[Cite as State v. Greene, 2020-Ohio-3684.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

State of Ohio,                                  :    Case No. 19CA8

        Plaintiff-Appellee,                     :

        v.                                      :    DECISION AND
                                                     JUDGMENT ENTRY
Matthew Lee Greene,                             :

        Defendant-Appellant.                    :    RELEASED 7/01/2020


                                             APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio for appellant.

Anneka P. Collins, Highland County Prosecutor, and Adam J. King, Highland County
Assistant Prosecutor, Hillsboro, Ohio, for appellee.

Hess, J.

        {¶1}     Matthew Lee Greene appeals his rape convictions and contends that the

trial court erred by denying his motion to suppress his statements made to an investigating

detective. He argues that his statements (1) were not voluntary and (2) that he was

subject to a custodial interrogation and his Miranda rights were improperly given. We

conclude that the trial court did not err in denying Greene’s motion to suppress because

the investigators did not use coercive police tactics during the interview. Greene’s

statements were voluntary. In his motion to suppress, Greene conceded that the interview

was non-custodial and did not challenge the Miranda warning. Therefore, he has waived

those arguments on appeal. We overrule Greene’s sole assignment of error and affirm

the trial court’s judgment.
Highland App. No. 19CA8                                                   2


                                 I. PROCEDURAL HISTORY

       {¶2}   In October 2018, the Highland County Grand Jury indicted Greene on two

counts of rape, in violation of R.C. 2907.02(A)(2), first degree felonies, for raping a minor

who resided with him. Prior to trial, Greene filed a motion to suppress statements he

made to investigators during an interview on the ground that his statements were not

voluntary. Greene did not contend that the interview was “custodial” in nature, nor did he

challenge the Miranda warning given after Greene confessed to engaging in sexual

activity with the victim. Rather he explicitly conceded, “at some point during the interview,

Defendant was apprised of his miranda [sic] rights. He was not in custody and the

interview took place at his residence.” The trial court denied the motion, finding that the

circumstances surrounding Greene’s statements showed that they were made voluntarily.

A jury found Greene guilty of both rape counts and the trial court sentenced Greene to a

total prison term of 20 years.

                                 II. ASSIGNMENT OF ERROR

       {¶3}   Greene assigns the following error for our review:

                    1. The motion to suppress was improperly denied.

                                  III. LAW AND ANALYSIS

                                   A. Motion to Suppress

                                   1. Standard of Review

       {¶4}   In general “appellate review of a motion to suppress presents a mixed

question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10

N.E.3d 691, ¶ 7. “When considering a motion to suppress, the trial court assumes the

role of trier of fact and is therefore in the best position to resolve factual questions and
Highland App. No. 19CA8                                                    3


evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court's

findings of fact if they are supported by competent, credible evidence.” Id. “ ‘Accepting

these facts as true, the appellate court must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.’ ” Codeluppi at ¶ 7, quoting Burnside at ¶ 8.

                              2. Voluntariness of Confession

       {¶5}   If a defendant challenges a confession as involuntary, the state must prove

a knowing, intelligent, and voluntary waiver by a preponderance of evidence. Miranda v.

Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Colorado v. Connelly,

479 U.S. 157, 168-169, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Voluntariness of a

confession is determined by “the totality of the circumstances, including the age,

mentality, and prior criminal experience of the accused; the length, intensity, and

frequency of interrogation; the existence of physical deprivation or mistreatment; and the

existence of threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051

(1976), paragraph two of the syllabus, death penalty vacated on other grounds, 438 U.S.

911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

       {¶6}   “The voluntariness of a confession is a question of law subject to de novo

review.” State v. McClellan, 4th Dist. Highland No. 18CA11, 2019-Ohio-4339, ¶ 22, citing

State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, ¶ 35. Unless we find

that the police used a coercive tactic, we need not assess the totality of the

circumstances. Id. citing State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d

104, ¶ 71. “Evidence of use by the interrogators of an inherently coercive tactic (e.g.
Highland App. No. 19CA8                                                    4


physical abuse, threats, deprivation of food, medical treatment or sleep) will trigger the

totality of the circumstances analysis.” State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d

