[Cite as State v. Smith, 2017-Ohio-2708.]
                             STATE OF OHIO, BELMONT COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )    CASE NO. 15 BE 0064
                                              )
        PLAINTIFF-APPELLEE,                   )
                                              )
VS.                                           )    OPINION
                                              )
WILLIAM DOUGLAS SMITH,                        )
                                              )
        DEFENDANT-APPELLANT.                  )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Belmont County, Ohio
                                                   Case No. 15-CR-138(B)

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            No Brief Filed.


For Defendant-Appellant:                           Atty. Sandra Nicholoff
                                                   101 West Main Street, Suite 206
                                                   St. Clairsville, Ohio 43950



JUDGES:

Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
                                                   Dated: April 28, 2017
[Cite as State v. Smith, 2017-Ohio-2708.]
ROBB, P.J.


        {¶1}     Defendant-Appellant William Douglas Smith appeals his conviction in
the Belmont County Common Pleas Court of complicity to rape of a child under ten
years of age. He first argues the court should not have admitted evidence as to
portions of his conversation with the principle offender. He also contests the court’s
decision to overrule his suppression motion. Lastly, he challenges the sufficiency of
the evidence and the weight of the evidence. For the following reasons, the trial
court’s judgment is affirmed.
                                  STATEMENT OF THE CASE
        {¶2}     On July 2, 2015, Appellant and co-defendant Peggy Sue Horstman
were jointly indicted for rape of a child under the age of ten.               See R.C.
2907.02(A)(1)(b),(B).        The indictment alleged the sexual conduct occurred on or
about February 1, 2015 through May 1, 2015; the child was approximately ten
months old at the beginning of this time range. A motion for severance was mooted
by Horstman’s guilty plea.              The state proceeded against Appellant based on
complicity under R.C. 2923.03(A)(1) (soliciting or procuring).
        {¶3}     Appellant filed a motion to suppress any verbal and written statements
made to law enforcement at his residence on June 17, 2015 and over the telephone
on June 18, 2015. Although he signed a Miranda rights waiver form, he alleged he
did not knowingly, voluntarily, or intelligently waive his Miranda rights. The detective
who interviewed Appellant testified at the suppression hearing. On August 20, 2015,
the court overruled the motion to suppress, finding there was no custodial
interrogation.
        {¶4}     Appellant filed a motion in limine asking to exclude all evidence of his
conversations with Horstman, except the specific evidence required to prove he told
Horstman to insert her finger into the child’s vagina and to prove she then did so. He
claimed this contextual evidence was “other acts” evidence prohibited by Evid.R.
404(B) and was unfairly prejudicial under Evid.R. 403(A). His motion was denied
preliminarily and again at trial.
        {¶5}     The case was tried to a jury on September 10 and 11, 2015.
Horstman’s boyfriend testified he lived with Horstman for eight years and was the
                                                                                    -2-

father of the victim. At the beginning of 2015, he became suspicious of Horstman’s
phone habits. He discovered her phone’s screen lock password and looked through
her phone.    He observed sexually explicit conversations between Horstman and
other men. (Tr. 150).
      {¶6}   One night in May of 2015, this witness discovered Horstman’s new
password, waited for Horstman to fall asleep, and drove away from the house with
the phone so he would have time to view its contents. (Tr. 152-153). He accessed a
social media application (“app”) where he saw photographs of and sexual
discussions about the victim. (Tr. 155-156). When Horstman noticed her phone was
gone, she frantically called him using her mother’s phone.        The victim’s father
returned home in the early morning hours and went to sleep without telling Horstman
what he found. He confronted her later, and filed a police report the next day. Before
her phone was confiscated, Horstman deleted the app containing conversations
which the police could not recover. However, the victim’s father provided police with
digital copies of a conversation he read. (State Exhibit 2). He explained how he took
screenshots of a conversation on Horstman’s phone, transmitted them to his own
phone, and then deleted the screenshots on her phone. (Tr. 156-157, 161).
      {¶7}   At her May 15, 2015 interview, Horstman admitted she inserted her
finger into the child’s vagina. She disclosed she performed the act and photographed
it on Appellant’s request. She said she deleted the evidence. Her phone was sent to
a task force dealing with internet crimes against children. A member of this task
force testified how he was able to retrieve some deleted data stored in Horstman’s
phone; it was retrievable as it had not yet been overwritten by the phone’s memory.
(Tr. 180-182). He recovered five images, which were admitted at trial, including one
showing penetration of the child’s vagina by Horstman’s finger and others depicting
her progress leading up to the act. (State Exhibits 4, 5, 7, 8, 9). The task force
member also extracted a brief series of text messages to and from Appellant’s phone
number. (Tr. 186-187); (State Exhibit 15).
      {¶8}   Horstman testified she pled guilty to the rape of her daughter and was
expecting to receive a sentence of fifteen years to life. (Tr. 192). It was pointed out
her maximum sentence was life without parole, and her plea was conditioned on full
                                                                                        -3-

