[Cite as In re R.S., 2014-Ohio-3543.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




IN RE:                                                      CASE NO. 11-13-10

        R.S.,

ALLEGED DELINQUENT CHILD.                                   OPINION




                Appeal from Paulding County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 20122087

                                        Judgment Affirmed

                            Date of Decision: August 18, 2014




APPEARANCES:

        Charlyn Bohland for Appellant

        Matthew A. Miller for Appellee
Case No. 11-13-10


ROGERS, J.

       {¶1} Defendant-Appellant, R.S., appeals the judgment of the Paulding

County Court of Common Pleas, Juvenile Division, overruling his motions to

suppress and dismiss. On appeal, R.S. argues that Captain Weidenhamer violated

his right against self-incrimination, and as a result, the trial court erred in denying

his motion to suppress. For the reasons that follow, we affirm the judgment of the

trial court.

       {¶2} On October 17, 2012, a complaint was filed against R.S. charging him

with a single count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the

first degree if committed by an adult. The complaint arose as a result of an

admission by R.S. that he had digitally penetrated C.R., an 11-year-old girl.

       {¶3} On December 10, 2012, R.S. filed a motion to suppress statements

made in an interview with Captain Weidenhamer and his subsequent written

statement.     R.S. alleged that these statements were made during a custodial

interrogation and he was not advised of his Miranda rights. R.S. also filed a

motion to dismiss the charge against him, arguing that without his incriminating

statements, the crime would not have been discoverable since C.R. and her mother

were allegedly not going to report the incident.

       {¶4} The matter proceeded to a suppression hearing on December 28, 2012.

The following facts and testimony were subsequently adduced.


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       {¶5} Captain Weidenhamer testified that while employed with the Paulding

Police Department, she came into contact with R.S. on October 15, 2012. On that

day, she was on duty as a police officer and was in uniform.                  Captain

Weidenhamer testified that she received a phone call from Anna Campbell, a

juvenile probation officer, and was asked to come to Campbell’s office.

       {¶6} Captain Weidenhamer testified that she, R.S., R.S.’s father, and

Campbell were all in present in Campbell’s office when R.S. told her what

happened the previous weekend. Captain Weidenhamer stated that R.S. told her

that “he was at [T.K.’s] mother’s house and they were celebrating [T.K.’s]

birthday. Um, they had been drinking beer, and [T.K.’s] little brother and sister *

* * ended up crawling into bed with them and [R.S.] told me that he fingered

[T.K.’s little sister, C.R.].” Suppression Hearing Tr., p. 6.

       {¶7} At this point, Captain Weidenhamer testified that R.S. was not under

arrest and that he was free to leave. Captain Weidenhamer then asked if R.S.

could come to the police station for additional questioning. R.S. went to the police

station with his father and reiterated the same story, but went into “a little bit more

detail.” Id. at p. 8. R.S. also provided a written statement. Captain Weidenhamer

testified that she explained to R.S. and his father that he could decline to make a

written statement.




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       {¶8} Captain Weidenhamer also testified that she spoke with T.K. and

C.R.’s mother, Tammy.        According to Captain Weidenhamer, Tammy never

indicated that she was “definitely not going to report” the incident. Id. at p. 9.

       {¶9} On cross-examination Captain Weidenhamer stated that she was

aware that R.S. was a juvenile and was only 16-years-old. She also admitted that

she never advised R.S. or his father of R.S.’s Miranda rights. Moreover, it was

only after Captain Weidenhamer received R.S.’s statement that she contacted

Tammy; Tammy never contacted her.                 Although Tammy told Captain

Weidenhamer that she wanted to call the police to report what had happened, she

did not want everyone to know what happened to C.R. or get R.S. in trouble.

Tammy admitted to Captain Weidenhamer that she served R.S. and T.K. alcoholic

beverages on the night of the incident and was afraid to get in trouble with the

police. While Captain Weidenhamer believed that R.S. committed a crime after

speaking with him in Campbell’s office, she did not believe that he needed to be in

custody for committing that crime.

       {¶10} On December 28, 2012, the trial court overruled R.S.’s motion to

suppress and motion to dismiss.

