[Cite as State v. Pickens, 2017-Ohio-1231.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 9-16-35

        v.

HAROLD PICKENS,                                            OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 16-CR-034

                                      Judgment Affirmed

                               Date of Decision: April 3, 2017




APPEARANCES:

        Robert E. Cesner, Jr. for Appellant

        Kevin P. Collins for Appellee
Case No. 9-16-35


PRESTON, J.

       {¶1} Defendant-appellant, Harold A. Pickens (“Pickens”), appeals the June

7, 2016 judgment entry of sentence of the Marion County Court of Common Pleas.

He argues that the trial court erred by denying his motion to suppress evidence and

by concluding that the victim, who was under the age of ten, was competent to

testify. For the reasons that follow, we affirm.

       {¶2} On January 28, 2016, the Marion County Grand Jury indicted Pickens

on Count One of gross sexual imposition in violation of R.C. 2907.05(A)(4), a third-

degree felony, and Count Two of rape in violation of R.C. 2907.02(A)(1)(b), a first-

degree felony. (Doc. No. 2).

       {¶3} On February 1, 2016, Pickens appeared for arraignment and entered

pleas of not guilty. (Doc. No. 7). The State filed a bill of particulars on February

26, 2016. (Doc. No. 17).

       {¶4} On March 24, 2016, Pickens filed a motion to suppress evidence. (Doc.

No. 38). After a hearing on April 19-20, 2016, the trial court denied Pickens’s

motion to suppress evidence on May 3, 2016. (Doc. No. 50).

       {¶5} On May 27, 2016, the parties stipulated that “the school records,

including mental and achievement evaluations” are “to be considered in the

competency hearing of the alleged child victim” “in lieu of calling as witnesses

those school administrators, teachers, and other officials to testify at the time of said


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hearing.” (Doc. No. 53). On June 6, 2016, after a hearing on June 2, 2016, the trial

court filed an entry concluding that the alleged child victim is competent to testify.

(Doc. No. 68).

           {¶6} On June 3, 2016, Pickens withdrew his pleas of not guilty and entered

a no-contest plea to Count Two of an amended indictment. (Doc. No. 66).1 In

exchange for his change of plea, the State agreed to dismiss Count One of the

original indictment and amend Count Two to remove the allegation that “the victim

is under the age of 10 years old.” (Id.). That same day, the trial court amended the

indictment and dismissed Count One. (Doc. No. 69). Also that day, the trial court

accepted Pickens’s plea to the amended indictment, found him guilty, and sentenced

him to “an indefinite prison term consisting of a minimum term of 10 years and a

maximum term of life imprisonment,” and concluded that he is a Tier III sex

offender. (Id.). The trial court filed its judgment entries of sentence and sex-

offender classification on June 7, 2016. (Id.).

           {¶7} Pickens filed his notice of appeal on June 30, 2016. (Doc. No. 73). He

raises two assignments of error for our review.

                                     Assignment of Error No. I

           The Trial [sic] Erred by Denying the Motion to Suppress
           Statements and Admissions Made by the Defendant at Police
           Headquarters on January 14 and 15, 2016. Specifically,
           Defendant Was Not Advised of His Miranda Rights While in a

1
    The negotiated plea agreement was filed on June 6, 2016. (Doc. No. 66).

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       Custodial Setting on January 14th. When the Interrogation Was
       Resumed on 15th [sic], the Defendant Was Given No Opportunity
       to Exercise or Waive His Miranda Rights Either Orally or in
       Writing. Under the Totality of the Circumstances, Defendant’s
       Statements and Admissions Were Therefore Involuntary.

       {¶8} In his first assignment of error, Pickens argues that the trial court erred

by denying his motion to suppress evidence. Specifically, Pickens argues that his

statements to law enforcement on January 14, 2016 are inadmissible because those

statements were provided during a custodial interview, and he was not advised of

his Miranda rights. Further, Pickens argues that his statements to law enforcement

on January 15, 2015 are inadmissible because he did not knowingly, intelligently,

or voluntarily waive his Miranda rights.

       {¶9} “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. At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id. See

also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a

motion to suppress, deference is given to the trial court’s findings of fact so long as

they are supported by competent, credible evidence. Burnside at ¶ 8, citing State v.

Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo; therefore, we must decide whether




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the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124

Ohio App.3d 706, 710 (4th Dist.1997).

       {¶10} “The Fifth Amendment to the U.S. Constitution provides a privilege

against self-incrimination.” State v. Edmond, 10th Dist. Franklin No. 15AP-574,

2016-Ohio-1034, ¶ 11, citing State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228,

¶ 12 (10th Dist.), citing Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136

(1984). “To protect this right, the United States Supreme Court has held that ‘the

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., quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). “Thus,

Miranda warnings are required when a suspect is subjected to custodial

interrogation.” Id., citing State v. Garnett, 10th Dist. Franklin No. 09AP-1149,

2010-Ohio-5865, ¶ 30. “Custodial interrogation is defined in Miranda as

‘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.’”

Id., quoting Miranda at 444.

