[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Jackson, Slip Opinion No. 2018-Ohio-2169.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-2169
            THE STATE OF OHIO, APPELLANT, v. JACKSON, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Jackson, Slip Opinion No. 2018-Ohio-2169.]
Criminal law—Fifth and Sixth Amendments—A social worker’s statutory duty to
        cooperate and share information with law enforcement with respect to
        child-abuse investigations does not render social worker an agent of law
        enforcement for purposes of Fifth and Sixth Amendments to United States
        Constitution when social worker interviews an alleged perpetrator unless
        other evidence demonstrates that social worker acted at direction or under
        control of law enforcement—Record does not support court of appeals’
        conclusion that social worker was acting as law-enforcement agent when
        she interviewed child-abuse suspect—Court of appeals’ judgment reversing
        suspect’s convictions reversed and cause remanded.
     (No. 2017-0145—Submitted February 13, 2018—Decided June 7, 2018.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 103957, 2016-Ohio-8144.
                            SUPREME COURT OF OHIO




                             ____________________
                            SYLLABUS OF THE COURT
A social worker’s statutory duty to cooperate and share information with law
       enforcement with respect to a child abuse investigation does not render the
       social worker an agent of law enforcement for purposes of the Fifth and
       Sixth Amendments to the United States Constitution when the social worker
       interviews an alleged perpetrator unless other evidence demonstrates that
       the social worker acted at the direction or under the control of law
       enforcement.
                             ____________________
       O’DONNELL, J.
       {¶ 1} The state of Ohio appeals from a judgment of the Eighth District Court
of Appeals reversing the convictions of Demetrius Jackson for kidnapping, gross
sexual imposition, and two counts of rape. The issue presented on this appeal is
whether a social worker’s statutory duty to cooperate and share information with
law enforcement regarding a child abuse investigation renders the social worker an
agent of law enforcement for purposes of the Fifth and Sixth Amendments to the
United States Constitution if the social worker interviews an alleged perpetrator.
                         Facts and Procedural History
       {¶ 2} On August 5, 2015, C.H., who at the time was 14 years of age, went
to the home of N.J. and joined her sister, S.H., and her sister’s friend, Demetrius
Jackson, who also were there. C.H. went to sleep in an upstairs bedroom, and when
Jackson woke her up and tried to lay down with her, she pushed him out of the bed
and he left the room. However, he later returned and offered C.H. $200 a week if
she would allow him to perform oral sex on her and would keep it secret. She
refused, and Jackson then ripped her underwear off, performed oral sex on her, and
choked her when she resisted. He also digitally penetrated her and had vaginal sex
with her. She escaped and ran to a family member’s nearby home. The police were




                                         2
                                January Term, 2018




called, and she was taken to a hospital where she was examined and treated. Police
arrested Jackson and attempted to interrogate him but he refused to speak after
being advised of his Miranda rights.
       {¶ 3} The incident was reported to the Cuyahoga County Division of
Children and Family Services via a hotline phone call on the day of the incident,
and the case was assigned to Tina Funfgeld, a sex abuse intake social worker
assigned to the agency’s sex abuse unit. Funfgeld contacted the police to conduct
a joint interview with C.H., but police had already interviewed her, so Funfgeld
conducted a separate interview. Separately, CCDCFS social worker and child
advocate Holly Mack, who was “assigned to the county jail,” interviewed Jackson
on August 11, 2015, at the request of Funfgeld. Mack works “directly with
incarcerated parents as well as alleged perpetrators that are in the jail,” and one of
her “primary job duties” is to interview alleged perpetrators when the agency
receives referrals for abuse and neglect. Mack stated that when she meets with
suspects, she identifies herself and advises them of the allegations, that anything
they say “can be subpoenaed by the [c]ourts,” and that it is up to them whether to
continue the interview. During his interview, Jackson told Mack that he had
consensual oral sex with C.H., whom he believed was at least 21 years of age, and
that afterwards she requested money, which he refused to give her. He denied
having vaginal sex with her.
       {¶ 4} A grand jury indicted him on three counts of rape and additional
counts of gross sexual imposition, importuning, felonious assault, and kidnapping
with a sexual motivation specification. Jackson waived the right to a jury trial, and
at a bench trial, his counsel objected to Mack’s testimony about the statements
Jackson had made to her because she questioned him “as an agent of the State and
law enforcement” and failed to notify him of his Miranda rights. The court
overruled the objection and allowed Mack to testify. As a result of that ruling,