cooperation in Appellant’s case. (Tr. 259, 260). She confirmed testimony presented
by the victim’s father. She explained she met Appellant online in mid-February of
2015 on a dating website. They never met in person but regularly spoke on the
phone, texted, and communicated online through a dating app and then through the
social media app discovered by the victim’s father.          (Tr. 200, 204).    Horstman
regularly deleted communications so her boyfriend would not discover them. (Tr.
209, 238).
        {¶9}   Horstman said Appellant brought the topic of her daughter into their
sexual conversations and she did not stop it because she liked the attention. (Tr.
208). Appellant referred to himself as “daddy,” referred to Horstman as “Babygirl,”
and referred to the victim as “little babygirl.” (Tr. 216). Horstman reviewed some
messages Appellant sent to her, which were obtained from her phone by the victim’s
father. (Tr. 216-231); (State Exhibit 2). For instance, Appellant wrote: “Have you
been playing with little babygirl pussy?”; “You miss playing with her pussy?”; “And I
want to see little baby girl young pussy. In the am. Night”; “Keep them coming wear
little babygirl. Want to see little babygirl young pussy”; and “You better have daddy
some pics and video of u and little babygirl.”
        {¶10} Horstman then identified photographs she took at Appellant’s request.
There was one of the naked child on her lap. (Tr. 233). Other photographs showed
her finger near or touching the child’s vaginal area. She testified: “He said you can
do better than that. Just stick your finger a little bit inside.” (Tr. 235). She then put
“a little bit” of her finger inside the child’s vagina as requested by Appellant. (Tr. 235,
280). Addressing the photograph showing the penetration, which was recovered
from her phone by law enforcement, Horstman admitted she took the photograph and
later deleted it. (Tr. 236, 263, 265). She acknowledged Appellant’s specific request
for her to insert her finger was not contained in the conversation captured by the
victim’s father or recovered from her phone when police retrieved some of her
deleted files. (Tr. 262). She also testified Appellant asked her to place a pacifier in
her own vagina and give it to the baby; she said she pretended to do this. (Tr. 247-
248).
                                                                                       -4-

       {¶11} After the victim’s father confronted her and she deleted the social media
app from her phone, Appellant texted her to request she reactivate the app. She
responded in the negative and Appellant replied, “You don’t tell Daddy no.” (Tr. 242).
He also said: “where Daddy pics of little babygirl with no pants?” and “You better get
Daddy some pics of you and lit * * *.” (Tr. 241, 243, 279). When she sent him a
picture of the child in clothing, he responded, “But no little babygirl young pussy.” (Tr.
246). When Horstman told him her boyfriend was turning her in, Appellant called her
and told her to dispose of her phone. (Tr. 247).
       {¶12} A detective from the Belmont County Sheriff’s Department testified to
his interviews with Horstman and Appellant and to his investigation.           He noted
Appellant used his real name and birthdate in his screen name and used an actual
photograph of himself as his profile picture. (Tr. 297-298). Upon finding Appellant’s
Chillicothe address from a database, the detective asked the local authorities to
obtain a search warrant for evidence of child pornography.                The detective
accompanied the local officers as they executed the search warrant. A member of a
child exploitation task force testified he was unable to retrieve deleted information
from Appellant’s phone, noting Appellant had a data-wiping app on a pre-paid phone.
(Tr. 369, 371).
       {¶13} During the search, the detective spoke to Appellant in the front yard
(while the local officers ensured the residence was safe) and then in Appellant’s
bedroom. Appellant signed a Miranda rights waiver. The detective recorded the
conversation using a recorder located in his pocket. (Tr. 310). He explained his
interview technique of comforting the suspect and downplaying the suspect’s offense.
The detective testified to the progression of Appellant’s statement, e.g., he admitted
Horstman sent him unsolicited photographs of her daughter (which he deleted), he
then said he did not think he asked her to do anything, and he soon revealed he
asked her to put her fingertip inside her daughter. (Tr. 315-319, 351-352). When
asked about a pacifier, Appellant disclosed he asked Horstman to put it in her own
vagina before giving it to the baby. (Tr. 322, 357).
       {¶14} Before the detective left, Appellant wrote a letter of apology while on his
front porch. (State Exhibit 18). He apologized for asking for pictures of the baby,
                                                                                      -5-

stating he “just wanted to see how much she would do.” (Tr. 327). The detective
called Appellant at home the next day to confirm Appellant “asked” Horstman to
insert her finger but did not order her (with threat of force). (Tr. 330, 344-345). This
call was recorded as well.
        {¶15} Appellant testified in his own defense. He confirmed meeting Horstman
online in early 2015, after which they talked on the phone, texted, and communicated
via social media. He admitted some of his sexual comments referred to the victim
whom he called “little babygirl.” (Tr. 395, 405). He denied asking for photographs of
Horstman inserting her finger into the child’s vagina. He acknowledged he asked for
naked photographs of the child and noted the recovered messages did not show him
asking Horstman to insert her finger into the child. (Tr. 404-405, 416-417). When
asked why he confessed to the detective (by saying he asked Horstman to insert her
fingertip into the victim’s vagina), he said the detective wanted him to admit it and the
detective suggested he would not be in trouble (since he never traveled to see the
victim). (Tr. 396-397, 410). Appellant insisted Horstman performed the act and sent
the photograph of the rape on her own, stating he did not want the pictures she “kept
sending.” (Tr. 416). Appellant’s sister testified he generally tries to fit in during
conversations and he is easily intimidated by authority. (Tr. 382-386).
        {¶16} The jury found Appellant guilty of complicity to rape of a child under ten
years of age. In a September 22, 2015 sentencing entry, the trial court sentenced
Appellant to fifteen years to life in prison and labeled him a Tier III sex offender.
Appellant filed a timely notice of appeal.      His appointed counsel was replaced
multiple times, and the period for submitting briefs closed at the end of 2016.
              ASSIGNMENT OF ERROR ONE: ADMISSIBILITY OF EVIDENCE
        {¶17} Appellant sets forth three assignments of error, the first of which
contends:
        “The trial court abused its discretion and committed reversible error when it
permitted the introduction by the state of other crimes, wrongs, or acts to show proof
of appellant’s common plan or scheme in violation of Rules of Evidence 404(B) and
403.”
                                                                                   -6-

