[Cite as State v. Johnson, 2014-Ohio-787.]


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

STATE OF OHIO,                                         :

        Plaintiff-Appellee,                            :
                                                                       Case No. 13CA3381
        v.                                             :
                                                                       DECISION AND
CLIFFORD JOHNSON,                                      :               JUDGMENT ENTRY

        Defendant-Appellant.                           :               RELEASED 02/28/2014


                                             APPEARANCES:

Lori J. Rankin, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, Chillicothe, Ohio, for Appellee.



Hoover, J.


        {¶ 1} Clifford Johnson appeals the Ross County Common Pleas Court’s denial of his

motion to suppress. After his motion to suppress was overruled, Johnson pled no contest to one

count of aggravated arson, one count of felonious assault, and seven counts of felonious assault

on a peace officer. On appeal, Johnson contends that his statements to various third parties while

in police custody, and overheard by law enforcement, must be suppressed because he had not

been read his Miranda rights and because he had invoked his right to counsel. Because law

enforcement did not subject Johnson to a custodial interrogation, we disagree. Accordingly, we

affirm the judgment of the trial court.

        {¶ 2} On October 8, 2011, Johnson engaged in a standoff with officers of the Chillicothe

Police Department and Ohio State Highway Patrol at his residence in Chillicothe, Ohio. During

the standoff, multiple shots were fired in the direction of the police officers, and a fire broke out
Ross App. No. 13CA3381                                                                             2


at the residence. Eventually, Johnson was forcefully removed from the burning home and

arrested. Upon his removal from the home, Detective Shawn Rourke of the Chillicothe Police

Department, and Firefighter Mark Hamann of the Chillicothe Fire Department, began assessing

Johnson for injuries. After Firefighter Hamann began asking Johnson questions, but before he

had ever been read his Miranda rights, Johnson stated that he did not want to talk without the

presence of his attorney. Johnson was then transported by ambulance to the Adena Regional

Medical Center (“Adena”) for medical assessment and treatment. From Adena, Johnson was

transported to the Ohio State University Medical Center (“OSU”) for further treatment.

         {¶ 3} On October 28, 2011, Johnson was indicted by a grand jury on seven counts of

felonious assault on a peace officer, all with firearm specifications, one count of felonious assault

with a firearm specification, and one count of aggravated arson. Johnson’s trial counsel filed a

written plea of Not Guilty by Reason of Insanity and requested a competency evaluation. Dr.

Jaime C. Adkins evaluated Johnson’s competency and sanity. Pursuant to the request of defense

counsel, Dr. James R. Hagen conducted a second evaluation. Johnson ultimately stipulated to the

findings of both evaluations; and the trial court determined that Johnson was competent to stand

trial.

         {¶ 4} Johnson then moved to suppress statements he had made after he had been arrested

and while he was being transported and treated for injuries. In his motion to suppress, Johnson

argued that the statements were obtained without proper advisement of his rights pursuant to

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and in violation of the

Ohio and United States Constitutions. A hearing on the motion was held on April 25, 2012.

         {¶ 5} The following facts were adduced at the suppression hearing. Officer Tad Franklin

of the Chillicothe Police Department testified that he and Officer Michael Short accompanied
Ross App. No. 13CA3381                                                                               3


Johnson in the ambulance during transport to Adena. Officer Franklin testified that during the

ambulance ride, Johnson made statements in response to questions from the medics, indicating

that he had been arguing with his wife over the purchase of a condominium. Johnson further

stated that he started the fire and that he wanted the house to burn down because if he could not

have the house, nobody could. Officer Franklin overheard and documented the responses that

Johnson made to the medics.

       {¶ 6} Officers Franklin and Short also stood guard at Johnson’s bedside while Johnson

received treatment at Adena. While at Adena, Johnson again made spontaneous statements to

himself and to Adena nurses, which were overheard by the officers, including an admission that

he had started the fire and that he had been arguing with his wife. Johnson further stated that he

fired the gunshots at the officers, but he claimed that he was aiming above them, not at them.

According to Franklin, Johnson at one time turned in his direction and stated: “I could have

nutted [you] real good.” Officer Franklin did not respond to the statement.

       {¶ 7} Officer Franklin testified that during the entire time that he and Officer Short were

with Johnson, neither of them questioned Johnson, nor engaged Johnson in conversation.