                                          3
                             SUPREME COURT OF OHIO




Jackson testified on his own behalf and claimed he only had consensual oral sex
with C.H.
       {¶ 5} The court dismissed the importuning and felonious assault charges,
found Jackson not guilty of one of the counts of rape, but found him guilty of the
remaining two counts of rape, the gross sexual imposition charge, and the
kidnapping charge with a sexual motivation specification.          For purposes of
sentencing, the court merged the gross sexual imposition offense with the
kidnapping offense and therefore sentenced Jackson on two counts of rape and one
count of kidnapping with the specification. The court imposed an aggregate 11
year prison term.
       {¶ 6} Jackson appealed, claiming that the trial court violated his
constitutional rights by allowing Mack to testify about his statements to her, that
the court violated his Sixth Amendment rights by admitting hearsay statements
made by C.H. to a police officer, and that his convictions were against the manifest
weight of the evidence. In a split decision authored by Judge Eileen A. Gallagher,
the appellate court reversed his convictions. The majority explained that pursuant
to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1966),
“statements stemming from custodial interrogation of the defendant must be
suppressed unless the defendant has been informed of his Fifth and Sixth
Amendment rights before being questioned.” 2016-Ohio-8144, 75 N.E.3d 922,
¶ 15. The majority further explained that Miranda only applies to admissions made
to officers of the law or their agents, that a person must act “under the direction or
control of a law enforcement agency” to qualify as an agent of law enforcement,
and that based on the facts before it, Mack acted as an agent of law enforcement
when she interrogated Jackson. Id. at ¶ 17-18. The majority concluded the
direction or control element was




                                          4
                                January Term, 2018




       satisfied in this instance due to the formal procedure established by
       CCDCFS and local law enforcement for routinely conducting
       interrogations of defendants without providing Miranda warnings.
       These interrogations are proceeding under the direction, and for the
       benefit, of law enforcement pursuant to a “memorandum of
       understanding” required by Ohio law.


Id. at ¶ 18, citing former R.C. 2151.421(F) and (J) (now R.C. 2151.421(G) and (K)).
The majority further explained that former R.C. 2151.421(F) required a child
advocate “not only to conduct an investigation in cooperation with law enforcement
but also to submit a report of the advocate’s investigation, in writing, to law
enforcement.” Id. at ¶ 20.
       {¶ 7} The majority also noted that Mack was assigned to the jail and that
one of her primary duties was to interview alleged perpetrators in abuse cases. Id.
at ¶ 19. It could find “no legitimate purpose” for Mack’s interview “other than to
directly assist the investigation of law enforcement pursuant to [former] R.C.
2151.421(F).” Id. at ¶ 21. The majority acknowledged Mack “may have been
performing her customary duties as an investigator for CCDCFS” but stated that it
was “problematic” that her “customary duties are designed to routinely violate the
constitutional rights of defendants.” Id. at ¶ 22.
       {¶ 8} The majority held Mack violated Jackson’s Fifth Amendment rights
by subjecting him to custodial interrogation without Miranda warnings and violated
his Sixth Amendment right to counsel by conducting the interrogation outside the
presence of his attorney. Id. at ¶ 28-29.
       {¶ 9} Judge Sean C. Gallagher dissented. He opined that Mack was not an
agent of law enforcement because the record did not demonstrate she acted at the
direction, control, or behest of law enforcement and that the statutory duty “to
cooperate with and submit a report to law enforcement does not, in itself,




                                            5
                             SUPREME COURT OF OHIO




demonstrate that the child advocate acted as an agent of law enforcement.” Id.,
2016-Ohio-8144, 75 N.E.3d 922, at ¶ 40, 43 (Gallagher, J., dissenting).
       {¶ 10} The state appealed and presented one proposition of law:


               A social worker’s duty to cooperate and share information
       with law enforcement does not render the social worker an agent of
       law enforcement, under the Fifth and Sixth Amendments of the U.S.
       Constitution, where the social worker does not act at the direction,
       control, or behest of law enforcement.


                             Positions of the Parties
       {¶ 11} The state contends that Miranda applies only to law enforcement
officers or their agents, that it is undisputed that a social worker is not a law
enforcement officer, and that a social worker’s statutory duty to cooperate and share
information with law enforcement with respect to a child abuse investigation does
not transform the social worker into an agent of law enforcement for purposes of
the Fifth and Sixth Amendments to the United States Constitution. It argues that
interviews of alleged perpetrators by social workers are “inherently less coercive
than those addressed by Miranda” and “serve important interests related to the
health and safety of children.” It asserts that the proper inquiry for determining
whether a social worker is an agent of law enforcement is whether the totality of
the facts demonstrate the social worker acted at the direction, control, or behest of
law enforcement, and here, there is no evidence that Mack acted in such a manner
when she interviewed Jackson.
       {¶ 12} Jackson maintains that the state’s “entire argument rests on the faulty
premise” that the requirements of Miranda apply only to law enforcement officers
or their agents, and he relies on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68
L.E.2d 359 (1981), and State v. Roberts, 32 Ohio St.3d 225, 513 N.E.2d 720 (1987),