       {¶18} As aforementioned, Appellant filed a motion in limine asking to exclude
all evidence except the specific evidence showing (1) Appellant asked Horstman to
insert her finger in the child and (2) Horstman complied with the request. In other
words, he did not believe other portions of the conversations between himself and
Horstman should be admitted, including requests for naked photographs of the child.
(Supp.Tr. 49-54).     He argued his statements represented “other bad acts” under
Evid.R. 404(B) and were unfairly prejudicial under Evid.R. 403(A). The motion in
limine mentioned statements obtained in discovery but did not specifically state which
statements were inadmissible.        At the suppression hearing where this motion in
limine was first discussed, the state suggested the conversations could fall under the
exception in Evid.R. 404(B) regarding a plan or scheme. The trial court noted the
motion was too broad and a ruling would depend on the context of the trial, the
specific evidence sought to be admitted, and whether it was background information
building up to this crime. (Supp.Tr. 55).
       {¶19} Appellant renewed his motion in limine at trial. (Tr. 153-154, 311-312,
375). He stated the sexual conversations between Horstman and Appellant should
not be admitted, except for the specific act in question. The trial court overruled
Appellant’s motion.     (Tr. 154).    Subsequently, the court provided a “clarifying”
instruction to the jury explaining how some testimony was presented by the state “by
way of background and the development of the relationship between” Horstman and
Appellant, noting some evidence was not relevant to the issue of whether a rape was
committed. (Tr. 227-228).
       {¶20} On appeal, Appellant relies on Evid.R. 403(A), Evid.R. 404(B), and R.C.
2945.59. The cited statute provides:

       In any criminal case in which the defendant's motive or intent, the
       absence of mistake or accident on his part, or the defendant's scheme,
       plan, or system in doing an act is material, any acts of the defendant
       which tend to show his motive or intent, the absence of mistake or
       accident on his part, or the defendant's scheme, plan, or system in
       doing the act in question may be proved, whether they are
       contemporaneous with or prior or subsequent thereto, notwithstanding
                                                                                   -7-

       that such proof may show or tend to show the commission of another
       crime by the defendant.

R.C. 2945.59. Pursuant to rule: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.   It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Evid.R. 404(B).
       {¶21} Notably, this list of exceptions is not exclusive. State v. Morris, 132
Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 18. Additionally, the rule does
not bar evidence which is intrinsic to the crime being tried. See State v. Smith, 49
Ohio St.3d 137, 139-140, 551 N.E.2d 190 (1990) (evidence of other acts is
admissible if it tends to prove a specific element of the crime charged). So-called
“other acts” are admissible if “they are so blended or connected with the one on trial
as that proof of one incidentally involves the other; or explains the circumstances
thereof; or tends logically to prove any element of the crime charged.” State v. Roe,
41 Ohio St.3d 18, 23, 535 N.E.2d 1351 (1990), citing State v. Wilkinson, 64 Ohio
St.2d 308, 317, 415 N.E.2d 261 (1980), quoting United States v. Turner, 423 F.2d
481, 483-484 (7th Cir.1970). In accordance, a court can admit other acts which form
the immediate background of and which are inextricably related to an act which forms
the foundation of the charged offense. State v. Lowe, 69 Ohio St.3d 527, 531, 634
N.E.2d 616 (1994).
       {¶22} A decision admitting evidence of other acts into evidence under Evid.R.
404(B) is within the broad discretion of the trial court and evaluated under an abuse
of discretion standard of review.     Morris, 132 Ohio St.3d 337 at ¶ 19.     Even if
evidence is admissible under Evid.R. 404(B), the mandatory exclusion rule in Evid.R.
403(A) provides: “Although relevant, evidence is not admissible if its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.”
       {¶23} The state referred to Appellant’s scheme or plan, and the trial court
suggested that much of the evidence involved the context of the offense. Appellant
contends the trial court abused its discretion in permitting any evidence except the
                                                                                      -8-

specific testimony that he told Horstman to insert her finger and the specific direct
evidence showing her compliance with his request. He generally claims the other
evidence made him look bad and prejudiced his defense. He does not specifically
review each item being contested.
       {¶24} We begin by pointing out how the state must show the Appellant
participated in the criminal intent of Horstman, and this intent may be inferred from
the circumstances surrounding the crime and from the Appellant’s conduct before,
during, and after the offense. State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d
796 (2001). In establishing complicity, the state sought to prove Appellant solicited
the offense (which means “to seek, to ask, to influence, to invite, to tempt, to lead on,
or to bring pressure to bear”) or that he procured the offense (which means “to get,
obtain, induce, bring about, motivate”).        Ohio Jury Instructions, CR Section
523.03(A)(6)-(7). Furthermore, circumstantial evidence has the same probative value
as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001)
(additionally, the defendant’s intent can be gathered from the surrounding facts and
circumstances).
       {¶25} Therefore, the state was not limited to presenting the minimum
evidence: the detective’s testimony Appellant admitted telling Horstman to insert her
fingertip in the child’s vagina; Horstman’s testimony Appellant told her to insert her
finger in the child’s vagina; and Horstman’s testimony she then complied with this
request. As “asking” is not the sole definition relevant to soliciting, the state was not
limited to evidence Appellant asked Horstman to commit the offense.
       {¶26} The one photograph clearly evidencing the act of penetration
demonstrated the offense of rape committed by Horstman, the principal.              The
photographs immediately leading up to the act were not other acts of evidence.
Horstman testified Appellant procured and solicited her to “do better” than merely
placing her finger near and on the child’s private parts and asked her to insert her
fingertip. These photographs represent the crime in action.
       {¶27} Appellant’s progressive statements to the detective from receiving
Horstman’s unsolicited photographs, to asking for naked photographs of the child, to
asking her to insert her fingertip were part of the investigation, in a case where the
                                                                                    -9-