       {¶11} “Recently, the United States Supreme Court has provided further

guidance on the meaning of custody for purposes of Miranda.” Id. at ¶ 12.

“‘“[C]ustody” is a term of art that specifies circumstances that are thought generally


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to present a serious danger of coercion.’” Id., quoting Howes v. Fields, 565 U.S.

499, 508-509 132 S.Ct. 1181 (2012). “‘“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. Gartrell, 3d

Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 62, quoting State v. Billenstein, 3d

Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 38, quoting State v. Hoffner, 102 Ohio

St.3d 358, 2004-Ohio-3430, ¶ 27.         “In considering a suspect’s freedom of

movement, a court must consider the totality of the circumstances, including the

following relevant factors: (1) the location of the questioning, (2) its duration, (3)

statements made during the interview, (4) the presence or absence of physical

restraints during the questioning, and (5) the release of the interviewee at the end of

the questioning.” Edmond at ¶ 12, citing Howes at 509. “However, freedom of

movement is not a solely determinative factor, and courts must consider ‘whether

the relevant environment presents the same inherently coercive pressures as the type

of station house questioning at issue in Miranda.’” Id., quoting Howes at 509.

       {¶12} A suspect may knowingly and intelligently waive his Miranda rights

and agree to make a statement. State v. Wesson, 137 Ohio St. 3d 309, 2013-Ohio-

4575, ¶ 35, citing Miranda at 479. “If a defendant later challenges a confession as


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involuntary, the state must prove a knowing, intelligent, and voluntary waiver by a

preponderance of evidence.” Id., citing Miranda at 475 and Colorado v. Connelly,

479 U.S. 157, 168-169, 107 S.Ct. 515 (1986). “To determine whether a valid waiver

occurred, we ‘consider the totality of the circumstances, including the age,

mentality, and prior criminal experience of the accused; the length, intensity, and

frequency of interrogation; the existence of physical deprivation or mistreatment;

and the existence of threat or inducement.’” Id., quoting State v. Edwards, 49 Ohio

St.2d 31 (1976), paragraph two of the syllabus, and citing Arizona v. Fulminante,

499 U.S. 279, 285, 111 S.Ct. 1246 (1991).

        {¶13} The trial court denied Pickens’s motion to suppress evidence after

concluding that Pickens was not in custody for purposes of the January 14, 2016

interview at the police station, and after concluding that Pickens on January 15, 2016

“knowingly, intelligently, and voluntarily waived his Miranda rights based on the

totality of the circumstances.” (Doc. No. 50).

        {¶14} In particular, the trial court concluded that Pickens was not in custody

on January 14, 2016 after weighing the totality of the circumstances.2 Weighing in

favor of the conclusion that Pickens was in custody, the trial court found that the

“interview took place at a police station, that [Pickens] was taken there in the back


2
 Pickens participated in two interviews on January 14, 2016 at the Marion Police Department. Pickens does
not separately challenge those interviews on appeal. As such, for purposes of this appeal, we assume he is
challenging the admissibility of both interviews under his argument related to the admissibility of his
“statements” made on January 14, 2016.

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Case No. 9-16-35


of a police cruiser, and that his initial contact with the officers was due to them

coming to his house with a search warrant.” (Id.). Weighing against the conclusion

that Pickens was in custody, the trial court found that Pickens “made a voluntary

decision to go with the officers to the police station and was motivated by an effort

to exonerate himself from any accusations” as well as that “the officers clearly

explained to [Pickens] that he was not required to go with them, that he was not

being arrested, and that the interview was voluntary on his part.” (Id.). Further,

weighing against the conclusion that Pickens was in custody, the trial court found

that “at no time were any physical restraints used and, following the interview, the

officers did take [Pickens] back to his house.” (Id.).

       {¶15} With respect to the January 15, 2016 interview, the trial court

concluded that Pickens “knowingly, intelligently, and voluntarily waived his

Miranda rights based on the totality of the circumstances.” (Id.). Weighing in favor

of the conclusion that Pickens knowingly, intelligently, and voluntarily waived his

Miranda rights, the trial court found that law enforcement (1) “read [Pickens] his

Miranda rights,” (2) “had [Pickens] sign a Miranda rights form,” and (3) “explained

the rights separately and took care to inquire regarding [Pickens’s] educational level

and ability to understand the rights.” (Id.). Weighing against that conclusion, the

trial court found that law enforcement “did not specifically ask [Pickens] if he

wished to waive his rights or have him sign the waiver of rights portion of the form.”


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(Id.). The trial court further weighed, “[w]hile [law enforcement] assertively

challenged [Pickens’s] statements, there is no evidence that his will was overborn.”

(Id.).   As such, the trial court concluded that Pickens’s statements were not

involuntary.

         {¶16} Our review of the record, including the suppression-hearing transcript

and the interview video, reveals that the trial court’s factual findings regarding the

January 14 and 15, 2016 interviews are supported by competent, credible evidence.

See State v. Luke, 3d Dist. Allen No. 1-06-103, 2007-Ohio-5906, ¶ 12, citing State

v. Ransom, 3d Dist. Van Wert No. 15-06-05, 2006-Ohio-6490, ¶ 17.