                                         6
                                 January Term, 2018




for the proposition that Miranda applies when a state actor subjects a defendant to
custodial interrogation and “the totality of the circumstances warran[t] use of the
procedural safeguards required by Miranda.” Jackson points out that courts in
several jurisdictions have held Miranda applies to social workers employed by
children services agencies, and he argues that social workers should be treated no
differently from Internal Revenue Service agents, who must comply with Miranda
pursuant to Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.E.2d 381
(1968). He claims it is “important to recognize” that Mack was a “member of a
special unit” at CCDCFS that “collaborated with law enforcement,” that she was
“assigned to the county jail,” and that her “only job-related duty was to interview
‘alleged perpetrators’ in the county jail,” and that it is reasonable to assume that she
possesses interrogation skills comparable to or exceeding those of most law
enforcement officers. He also maintains that “there was both a formal and informal
relationship between the agency and law enforcement which involved a significant
level of coordination, cooperation, and sharing of information,” and “the agency
and law enforcement very much worked as a team in the investigation and
prosecution of crimes against children.” (Emphasis sic.)
                                         Issue
       {¶ 13} The issue presented on this appeal is whether Mack’s statutory duty
to cooperate and share information with law enforcement resulting from her
interview with Jackson rendered her an agent of law enforcement for purposes of
the Fifth and Sixth Amendments to the United States Constitution.
                                 Law and Analysis
       {¶ 14} “The Fifth Amendment to the United States Constitution, made
applicable to the states by the Fourteenth Amendment, states that “[n]o person
* * * shall be compelled in any criminal case to be a witness against himself.”
(Ellipsis sic and citation omitted.) State v. Graham, 136 Ohio St.3d 125, 2013-
Ohio-2114, 991 N.E.2d 1116, ¶ 19. Pursuant to Miranda, “the prosecution may not




                                           7
                             SUPREME COURT OF OHIO




use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at
444, 86 S.Ct. 1602, 16 L.E.2d 694.
       {¶ 15} In State v. Watson, 28 Ohio St.2d 15, 275 N.E.2d 153 (1971), this
court stated, “Inasmuch as custodial interrogation, as defined in Miranda * * *
means ‘questioning initiated by law enforcement officers after a person has been
taken into custody,’ the Miranda requirements do not apply to admissions made to
persons who are not officers of the law or their agents * * *.” Id. at paragraph five
of the syllabus, quoting Miranda at 444; see also State v. Bernard, 31 So.3d 1025,
1029 (La.2010) (Miranda applies only if “the interrogation is conducted by a ‘law
enforcement officer’ or someone acting as their agent”). And we have observed
that other courts have recognized


       that the duty of giving “Miranda warnings” is limited to employees
       of governmental agencies whose function is to enforce law, or to
       those acting for such law enforcement agencies by direction of the
       agencies; * * * it does not include private citizens not directed or
       controlled by a law enforcement agency, even though their efforts
       might aid in law enforcement.


(Emphasis added.) State v. Bolan, 27 Ohio St.2d 15, 18, 271 N.E.2d 839 (1971).
       {¶ 16} “The Sixth Amendment, applied to the States through the Fourteenth
Amendment, guarantees that ‘[i]n all criminal prosecutions, the accused shall * * *
have the Assistance of Counsel for his defence.’ ” (Ellipsis sic.) Kansas v. Ventris,
556 U.S. 586, 590, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009). In Ventris, the United
States Supreme Court explained:




                                         8
                                January Term, 2018




       The core of this right has historically been, and remains today, “the
       opportunity for a defendant to consult with an attorney and to have
       him investigate the case and prepare a defense for trial.” Michigan
       v. Harvey, 494 U.S. 344, 348, 110 S.Ct. 1176, 108 L.Ed.2d 293
       (1990). We have held, however, that the right extends to having
       counsel present at various pretrial “critical” interactions between the
       defendant and the State, * * * including the deliberate elicitation by
       law enforcement officers (and their agents) of statements pertaining
       to the charge.


(Emphasis added.) Id.
       {¶ 17} “[W]hether someone is acting as an agent of law enforcement is
dependent upon the unique circumstances of each case.” Bernard at 1033.
                               Child Services Agency
       {¶ 18} R.C. 2151.421(G)(1)—formerly R.C. 2151.421(F)(1)—provides
that generally, a public children services agency


       shall investigate, within twenty-four hours, each report of child
       abuse or child neglect that is known or reasonably suspected or
       believed to have occurred * * * that is referred to it under this section
       to determine the circumstances surrounding the injuries, abuse, or
       neglect * * *, the cause of the injuries, abuse, neglect, or threat, and
       the person or persons responsible. The investigation shall be made
       in cooperation with the law enforcement agency and in accordance
       with the memorandum of understanding prepared under division (K)
       of this section. A representative of the public children services
       agency shall, at the time of initial contact with the person subject to




                                          9
                            SUPREME COURT OF OHIO




       the investigation, inform the person of the specific complaints or
       allegations made against the person. * * *
              * * * The public children services agency shall submit a
       report of its investigation, in writing, to the law enforcement agency.


