[Cite as State v. Lynn, 2011-Ohio-6404.]




                             STATE OF OHIO, BELMONT COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO,                                   )
                                                 )      CASE NO.     11 BE 18
        PLAINTIFF-APPELLANT,                     )
                                                 )
        - VS -                                   )      OPINION
                                                 )
MICHAEL ANTHONY LYNN,                            )
                                                 )
        DEFENDANT-APPELLEE.                      )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from Common Pleas
                                                     Court, Case No. 10CR15.

JUDGMENT:                                            Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                             Attorney Chris Berhalter
                                                     Prosecuting Attorney
                                                     Attorney Daniel Fry
                                                     Assistant Prosecuting Attorney
                                                     147-A West Main Street
                                                     St. Clairsville, Ohio 43950

For Defendant-Appellee:                              Attorney Timothy Young
                                                     Ohio Public Defender
                                                     Attorney Katherine Szudy
                                                     Assistant State Public Defender
                                                     250 East Broad Street, Suite 1400
                                                     Columbus, Ohio 43215

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

                                                     Dated: December 7, 2011
VUKOVICH, J.
       ¶{1}   Plaintiff-appellant State of Ohio appeals the decision of the Belmont
County Common Pleas Court granting defendant-appellee Michael Anthony Lynn’s
motion to suppress his confession. The trial court suppressed the confession because
it found that the confession was not made with a full comprehension of the legal
concept involved in a waiver of the right to remain silent. The state is of the position
that the trial court’s decision is not supported by substantial credible evidence. For the
reasons expressed below, given our deferential review of a trial court’s position on
credibility of the evidence, the judgment of the trial court is hereby affirmed.
                              STATEMENT OF THE CASE
       ¶{2}   On February 3, 2010, Lynn was indicted for having sexual conduct with a
child in violation of R.C. 2907.02(A)(1)(b), a third-degree felony. Lynn pled not guilty
to the offense.
       ¶{3}   In April 2010, he filed a three part motion. The motion asserted he was
not competent to stand trial, that the confession was involuntary, and that the victim
was incompetent to testify at trial. As to the first branch of the motion, in May 2010,
the trial court found Lynn to be incompetent to stand trial and ordered him to be
committed to Appalachian Behavioral Healthcare.
       ¶{4}   His competency was later restored in mid September 2010, and the court
then proceeded to determine the second branch of the April 2010 Motion. Dr. Kristen
E. Haskins was appointed by the court to examine Lynn to determine whether he was
capable of making a knowing, intelligent, and voluntary waiver of his Miranda rights
and whether his statements to the investigator were voluntary (term used in the
context of forensic psychology and criminal law practice). 09/30/10 J.E. Dr. Haskins
interviewed Lynn on two separate occasions and issued a report. Her testimony and
report was introduced at a suppression hearing. Following the hearing, the trial court
sustained the motion finding that “the police examiner was unaware of defendant’s
multiple mental handicaps and that as a consequence of these handicaps, the
defendant did not fully comprehend the legal concept involved in a waiver of the right
to remain silent.” 04/28/11 J.E. Thus, the statements were suppressed. The state
immediately appealed that decision and filed a certification pursuant to Crim.R. 12(K).
                                 ASSIGNMENT OF ERROR
       ¶{5}   “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
SUPPRESSING APPELLEE’S CONFESSION PRIOR TO TRIAL.”
       ¶{6}   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, ¶100. On
factual matters, the trial court occupies the best position to evaluate the credibility of
witnesses and weigh the evidence. Id., citing State v. Mills (1992), 62 Ohio St.3d 357,
366. Thus, factual findings are accorded great deference. Id., citing State v. Fanning
(1982), 1 Ohio St.3d 19, 20. The trial court's legal conclusions are reviewed de novo.
Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, ¶8.
       ¶{7}   The first paragraph of the state’s argument as to why the suppression
ruling was incorrect provides:
       ¶{8}   “The record before the Court contains absolutely no new evidence that
Appellee’s ‘will was overborne or that his capacity for self-determination was critically
impaired because of coercive police conduct during his non-custodial interrogation on
November 27, 2009. The trial court erred in making its finding that the Appellees
confession to the crime of Rape was involuntary. It is not supported by substantial
credible evidence.” (Underlining in Original).