         {¶17} At the suppression hearing, Lieutenant Chris Adkins (“Lieutenant

Adkins”) of the Marion Police Department testified that he interviewed Pickens on

January 14 and 15, 2016 at the Marion Police Station. (Apr. 20, 2016 Tr. at 9). The

video recording of Lieutenant Adkins’s interviews with Pickens on January 14 and

15, 2016 were played for the trial court. (Id. at 6, 8-9); (State’s Exs. 1, 2).

         {¶18} Lieutenant Adkins testified that he did not advise Pickens of his

Miranda rights on January 14, 2016 because Pickens came to the police station

“[v]oluntarily and [because law enforcement] had no plans to arrest him that day.”

(Apr. 20, 2016 Tr. at 13). Lieutenant Adkins also informed Pickens that day that he

did not plan to arrest him. (Id.).




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       {¶19} Regarding the January 15, 2016 interview, Lieutenant Adkins testified

that Pickens executed a “Rights Waiver Form.” (Id. at 10-11); (State’s Ex. 4).

Lieutenant Adkins read Pickens the “Waiver Rights” on the form one-by-one to

ensure that he understood his rights. (Apr. 20, 2016 Tr. at 11). Lieutenant Adkins

testified that he was satisfied that Pickens understood his rights based on Pickens’s

ninth-grade education, that Pickens can read and write the English language, and

that Lieutenant Adkins read the waiver form to Pickens line-by-line and asked after

each line whether Pickens understood his rights. (Id. at 18). He further testified,

       He waived ‘em [sic] at the top [of the form].           He signed he

       acknowledged his rights. He never said he wanted an attorney. He

       said he would talk to me. He never refused to answer any questions I

       asked him. So, to me, he waived his Miranda Rights at the time.

(Id. at 25).

       {¶20} Moreover, Lieutenant Adkins testified that his interview of Pickens on

January 15, 2016 was not a continuation of his January 14, 2016 interview of

Pickens because the January 14, 2016 interview was not

       an interrogation. It was a pure gathering of information for the sole

       fact that [the victim] needed to be interviewed again. So, the 14th we

       had absolutely no plans to arrest him. We made it perfectly clear with

       him on the 15th, at that point in time, I felt that thee [sic] interview


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       would turn into what we called an interrogation to try to get more

       information out of him and that’s why - - and the possibility of him

       not walking out there, that’s why I read him his Miranda Rights.

(Id. at 19). According to Lieutenant Adkins, “If [Pickens] would have said, ‘I wanna

[sic] leave’ [during the January 14, 2016 interview], we would of walked him out

and let him leave.” (Id. at 20). Lieutenant Adkins did not have any concerns as to

whether Pickens was coherent during either interview on January 14 or 15, 2016.

(Id. at 12).

       {¶21} Patrolman Michael Woods (“Patrolman Woods”) of the Marion Police

Department testified that he was present when a search warrant was executed at

Pickens’s residence on January 14, 2016. (Apr. 19, 2016 Tr. at 78). Patrolman

Woods testified that he remained in the garage with Pickens, Patrolman Sam Walter

(“Patrolman Walter”), and two case workers from Marion County Children’s

Services—Mandy Davis (“Davis”) and Ellen Thrush (“Thrush”),—while detectives

from the Marion Police Department searched Pickens’s house.            (Id. at 79).

Patrolman Woods testified that he spoke with Pickens in the garage with the garage

door open. (Id. at 79-80). He testified that Patrolman Walter, Davis, and Thrush

were present while he spoke with Pickens, and that Pickens’s son was present for a

portion of that conversation. (Id. at 80). According to Patrolman Woods, the

conversation lasted 20 to 25 minutes, and Pickens was willing to answer his


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questions. (Id. at 80-81). Pickens was not handcuffed during the conversation. (Id.

at 81-82).

       {¶22} Later in the conversation, Patrolman Woods asked Pickens “if he’d

come down willingly to do a - - a voluntary interview at the Police Department,” to

which Pickens agreed. (Id. at 82-83). As a result, Patrolman Woods transported

Pickens to the police station with Pickens seated in the backseat of Patrolman

Woods’s cruiser. (Id. at 83). Pickens rode in the backseat of the cruiser because

Patrolmen Woods and Walter rode in the front seats of the cruiser. (Id. at 84).

According to Patrolman Woods, Patrolman Walter conducted a “precautionary” pat-

down search of Pickens for weapons prior to allowing him in the cruiser. (Id. at 83-

84).

       {¶23} Prior to arriving at the police station, Patrolman Woods stopped at

Pickens’s son’s house for “[n]ot long. Five, maybe ten minutes at the most” to look

for an item that was described in the search warrant. (Id. at 83-84, 111). From

Pickens’s son’s house, Patrolman Woods drove to the police station, where Pickens

was directed to the “Interview Room.” (Id. at 85). The interview of Pickens with

Patrolman Woods, Davis, and Thrush on January 14, 2016 at the police station was

recorded, and that recording was played for the trial court at the suppression hearing.