       {¶11} A bench trial was held in this matter on January 2, 2013, and the

juvenile court found R.S. to be a delinquent child on one count of rape. The trial

court imposed a 12-month minimum commitment to the Ohio Department of


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Youth Services (“DYS”), but suspended the commitment on the condition that

R.S. successfully complete the treatment program at Juvenile Residential Center of

Northwest Ohio (“JRC”).1 The trial court filed a judgment entry reflecting its

verdict and disposition on January 4, 2013.

        {¶12} R.S. filed this timely appeal, presenting the following assignment of

error for our review.2

                                        Assignment of Error

        THE JUVENILE COURT ERRED WHEN IT OVERRULED
        R.S.’S MOTION TO SUPPRESS, IN VIOLATION OF THE
        FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
        CONSTITUTION AND ARTICLE I, SECTION 10, OHIO
        CONSTITUTION.

        {¶13} In his sole assignment of error, R.S. contends that the trial court erred

in denying his motion to suppress. Specifically, R.S. argues that the trial court

should have found he was in custody and suppressed all statements made to

Captain Weidenhamer. We disagree.




1
   On July 11, 2013, JRC unsuccessfully discharged R.S. and the trial court invoked his suspended
commitment to DYS. (Docket No. 39, p. 2).
2
  We note that R.S. did not file his notice of appeal until November 4, 2013. However, the trial court’s
January 2013 judgment entry was not served to R.S. or his attorney in accordance with Civ.R. 58(B), which
mandates that “the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service
in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the
service is complete.” In this matter, there is no notation in the docket that any of the parties were served
and no indication of the date when service was completed upon the parties. Accordingly, “the time for
filing a notice of appeal never began to run because the trial court failed to comply with Civ.R. 58(B).” In
re Anderson, 92 Ohio St.3d 63, 67 (2001).

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                                 Standard of Review

       {¶14} “Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

The trial court serves as the trier of fact and is the primary judge of the credibility

of witnesses and the weight to be given to the evidence presented. State v.

Johnson, 137 Ohio App.3d 847, 850 (12th Dist.2000).             Therefore, when an

appellate court reviews a trial court’s ruling on a motion to suppress, it must

accept the trial court’s findings of facts so long as they are supported by

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-

3665, ¶ 100, citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982); see also In re

T.W., 3d Dist. Marion No. 9-10-63, 2012-Ohio-2361, ¶ 20. The appellate court

must then review the application of the law to the facts de novo. Roberts at ¶ 100,

citing Burnside at ¶ 8.

                                 Miranda Standard

       {¶15} The Fifth Amendment to the United States Constitution provides

individuals with protection against self-incrimination. See Chavez v. Martinez,

538 U.S. 760, 765, 123 S.Ct. 1994 (2003). “ ‘Juveniles are entitled both to

protection against compulsory self-incrimination under the Fifth Amendment and

to Miranda warnings where applicable.’ ” In re K.W., 3d Dist. Marion No. 9-08-

57, 2009-Ohio-3152, ¶ 12, quoting State v. Thompson, 7th Dist. Jefferson Nos. 98


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JE 28, 98 JE 29, 2001 WL 69197, *8 (Jan. 24, 2001), citing In re Gault, 387 U.S.

1, 55, 87 S.Ct. 1428 (1967).

       {¶16} “[W]hen an individual is taken into custody or otherwise deprived of

his freedom by the authorities in any significant way and is subjected to

questioning, the privilege against self-incrimination is jeopardized.” Miranda v.

Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602 (1966). “[T]he prosecution may not

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.” Id. at 444.

Police are not required to administer Miranda warnings to every person they

question.   State v. Biros, 78 Ohio St.3d 426, 440 (1997), citing Oregon v.

Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711 (1977). Rather, police officers are

only required to administer Miranda warnings where the individual questioned is

subject to “custodial interrogation.” Biros at 440, citing Mathiason at 494.

       {¶17} “In order to determine whether a person is in custody for purposes of

receiving Miranda warnings, courts must first inquire into the circumstances

surrounding the questioning and, second, given those circumstances, determine

whether a reasonable person would have felt that he or she was not at liberty to

terminate the interview and leave.” State v. Hoffner, 102 Ohio St.3d 358, 362,

2004–Ohio–3430, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct.