       ¶{9}   The state’s use of an underline draws this court’s attention to its position
that the interview was a non-custodial interrogation and, as such, Miranda rights were
not required to be given and waived. The problem with this position is that the state
never made this argument to the trial court as a reason why the motion to suppress
should be overruled. Rather, at the suppression hearing, the state’s position was that
the confession was made knowingly, voluntarily and intelligently and thus, there was
no basis for suppression. Since the argument about whether or not the interview was
custodial or noncustodial was not asserted, it cannot be raised for the first time on
appeal. State v. Hoffner, 5th Dist. No. 2009 CA 00251, 2010-Ohio-3128, ¶14, citing
State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus, overruled
on other grounds (1988), 49 Ohio St.3d 226. Thus, the argument is waived.
       ¶{10} The state is also asserting that the trial court suppressed the confession
because it found that the confession was involuntarily made. This is not an accurate
description of the trial court’s ruling. The trial court’s decision was that the confession
was suppressed because Lynn “did not fully comprehend the legal concept involved
in a waiver of the right to remain silent.” 04/28/11 J.E. (Emphasis added). Not fully
comprehending the right to remain silent is a statement that the right was not
intelligently waived. To comprehend a right is to understand the right. If you do not
understand the right, the right cannot be intelligently waived. Thus, the finding deals
with whether the waiver was intelligently made, not whether it was voluntary.
       ¶{11} The test used by the state “was overborne or that his capacity for self-
determination was critically impaired because of coercive police conduct” comes from
the United States Supreme Court in Colorado v. Connelly (1986), 479 U.S. 157 and
its progeny. In Connelly, the Court was asked to decide whether a confession was
involuntary based on the offender’s deficient mental condition. The Court held that the
defendant’s mental condition is a significant factor in the voluntariness calculus, but
that alone is not sufficient to conclude that the waiver was not voluntary.         Police
coercion is a necessary element in finding involuntariness of the waiver. Id. at 164-
167.
       ¶{12} Connelly and its progeny, however, are inapplicable because the trial
court did not make a finding on voluntariness of the waiver. Connelly only dealt with
whether the waiver was voluntary, not if it was intelligent and knowing. Police coercion
is only necessary to find that the waiver of Miranda rights was not voluntary; it is not
needed to find that the waiver was not knowingly and/or intelligently made. See State
v. McFarland, 2d Dist. No. 23411, 2010-Ohio-2395, ¶24-25 (analyzing knowing and
intelligent waiver of Miranda separately from the voluntariness of the waiver and only
addressing police coercion during the analysis of the voluntariness); State v. Chester,
10th Dist 08AP-1, 2008-Ohio-6679, ¶20-21 (same).            See, also, State v. Barnum
(Kan.App. 2007), 168 P.3d 67 (stating, “the primary legal issue in Connelly was the
voluntariness of the defendant's confession. The Court held that evidence of police
coercion is necessary to find that a confession is involuntary. However, where the
evidence shows, as in Barnum's case, that the defendant did not knowingly and
intelligently waive his Miranda rights, the confession can be suppressed by the district
court even in the absence of coercive police activity.”). As such, in our review of
whether the trial court’s decision is supported by credible evidence, we do not need to
find credible evidence of police coercion.
      ¶{13} We now turn our analysis to whether the trial court’s finding that Lynn did
not intelligently waive his Miranda rights is supported by competent credible evidence.
The United State Supreme Court has stated that the totality-of-the-circumstances
approach is adequate to determine whether there has been a waiver of Miranda rights.
Fare v. Michael C. (1979), 442 U.S. 707, 725. The totality approach requires inquiry
into all the circumstances surrounding the interrogation. Id. This includes evaluation
of age, experience, education, background, intelligence, and whether the offender has
the capacity to understand the warnings given him, the nature of his Fifth Amendment
rights, and the consequences of waiving those rights. Id.