defense claimed his final admission to police was untrue.        His communications
seeking naked photographs of the victim provide the context of the rape offense. The
communications show the scheme, plan, or system he utilized. The progression and
dynamics of the relationship between Appellant and Horstman also provide
background.      Statements such as “U don’t tell daddy no” are indicative of this
relationship. (It must be emphasized that the subject of the communications and of
the child pornography was the victim who was raped during one of the pornographic
photo shoots.)
      {¶28} The evidence shows Appellant’s intent and absence of mistake. The
insertion request and rape occurred while Horstman was complying with Appellant’s
request for photographs of the child naked. Some evidence supports Appellant’s
statement that he wanted to see how much Horstman would do, such as the
testimony concerning the pacifier. This request near or after the offense constitutes
circumstantial evidence of his knowledge and involvement as does his request for
Horstman to “ditch” her phone. Furthermore, the texts recovered from Horstman’s
phone by police connect Appellant’s phone number with the crime, in turn connecting
the photographs recovered from her phone to Appellant and connecting them all to
the social media account recovered by the victim’s father. The evidence identifies
Appellant as the person Horstman met online and never met in person.
      {¶29} Additionally, Appellant’s requests for photographs and videos of the
child’s vagina were part of an online conversation discovered by the child’s father and
provided to police; this sparked the investigation. Within this conversation, Appellant
asked Horstman: “Have you been playing with little babygirl pussy?” and “You miss
playing with her pussy?”      This confirms Appellant’s knowledge, approval, and
involvement. It also supports Horstman’s commission of sexual acts against her
daughter, which Appellant conceded was admissible.              Such comments are
inextricably related to the offense at issue. These comments combined with his
continued requests to see the child’s vagina and additional statements, such as “You
better have daddy some pics and video of u and little babygirl,” show his
encouragement of Horstman’s behavior. The evidence corroborates the mother’s
testimony that Appellant asked her to insert her fingertip after she placed her finger
                                                                                 -10-

near or on the child’s vagina, as opposed to Appellant’s theory of the case that
Horstman sent unsolicited photographs and inserted her finger without his solicitation
or procurement. In sum, the evidence is part of the operative facts of the case and
not evidence of other acts unrelated to this crime.
       {¶30} Regarding Evid.R. 403(A), “evidence against a defendant is meant to
be prejudicial; it is only unfair prejudice that concerns the court and only unfair
prejudice that can substantially outweigh the probative value.” State v. Agee, 7th
Dist. No. 12 MA 100, 2013-Ohio-5382, ¶ 40, citing Evid.R. 403(A).            The five
photographs showing Horstman’s finger near, on, or in the victim’s vagina were direct
evidence of the rape. The photographs correspond to Horstman’s movement and
progress under Appellant’s direction.     There is no indication the evidence was
admitted to appeal to the jurors’ emotions as opposed to their intellect. See State v.
Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 112. Of course,
photographs showing the progress during the digital rape of a baby are disturbing.
Yet, they fall under Appellant’s acknowledgement that evidence demonstrating
Horstman committed rape are admissible. We note the state identified six other
photographs but withdrew these photographs during the admission of exhibits into
evidence. (Tr. 374-375). As for photographs of Horstman’s underwear or of her
without a shirt, these created no discernible prejudice to Appellant’s defense in a
case where the jury was to determine Appellant’s involvement in Horstman’s digital
rape of her own child, which she memorialized in a photograph.
       {¶31} Moreover, the probative value of the evidence within Appellant’s
recovered communications was high and related to various aspects of the case.
Since he and Horstman successfully deleted other communications, these were the
last remnants of Appellant’s communications concerning the victim’s vagina and the
assault on the child. Lastly, Appellant failed to show the probative value of the
contents of his police interview was substantially outweighed by the danger of unfair
prejudice.   In sum, the trial judge reasonably found the probative value of the
evidence (within the communications, photographs, and Appellant’s statements to
police) was not substantially outweighed by the danger of unfair prejudice.       We
                                                                                   -11-