(Id. at 85, 89, 98, 101, 103, 106); (State’s Ex. 1).




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       {¶24} Patrolman Woods informed Pickens that “being there was voluntary

[and that h]e was free to leave at any time.” (Apr. 19, 2016 Tr. at 85). According

to Patrolman Woods, he “didn’t coerce [Pickens] or there wasn’t any threats or

anything like that made towards him or promises for him” coming to the police

station for the interview. (Id.). That interview lasted approximately 40 minutes.

(Id. at 86).

       {¶25} According to Patrolman Woods, Pickens did not ask to leave the

interview or make any movement indicating that he wanted to leave the interview.

(Id. at 87). Pickens did not refuse to answer any questions. (Id.). Neither Patrolman

Woods nor Davis or Thrush raised their voices. (Id.). The door to the interview

room was closed but not locked. (Id. at 87-88). After the 40-minute interview,

Lieutenant Adkins spoke with Pickens in the same interview room at the police

station, and then Patrolman Woods returned Pickens to his residence. (Id. at 86-87,

90).

       {¶26} After speaking with Pickens, Lieutenant Adkins, Davis, and Thrush

again interviewed the victim, which revealed additional questions that they wanted

to ask of Pickens. (Id. at 90-91). As such, Patrolman Woods testified that he and

Patrolman Walter went to Pickens’s residence on January 15, 2016, saw Pickens in

the driveway, and asked Pickens if he would be willing to again go to the police

station, to which Pickens agreed. (Id. at 91-92).


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       {¶27} Next, Patrolman Walter testified that he was present for “most” of the

conversation with Pickens at Pickens’s residence on January 14, 2016. (Id. at 117).

He testified that he conducted a pat-down search of the outside of Pickens’s clothing

for weapons prior to transporting Pickens to the police station that day. (Id. at 118).

Patrolman Walter recalled that Pickens was “willing to come down to the Station

for an interview.” (Id. at 121).

       {¶28} He testified that he accompanied Patrolman Woods to Pickens’s

residence on January 15, 2016. (Id. at 119). According to Patrolman Walter,

Pickens was again willing to go with them to the police station for another interview.

(Id. at 122).

       {¶29} Davis testified that she accompanied law enforcement to Pickens’s

residence for the January 14, 2016 search-warrant execution “to speak with

[Pickens] regarding the allegations.” (Id. at 16-17). According to Davis, Pickens

was willing to speak with them but denied the allegations. (Id. at 22). According

to Davis, Pickens was willing to go to the police station because “he had nothing to

hide and he wanted to clear his name.” (Id. at 32). Davis testified that law

enforcement told Pickens on January 14, 2016 while at his residence that he did not

have to go to the police station for the interview and that he was not under arrest.

(Id. at 52, 54). Davis testified that, during the January 14, 2016 interview at the

police station, Pickens was informed that he was not under arrest; Pickens was not


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threatened; no one raised their voice; and the interview lasted 25 minutes. (Id. at

34). She testified that she asked him the majority of the questions, while Thrush

and Officer Woods asked a few questions. (Id.). Davis characterized the interview

as “conversational.” (Id. at 35). She testified that the door to the interview room

was closed but not locked. (Id.).

       {¶30} Thrush testified that she accompanied Davis to Pickens’s residence to

speak with Pickens while law enforcement executed the search warrant. (Id. at 57).

She testified that Pickens “was very willing to speak with us. He just kept telling

us * * * he had nothing to hide. We were more than welcome to come to his home.

That he didn’t know why we had a search warrant cause [sic] we just could of came.

He has nothing to hide. * * * He was very cooperative with us.” (Id. at 58-59).

       {¶31} Thrush testified, regarding the January 14, 2016 interview at the police

station, that Pickens was “very willing to go. Said he had no issue. * * * He was

absolutely willing to go. Said he would talk to us however long we wanted to * * *

and that he would, you know, tell us whatever we needed to do [sic] to get his name

cleared.” (Id. at 59-60). Thrush recalled that Patrolmen Woods and Walter “made

it very clear to [Pickens] that * * * he didn’t have to come [to the police station]. It

was absolutely on his willingness to come.” (Id. at 60). She testified that, during

the January 14, 2016 interview at the police station, Pickens did not indicate at any

time that he wanted to end the interview or leave the interview room. (Id. at 63-65).


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According to Thrush, no one raised their voice during the interview or expressed

“displeasure” with Pickens’s responses. (Id. at 65).

       {¶32} We will first address whether Pickens was in custody on January 14,

2016; then, we will address whether Pickens knowingly, intelligently, and

voluntarily waived his Miranda rights on January 15, 2016.

       {¶33} Pickens was interviewed twice on January 14, 2016—at his home and

at the police station. Because Pickens does not challenge on appeal the interview

conducted at his residence, we will not address it. Weighing the totality of the trial

court’s factual findings regarding whether Pickens was in custody on January 14,

2016, we conclude that a reasonable person in Pickens’s position would believe that

he was free to leave. See Luke, 2007-Ohio-5906, ¶ 13, citing State v. Greeno, 3d

Dist. Seneca No. 13-02-46, 2003-Ohio-3687, ¶ 15.