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457 (1995). The first inquiry is distinctly factual. Keohane at 112. “Once the

factual circumstances surrounding the interrogation are reconstructed, the court

must apply an objective test to resolve ‘the ultimate inquiry’ of whether there was

a ‘formal arrest or restraint on freedom of movement’ of the degree associated

with a formal arrest.” Hofner at ¶ 27, citing California v. Beheler, 463 U.S. 1121,

1125, 103 S.Ct. 3517 (1983), quoting Mathiason at 495. The subjective views

harbored by either the interrogating officers or the person being questioned are of

no consequence in the Miranda analysis. Stansbury v. California, 511 U.S. 318,

323, 114 S.Ct. 1526 (1994). In resolving “the ultimate inquiry” courts must

consider the totality of the circumstances surrounding the questioning. State v.

Gumm, 73 Ohio St.3d 413, 429 (1995); Beheler at 1125. “Relevant factors to

consider in determining whether a custodial interrogation took place are: (1) the

location of the questioning; (2) duration of the questioning; (3) statements made

during the interview; (4) the presence or absence of physical restraints; and (5)

whether the interviewee was released at the end of the interview.”         State v.

Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 44, citing Howes v.

Fields, 132 S.Ct. 1181, 1189 (2012).

      {¶18} Recently, the United States Supreme Court held that a juvenile's age

may be considered in the Miranda analysis, so long as the juvenile's age was

known to the officer at the time of questioning or would have been objectively


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apparent to a reasonable officer. J.D.B. v. North Carolina, ––– U.S. ––––, 131

S.Ct. 2394 (2011). The Supreme Court recognized that in the specific context of

police questioning, events that “would leave a man cold and unimpressed can

overawe and overwhelm a” teen. Id. at 2397, quoting Haley v. Ohio, 332 U.S.

596, 599, 68 S.Ct. 302 (1948). While a juvenile's age may be considered in the

Miranda custody analysis, the Supreme Court cautioned that “this does not mean

that a child's age will be a determinative, or even a significant, factor in every case

* * *.” J.D.B. at syllabus.

                              Reconstruction of Facts

       {¶19} The facts of this case are relatively undisputed.           On Monday

morning, R.S. and his father went to R.S.’s probation officer to make a report

regarding an incident that had happened over the weekend.              Campbell, the

probation officer, then asked Captain Weidenhamer to come to her office so she

could talk with R.S. Captain Weidenhamer, who was dressed in uniform, testified

that she knew that R.S. was 16-years-old at the time of questioning. R.S., his

father, Campbell, and Captain Weidenhamer were all in the probation office when

the interview took place.      After R.S. disclosed what he had done, Captain

Weidenhamer asked R.S. and his father to come to the police station so she could

speak further with R.S. At this point, R.S. was not under arrest.




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Case No. 11-13-10


          {¶20} R.S. and his father then went to the police station, where Captain

Weidenhamer questioned R.S. again, in the presence of his father. R.S. also

provided Captain Weidenhamer a written statement.           Before writing out a

statement, Captain Weidenhamer explained to R.S. and his father that he did not

have to fill out the statement.      After making his written statement, Captain

Weidenhamer did not place R.S. under arrest, and he left the station with his

father.

                            Totality of the Circumstances

          {¶21} Upon considering all of the facts surrounding R.S.’s interview, we

find that a reasonable juvenile in R.S.’s position would have felt free to terminate

the interview and leave.

          {¶22} On appeal, R.S. argues that that he was in custody because he was

“ordered” by Campbell to disclose to Captain Weidenhamer what had happened

and that he was surrounded by three authority figures during his interview. We

find no evidence in the record to support R.S.’s contention that he was “ordered”

by Campbell to “confess what he did.”           Appellant’s Br., p. 10.     Captain

Weidenhamer testified that upon arriving at Campbell’s office, “Campbell had

told me that [R.S.] was one of her probationers and that [he] had been doing some

drinking over the weekend and something had happened, and she asked [R.S.] to

tell me what happened.” (Emphasis added.) Suppression Hearing Tr., p. 6. Thus,


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the only evidence presented at the suppression hearing was that Campbell asked

R.S. to tell Captain Weidenhamer what had happened over the weekend. R.S.

chose not to challenge this evidence when he cross-examined Captain

Weidenhamer, or when given the opportunity to present his own evidence.3

        {¶23} We also do not find the fact that R.S. was surrounded by three adults

in Campbell’s office indicative of a custodial interrogation, especially since one of

the adults was R.S’s father. Further, R.S. was familiar with Campbell, as she was

his probation officer. See In re Bucy, 9th Dist. Wayne No. 96CA0019, 1996 WL

640039, *2 (finding no custodial interrogation when juvenile was familiar with the

interviewing officer); see also In re Johnson, 5th Dist. Morgan No. CA-95-13,

1996 WL 363811, *1 (juvenile not in custody when talking to his probation officer

even though a deputy was present).