refuse to substitute our judgment for that of the trial court on these evidentiary
matters.
       {¶32} There is one final category of evidence that we will address even
though Appellant makes general as opposed to specific arguments regarding the
evidence. Horstman testified Appellant asked for a photograph of a 13 or 14 year old
girl (who lived where Horstman said she was staying) “wearing less as you can” and
told Horstman to find and wear the girl’s underwear. (Tr. 219-221). Although within
the same online conversation, these requests are less related to the offense than the
portions of the communications referring to the victim. The trial court instructed the
jury, in a “clarifying” instruction, the evidence was presented “by way of background
and the development of the relationship between” Horstman and Appellant and was
not relevant to the issue of whether a rape was committed. (Tr. 227-228). To the
extent this evidence may have been excludable, prejudice to the defense is not
apparent due to the plethora of other supporting evidence discussed throughout this
opinion and the clarifying instruction by the trial court.     For all of the foregoing
reasons, Appellant’s first assignment of error is overruled.
              ASSIGNMENT OF ERROR TWO: SUPPRESSION
       {¶33} Appellant’s second assignment of error provides:
       “The trial court erred in denying the appellant’s motion to suppress evidence
obtained from the Appellant on June 17 & 18, 2015.”
       {¶34} Appellate review of a suppression decision presents a mixed question
of law and fact. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d
1168, ¶ 100. Legal conclusions are reviewed de novo. State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. However, factual decisions are
afforded great deference. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982).
This is because the trial court is the fact-finder who occupies the best position from
which to resolve factual questions, evaluate the credibility of witnesses, and weigh
the evidence. See State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).
       {¶35} Appellant’s suppression motion asked the trial court to suppress his
verbal and written statements to law enforcement, stating:             “The defendant
acknowledges signing a Miranda waiver form, but contends that the alleged waiver
                                                                                   -12-

was not knowingly, intelligently, and voluntarily made.” The motion then stated the
prosecution has the burden to prove the defendant’s statements were not made in
violation of his Miranda rights.
       {¶36} Two days prior to the suppression hearing, Appellant filed a motion for
funds for an expert to testify about Appellant’s Miranda waiver. The motion noted the
court advised at a prior hearing:     the question of whether the defendant was in
custody so as to require Miranda prior to questioning was the initial issue; and if
Miranda was required, the issue would then become whether he knowingly,
voluntarily, and intelligently waived his Miranda rights.
       {¶37} As the suppression hearing began, the trial court explained the issue
concerning the Miranda waiver need not be addressed until the custodial
interrogation issue was addressed. (Supp.Tr. 2, 4). The court reviewed some law
and listed ten factors it would consider in evaluating the totality of the circumstances
as to whether a reasonable person would assess the situation as custodial.
(Supp.Tr. 4-7). When asked how the June 18, 2015 phone conversation could be
custodial, defense counsel advised it was the fruit of the poisonous tree, placing the
focus on the June 17, 2015 interview conducted at Appellant’s house. (Supp.Tr. 41).
       {¶38} The state presented testimony by the investigating detective.           He
interviewed Appellant on June 17, 2015, accepted his written letter of apology that
day, and called Appellant on June 18, 2015. The detective explained how he was
present during the execution of the search warrant by the local authorities. He and a
task member stood in the front yard and spoke to Appellant while the local authorities
secured the residence before beginning their search for child pornography. (Supp.Tr.
12-14, 29). Appellant was not arrested or in handcuffs. The detective said he never
touched Appellant and used no force or orders, noting he makes it a point to be very
nice to suspects. (Supp.Tr. 24).
       {¶39} The detective advised Appellant: he was there to talk about Peggy
Horstman; Appellant was not under arrest; and he did not have to talk. The detective
then presented Appellant with a Miranda rights form to look over while the detective
read his rights to him. (Supp.Tr. 17). Appellant said he understood his rights and
                                                                                      -13-

signed the waiver form. (Supp.Tr. 17-18). The detective testified he performed this
task as an “extra layer of caution.” (Supp.Tr. 34-35).
       {¶40} Approximately five minutes into the conversation, when the local
authorities indicated the house was secure, the detective asked if there was a place
they could “go and talk without embarrassing him in front of his parents * * *.”
(Supp.Tr. 14, 18-19). Appellant led the detective and the task force member to his
upstairs bedroom. Although there was a door to reach the upstairs, the detective
does not remember a door on Appellant’s room itself; if there was a door, it was open
during their talk. (Supp.Tr. 36-37). During this part of the conversation, the detective
sat while Appellant stood; the detective invited Appellant to sit, as it made him
uncomfortable to sit while Appellant was standing, but Appellant declined and
remained standing. (Supp.Tr. 20, 29).
       {¶41} Appellant did not appear to be under the influence of any substance
and said he was not. (Supp.Tr. 20-21). The detective testified Appellant provided
details which corroborated details known by the detective but which were not
provided to Appellant by the detective. (Supp.Tr. 21-22). The detective asked if
Appellant wanted to write a letter of apology, and Appellant said he did. (Supp.Tr.
22). He wrote the letter while they were on his front porch. The detective left without
arresting Appellant. When asked by defense counsel, the detective acknowledged
he told Appellant: “I am not saying you are not going to be in any trouble, but you’re
not going to jail.” (Supp.Tr. 40). The detective’s entire encounter with Appellant was
recorded. (Supp.Tr. 17). The recording was not played at the suppression hearing.
       {¶42} At the close of the suppression hearing, the parties agreed the
evidence was submitted on the threshold issue. (Supp.Tr. 41-42). The trial court
overruled the suppression motion finding there was no custodial interrogation. The
court opined, “this was not even close to being custodial interrogation.” (Supp.Tr.
42). The court then asked if this ruling made moot the motion for funds for an expert
as to the Miranda waiver. Defense counsel answered in the affirmative and withdrew
the motion in light of the court’s ruling on the custodial interrogation. (Supp.Tr. 43).
       {¶43} On appeal, Appellant claims the due process clause requires an inquiry
into the voluntariness of his confession. He notes this is a separate inquiry from the
                                                                                      -14-

