[Cite as State v. Weiland, 2016-Ohio-5034.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2015CA00227
ROSS ALAN WEILAND

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2015 CR 1359


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         July 18, 2016

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                STEVEN A. REISCH
Prosecuting Attorney,                          Stark County Public Defender’s Office
Stark County, Ohio                             201 Cleveland Avenue S.W., Suite 104
                                               Canton, Ohio 44702
By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00227                                                       2

Hoffman, P.J.


      {¶1}   Defendant-appellant Ross Alan Weiland appeals his conviction entered by

the Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}   On June 21, 2015, Officers from the Canton Police Department responded

to a call of an unresponsive female at 509 11 St. N.W., Canton, Ohio. Upon arrival, Officer

McIntosh entered and proceeded to the second floor of the residence. In the upstairs

bedroom, Officer McIntosh found emergency medical responders attending to an

unconscious female. The unconscious female was believed to have overdosed on heroin.

Other individuals were present outside of the bedroom; one individual was identified as

the husband of the unconscious female. That individual was later identified as Ross Alan

Weiland, Appellant herein.

      {¶3}   Appellant had called 911 after finding his wife, Monique, unresponsive from

a heroin overdose. Appellant and Monique had injected heroin twelve hours prior to

Appellant's call to 911.     Responding emergency medical personnel attempted to

resuscitate Monique, but were unsuccessful.

      {¶4}   Emergency medical responders removed the woman from the residence

and transported her to the hospital, where she later passed away. Appellant asked Officer

McIntosh if he could go to the hospital with his wife. Officer McIntosh told Appellant the

best thing he could do was to cooperate in the investigation. Appellant told the officer

“that’s fine.” The entire encounter between Appellant and Officer McIntosh was captured

on Officer McIntosh's body camera. The recording was later introduced at the suppression

hearing herein.
Stark County, Case No. 2015CA00227                                                          3


       {¶5}   While Appellant was discouraged from accompanying his wife to the

hospital land told the best thing he could do was to cooperate in the investigation, he was

free to move about the house, with the exception of the bedroom where his wife was

found. Officers at the scene told Appellant he could be charged with a crime for aiding his

wife in obtaining heroin. As a result, Appellant told the officers where he obtained the

heroin. He explained his wife was attempting to "detox," was “cold and clammy,” and

talking "gibberish;" therefore, he injected her with heroin. When asked whether his wife

was able to inject herself with heroin, Appellant answered "no." When asked whether he

injected it for her, he replied, "yes." Following Appellant’s statements, the officers advised

Appellant of his Miranda rights.

       {¶6}   Later, Appellant voluntarily went with officers to the Canton Police

Department and cooperated with them in their investigation.

       {¶7}   On October 14, 2015, Appellant filed a motion to suppress the statements

made to officers at his residence. On November 6, 2015, the trial court conducted a

hearing on Appellant’s motion to suppress. Via Judgment Entry of November 20, 2015,

the trial court overruled the motion to suppress.

       {¶8}   On November 25, 2015, Appellant entered a plea of no contest to the

charges. On November 30, 2015, Appellant was convicted of the charges and the trial

court imposed a sentence of four years in prison.

       {¶9}   Appellant appeals, assigning as error,

       {¶10} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS HIS STATEMENTS.”
Stark County, Case No. 2015CA00227                                                            4




                                               I.

       {¶11} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. State v. Williams, 86 Ohio

App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not

against the manifest weight of the evidence and it has properly identified the law to be

applied, an appellant may argue the trial court has incorrectly decided the ultimate or final

issue raised in the motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623 (4th Dist.1993);

Guysinger.

       {¶12} At the suppression hearing, it was established Appellant had contacted 911

when he found his wife unresponsive after he had injected her with heroin 12 hours

earlier. Officer McIntosh testified he responded to the emergency call of an unresponsive

female, believed to have overdosed on heroin. Appellant informed the officers of the

source of the heroin after he was told he could be charged with a crime for obtaining the
Stark County, Case No. 2015CA00227                                                        5


heroin. The officers told Appellant the best thing he could do was to cooperate with the

investigation. Appellant was discouraged from accompanying his wife to the hospital,

where she was declared dead due to the heroin overdose.

        {¶13} Appellant told the officers his wife was attempting to “detox,” she was “cold

and clammy” and “talking gibberish;” therefore, he injected her. Appellant told the officers

his wife was unable to inject herself, so he had to inject her. He was then advised of his

Miranda rights. Tr. at 35. Appellant's bedroom he shared with his wife was filled with

needles. When asked by the officers to stay and answer questions, Appellant answered,

"that's fine."

        {¶14} Appellant maintains, although the questioning took place in his home, he

was not free to leave and the officers did not give him permission to accompany his wife

to the hospital. Appellant maintains the questioning occurred in a custodial setting.

        {¶15} The relevant inquiry is how a reasonable person in the suspect's position

would have understood the situation. Berkemer v. McCarty (1984), 468 U.S. 420, 441.

Relevant factors to consider in determining whether a custodial interrogation took place

are: (1) the mentality and prior criminal experience of the accused; (2) the location of the

questioning; (3) the duration of the questioning; (4) the intensity and frequency of

interrogation; (5) statements made during the interview; (6) the presence or absence of

physical restraints; (7) the existence of physical deprivation or mistreatment; (8) the

existence of threat or inducement; and (9) whether the interviewee was released at the

end of the interview. Howes v. Fields (2012), 132 U.S. 1181, 132 S.Ct. 1181, 1189, 182

L.Ed. 2d 17. Miranda warnings are required if the person is deprived of their freedom in
Stark County, Case No. 2015CA00227                                                         6


a significant way, which can be demonstrated by a "police-dominated atmosphere" in the

home. United States v. Craghead, 539 F.3d 1073 (CA 9 2008).

       {¶16} The requirement police officers administer Miranda warning applies only

when a suspect is subjected to both custody and interrogation. State v. Guysinger, 12th

Dist. No. 11CA3251, 2012-Ohio-4169, citing State v. Dunn, 131 Ohio St.3d 325, 2012-

Ohio-1008. Miranda rights only attach when both custody and interrogation coincide. Id.

An individual has a right to counsel only when he is in custodial interrogation, as a

suspect, or once adversary proceedings have commenced and he becomes a defendant.

Id.

       {¶17} The courts of this state have generally found an individual is not in custody

when questioning takes place in the individual's home and the individual is free to move

about and is questioned by an officer over a brief period of time. State v. Chenoweth, 2nd

Dist. No. 2010CA14, 2011-Ohio-1276.

       {¶18} Here, we find Appellant was not in custody at the time he was questioned,

as the questioning took place in his home, in response to a call for assistance. The officers

did not consider Appellant a suspect or the focus of the investigation initially. He was not

handcuffed during the investigation and no threats, intimidation or coercion occurred by

the officers while they were speaking with Appellant. Appellant's movement throughout

the house was not restricted. Despite his being discouraged from accompanying his wife

to the hospital or his inability to enter the bedroom (which was determined to be a crime

scene), we find he was not in custody.          Neutral parties were present during the

investigation. Appellant voluntarily participated in the questioning, answering “that’s fine”

upon being asked to stay and cooperate with the investigation. Immediately upon
Stark County, Case No. 2015CA00227                                                    7


Appellant’s making the incriminating statements, the officers advised Appellant of his

rights.

          {¶19} We find the testimony presented at the suppression hearing establishes a

reasonable person would not have believed he was in custody at the time Appellant made

the statements. Accordingly, we find the trial court did not err in denying Appellant's

motion to suppress herein.

          {¶20} The sole assignment of error is overruled.



By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