844 (1988). “To support a determination that a confession was coerced, the evidence

must establish that: (1) the police activity was objectively coercive; (2) the coercion in

question was sufficient to overbear defendant's will; and (3) defendant's will was, in fact,

overborne as a result of the coercive police activity.” State v. Humphrey, 4th Dist. Ross

No. 10CA3150, 2010-Ohio-5950, ¶ 18, vacated on other grounds, 128 Ohio St.3d 397,

2011-Ohio-1426, 944 N.E.2d 1172, quoting United States v. Rigsby, 943 F.2d 631, 635

(6th Cir.1991); State v. McClellan, 4th Dist. Highland No. 18CA11, 2019-Ohio-4339, ¶ 18,

appeal not allowed, 157 Ohio St.3d 1540, 2020-Ohio-122, 137 N.E.3d 1218, ¶ 18.

       {¶7}   In his motion to suppress and at the suppression hearing, Greene argued

that his confession was involuntary because he told the police he had mental issues and

was taking a prescription drug, and he had not eaten or slept for some time. Additionally,

Greene argued that the police used deceptive tactics by misleading him about their

resources and the DNA evidence and by telling Greene they were trying to reunite the

family. Greene argues that the investigator used “unrelenting pressures and tactics” that

were “almost uniformly psychological tactics * * * deceptive in nature.”

       {¶8}   At the suppression hearing, Sergeant Chris Bowen of the Highland County

Sheriff Department testified that he and Detective Vincent Antinore interviewed Greene.

Detective Antinore conducted the interview, and when Greene confessed, Detective

Antinore read Greene his Miranda rights, which Greene waived and continued to talk.

Greene did not appear to be under the influence of any medication or intoxicated, his

speech was not slurred, he did not appear tired or unable to concentrate, and he
Highland App. No. 19CA8                                                    5


understood the questions, responded appropriately, and was speaking to them in a

conversational style.

       {¶9}   Detective Antinore testified that the interview occurred across the street

from Greene’s home, outside in a parking lot. Detective Antinore testified that Greene

did not smell of alcohol, was not slurring his speech, did not have red eyes, balance

issues, or other signs of intoxication and was answering his questions in an appropriate

manner. Detective Antinore did not read Greene his Miranda rights initially because

Greene was not in custody and he had no intention of taking Greene into custody.

However, the interview turned custodial after Greene admitted he had sexual contact with

the victim. After Detective Antinore read Greene his Miranda rights, Greene continued to

talk to him about specific details concerning sexual contact with the victim.

       {¶10} The state played the audio recording of the interview. Greene stated that he

had been suffering from depression and has “one of the worst mouths, and she should

have left 5,000 times ago with my mouth, okay? * * * I’m seeing a psychiatrist and shit

over my mouth * * * and I’ve got a lot of issues in my head that I need to get fixed.” Greene

admitted he and the victim “had words” the day after the victim turned 18 years old.

       {¶11} Detective Antinore explained that he had been investigating Greene and his

household and he had some concerns. Detective Antinore then exaggerated the

resources of the Highland County Sheriff Department:

       Q. * * * So as investigators in the detective’s division, what we do is we take
       a little bit of information that we get and we use all of our resources, because
       we’ve got a ton of resources, our resources are endless really. I mean we’ve
       got forensic scientists, forensic psychiatrists, we’ve got anything that you’ve
       seen on TV, double it by a hundred, we’ve got it okay? Those resources are
       available to us and we use those every day during the course of our
       investigations, all right? And we use those resources to kind of weed out
Highland App. No. 19CA8                                                 6


       facts from fiction, okay? Because everybody that files a report doesn’t
       always give you factual information.

       A. No.

       Q. It’s unreliable to take somebody’s Statement and run with it, okay? So
       we use those resources to figure out what direction to head next. And I’ve
       been using those resources throughout my investigation, okay?

       A. Sure.

Detective Antinore testified that he had not used any of those resources in his

investigation prior to interviewing Greene, even though he had told Greene otherwise.

       {¶12}    Greene initially denied raping or molesting the victim. However, Detective

Antinore explained hypothetically that he could have the victim’s bathing suit that has

Greene’s DNA on it. Greene explained the possible presence of his DNA on the victim’s

clothing by stating that on some occasions, the victim would be present and watch Greene

and his girlfriend having sex. Greene also admitted that he masturbates “all the time” and

his DNA could have been on a pair of the victim’s underwear if he wiped his penis off with

“whatever is lying on the floor.”