evaluation of whether he was subjected to a custodial interrogation, citing Dickerson
v. United States, 530 U.S. 428, 120 S.Ct. 2326 (2000). He argues the mere filing of a
motion to suppress a confession requires the state to prove (by a preponderance of
the evidence) the confession was voluntary, citing Lego v. Twomey, 404 U.S. 477,
489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). However, Lego specifically explained,
“when a confession challenged as involuntary is sought to be used against a criminal
defendant at his trial, * * * the prosecution must prove at least by a preponderance of
the evidence that the confession was voluntary.”         (Emphasis added)       Id.    As
Appellant emphasizes in his brief, the case also distinguishes a self-incrimination
Miranda rights waiver issue from an issue with a due process violation for a coerced
confession. See id. at 488.
       {¶44} Appellant complains the detective led him to believe his actions would
not amount to a serious level of trouble, which induced him to make incriminating
statements. He concludes the totality of the circumstances show his confession was
not voluntary. In support, he cites the Sixth District’s Arrington case, which held
promises of leniency or misstatements of the law on punishment meant a defendant’s
incriminating statements were not being freely self-determined and were involuntary
and inadmissible “as a matter of law.” See State v. Arrington, 14 Ohio App.3d 111,
470 N.E.2d 211 (6th Dist.1984). But see State v. Robinson, 9th Dist. No. 16421
(criticizing Arrington for concluding the confession was involuntary as a matter of law
due to merely one factor). “A promise of leniency, while relevant to the totality-of-the-
circumstances analysis, does not require that the confession be automatically
suppressed.” State v. Bays, 87 Ohio St.3d 15, 23, 716 N.E.2d 1126 (1999). In
addition, “assuming that the officers lied to [the defendant], that would not necessarily
make his statements involuntary. The use of deceit is merely * * * a factor bearing on
voluntariness.” State v. Cooey, 46 Ohio St.3d 20, 27, 544 N.E.2d 895 (1989).
       {¶45} Even where Miranda warnings are not required (or were validly given),
the due process clause is interpreted to mean a confession is involuntary if the
totality of the circumstances show the defendant's will was overcome by the
circumstances surrounding the confession. See Dickerson, 530 U.S. at 434 (the due
process issue of voluntariness “depend[s] upon a weighing of the circumstances of
                                                                                                    -15-

pressure against the power of resistance of the person confessing”); State v. Eley, 77
Ohio St.3d 174, 178 672 N.E.2d 640 (1996) (voluntary waiver of Miranda rights and
voluntary giving of statement are distinct issues; both tests view the totality of the
circumstances; test for voluntary confession is not triggered unless there are coercive
police tactics). In evaluating a defendant's claim that his confession was involuntarily
induced, the court considers the totality of the circumstances. Bays, 87 Ohio St.3d at
22.
          {¶46} Relevant circumstances to consider include: the age and mentality of
the defendant; the demeanor of the defendant during the interview, including whether
he was under the influence of a substance; the defendant’s prior criminal experience;
the provision of Miranda rights; the length of the interrogation; the intensity of the
interrogation; the frequency of interrogation if it occurred in stages; the existence of
physical deprivation, mistreatment, or abuse; the existence of threats; and the
existence of inducement. See id. at 22-23. The court is to weigh the factors to
ascertain whether the factors negating voluntariness outweigh those pointing to
voluntariness. See id. at 23.
          {¶47} As for the totality of the circumstances presented to the court at the
suppression hearing,1 Appellant was standing in his front yard while a search warrant
was being executed. He was not in handcuffs. Appellant did not give any indications
he was under the influence of any substance. He was advised he was not under
arrest.    He was read his Miranda rights, and he signed a Miranda waiver.                          The
detective was accompanied on the interview by a task force member; neither wore a
uniform. The detective did not use physical force or touch Appellant. He in no way
overpowered Appellant and was very friendly. When asked if there was somewhere
more private to speak, Appellant led the detective to his upstairs bedroom. The
bedroom door was not closed. The detective sat while he interviewed Appellant;
Appellant stood for the interview. Appellant did not appear particularly nervous or
emotional. The interview was not lengthy or intense. The defense elicited from the

1 The interview was recorded. It was played for the jury at trial. However, it was not played by either
side at the suppression hearing. The state presented the detective’s testimony at the suppression
hearing. Defense counsel mentioned he could play the recording if the detective disagreed with his
characterization of the contents of the interview.
                                                                                    -16-