       {¶34} This court previously stated, “to determine if an interrogation is

custodial, “‘“[t]he ultimate inquiry is simply whether there is a formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.’”’”

Id. at ¶ 16, quoting Ransom, 2006-Ohio-6490, at ¶ 20, quoting State v. Mason, 82

Ohio St.3d 144, 153 (1998), quoting California v. Beheler, 463 U.S. 1121, 1125,

103 S.Ct. 3517 (1983), and citing Thompson v. Keohane, 515 U.S. 99, 112, 116

S.Ct. 457 (1995). As in Luke, the facts of this case do not meet that standard because




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Pickens was not formally arrested prior to, during, or after the interview, and he was

never restrained to a degree equivalent to a formal arrest. Id. at ¶ 17.

       {¶35} Indeed, although the interview took place at a police station, Pickens’s

freedom was not restricted. See State v. Fahl, 2d Dist. Clark No. 2005-CA-98, 2006-

Ohio-1809, ¶ 3 (“Miranda warnings are not required simply because the questioning

takes place in the police station and the questioned person is a suspect.”), citing

Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711 (1977) and State v. Petitjean, 140

Ohio App.3d 517, 523-524 (2d Dist.2000). “We are mindful that the United States

Supreme Court has stated that questioning of a suspect at a police station does not

inherently require a conclusion that the defendant was in custody:

       [A] noncustodial situation is not converted to one in which Miranda

       applies simply because a reviewing court concludes that, even in the

       absence of any formal arrest or restraint on freedom of movement, the

       questioning took place in a “coercive environment.” Any interview

       of one suspected of a crime by a police officer will have coercive

       aspects to it, simply by virtue of the fact that the police officer is part

       of a law enforcement system which may ultimately cause the suspect

       to be charged with a crime. But police officers are not required to

       administer Miranda warnings to everyone whom they question. Nor

       is the requirement of warnings to be imposed simply because the


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       questioning takes place in the station house, or because the questioned

       person is one whom the police suspect.        Miranda warnings are

       required only where there has been such a restriction on a person’s

       freedom as to render him “in custody.” It was that sort of coercive

       environment to which Miranda by its terms was made applicable, and

       to which it is limited.”

State v. Brantley, 9th Dist. Wayne No. 27466, 2016-Ohio-4680, ¶ 63, quoting

Mathiason 495.

       {¶36} Furthermore, the circumstances of this case indicate that Pickens’s

freedom was not restricted. Pickens voluntarily accompanied the law-enforcement

officers to the police station. See Luke at ¶ 14 (concluding that Luke’s “freedom

was not restricted,” in part, because “Luke voluntarily accompanied the detectives

to the station”); State v. Scott, 3d Dist. Seneca Nos. 13-04-35 and 13-04-36, 2005-

Ohio-549, ¶ 8 (concluding that Scott was not in custody for purposes of Miranda

because she voluntarily appeared at the police station and “was free to leave at any

time while she was questioned”), citing Mathiason at 495. Pickens was never

physically restrained in any manner before, during, or after the interview. See Luke

at ¶ 14 (“Luke was never physically restrained in any manner before, during, or after

the interview.”); Fahl at ¶ 3 (finding that, because Fahl “was not in handcuffs when

he was transported to the police department,” weighed against concluding that he


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was in custody). Pickens was informed that he was not under arrest, was informed

that he would be taken home after the interview, and was taken home at the

conclusion of the interview. See Luke at ¶ 14 (“Luke was informed that he would

be taken home after the interview and, in fact, left with his girlfriend following the

interview.”); Fahl at ¶ 3 (concluding, in part, “that Fahl was not in custody at the

time he was interviewed at the police department” because “he was expressly told

he was not under arrest”). Indeed, Lieutenant Adkins told Pickens that he would be

leaving the police station that day irrespective of what Pickens said. See Brantley

at ¶ 61 (“Later in the interview, Detective Morrison repeatedly told Mr. Brantley

that he would be leaving the police station that day irrespective of what he said.”),

citing United States v. Malcom, 435 F.App’x 417, 421 (6th Cir.2011) (noting that

because the defendant was told that he could leave and was not under arrest weighs

against being in custody). Pickens did not ask to leave. See id. at ¶ 61 (concluding

that Brantley “never requested to leave” weighed against concluding he was in

custody). The door to the interview room was not locked. State v. Isaac, 2d Dist.

Greene No. 2003-CA-91, 2004-Ohio-4683, ¶ 19 (concluding that because the door

to the interview room at the police station was not locked weighed against the

conclusion that Isaac was in custody). Finally, the January 14, 2016 interviews

lasted a combined total of approximately 60 minutes. See State v. Malone, 5th Dist.

Licking No. 14CA89, 2015-Ohio-3436, ¶ 25 (concluding that the fact that the


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interview lasted 90 minutes weighed against the conclusion that Malone was in

custody); Isaac at ¶ 23 (concluding that the fact that the interview lasted two hours

weighed against the conclusion that Isaac was in custody).