       {¶ 8} On October 9, 2011, Officer Micah Shanks of the Chillicothe Police Department

was assigned to guard Johnson at OSU. Officer Shanks testified that while standing guard near

Johnson’s bedside, he heard Johnson say that his wife wanted to sell his house and buy a

condominium. He also heard Johnson say that he did not want to sell the house and that if he

could not have the house, nobody could. Officer Shanks could not recall if the statements were

directed to medical personnel, or if Johnson had uttered them spontaneously. According to

Officer Shanks, he never asked Johnson any questions or otherwise engaged in conversation with

Johnson.
Ross App. No. 13CA3381                                                                             4


       {¶ 9} On October 10, 2011, Officer Daniel Cox of the Chillicothe Police Department was

assigned to guard Johnson at OSU. Officer Cox testified that while standing guard near

Johnson’s bedside, he heard Johnson make comments to a nurse that indicated that he had set the

house on fire, and that implied that he had shot at the officers in an effort to scare them.

According to Officer Cox, he never asked Johnson any questions or otherwise engaged in

conversation with him.

       {¶ 10} On October 12, 2011, Johnson had been released from the hospital, and was being

held in the Ross County Jail. On that date, Meriam Cogan, a registered nurse working at the jail

but employed by Premier Health Care, went to Johnson’s jail cell to treat his burns. Nurse Cogan

testified that Corrections Officer Matthew Bridenbaugh stood guard while she attended to

Johnson’s injuries. In order to properly treat Johnson, Nurse Cogan asked him what had caused

his burns. Johnson replied that his wife wanted him to go into debt so he “just burned it[,]”

burned his house. Nurse Cogan testified that she was not asked by law enforcement to question

Johnson.

       {¶ 11} Corrections Officer Bridenbaugh overheard the statements made to Nurse Cogan.

Corrections Officer Bridenbaugh testified that he did not question Johnson, and that he did not

ask Nurse Cogan to question Johnson.

       {¶ 12} After considering the testimony given at the suppression hearing, and argument

submitted after the hearing, the trial court issued a written decision overruling the motion to

suppress on the grounds that Johnson had not been interrogated, but had rather made the

statements voluntarily and spontaneously. Accordingly, the trial court concluded that no

Miranda or other constitutional violation had occurred.
Ross App. No. 13CA3381                                                                                5


       {¶ 13} On the day of his scheduled trial, Johnson entered a no contest plea to all counts in

the indictment in exchange for a sentencing recommendation by the prosecution. Following entry

of the no contest plea, the trial court found Johnson guilty of all counts and sentenced him to an

aggregate term of 13 years in prison. This matter is now before this Court on delayed appeal.

       {¶ 14} Johnson asserts the following assignment of error:

Assignment of Error:

       THE TRIAL COURT ERRED IN VIOLATION OF THE DEFENDANT-
       APPELLANT’S RIGHTS UNDER THE FIFTH AND SIXTH AMENDMENTS
       TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT
       OVERRULED THE DEFENDANT-APPELLANT’S MOTION TO SUPPRESS.
       {¶ 15} In his sole assignment of error, Johnson contends that the trial court erred when it

overruled his motion to suppress the statements made in the ambulance, at Adena, at OSU, and at

the Ross County Jail. At the trial level, Johnson argued that the statements should be suppressed

because he had made the comments prior to receiving Miranda warnings and because he had

invoked his right to counsel. Johnson also argued that the law enforcement officers “subverted”

Miranda by using others to interrogate him while they listened in on the conversation. On

appeal, Johnson again contends that his statements must be suppressed because he had invoked

his constitutional right to counsel prior to making the statements. Johnson also renews his

argument that law enforcement subverted Miranda by utilizing agents, in this case medical

personnel, to elicit the incriminating statements.

       {¶ 16} Our review of a trial court's decision on a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d

71, ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in

the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly,

we defer to the trial court's findings of fact if they are supported by competent, credible evidence.
Ross App. No. 13CA3381                                                                                6


State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). Accepting those

facts as true, we must independently determine whether the trial court reached the correct legal

conclusion in analyzing the facts of the case. Burnside at ¶ 8.