       {¶13} Several moments later, Detective Antinore told Greene, “It is my job as a

cop to serve you guys and help bring you back together” so he needed Greene to tell him

what happened. He also told Greene, “you, of all people, deserve this opportunity to get

your family back together.”

       {¶14} Greene’s girlfriend, who is the victim’s mother and has lived with Greene for

over 15 years, was present during the interview and interjected a question:

       C.H.: Okay. So if something did happen, and he [Greene] does say, ‘yes, it
       happened.’, what happens next?
Highland App. No. 19CA8                                                    7


       Detective Antinore: Depending on his version of how it happened, if he says,
       and that was…if he says ‘I held her down and raped her with a sock in her
       mouth.’ Right? ‘I held her down against her will, I tied her to the bed.’

       C.H.: Well, we know he’s not gonna say anything like that, so….

       Then Greene immediately confessed:

       A. Here’s one more thing, okay?

       Q. All right, I’m listening.

       A. Me and [victim] had sex, all right? Yes, she wanted it, too. There.

       Q. Okay. When? Tell me how it happened?

       A. Since the 8th grade.

       {¶15} Greene then confessed that he had sexual intercourse with the victim a

“handful of times” since she was in the 8th grade, using a sex toy, his penis, and his finger.

Greene also explained that he had anger issues and is bi-polar. Greene then asked if he

can leave to pick up his kids from practice. Detective Antinore asked Greene if he would

stay there for a minute while he speaks to Sergeant Bowen. Detective Antinore returned

to Greene and read him his Miranda rights. After Greene is read his Miranda rights, he

continued talking to Detective Greene, explaining that he also mentally abused the victim.

Greene does not ask for an attorney. Detective Antinore testified that after the interview

concluded, he took Greene into custody.

       {¶16} Detective Antinore stated that he did not have Greene’s DNA but that he

asked a hypothetical based on possibly having it. Detective Antinore also testified that he

did not have any medical evidence that might be protected by HIPPA, though he

acknowledged that he told Greene he did.
Highland App. No. 19CA8                                                  8


       {¶17} The trial court denied the motion to suppress because it determined that

Greene did not have a mental illness that would affect his understanding of the questions

and the interrogation techniques in which Detective Antinore suggested he had evidence

that he did not, in fact, have, was an acceptable and common technique. The trial court

found that based on the totality of the circumstances, Greene’s statements were

voluntary.

       {¶18} After carefully reviewing the record, we find, based on the totality of the

circumstances, that Greene’s statements were voluntary. Greene was a 35-year old man

with a high school education and no prior involvement with law enforcement. At Greene’s

request, his girlfriend was with him during the entire interview, which lasted approximately

30 minutes. Detective Antinore’s tone and treatment of Greene during the entire interview

was friendly and considerate. Greene did not sound confused, tired or under duress and

responded to Detective Antinore’s questions in a conversational style. There is no

evidence of physical deprivation, mistreatment, threats, improper inducement, or other

coercive police tactics. Although the detective repeatedly told Greene he wanted to hear

his version of events and encouraged him to be honest and tell the truth, admonitions to

tell the truth are both permissible and non-coercive. State v. Lewis, 7th Dist. Mahoning

No. 03 MA 36, 2005–Ohio–2699, ¶ 15.

       {¶19} Greene argues that he had a weakened mental state, but there is nothing

in the record that would support a finding that Greene had a weakened will or that his will

was easily overcome. Although Greene stated that he had anger issues, was bipolar, and

was seeing a psychiatrist, this alone does not establish a weakened will. “[M]ental illness,

absent coercive police activity, is not a sufficient basis for excluding [defendant’s]
Highland App. No. 19CA8                                                    9


statement.” State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081,

¶ 69. “The voluntariness of his statement depends on whether the police engaged in

coercion and misconduct and not whether [defendant] was mentally ill.” Id.

       {¶20} Detective Antinore’s statements about helping to bring the family back

together were not inherently coercive. Promises of help with “collateral problems,” such

as family, marital, or psychological difficulties, are not inherently coercive. State v. Sapp,

105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 84 (police statements to a bi-

polar defendant with anger issues that he could get psychological help were not coercive).