        {¶24} However, there are some facts that tend to weigh in favor of a

finding that R.S. was in custody. Although Captain Weidenhamer stated R.S. and

his father were free to leave at any time during the interviews, she did not convey

this to either R.S. or his father. Yarborough v. Alvarado, 541 U.S. 652, 665, 124

S.Ct. 2140 (2004). Captain Weidenhamer was also in uniform when the interview

took place. T.W. at ¶ 29. Further, while the record is silent as to how long each

interview was, R.S. was subject to essentially three interviews: one with Campbell

3
  During the suppression hearing, no evidence was presented concerning what transpired during the initial
interaction between R.S. and his probation officer. Further, Campbell never testified at the suppression
hearing or at trial.

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Case No. 11-13-10


at her probation office; another with Captain Weidenhamer in Campbell’s office;

and a third interview at the police department. See K.W., 2009-Ohio-3152, ¶ 12.

       {¶25} Nevertheless, these circumstances are offset by other facts that tend

to weigh against a finding that R.S. was in custody. Most important, R.S. and his

father voluntarily showed up at Campbell’s probation office. Compare In re C.M.,

8th Dist. Cuyahoga No. 99599, 2013-Ohio-5426, ¶ 43 (“We are not persuaded by

C.M.’s contention that his appearance at the police station was involuntary

because his mother was with him, that is, his mother made him go.”) with In re

T.W., 2012-Ohio-2361, ¶ 29 (finding custodial interrogation when mother brought

T.W. to children services at intake investigator’s request “limiting the extent of

[T.W.’s] control over his being there, and rendering his presence ostensibly

involuntary”); see also In re J.S., 12th Dist. Clermont No. CA2011-09-067, 2012-

Ohio-3534, ¶ 14 (finding juvenile in custody when father was instructed to follow

them to the police station so his son could be questioned). The situation here is

distinguishable from that of T.W. and J.S., where the parents “were directed by

authorities to have their children submit to interviews.” C.M. at ¶ 43.

       {¶26} Further distinguishable from T.W., R.S. was never separated from his

father during either interview.    There is also no evidence on the record that

Captain Weidenhamer carried a gun to the interviews and if so, whether it was

visible to R.S. T.W. at ¶ 29; In re R.H., 2d Dist. Montgomery No. 22352, 2008-


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Ohio-773, ¶ 20. Moreover, there was no testimony as to whether Campbell or

Weidenhamer blocked the door, preventing R.S. from exiting the interview. T.W.

at ¶ 29. Unlike the juvenile in K.W., who was 10-years-old and had no criminal

history, R.S. was 16-years-old and had previous experience in the criminal justice

system. R.S. and his father were allowed to leave after the interviews concluded.

Billenstein, 2014-Ohio-255, ¶ 44. Lastly, R.S. was not transported to the interview

by a police officer. See Yarborough, 541 U.S. at 664; T.W. at ¶ 30.

       {¶27} Upon balancing the forgoing facts, we find that the trial court did not

err in denying R.S.’s motion to suppress. Under the circumstances of the instant

case we agree with the trial court, that a reasonable 16-year-old in R.S.’s position

would have felt free to terminate the interview and leave the premises. Since R.S.

was not in custody, he did not need to be administered his Miranda warnings, and

the State was free to use statements made during R.S.’s interview and his written

statements at trial.    Consequently, we need not address R.S.’s argument

concerning the trial court’s denial of his motion to dismiss. App.R. 12(A)(2)(c).

       {¶28} Accordingly, we overrule R.S.’s sole assignment of error.

       {¶29} Having found no error prejudicial to R.S. in the particulars assigned

and argued, we affirm the trial court’s judgment.

                                                               Judgment Affirmed


SHAW and PRESTON, J.J., concur.

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