detective testimony that he told Appellant, “I’m not saying you are not going to be in
any trouble, but you’re not going to jail.” (Supp.Tr. 40). Appellant was not arrested
that day (as the officer advised him). We also note the indictment showed Appellant
was 39 years old.
       {¶48} At the beginning of the suppression hearing, the trial court mentioned
various circumstances to be considered when evaluating the totality of the
circumstances for custodial interrogations, including: location of interview at home
versus a police station; arrested, handcuffed, or freedom to leave restricted in any
other manner; threats or physical intimidation; verbal domination by police; and
existence of police actions to trick or coerce the defendant into speaking. (Supp.Tr.
5-7). At the end of the hearing, the court found Appellant’s interview was “not even
close to being custodial interrogation.” (Supp.Tr. 42).
       {¶49} Miranda rights are derived from the Fifth Amendment’s privilege against
self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). A valid
waiver of Miranda rights is only required prior to a custodial interrogation. Id. at 479;
State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997) (police are not
required to administer Miranda warnings to everyone whom they question, even if the
subject is a suspect). The question as to whether a custodial interrogation occurred
involves an evaluation of “how a reasonable man in the suspect's position would
have understood his situation.” Biros, 78 Ohio St.3d at 440. The trial court believed
the detective’s testimony. No testimony was presented to counter the overriding
impression conveyed by the detective’s testimony that Appellant was not in custody
during his interview. Considering the totality of the circumstances, the trial court’s
decision was within its province in assigning credibility and weighing the evidence at
the suppression hearing.
       {¶50} Nonetheless, Appellant does not contest the decision finding he was
not in custody. Nor does he contend the Miranda waiver was involuntary (since any
statements alleged to be inducements occurred after the waiver was signed).
Appellant complains the trial court considered whether there was a custodial
interrogation but did not consider whether his confession was voluntary.
                                                                                   -17-

      {¶51} However, Appellant’s suppression motion specifically raised whether
his waiver of Miranda rights was valid. The court advised Miranda rights were not
required when there is no custodial interrogation and said the hearing would initially
proceed on this topic. As acknowledged in a subsequent motion for expert witness
fees, this position of the trial court was conveyed to the defense before the day of the
suppression hearing. The defense did not amend the suppression motion or file a
new suppression motion. The time for doing so had not expired. See Crim.R.12
(C)(3),(D). See also Crim.R. 12(H) (trial court can permit the issue to be raised even
after the time expired). The defense did not make a verbal motion to suppress the
confession on the grounds it was involuntary or coerced by a promise he would not
go to jail. (In addition, the defense withdrew the remainder of the suppression motion
at the end of the suppression hearing.)
      {¶52} Where a suppression motion is filed asserting a specific argument, a
trial court does not commit error in failing to address a different argument. Likewise,
the state cannot be characterized as having failed to meet its burden at a
suppression hearing on an issue that was not raised as “[t]he State's burden of proof
in a motion to suppress hearing is limited to those contentions that are asserted with
sufficient particularity to place the prosecutor and court on notice of the issues to be
decided.” State v. Diaz, 5th Dist. No. 2016 CA 00113, 2017-Ohio-262, ¶ 23, citing
City of Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988) (“The
prosecutor must know the grounds of the challenge in order to prepare his case, and
the court must know the grounds of the challenge in order to rule on evidentiary
issues at the hearing and properly dispose of the merits.”)
      {¶53} A motion for a court order “shall state with particularity the grounds
upon which it is made and shall set forth the relief or order sought.        It shall be
supported by a memorandum containing citations of authority * * *.” Crim.R. 47 (and
the court may allow an oral motion).       “By requiring the defendant to state with
particularity the legal and factual issues to be resolved, the prosecutor and court are
placed on notice of those issues to be heard and decided by the court and, by
omission, those issues which are otherwise being waived.” State v. Shindler, 70
Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) (“in order to require a hearing on a motion
                                                                                     -18-

to suppress evidence, the defendant must state the motion's legal and factual bases
with sufficient particularity to place the prosecutor and court on notice of the issues to
be decided”), citing, e.g., State v. Desjardins, 401 A.2d 165, 169 (Me.1979) (“[T]he
suppression movant must articulate in his motion with sufficient particularity the
specific reason on which he bases his claim that the seizure without warrant was
illegal, so that the court will recognize the issue to be decided.”). See also State v.
Shelby, 4th Dist. No. 15CA20, 2016-Ohio-5721, ¶ 21 (defendant forfeited issue
presented on appeal where motion to suppress claimed statement was involuntary
due to intoxication, but appellate brief claimed statement was not voluntary because
he decided to speak to law enforcement as a result of promises of leniency).
       {¶54} In sum, Appellant specifically challenged his Miranda rights waiver in
his suppression motion and at the suppression hearing. He did not contend his
confession was involuntary due to police inducement via downplaying his offense and
stating he would not go to jail. Accordingly, this assignment of error is without merit.
       ASSIGNMENT OF ERROR THREE: SUFFICIENCY & WEIGHT
       {¶55} Appellant’s third assignment of error contends:
       “The trial court erred in convicting the appellant of complicity to rape because
there was insufficient evidence and/or the appellant’s conviction was against the
manifest weight of the evidence.”
       {¶56} Whether the evidence is legally sufficient to sustain a conviction is a
question of law.    State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541
(1997). It is a test of adequacy. Id. An evaluation of a witness’s credibility is not
involved in a sufficiency review. State v. Yarbrough, 95 Ohio St.3d 227, 240, 2002-
Ohio-2126, 767 N.E.2d 216, ¶ 79. Rather, the question is whether the evidence, if
believed, is sufficient. See id. at ¶ 82; State v. Murphy, 91 Ohio St.3d 516, 543, 747
N.E.2d 765 (2001).      In other words, sufficiency involves the state’s burden of
production rather than its burden of persuasion. See Thompkins, 78 Ohio St.3d at
390 (Cook, J., concurring). In viewing a sufficiency of the evidence argument, the
evidence and all rational inferences are evaluated in the light most favorable to the
prosecution. See State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A
conviction cannot be reversed on sufficiency grounds unless the reviewing court
                                                                                   -19-