Detective Antinore did not offer to bring the victim home in exchange for a confession

from Greene, but suggested that Greene might “start the rebuilding process * * * with

some honesty right now.”

       {¶21} Detective Antinore’s statements that he hypothetically had DNA evidence

and that he had medical evidence of sexual contact were not coercive and did not

overbear Greene’s will.

       The tactic of lying to a suspect about the evidence is not in itself sufficient
       to render a confession involuntary. See Frazier v. Cupp, 394 U.S. 731, 737-
       739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (false statement that a
       codefendant had confessed did not make statement involuntary); Ledbetter
       v. Edwards, 35 F.3d 1062, 1066, 1070 (6th Cir.1994) (false statements that
       defendant's fingerprints had been found at crime scene and that the victim
       and two witnesses had identified him did not render confession
       involuntary); Bays, 87 Ohio St.3d at 22-23, 716 N.E.2d 1126 (misleading
       defendant about the strength of the evidence against him did not make
       confession involuntary). However, the fact that the detectives
       misrepresented the evidence is a relevant factor in evaluating whether the
       totality of the circumstances renders the confession involuntary. Frazier at
       739, 89 S.Ct. 1420.
Highland App. No. 19CA8                                                 10


State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 196 (though

detectives misled Ford by telling him that his DNA was found on shoes and gloves, it was

insufficient to render his confession involuntary).

        {¶22} We have reviewed the transcript of the suppression hearing and the audio

recording of Greene's interview with Detective Antinore and find that the trial court

properly denied Greene’s motion to suppress. No coercive police activity occurred.

Greene’s statements were made voluntarily.

                        3. Custodial Statements & Miranda Rights

        {¶23} Next Greene argues that his statements should have been excluded

because it was a custodial interrogation and his Miranda rights were improperly given.

Greene did not include these arguments as grounds for his motion to suppress in the trial

court and has waived them.

        {¶24} Crim.R. 12(C)(3) requires Greene to file a motion to suppress statements

made in his interview prior to trial and to state the grounds why it should be suppressed.

Under Crim.R. 12(H), failure to do so “shall constitute waiver of the defenses or

objections.” Crim.R. 47 requires the motion to, “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, and may also be supported by an

affidavit.”

        {¶25} In his motion and at the suppression hearing, Greene stated that he was

not in custody and the statement should be suppressed because it was not voluntarily

made. He did not argue that he was in custody or that his Miranda rights were improperly

given and he has waived those arguments. The Supreme Court of Ohio explained:
Highland App. No. 19CA8                                                     11


        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.

        We therefore hold that in order to require a hearing on a motion 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.

State v. Shindler, 70 Ohio St.3d 54, 58, 1994-Ohio-452, 636 N.E.2d 319 (1994); State v.

Shelby, 4th Dist. Lawrence No. 15CA20, 2016-Ohio-5721, ¶ 21-22 (where defendant’s

motion to suppress was based on involuntariness due to intoxication, he could not argue

for the first time on appeal that it was involuntary because of “promise leniency;” the

argument was waived); State v. Smith, 7th Dist. Belmont No. 15BE64, 2017-Ohio-2708,

¶ 53-54 (where defendant’s motion to suppress was based on his Miranda right waiver,

he could not argue for the first time on appeal that it was involuntary due to police

inducement; argument waived); Columbus v. Ridley, 2015-Ohio-4968, 50 N.E.3d 934, ¶

28 (10th Dist.) (“It is well-settled law that issues not raised in the trial court may not be

raised for the first time on appeal because such issues are deemed waived. This well-

settled waiver rule applies to arguments not asserted either in a written motion to

suppress or at the suppression hearing.”).

                                         IV. CONCLUSION

        {¶26} We overrule Greene’s assignment of error and affirm the judgment of the

trial court.

                                                                    JUDGMENT AFFIRMED.
Highland App. No. 19CA8                                                    12



                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

    It is ordered that a special mandate issue out of this Court directing the HIGHLAND
COUNTY COURT OF COMMON PLEAS, to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                           For the Court


                                           BY: ________________________
                                               Michael D. Hess, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