       {¶ 19} R.C.     2151.421(K)—formerly         R.C.    2151.421(J)—addresses
memoranda of understanding. R.C. 2151.421(K)(1) directs that a public children
services agency “shall prepare a memorandum of understanding that is signed by”
certain officials and organizations, such as the county juvenile court judge, law
enforcement officers handling child abuse and neglect cases in the county, the
county prosecutor, and the county humane society. The memorandum


       shall set forth the normal operating procedure to be employed by all
       concerned officials in       the execution of their respective
       responsibilities under this section * * * and shall have as two of its
       primary goals the elimination of all unnecessary interviews of
       children who are the subject of reports made pursuant to division
       (A) or (B) of this section and, when feasible, providing for only one
       interview of a child who is the subject of any report.


R.C. 2151.421(K)(2).
       {¶ 20} In addition, the memorandum “shall include all of the following”:


              (a) The roles and responsibilities for handling emergency
       and nonemergency cases of abuse and neglect;
              (b) Standards and procedures to be used in handling and
       coordinating investigations of reported cases of child abuse and
       reported cases of child neglect, methods to be used in interviewing




                                         10
                                January Term, 2018




       the child who is the subject of the report and who allegedly was
       abused or neglected, and standards and procedures addressing the
       categories of persons who may interview the child who is the subject
       of the report and who allegedly was abused or neglected.


R.C. 2151.421(K)(3).
       {¶ 21} Although CCDCFS’s memorandum of understanding is not part of
the record in this case, nothing in R.C. 2151.421 or the record supports the
conclusion that pursuant to it, Mack acted as an agent of law enforcement when she
interviewed Jackson. Although R.C. 2151.421(G)(1) imposes a duty on a children
services agency to cooperate with and provide information to law enforcement
regarding child abuse investigations, it does not mandate that agency employees
interview alleged perpetrators of child abuse at the direction or under the control of
law enforcement. See also Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 2183, 192
L.E.2d 306 (2015) (mandatory child abuse reporting statutes “alone cannot convert
a conversation between a concerned teacher and her student into a law enforcement
mission aimed primarily at gathering evidence for a prosecution” for purposes of
the Confrontation Clause).
       {¶ 22} Thus, a social worker’s statutory duty to cooperate and share
information with law enforcement with respect to a child abuse investigation does
not render the social worker an agent of law enforcement for purposes of the Fifth
and Sixth Amendments to the United States Constitution when the social worker
interviews an alleged perpetrator unless other evidence demonstrates that the social
worker acted at the direction or under the control of law enforcement.
       {¶ 23} And here, the record contains no evidence that Mack acted as an
agent of law enforcement when she interviewed Jackson. The only evidence of
contact between CCDCFS and law enforcement about the investigation in this
matter before Mack interviewed Jackson is Funfgeld’s testimony that she contacted




                                         11
                             SUPREME COURT OF OHIO




law enforcement to coordinate a joint interview of C.H., which is consistent with
the statutory goal of a memorandum of understanding of eliminating unnecessary
interviews of child victims. See R.C. 2151.421(K)(2). There is no evidence that
law enforcement asked Mack to interview Jackson before or after the detective’s
failed attempt to interview him or that law enforcement influenced Mack’s
interview of Jackson in any way.
        {¶ 24} Accordingly, the appellate court erred when it concluded that Mack
acted as an agent of law enforcement in conducting an interview of Jackson.
                                Inapposite Authority
        {¶ 25} Jackson’s reliance on Mathis, Estelle, and Roberts is misplaced. In
Mathis, the United States Supreme Court considered whether an IRS agent who
questioned an individual in connection with a tax investigation while he was
serving a state prison sentence had to give the individual Miranda warnings. 391
U.S. at 3-4, 88 S.Ct. 1503, 20 L.E.2d 381, fn. 2. Mathis rejected the government’s
attempt “to escape application of” Miranda on the grounds that the interview
occurred “as part of a routine tax investigation where no criminal proceedings
might even be brought” and that the defendant was not “put in jail by the officers
questioning him, but was there for an entirely separate offense.” Mathis at 4. As
the Supreme Court of Louisiana has noted, in Mathis, the court “was not called
upon to decide whether the IRS employee was a ‘law enforcement agent,’ as the
government apparently ceded that point.” (Emphasis sic.) Bernard, 31 So.3d at
1030.
        {¶ 26} In Estelle, the United States Supreme Court held that a state court
violated the Fifth and Sixth Amendment rights of a defendant in a capital case when
it ordered a psychiatric examination to determine his competency to stand trial, the
psychiatrist interviewed the defendant in jail without advising him of his Miranda
rights, and during sentencing, the court allowed the state to question the psychiatrist
about statements the defendant made during the interview in order to establish his