determines that no rational juror could have found the elements of the offense proven
beyond a reasonable doubt. Id.
      {¶57} A person who is guilty of complicity in the commission of an offense is
prosecuted and punished as if he were a principal offender. R.C. 2923.03(F). In
accordance, complicity need not be charged in the indictment. State v. Hand, 107
Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 181; R.C. 2923.03(F) (“A charge of
complicity may be stated in terms of this section, or in terms of the principal
offense.”). The division of the complicity statute relied upon by the state provides:
“No person, acting with the kind of culpability required for the commission of an
offense, shall * * * Solicit or procure another to commit the offense.”            R.C.
2923.03(A)(1). As the jury was instructed, solicit means “to seek, to ask, to influence,
to invite, to tempt, to lead on, to bring pressure to bear,” and procure means “to get,
obtain, induce, bring about, motivate.”        Ohio Jury Instructions, CR Section
523.03(A)(6)-(7). See also State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391,
819 N.E.2d 215, ¶ 68.
      {¶58} As previously stated, the state must show the defendant shared the
criminal intent of the principal, and this intent may be inferred from the circumstances
surrounding the crime and from the defendant’s conduct before, during, and after the
offense.   State v. Johnson, 93 Ohio St.3d at 245.         Additionally, circumstantial
evidence and direct evidence inherently possess the same probative value. See,
e.g., In re Washington, 81 Ohio St.3d 337, 340, 691 N.E.2d 285 (1998); State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus.
      {¶59} Appellant’s argument relates to his complicity; he does not contest the
evidence showing the elements of rape (committed by Horstman upon the victim).
Appellant argues the state did not prove he specifically asked Horstman to perform
the act of inserting her finger into the victim’s vagina.     He notes the detective
acknowledged they did not recover a message evidencing Appellant’s alleged
request. He also states his letter of apology does not show he solicited or procured
Horstman to commit the rape as it was not specific.
      {¶60} Considering Appellant’s admission to the detective that he asked
Horstman to insert her fingertip and Horstman’s testimony that Appellant asked her to
                                                                                   -20-

insert her finger inside the child’s vagina, the arguments made by Appellant do not
relate to sufficiency of the evidence. In other words, the evidence, if believed, was
sufficient to prove his complicity. See Yarbrough, 95 Ohio St.3d 227 at ¶ 82; Murphy,
91 Ohio St.3d at 543. Upon viewing the evidence in the light most favorable to the
prosecution, a rational juror could have found the elements of the offense proven
beyond a reasonable doubt. See Goff, 82 Ohio St.3d at 138.
      {¶61} Even if a trial court’s judgment is sustained by sufficient evidence, a
defendant can argue the judgment is against the weight of the evidence. Thompkins,
78 Ohio St.3d at 387. Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.” Id. It is not a question of mathematics but depends on the effect of
the evidence in inducing belief. Id. Weight of the evidence involves the state’s
burden of persuasion, whereas sufficiency involves the burden of production. Id. at
390 (Cook, J., concurring). The appellate court is to review the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-
4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, 78 Ohio St.3d at 387.
      {¶62} This discretionary power of the appellate court is to be exercised only in
the exceptional case in which the evidence weighs heavily against the conviction. Id.
Where a criminal case has been tried by a jury, only a unanimous appellate court can
reverse on the ground that the verdict was against the manifest weight of the
evidence. Thompkins, 78 Ohio St.3d at 389, citing Section 3(B)(3), Article IV of the
Ohio Constitution. The power of the court of appeals to sit as the “thirteenth juror” is
limited in order to preserve the jury's role with respect to issues surrounding the
credibility of witnesses and the weight of the evidence. Thompkins, 78 Ohio St.3d at
387, 389.
      {¶63} In other words, “the weight to be given the evidence and the credibility
of the witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio
St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio
                                                                                     -21-

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact
occupies the best position to weigh the evidence and judge the witnesses' credibility
by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore generally
proceed under the premise that when there are two fairly reasonable views of the
evidence or two conflicting versions of events, neither of which is unbelievable, we do
not choose which one we believe is more credible. State v. Gore, 131 Ohio App.3d
197, 201, 722 N.E.2d 125 (7th Dist.1999).
       {¶64} The jury heard and saw each witness testify on direct and on cross-
examination. It was the jury’s job to evaluate any behavioral pauses or verbal/non-
verbal disconnects during questioning. The jury viewed the demeanor, gestures,
voice inflections, and eye movements of Horstman and Appellant as they testified;
the jury was able to evaluate whether any of these indicators tended to project an
aura of truthfulness or untruthfulness. It was within the province of the jury to find
Horstman’s story credible. The jury could rationally disbelieve the story presented by
Appellant when he testified at trial and believe Appellant told the detective the truth at
the end of the interview and the next day over the phone.
       {¶65} As aforementioned, in evaluating a weight of the evidence argument,
we review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether, in resolving conflicts in
the evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. Lang, 129 Ohio
St.3d 512 at ¶ 220, citing Thompkins, 78 Ohio St.3d at 387. Upon such review, we
conclude this is not an exceptional case where the jury clearly lost its way and
created a manifest miscarriage of justice. We refuse to sit as the thirteenth juror in
this case. Appellant’s final assignment of error is overruled.




       {¶66} For all of the foregoing reasons, the trial court’s judgment is affirmed.



Waite, J., concurs.
                         -22-


DeGenaro, J., concurs.