       {¶ 17} “In Miranda, * * * the United States Supreme Court held that statements made

during custodial interrogation, i.e. ‘questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in any

significant way,’ are admissible only upon a showing that law enforcement officials followed

certain procedural safeguards to secure the accused's Fifth Amendment privilege against self

incrimination.” State v. Phillips, 4th Dist. Highland No. 11CA11, 2011-Ohio-6773, ¶ 9, quoting

Miranda, supra, at 444. Those safeguards include informing the defendant that “he has the right

to remain silent, that anything he says can be used against him in a court of law, that he has the

right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed

for him prior to any questioning if he so desires.” Miranda at 479.

       {¶ 18} “[T]he requirement that police officers administer Miranda warnings applies only

when a suspect is subjected to both custody and interrogation.” State v. Dunn, 131 Ohio St.3d

325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24. In other words, “Miranda rights only attach when

both custody and interrogation coincide.” State v. Tellington, 9th Dist. Summit No. 22187, 2005-

Ohio-470, ¶ 8, citing State v. Wiles, 59 Ohio St.3d 71, 83, 571 N.E.2d 97 (1991). “Moreover, ‘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. See, e.g., Davis v. United

States (1994), 512 U.S. 452, 456-457, 114 S.Ct. 2350, 129 L.Ed.2d 362. The person can only

invoke that right during those times.’ ” State v. Guysinger, 4th Dist. Ross No. 11CA3251, 2012-

Ohio-4169, ¶ 12, quoting State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348,
Ross App. No. 13CA3381                                                                                      7


¶ 43. In the case sub judice, we conclude that law enforcement never subjected Johnson to a

custodial interrogation. Accordingly, Johnson never had the right to counsel, and the trial court

did not err in denying his motion to suppress. See, e.g., Guysinger at ¶ 12.

          {¶ 19} Initially, we note that Johnson was in the custody of law enforcement when the

statements at issue were made. “[A]n individual has been placed into custody [if] * * *, under the

totality of the circumstances, a ‘reasonable person would have believed that he was not free to

leave.’ ” State v. Gumm, 73 Ohio St.3d 413, 429, 653 N.E.2d 253 (1995), quoting U.S. v.

Medenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Here, Johnson had been

arrested at the scene of the crime and his hands were bound by zip ties prior to transport to

Adena. Moreover, uniformed police officers accompanied Johnson in the ambulance, at Adena,

and at OSU. Thus, it goes without saying that a reasonable person in Johnson’s position would

“have believed that he was not free to leave.”1 Nonetheless, the statements are not required to be

suppressed under Miranda and its progeny because they were not the product of law enforcement

interrogation.

          {¶ 20} “The ‘term “interrogation” under Miranda refers not only to express questioning,

but also to any words or actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to elicit an incriminating

response from the suspect.’ ” State v. Williams, 4th Dist. Scioto No. 10CA3381, 2012-Ohio-

6083, ¶ 18, quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297

(1980).

          {¶ 21} “[T]o determine whether a suspect has been ‘interrogated,’ the heart of the inquiry

focuses on police coercion, and whether the suspect has been compelled to speak by that


1
  The State also stipulated at the suppression hearing and on appeal that Johnson was in custody when the
statements were made.
Ross App. No. 13CA3381                                                                                8


coercion.” State v. Tucker, 81 Ohio St.3d 431, 436, 692 N.E.2d 171 (1998). Thus, “[a] suspect

who volunteers information without being asked any questions is not subject to a custodial

interrogation and is not entitled to Miranda warnings.” Williams at ¶ 19, citing State v. McGuire,

80 Ohio St.3d 390, 401, 686 N.E.2d 1112 (1997). “When defendant initiates communication,

‘nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely

listening to his voluntary, volunteered statements and using them against him at the trial.’ ” Id.,

quoting Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see also

State v. Fry, 4th Dist. Gallia No. 86CA15, 1988 WL 38822, *8 (Apr. 21, 1988) (“[S]tatements

obtained by police after a person has been taken into custody are admissible when given freely,

voluntarily, and not the result of interrogation without the Miranda safeguards.”).

       {¶ 22} In denying Johnson’s motion to suppress, the trial court determined that Johnson

“was not subjected to interrogation by anyone[,]” and that “[u]pon [his] request for counsel,

police officers immediately ceased all dialog with him.” The trial court further found that “[a]ny

and all statements that [Johnson] made thereafter were made voluntarily and spontaneously.”

       {¶ 23} A review of the suppression hearing evidence supports the trial court’s finding

that Johnson’s incriminating remarks were not the product of law enforcement interrogation, but

were rather voluntary and spontaneous statements. The officers testified that they never

questioned Johnson regarding the incident, that they never engaged in casual conversation with

Johnson, and that they never responded to any of the remarks he made while in their custody.