                                          12
                                January Term, 2018




future dangerousness even though defense counsel was not notified in advance that
the psychiatric examination would encompass that issue. 451 U.S. at 456-458, 461,
467-468, 470-471, 101 S.Ct. 1866, 68 L.E.2d 359. The Supreme Court concluded
the fact that the defendant “was questioned by a psychiatrist designated by the trial
court to conduct a neutral competency examination, rather than by a police officer,
government informant, or prosecuting attorney, is immaterial” because when the
psychiatrist testified at sentencing, “his role changed and became essentially like
that of an agent of the State recounting unwarned statements made in a postarrest
custodial setting.” Id. at 467. This case is distinguishable because it does not
involve a court ordered examination, and the Supreme Court has observed that the
“opinion in Estelle suggested that [its] holding was limited to the ‘distinct
circumstances’ presented there,” Penry v. Johnson, 532 U.S. 782, 795, 121 S.Ct.
1910, 150 L.Ed.2d 9 (2001), quoting Estelle at 466.
       {¶ 27} In Roberts, this court considered whether statements a probationer
made to his probation officer while in custody without prior Miranda warnings
were admissible in a subsequent criminal trial. 32 Ohio St.3d at 227, 513 N.E.2d
720. Although we observed that decisions in other jurisdictions were in conflict on
the issue, noted that “[m]ost of these cases turn on whether a probation officer is a
‘law enforcement officer’ under Miranda,” id., and concluded that the “better rule
is followed in those jurisdictions which require a probation officer to give Miranda
warnings prior to questioning” a probationer who is in custody, Roberts at 231, we
did not specifically determine whether a probation officer is a law enforcement
officer or agent. However, we noted that R.C. 2901.01(A)(11)—formerly R.C.
2901.01(K)—defines “law enforcement officer” to include an officer of the state
with a statutory duty to enforce laws and authority to arrest violators and that R.C.
2951.08 gives probation officers the authority to arrest a defendant during a period
of probation, id. at 228, fn. 7, and we emphasized that a probationer has an
obligation “to ‘ “report to” ’ and ‘ “answer questions posed by a probation officer”




                                         13
                             SUPREME COURT OF OHIO




’ ” and is under “ ‘heav[y] psychological pressure to answer questions put by his
probation officer, a figure of both authority and trust,’ ” id. at 230, quoting Marrs
v. State, 53 Md.App. 230, 233, 452 A.2d 992 (1982), quoting United States v. Rea,
678 F.2d 382, 390 (2d Cir.1982). Here, there is no assertion that Mack possessed
authority to make arrests, and the record does not demonstrate that Jackson and
Mack had a relationship comparable to that of a probationer and probation officer.
       {¶ 28} Accordingly, none of those cases support the position that Mack had
an obligation to provide Jackson with Miranda warnings even though she was not
an agent of law enforcement.
       {¶ 29} And because Mack is not an agent of law enforcement, the appellate
court also erred when it concluded the trial court violated the Fifth and Sixth
Amendments, as applied to the states through the Fourteenth Amendment, in
admitting her testimony.
                                     Conclusion
       {¶ 30} A social worker’s statutory duty to cooperate and share information
with law enforcement with respect to a child abuse investigation does not render
the social worker an agent of law enforcement for purposes of the Fifth and Sixth
Amendments to the United States Constitution when the social worker interviews
an alleged perpetrator unless other evidence demonstrates that the social worker
acted at the direction or under the control of law enforcement. In this case, no
evidence indicates that Mack acted at the direction or under the control of law
enforcement when she interviewed Jackson.
       {¶ 31} Accordingly, we reverse the judgment of the appellate court, and we
remand this case to that court to consider the assignments of error it did not address.
                                                                   Judgment reversed
                                                                and cause remanded.
       O’CONNOR, C.J., and FRENCH, FISCHER, and DEWINE, JJ., concur.
       KENNEDY, J., concurs in judgment only.