      ¶{14} Thus, an individual's low intellect does not necessarily render him or her
incapable of waiving Miranda rights. See State v. Jenkins (1984), 15 Ohio St.3d 164,
233; State v. Hall (1976), 48 Ohio St.2d 325, 333. Rather, a person's low intellect is
but one of many factors under the totality of circumstances that a court must consider
in assessing the voluntariness of a Miranda waiver or confession. State v. Frazier
(2007), 115 Ohio St.3d 139, 154.
      ¶{15} It is the government’s burden to prove that the statements made were
not obtained in violation of the offender’s Miranda rights. United States v. Reese
(N.D.Ohio 2010), 1:09 CR 00145, 2010 WL 3730148, citing Miranda v. Arizona (1966),
384 U.S. 436, 475 and Connelly, 479 U.S. at 168. “The knowing, intelligent and
voluntary waiver of those rights must be proven by a preponderance of the evidence.”
Connelly, supra at 168.
      ¶{16} In the motion to suppress, Lynn requested an examination using Thomas
Grisso’s Instruments for Assessing Understanding & Appreciation of Miranda Rights.
This test is commonly referred to as the Grisso test and as the name suggests it is
only used to determine whether a defendant understands the Miranda Rights. The
court appointed Dr. Kristen E. Haskins to examine Lynn.
       ¶{17} There are not many cases in Ohio addressing whether a waiver is
intelligently made.   One case from the Eleventh Appellate District upheld the trial
court’s denial of a suppression motion where the offender’s IQ was 79, only completed
the 8th grade, was 32 years old at the time of the offense and was fully able to explain
his Miranda rights. State v. Bumgardner, 11th Dist. No. 2007-T-0016, 2008-Ohio-
1778, ¶39. There was an expert who offered his opinion as to why the offender did not
have a full understanding of the rights, however, the trial court did not find that opinion
credible and offered the following analysis as to why:
       ¶{18} “First, the Defendant could not wait to give his self serving explanations
to Dr. Fabian of why a particular right did not apply to his situation.          It therefore
appears to the Court that the Defendant not only has a basic understanding of the law
as it applies to him but he is well aware of the consequences of his failure to exercise
his rights to remain silent and have a lawyer present.           Secondly, the Defendant
presently has an outstanding understanding of his Miranda rights as this Court could
not imagine a better explanation of those rights and the meaning of them particularly
when we are talking about an individual that has an eighth grade education and an I.Q.
that suggests borderline verbal intelligence. It therefore becomes even more difficult
for this Court to give credit to Dr. Fabian's testimony that, in his opinion, the Defendant
would not have a significant ability at the time of questioning to fully appreciate his
right to remain silent due to his suggestibility in an interrogation setting.” Id. at ¶52.
       ¶{19} The Sixth Circuit has also reviewed the intelligent waiver issue in the
context of a habeas corpus petition. Garner v. Mitchell (2009), 557 F.3d 257. It
concluded that an examination using the Grisso test years after the police interrogation
that concluded that the offender may not have understood his Miranda warnings did
not result in a conclusion that the confession was not intelligently made. Id. Garner
was 19 years old at the time of the waiver, had an IQ of 76, and poor education. Id. at
263. The court stated that Garner’s conduct, speech and appearance at the time of
the interrogation indicated that his waiver was knowing and intelligent, notwithstanding
his diminished mental capacity. Id. at 266. Garner had invented a story about having
a fight with his girlfriend to explain to the taxicab driver why he was removing items
from the victim’s (who was not his girlfriend) apartment and he also admitted to the
police that the reason he set the couch on fire was to destroy any fingerprints left
behind. Thus, the court stated that Garner engaged in conduct prior to being arrested
that was “more consistent with a person attempting to avoid being caught than a
person who did not know what he was doing.” Id. Thus, the court concluded that
Garner did not have relief through habeas corpus because his conduct during and
leading up to the interrogation indicated that he understood and appreciated his
Miranda rights before executing the waiver, despite the experts indication that he may
not have understood those rights. Id. at 270.