       {¶37} Moreover, while the interview video depicts Lieutenant Adkins

challenging Pickens regarding some inconsistencies regarding his account and the

victim’s account, the interview video demonstrates that: Pickens was, for the most

part, calm and responsive to questions; the law enforcement officers and case

workers were not coercive, threatening, or dominating; and the law enforcement

officers and case workers did not trick or overpower Pickens into making

involuntary statements. See Luke at ¶ 14.

       {¶38} Accordingly, we conclude that the January 14, 2016 interview was

non-custodial. See id. at ¶ 14; Fahl at ¶ 3. As such, Miranda warnings were not

required. Therefore, the trial court did not err by admitting Pickens’s January 14,

2016 interview statements into evidence. Luke at ¶ 14.

       {¶39} Next, assuming without deciding that the January 15, 2016 interview

was a custodial interview, the State proved by a preponderance of the evidence that

Pickens validly waived his Miranda rights and voluntarily spoke with Lieutenant

Adkins. Weighing the totality of the trial court’s factual findings regarding whether

Pickens knowingly, intelligently, and voluntarily waived his Miranda rights on




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Case No. 9-16-35


January 15, 2016, we conclude that Pickens’s waiver was knowing, intelligent, and

voluntary, and that his statements were voluntary.

       {¶40} “The inquiry whether a waiver is coerced has two distinct

dimensions.” State v. Dailey, 53 Ohio St.3d 88, 91 (1990). “The state must prove

not only that the suspect voluntarily waived his rights but also that the suspect acted

knowingly and intelligently in doing so.” State v. Barker, ___ Ohio St.3d ___, 2016-

Ohio-2708, ¶ 27, citing Dailey at 91-92 (separately analyzing whether waiver was

knowing and intelligent despite holding that a waiver is voluntary “absent evidence

that [the suspect’s] will was overborne and his capacity for self-determination was

critically impaired because of coercive police conduct”).

       {¶41} First, Pickens’s waiver was voluntary.         “Coercive police activity

during the course of an interrogation is a necessary predicate for finding that a

suspect’s Miranda waiver was involuntary.” State v. Kirk, 3d Dist. Crawford No.

3-12-09, 2013-Ohio-1941, ¶ 28, citing Connelly, 479 U.S. at 170 (“The

voluntariness of a waiver * * * has always depended on the absence of police

overreaching.”) and State v. Getsy, 84 Ohio St.3d 180, 189 (1998) (“Evidence of

use of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of

food, medical treatment, or sleep) triggers the totality-of-the-circumstances

analysis.”). The Supreme Court of Ohio has “held that a waiver is not involuntary

unless there is evidence of police coercion, such as physical abuse, threats, or


                                         -21-
Case No. 9-16-35


deprivation of food, medical treatment, or sleep.” (Emphasis sic.) Id., citing State

v. Cooey, 46 Ohio St.3d 20, 28 (1989).

       {¶42} The trial court’s conclusion that Lieutenant Adkins did not use

coercive tactics is supported by competent, credible evidence—namely, Lieutenant

Adkins’s testimony and the video recording of Pickens’s interview. Indeed, there

is no evidence that Pickens was subjected to intimidation, deception, or coercion—

that is, there is no evidence that Lieutenant Adkins threatened Pickens, withheld

food, sleep, or medical treatment, or made him fearful. See State v. Adams, 144

Ohio St.3d 429, 2015-Ohio-3954, ¶ 175, citing Berghuis v. Thompkins, 560 U.S.

370, 386-387, 130 S.Ct. 2250 (2010) (concluding that there was “no evidence of

coercion when police officers did not threaten the suspect, withhold food or sleep,

or make him fearful”). See also Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, at

¶ 41 (“This record does not support his allegation of police coercion, as neither the

audio recording of the statement nor the testimony from the suppression hearing

indicates any physical abuse, threats, or efforts to deprive Wesson of food, medical

treatment, or sleep.”). As such, the totality of the circumstances of this case indicate

that Pickens’s waiver was voluntary.

       {¶43} Pickens’s waiver was also knowing and intelligent. “When assessing

the knowing and intelligent nature of a Miranda waiver, a suspect’s signed waiver

form is ‘strong proof’ of its validity.” Kirk at ¶ 29, citing State v. Moore, 81 Ohio


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Case No. 9-16-35


St.3d 22, 32 (1998), citing North Carolina v. Butler, 441 U.S. 369, 374-375, 98

S.Ct. 1755 (1979). In this case, Lieutenant Adkins read each Miranda right to

Pickens and stopped after each line to ask Pickens if he understood that right. After

hearing his Miranda rights and indicating that he understood them, Pickens signed

the form indicating that he understood his Miranda rights. (See State’s Ex. 4).

Lieutenant Adkins took additional steps to ensure that Pickens was capable of

understanding the rights he was waiving by asking Pickens about his education,

ability to read and write, and ability to understand right from wrong. Compare Kirk

at ¶ 31-33, citing Garner v. Mitchell, 557 F.3d 257, 261-262 (6th Cir.2009). These

facts indicate that Pickens’s waiver was knowing and intelligent.