                                          14
                               January Term, 2018




       DEGENARO, J., dissents, with an opinion.
                              _________________
       DEGENARO, J., dissenting.
       {¶ 32} I agree with the majority that a state-employed social worker’s
statutory duty to share with law enforcement information concerning a child-abuse
investigation does not render the social worker an agent of law enforcement in all
cases—I would stop short of creating a bright-line rule. Although the statutory
scheme and the way it operates clearly establish a cooperative relationship between
children’s services agencies and law enforcement, whether a social worker acted as
an agent of law enforcement when interviewing an alleged perpetrator must
ultimately be determined on a case-by-case basis. The proper analysis requires
determining which of two distinct statutory duties the social worker was performing
during the interview: the reporting duty under R.C. 2151.421(A)(1)(a) or the
investigative duty under R.C. 2151.421(G)(1).
       {¶ 33} Here, the effect of R.C. 2151.421, coupled with the evidence—that
one of the primary job duties of Cuyahoga County Division of Children and Family
Services (“CCDCFS”) social worker and child advocate Holly Mack was to
interview alleged perpetrators in jail—never child victims; her 17 years of
experience; that she interrogated appellee, Demetrius Jackson, in jail after he had
been arraigned on the charges she was investigating and after he had already
invoked his Miranda rights when questioned by police—leads to the conclusion
that when she interviewed Jackson, Mack was functioning as an agent of law
enforcement for purposes of the Fifth and Sixth Amendments to the United States
Constitution. Accordingly, I dissent from the court’s judgment and would affirm
the judgment of the court of appeals.
       {¶ 34} Mack’s interview of Jackson was undertaken pursuant to a statutory
scheme that directs children’s services agencies, law enforcement, and prosecutors
to work collaboratively to investigate and prosecute crimes against children. R.C.




                                        15
                             SUPREME COURT OF OHIO




2151.421(G)(1) mandates that social workers employed by public children’s
services agencies do more than merely report instances of child abuse or neglect to
law enforcement as required by R.C. 2151.421(A). Rather, they must “investigate
* * * to determine the circumstances surrounding the injuries, abuse or neglect,
* * * the cause of the injuries, abuse, neglect, or threat, and the person or persons
responsible.” (Emphasis added.) R.C. 2151.421(G)(1). That “investigation shall
be made in cooperation with the law enforcement agency.” (Emphasis added.) Id.
       {¶ 35} In furtherance of this duty, a children’s services agency is also
required to “submit a report of its investigation, in writing, to the law enforcement
agency” and to “make any recommendations to the county prosecuting attorney or
city director of law that it considers necessary to protect any children that are
brought to its attention.” R.C. 2151.421(G)(1) and (2). As a corollary, R.C.
5101.13 provides for the establishment of a uniform statewide automated child-
welfare information system (“SACWIS”), which, among other things, “shall
contain records regarding * * * [i]nvestigations of children and families * * * in
accordance with [R.C.] 2151.421.” R.C. 5101.13(A)(1). Mack testified that she
uploaded the results of her interview with Jackson into this database.
       {¶ 36} Information contained in SACWIS may be accessed by, among
others, a prosecuting attorney when the “access * * * is directly connected with
assessment, investigation, or services regarding a child or family.”            R.C.
5101.132(A)(1)(a); see also Ohio Adm.Code 5101:2-33-21(F)(2) and (3)
(providing that public children’s service agencies “shall release” child-welfare
information in SACWIS to “[l]aw enforcement officials who are investigating a
report of child abuse or neglect” and the “county prosecutor who is investigating a
report of child abuse or neglect”).
       {¶ 37} The statutory scheme formalizes cooperative investigations among
children’s services agencies, law enforcement, and prosecutors. Therefore, I agree,
to a point, with Jackson’s argument that it would be disingenuous for us to require




                                         16
                                January Term, 2018




that police specifically request that a social worker question an alleged perpetrator
before the social worker may be considered an agent of law enforcement for
purposes of the Fifth Amendment—indeed, the institutional arrangement provided
by law obviates the need for such a request, in many cases. That said, the facts of
each case must be examined to determine whether the social worker was acting as
an agent of the police.
       {¶ 38} I question the majority’s reliance on Ohio v. Clark, ___ U.S. ___,
135 S.Ct. 2173, 2183, 192 L.Ed.2d 306 (2015), as support for its conclusion that
Mack was not acting as an agent of law enforcement when she interviewed Jackson.
Ohio v. Clark involved a preschool teacher’s statutory duty to report suspected
abuse to law enforcement. At issue here is a state-employed social worker’s
statutory duty to cooperatively investigate suspected abuse with law enforcement.
Compare R.C. 2151.421(A)(1)(a) and (b) with R.C. 2151.421(G)(1). See Ohio v.
Clark at 2182-2183.
       {¶ 39} As Chief Justice O’Connor explained in her dissent in State v. Clark,
137 Ohio St.3d 346, 2013-Ohio-4731, 999 N.E.2d 592, rev’d and remanded, __
U.S. __, 135 S.Ct. 2173, 192 L.Ed.2d 306:


               What the [reporting] statute requires is actually quite
       minimal: when teachers, or others who are required to report,
       encounter suspected abuse or neglect in their official capacity,
       they must report it. In turn, the children’s services agency or the
       police—not the mandatory reporters—are responsible for
       investigating the injury or condition “to determine the
       circumstances surrounding the injuries, abuse, or neglect or the
       threat of injury, abuse, or neglect, the cause of the injuries, abuse,
       neglect, or threat, and the person or persons responsible.”