       ¶{20} There was a dissent to that opinion. The dissent cites to a number of
cases where a low IQ coupled with other factors provided a basis to find that the
waiver was not intelligently made. Id. at 280-281. For instance, in one case, the
offender’s IQ was borderline retarded and he had difficulty understanding English (his
primary language was Spanish). U.S. v. Garibay (C.A.9, 1998), 143 F.3d 534. In
another case, two teenagers, who where 15 and 16 years old at the time they were
taken into custody who had no previous experience with the criminal process and
whose IQs were in the low 60’s were deemed to have not intelligently waived their
Miranda rights. Cooper v. Griffin (C.A.5, 1972), 455 F.2d 1142. In another case, it was
found that an offender with an IQ of 71 who read at a second grade reading level did
not intelligently waive the Miranda rights.     U.S. v. Aikens (C.A.D.C.1998), 13 F.
Supp.2d 28. As to the right to remain silent, the offender in Aikens stated that meant
“you can’t talk unless they ask you a question.” Id.
       ¶{21} Likewise, we note that other states have ruled on whether a Miranda
rights waiver was intelligently made.     An Illinois appellate court provides a good
explanation of what is needed for an intelligent waiver:
       ¶{22} “If intelligent knowledge in the Miranda context means anything, it means
the ability to understand the very words used in the warnings. It need not mean the
ability to understand far-reaching legal and strategic effects of waiving one's rights, or
to appreciate how widely or deeply an interrogation may probe, or to withstand the
influence of stress or fancy; but to waive rights intelligently and knowingly, one must at
least understand basically what those rights encompass and minimally what their
waiver will entail.” People v. Bernasco (1990), 138 Ill.2d 349, 363-64.
       ¶{23} In this case, Dr. Haskins was the only witness at the suppression
hearing.     In addition to testifying, she also submitted a report to the court and
submitted an answer to a written hypothetical submitted to her based on the facts of
this case.
       ¶{24} Dr. Haskins interviewed Lynn for a total of seven and half hours. During
that time she administered the Wechsler Adult Intelligence Scale (IQ test), the Wide
Range Achievement Test, Validity Indicator Profile, and the Structured Interview of
Reported Symptoms. The IQ test indicated that Lynn’s IQ was 73, which is in the
borderline range (his full scale IQ was better than approximately 4 out of 100
individuals in his age group). Borderline Range is that range just above mild mental
retardation and just below low average.      (Dr. Haskins Report pg. 25).     The Wide
Range Achievement Test indicated that on Word Reading Lynn had some decoding
problems and his level in this area was equivalent to a 4.9 grade level. However, on
Sentence Comprehension his grade equivalent would be 9.2 grade level.               This
indicated that he was able to figure out the meaning of words when used in context.
The Validity Indicator test indicated that the results of the tests were a valid
representation of Lynn’s ability. The Structured Interview of Reported Symptoms did
not suggest a blatant malingering of any mental illness. Rather, it suggested that Lynn
was prone to perhaps exaggerate the everyday problems he experiences.
       ¶{25} Following those tests, Dr. Haskins administered the Grisso Test. It is a
four part test and following it, Dr. Haskins concluded that Lynn did not “fully
understand the irrevocable nature of the right to remain silent.” (Dr. Haskins Report
pg. 28).     At the suppression hearing, she specifically stated that to a reasonable
degree of psychological certainty that she did not believe Lynn intelligently waived his
rights. She explained:
       ¶{26} “What impressed me as I did this evaluation was in each way I look at his
waiver, whether it was asking him to read and tell me about the Belmont County
waiver, to give me the definitions there; to look at the Grisso instruments. Each thing I
did with him, I was struck with the continuity with which he did not appreciate his right
to silence, and the meaning of that. And he did not fully appreciate his right to counsel
and what that meant. In other words, what an attorney was and why an attorney was
important, as well as that giving a statement, waiving his rights, that he had a right not
to tell on himself; that he appreciated that he did not have to do that. And consistently,
I found that he did not appreciate that aspect of the Miranda.