       {¶44} Nonetheless, Pickens argues on appeal that his Miranda waiver is

invalid because he indicated to Lieutenant Adkins that he understood his rights, not

that he waived them. That is, Pickens argues that he merely signed the form

indicating that he understood his rights but did not sign the bottom of that form,

which is titled “Waiver of Rights.” He further argues that his waiver is invalid

because he responded “somewhat” when asked if he understood his rights. It is well

settled that a Miranda waiver need not be expressly made to be valid; rather, a

waiver may be inferred from the suspect’s behavior, viewed in light of all of the

surrounding circumstances. State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477,

¶ 11. Based on our discussion above, we reject Pickens’s argument that he did not


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Case No. 9-16-35


validly waive his Miranda rights because he did not sign the bottom of the form

titled “Waiver of Rights.” See United States v. Jackman, 214 F. App’x 814, 816

(10th Cir.2007) (“Although [Jackman] * * * was not asked to sign a waiver form,

[he] acknowledged each of his Miranda rights and, when asked if he had ‘any

questions about it at all,’ he responded ‘No sir.’”). We also reject Pickens’s

argument that his waiver is invalid based on his response that he “somewhat”

understood his rights. Pickens’s argument is belied by the facts that (1) he signed

the form indicating that he understood his rights, (2) he acknowledged that he

understood each right after Lieutenant Adkins read each Miranda right to him, and

(3) he agreed to answer questions. See Kirk at ¶ 36, citing Smith v. Mullin, 379 F.3d

919, 932-934 (10th Cir.2004) and United States v. Turner, 157 F.3d 552, 555 (8th

Cir.1998).

       {¶45} Pickens also argues that his Miranda waiver was not valid because of

his “lack of education and familiarity with the criminal process.” (Appellant’s Brief

at 9). “‘[A]n individual’s low intellect does not necessarily render him or her

incapable of waiving Miranda rights.’” Kirk at ¶ 29, quoting State v. Lynn, 7th Dist.

Belmont No. 11 BE 18, 2011-Ohio-6404, ¶ 14. “Rather, the suspect’s intelligence

must be considered in light of the interrogation’s other circumstances, including the

suspect’s own conduct and representations during the interrogation.” Id. at ¶ 30,

citing Garner at 264 (“It is well-established * * * that mental capacity is one of


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Case No. 9-16-35


many factors to be considered in the totality of the circumstances analysis regarding

whether a Miranda waiver was knowing and intelligent. Thus, diminished mental

capacity alone does not prevent a defendant from validly waiving his or her Miranda

rights.”) and State v. Jenkins, 15 Ohio St.3d 164, 233 (1984) (stating that the

suspect’s intelligence is merely “one factor” in the assessment of a Miranda

waiver’s validity). See also Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, at ¶ 41

(“Wesson’s claim of a limited education may evidence ‘low mental aptitude,’ but

that alone does not demonstrate involuntariness.”).

       {¶46} Notwithstanding Pickens’s ninth-grade education, there is no evidence

in the record to suggest that Pickens had any mental deficiencies, which would

render his waiver invalid. See Kirk at ¶ 34 (concluding that Kirk did not display any

“outward signs that he was of diminished mental capacity” during his interrogation);

State v. Schiessler, 2d Dist. Montgomery No. 24771, 2012-Ohio-4085, ¶ 19, 21

(concluding that Schiessler’s Miranda waiver was valid despite his ninth-grade

education because there was “no evidence in the record to suggest that Schiessler

had mental deficiencies”). Rather, the interview video demonstrates that Pickens

was able to answer questions in a competent manner and had little difficulty

understanding what was asked of him.           See State v. Bumgardner, 11th Dist.

Trumbull No. 2007-T-0106, 2008-Ohio-1778, ¶ 53 (“Our review of the record,

including the videotape of the interview, demonstrates that despite his borderline


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Case No. 9-16-35


I.Q. and eighth-grade education, Mr. Bumgardner was able to answer questions in

a competent manner and had little difficulty understanding what was asked of

him.”). Familiarity with the criminal process is a relevant circumstance to be

weighed when considering the totality of the circumstances. Kirk at ¶ 25, citing

State v. Whisenant, 127 Ohio App.3d 75, 87 (11th Dist.1998) (stating that a

suspect’s previous criminal experience is also a relevant circumstance). However,

that Pickens did not have familiarity with the criminal process does not render his

waiver invalid based on the totality of the other circumstances of this case.

       {¶47} Yet, Pickens further contends that his waiver is invalid because

Lieutenant Adkins de-emphasized the Miranda warnings by indicating to him that

the Miranda warnings were a mere formality. However, we reject Pickens’s

argument because, even if Lieutenant Adkins tried to downplay the importance of

the Miranda warning, Pickens was still fully cognizant of the warning’s significance

based on the totality of the circumstances we addressed above. Compare State v.