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(Emphasis added.) Id. at ¶ 85 (O’Connor, C.J, dissenting), quoting former R.C.
2151.421(F)(1) (now R.C. 2151.421(G)(1)). Ohio v. Clark is therefore factually
distinguishable from this case.
        {¶ 40} Moreover, Ohio v. Clark involved a distinct constitutional issue:
whether statements made by a minor victim of abuse to his teacher were testimonial
and therefore barred under the Sixth Amendment’s Confrontation Clause from
admission at trial. For these reasons, Ohio v. Clark does not control the outcome
of this case.
        {¶ 41} That said, I agree with the majority that R.C. 2151.421(G) and
related statutory provisions do not categorically transform a children’s services
investigator into a law-enforcement agent. However, the specific facts here lead to
the conclusion that Mack was acting as the functional equivalent of law
enforcement when she had Jackson removed from his housing unit in the jail so she
could question him.
        {¶ 42} The lead CCDCFS sex-abuse intake social worker Tina Funfgeld
explained in her testimony that Mack was “assigned to the county jail,” and indeed,
Mack testified that one of her primary job duties was to interview alleged
perpetrators in jail and that she interviewed no one else. Mack had 17 years of
experience with CCDCFS. Jackson, on the other hand, though he had a prior
criminal record, did not display a high level of insight regarding the criminal
investigative process. For example, according to his testimony, after the rape
allegations were levied against him, he waited for the police to arrive, believing
that a rape kit would be performed on site and would immediately exonerate him.
        {¶ 43} Moreover, Jackson’s statement to Mack occurred after he had
declined to speak to police. He did not talk to any of the officers at the hospital
where he was taken upon his arrest. And when a Cleveland Police detective visited
him at the jail and advised him of his Miranda rights, Jackson refused to speak,
explaining at trial that he “just wasn’t saying nothing after that.”




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                                January Term, 2018




       {¶ 44} Thereafter, Mack came to the county jail to question Jackson.
Importantly, for purposes of this appeal, the only issue is whether Mack acted as an
agent of law enforcement. The state concedes that Jackson was in custody during
Mack’s interview and that Mack did not Mirandize Jackson; further, the state does
not dispute that Mack’s interview constitutes an interrogation.
       {¶ 45} Mack testified to her protocol when interviewing an alleged
perpetrator: “I identify myself, I let them know that they have been named as the
alleged perpetrator, I let them know what the allegations are against them, and then
I also let them know that anything they tell me can be subpoenaed by the Courts.
It is then up to them whether or not they want to continue with the interview or
not.” Mack further testified that when informed of the allegations against him,
Jackson proceeded to tell her “his side of the story.”
       {¶ 46} The manner in which Mack conducted her interview resulted in one
of the primary concerns of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.E.2d 694 (1966): the use of deceptive tactics to obtain incriminating statements.
See State v. Roberts, 32 Ohio St.3d 225, 230-231, 513 N.E.2d 720 (1987). She
never testified whether—or if so—how she followed her protocol with Jackson or
whether she explained the ramifications for him. Specifically, there is no indication
that Jackson understood that his statements to Mack could be used against him at
trial or—what ultimately happened here—that the admission of her testimony
would put him in the position of taking the stand at trial when he otherwise would
not have. Based on these facts, it is highly questionable whether Jackson would
have spoken to Mack had she first advised him of his Miranda rights.
       {¶ 47} Contrary to the majority’s conclusion, Mathis v. United States, 391
U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), and Estelle v. Smith, 451 U.S. 454,
101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), are instructive. Mathis involved an Internal
Revenue Service (“IRS”) agent who questioned an inmate in prison where the
inmate was serving a state sentence. The inmate was ultimately charged with and