Because Johnson’s statements were not the result of custodial interrogation, but were instead

made freely and voluntarily, the trial court did not err in finding that the statements were

admissible. See Guysinger, 2012-Ohio-4169, at ¶ 26 (“And because Guysinger was not subjected

to a custodial interrogation, he did not have the right to counsel.”)
Ross App. No. 13CA3381                                                                                9


       {¶ 24} Johnson also contends that law enforcement subverted Miranda requirements and

his request for counsel by utilizing medical personnel to elicit the incriminating remarks. The

trial court noted in its decision that “there is no evidence that any health care provider, or fire

department employee, acted at the direction, control, or behest of law enforcement.” The trial

court further noted that “there is no evidence that law enforcement manipulated the

circumstances to increase their ability to listen to or hear any conversation between [Johnson]

and others. In fact the evidence demonstrates that [Johnson] purposely spoke in a voice loud

enough so that law enforcement officers would hear his statements.”

       {¶ 25} We first note that, generally speaking, statements directed toward third parties and

overheard by law enforcement do not amount to a circumvention of Miranda. See Fry, 1988 WL

38822, at *8 (“Miranda requirements do not apply to admissions by accused to persons who are

not law enforcement officials or their agents. * * * In the case sub judice the statements made by

appellant were not the result of questioning by law enforcement officers or even directed to a law

enforcement official, but rather were statements to a third party which was overheard by Deputy

Mullins.”); State v. Corbin, 12th Dist. Fayette No. CA2010-01-001, 2010-Ohio-3819, ¶ 10

(“[B]ecause appellant was not subject to custodial interrogation while speaking to her mother

within earshot of Officer Sever, the trial court did not err by denying appellant's motion to

suppress.”); State v. Ambartsoumov, 10th Dist. Franklin No. 09AP-1054, 2010-Ohio-6293, ¶ 72

(In case where police officer overheard incriminating statements while accompanying accused in

ambulance, the appellate court noted that “officer's conduct while accompanying [accused] in the

ambulance to the hospital did not rise to the level of a custodial interrogation.”). Furthermore, “

‘[a] person not a police officer, or not acting in concert with or at the request of police authority,

is not required to extend constitutional warnings prior to the eliciting of an incriminating
Ross App. No. 13CA3381                                                                                        10


statement.’ ” State v. Gregory, 4th Dist. Pike No. 440, 1990 WL 138557, *2 (Sept. 25, 1990),

quoting State v. Peoples, 28 Ohio App.2d 162, 165, 275 N.E.2d 626 (7th Dist.1971).

        {¶ 26} Here, the police officers overheard statements that Johnson made either

spontaneously, or in response to questions from the health care providers. As the trial court

noted, the officers did not manipulate the circumstances in order to increase their ability to hear

Johnson.2 Moreover, the officers were at all times dressed in identifiable police uniform. It is

also not disputed that the medics, nurses, and other health care providers are not law enforcement

officers. More importantly, however, the health care providers were not acting at the direction,

control, or behest of law enforcement. Nurse Cogan was the only health care provider to testify

at the suppression hearing and she expressly denied that law enforcement asked her to interrogate

Johnson. Several officers also testified that they did not direct any health care providers to

question Johnson.

        {¶ 27} In the absence of any evidence that the health care providers acted at the direction,

control, or behest of law enforcement, we agree with the trial court's conclusion that they were

not agents of law enforcement. Therefore, they did not violate Johnson's constitutional rights by

questioning him without the presence of an attorney, or by failing to administer Miranda

warnings.

        {¶ 28} Based on the foregoing, Johnson’s sole assignment of error is overruled. The

judgment of the trial court is affirmed.

                                                                                 JUDGMENT AFFIRMED.




2
  We note that Johnson does not argue that his communications were privileged. We therefore reserve judgment on
the issue of privileged communications.
Ross App. No. 13CA3381                                                                           11


                                     JUDGMENT ENTRY


        It is ordered that the trial court’s JUDGMENT IS AFFIRMED. Appellant shall pay the
costs herein taxed.
       The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court 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 the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest 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 the 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.

Harsha, J. & McFarland, J.: Concur in Judgment & Opinion.




                                                             For the Court

                                                             By:
                                                                   Marie Hoover, 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.
