative determination.

       {¶53} In this case, the record reflects that T.W. was fourteen, that he was

brought to Children Services by his mother and step-father, that the family was

told that his mother could be present and that T.W. was not under arrest and was

free to leave, and that his mother and step-father waited for him in the lobby while

he was interviewed for just over an hour. In addition, T.W.’s voice sounded

relaxed and he appeared able to understand what was being said during the

interview. T.W. was able to respond to the questions without any problems, and

Officer Rowe never raised his voice or otherwise acted uncivilized towards T.W.

       {¶54} More importantly, T.W. was told prior to the interview that he could

take a break if he needed to do so and was told during the interview at two

separate times in plain words that he was free to leave and was not under arrest.

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T.W. never asked in any way for a break, to terminate the interview, or to leave.

Further, there was no other evidence that T.W. somehow felt compelled to stay.

Given all of these circumstances, I believe it is unreasonable for this court to

determine that T.W. was in custody. Thus, Miranda does not apply, and the trial

court erred in suppressing his statements. I would reverse the decision of the trial

court and remand for further proceedings.

/jlr




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