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convicted of violations of the federal false-claims statute. On appeal, the Supreme
Court concluded that statements and information gathered by the agent should not
have been admitted at the defendant’s trial because the agent had failed to provide
him Miranda warnings. Implicit in the court’s decision was a determination that
the IRS agent was the functional equivalent of law enforcement.
       {¶ 48} Estelle is even more on point. In that case, the Supreme Court held
that Miranda applied to a psychiatric examination conducted by a court-appointed
psychiatrist, concluding that the fact that the defendant “was questioned by a
psychiatrist designated by the trial court to conduct a neutral competency
examination, rather than by a police officer, government informant, or prosecuting
attorney, is immaterial.” Id. at 467. The Supreme Court observed that under these
circumstances, the psychiatrist “went beyond simply reporting to the court on the
issue of competence and testified for the prosecution.” Id. At that point, “his role
changed and became essentially like that of an agent of the State recounting
unwarned statements made in a postarrest custodial setting.” Id.
       {¶ 49} Similarly, Mack’s interrogation of Jackson exceeded the customary
function of a child advocate: to protect the safety and welfare of children. Rather,
she was acting as an extension of law enforcement.            Mack went beyond
investigating and reporting—whether, for example, the victim was at risk of
exposure to a sexually transmitted disease. Instead, she elicited and ultimately
recounted Jackson’s “side of the story,” which put Jackson in the position of taking
the stand in order to counter Mack’s testimony.
       {¶ 50} Further, the decision of the United States Court of Appeals for the
Second Circuit in Jackson v. Conway—affirming the grant of federal habeas corpus
relief in a case with facts strikingly similar to those here—is persuasive. 763 F.3d
115 (2d Cir.2014). In that case, the defendant was arrested before dawn after he
was accused of committing multiple rapes during the night. Later in the morning,
after police had read him his Miranda rights, he invoked his right to remain silent




                                        20
                                January Term, 2018




and refused to speak to them. He remained in a holding cell until the afternoon. At
some point during the day, after interviewing the victims, a child-protective-
services (“CPS”) caseworker from the county department of social services
interviewed the defendant in the hallway outside of his holding cell after the
defendant was escorted there by an officer. The caseworker “introduced herself as
a CPS caseworker, explained her role, and asked [the defendant] if she could speak
with him about the victims’ allegations. She did not, however, inform him of his
right to an attorney or give him any other warnings.” Id. at 122. The defendant
agreed to speak with her and, in essence, told her his side of the story. At trial, the
caseworker testified about what the defendant had related to her. Applying Mathis,
the Second Circuit held that the admission of the caseworker’s testimony about the
interview violated the defendant’s Fifth Amendment right against compelled self-
incrimination. Jackson v. Conway at 135-140.
       {¶ 51} As the majority opinion in the court of appeals here emphasized: it
“is absolutely undisputed” that if law-enforcement officers conducted interviews in
the manner in which Mack did, the practice would violate the Fifth Amendment.
2016-Ohio-8144, 75 N.E.3d 922, ¶ 20. Given the facts of this case, Mack was the
functional equivalent of a law-enforcement agent and absent Miranda warnings,
her interrogation of Jackson violated his right against self-incrimination. “Any
other conclusion would allow the State to ignore a defendant’s constitutional rights
merely by having the interrogation conducted by someone who lacks the title ‘law
enforcement officer’ but who is otherwise performing the interrogation of such an
officer.” State v. Deases, 518 N.W.2d 784, 790 (Iowa 1994) (concluding that
“when a state official conducts a custodial interrogation that would require a
Miranda warning if undertaken by a police officer, then the official is similarly
required to give a Miranda warning”).




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                             SUPREME COURT OF OHIO




       {¶ 52} Based on all of the above, the admission of Mack’s testimony
violated Jackson’s Fifth Amendment right to be free from compelled self-
incrimination.
       {¶ 53} I would also affirm the court of appeals’ conclusion that the
admission of Mack’s testimony violated Jackson’s Sixth Amendment right to
counsel. “The Sixth Amendment protects the right of the accused not to be
confronted by an agent of the State regarding matters as to which the right to
counsel has attached without counsel being present.” (Emphasis added.) Maine v.
Moulton, 474 U.S. 159, 177, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), fn. 14. “[O]nce
the adversary judicial process has been initiated, the Sixth Amendment guarantees
a defendant the right to have counsel present at all ‘critical’ stages of the criminal
proceedings. Interrogation by the State is such a stage.” (Citations omitted.)
Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009).
       {¶ 54} The state does not dispute that Jackson was subjected to a custodial
interrogation.   Mack’s interview with Jackson took place after he had been
arraigned and after he had invoked his Miranda rights when a detective attempted
to interrogate him at the jail. Significantly (in light of Jackson’s prior invocation
of Miranda), the record fails to demonstrate that Mack Mirandized him or asked
him whether he wanted an attorney present. Based on all of the above, the
admission of Mack’s testimony violated Jackson’s Sixth Amendment right to
counsel.
       {¶ 55} In sum, based on the totality of the circumstances in this case, I
would conclude that Mack was functioning as an agent of law enforcement for
purposes of the Fifth and Sixth Amendments to the United States Constitution when
she questioned Jackson. Therefore, I would affirm the judgment of the court of
appeals.
       {¶ 56} Respectfully, I dissent.
                               _________________




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                              January Term, 2018




       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Anthony T. Miranda, Assistant Prosecuting Attorney, for appellant.
       Jonathan N. Garver, for appellee.
                             _________________




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