       ¶{27} “* * *
       ¶{28} “A. I think initially what he talked about was that both his attorney and
his father told him that he should have never have said anything and that he should
have just walked out, but the more I looked at it, each thing I did with him, consistently
there was this failure to really understand and appreciate why you don’t want to give
that statement. Why you did not want to waive your rights and why you did not want to
tell the police what happened.” (Tr. 31-32).
       ¶{29} She then concluded that Lynn did not intelligently waive his right to
remain silent.   The Court questioned her on this finding and the following dialog
occurred:
       ¶{30} “THE COURT: Just a minute. I saw something I wanted to follow-up on.
       ¶{31} “THE WITNESS: Sure.
       ¶{32} “THE COURT: You have the right to remain silent was interpreted as
you aren’t supposed to talk. Did you understand the reasoning in that interpretation?
       ¶{33} “THE WITNESS: You’re not supposed to talk usually until you’re talked
to, is how that usually comes out. I think that may have been miss – it’s what I often
hear in people who don’t understand.
       ¶{34} “THE COURT: Okay. And so at that point, he was silent, when he
thought it meant you aren’t supposed to talk?
       ¶{35} “THE WITNESS: Until asked to talk.
       ¶{36} “THE COURT: Okay. And then other things elicited discussion?
       ¶{37} “THE WITNESS: Yes. He felt he had to talk then.
       ¶{38} “THE COURT: Okay. I think I understand what you’re saying. Okay.”
(Tr. 50-51).
       ¶{39} In the report, when explaining the Grisso test results, as to the right to
remain silent, Dr. Haskins provided the following analysis:
       ¶{40} “The final section relates to the significant of the right to silence. Here,
Mr. Lynn had a score of 4 out of 10. He thought if he did not want to talk [to] the
police, but the police told him he had to talk that what would happen was ‘can get him
in trouble.’ Mr. Lynn thought if a suspect decided not to talk the most important thing
the police are supposed to do was ‘keep badgering him until he talks.’ He also thought
if he didn’t want to talk to the police, but the police told him he had to talk what should
happen was ‘he will talk.’ * * * When asked if the judge found out the person wouldn’t
talk to the police then what should happen, Mr. Lynn was not sure, but he thought ‘try
to find out what went on.’ He then, finally, when asked if he did not tell the police
anything about what he did and in court he was told to talk about what he did wrong
what would he have to do he said ‘he would have to talk because it was ordered to do
so.’ Thus, Mr. Lynn demonstrated some real weaknesses in his ability to understand
the function of his right to silence related to his legal case.” (Dr. Haskins Report pg.
20).
       ¶{41} In her report she further added, “When I asked him [Mr. Lynn] specifically
about why he waived his rights, it became clear Mr. Lynn really did not understand he
had a right not to tell on himself.” (Dr. Haskins Report pg. 22).
       ¶{42} The record does show that Lynn has a borderline IQ and that he thought
the right to remain silent meant to be quiet unless you were asked a question. Unlike
some of the above cited cases that found that there was an understanding of Miranda
and found as such because of conduct that occurred prior to and during the
interrogation, there was not such an indication in this case. Prior to the interrogation,
there is no evidence that Lynn made any statement to anyone trying to explain away
the allegation that he engaged in sexual conduct with the victim.
       ¶{43} That said, we must acknowledge that while the offender’s IQ is
borderline, he was twenty-five years old at the time of the interrogation, he had
completed high school and he had two other experiences with the judicial system. He
previously had been charged with corruption of a minor, which was dismissed. In
October 2006, he was convicted of possession of drug paraphernalia. Furthermore,
the waiver he was given was within his reading level. Also, in doing the Grisso test,
some of the words he had trouble understanding, like interrogation and consult, were
not used in the waiver he was read. Yet, the expert did say that it is unclear whether
he read the waiver himself and that having it read to him would be harder for him to
understand than him reading it for himself.
        ¶{44} The trial court found the expert’s opinion to be credible. As discussed
above there are factors that support the conclusion that Lynn did not intelligently waive
his right to remain silent.   Where there is evidence to support suppression and
evidence to deny suppression, an appellate court will overwhelmingly affirm a trial
court’s decision due to the great deference that it must be given in matters of
credibility.
        ¶{45} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
DeGenaro, J., concurs.