Quigley, 11th Dist. Geauga No. 2004G-2577, 2005-Ohio-5276, ¶ 26, 29 (concluding

that Quigley’s Miranda waiver was valid despite law enforcement’s attempt “to

downplay the relative importance of his Miranda rights” by telling him “that the

Miranda warnings had been given to him ‘as a courtesy’” because Quigley “was

still fully cognizant of the warning’s significance”); United States v. Barragan,

N.D.Iowa No. CR13-4018-MWB, 2013 WL 4606611, *7 (Aug. 27, 2013)


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Case No. 9-16-35


(concluding that Barragan waived his Miranda rights despite law enforcement

telling him “that reading his rights was a ‘formality’”), citing United States v. Syslo,

303 F.3d 860, 866 (“finding that Miranda waivers were not invalidated even if the

officers had told suspects that signing the waivers was a formality after they went

to the police station voluntarily, were informed they would be questioned and they

agreed to answer”).

       {¶48} Accordingly, in light of the circumstances of this case, Pickens

voluntarily, knowingly, and intelligently waived his Miranda rights. See Kirk at ¶

36. See also Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, at ¶ 13. Therefore, we

conclude that Pickens validly waived his Miranda rights, and his statements to law

enforcement were voluntary. Thus, the trial court did not err by admitting Pickens’s

January 15, 2016 statements into evidence.

       {¶49} As such, the trial court did not err by denying Pickens’s motion to

suppress evidence. Pickens’s first assignment of error is overruled.

                            Assignment of Error No. II

       The Court Erred by Ruling that the Child Was Competent to
       Testify in this Case. As the Proponent of the Child Witnesses’
       [sic] Testimony, the State Did Not Meet its Burden of Proving the
       Child Was Capable of Receiving Just Impressions and Relating
       Them Truthfully.

       {¶50} In his second assignment of error, Pickens argues that the trial court

erred in finding that the victim, R.D., was competent to testify at trial. Specifically,


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Case No. 9-16-35


he avers that the record fails to establish that R.D. is able to receive just impressions

and relate them truthfully.

       {¶51} Evid.R. 601 provides, in relevant part: “Every person is competent to

be a witness except: (A) * * * children under ten years of age, who appear incapable

of receiving just impressions of the facts and transactions respecting which they are

examined, or of relating them truly.” Evid.R. 601(A).

       {¶52} “A trial court must conduct a voir dire examination of a child under

ten years of age to determine the child’s competence to testify. In making this

determination, the court must consider:

       (1) the child’s ability to receive accurate impressions of fact or to

       observe acts about which he or she will testify, (2) the child’s ability

       to recollect those impressions or observations, (3) the child’s ability

       to communicate what was observed, (4) the child’s understanding of

       truth and falsity and (5) the child’s appreciation of his or her

       responsibility to be truthful.”

State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 100, quoting State v.

Frazier, 61 Ohio St.3d 247, 251 (1991). “It is well-settled that, as the trier of fact,

trial judges are required to make a preliminary determination as to the competency

of all witnesses, including children, and that absent an abuse of discretion,

competency determinations of the trial judge will not be disturbed on appeal.” State


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Case No. 9-16-35


v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-Ohio-52, ¶ 52, citing State v. Clark,

71 Ohio St.3d 466, 469 (1994), citing Frazier at 251. “A trial court is given wide

latitude in determining whether a prospective witness is competent to testify.” Id.,

citing Clark at 469-70. “‘The trial judge has the opportunity to observe the child’s

appearance, manner of responding to questions, general demeanor, and ability to

relate facts accurately and truthfully.’” Id., quoting Frazier at 251.

       {¶53} On June 2, 2016, the trial court conducted a hearing to determine

R.D.’s competency to testify. (June 2, 2016 Tr. at 1). R.D. was nine years old when

she testified at that hearing. (Id. at 15). During the voir dire examination to

determine her competency, R.D. stated her birthday and that she lived with her

parents and her sisters. (Id. at 15, 17). R.D. stated the ages of her sisters. (Id. at

17). She also recalled details from her ninth birthday party, including specific

details about her birthday cake. (Id. at 15-17). R.D. was able to recall her last day

of school and knew how many days she had been out of school for the summer. (Id.

at 17). R.D. knew the name of the school she attends, which grade she completed,

which grade she would be entering the next school year, and the names of her

teachers. (Id. at 18-19). She identified the specific gifts she received at Christmas

the year before. (Id. at 22).

       {¶54} On appeal, Pickens directs us to R.D.’s answers from the competency

hearing that he argues supports his claim that the trial court abused its discretion in


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Case No. 9-16-35


concluding that R.D. is competent to testify. The portions of the competency-

hearing transcript that he refers us to are as follows:

       [Trial Court]:    Now, how – how long have you lived on Kentucky Street?

       [R.D.]:           Eighteen one years.

       [Trial Court]:    Say that again?

       [R.D.]:           Eighteen hundred years.

       [Trial Court]:    Eighteen hundred years.

       [R.D.]:           Um-hum.

       [Trial Court]:    That sounds like a real long time.

       [R.D.]:           Um-hum.

       [Trial Court]:    Did you live someplace else before you lived on Kentucky

                         Street?

       [R.D.]:           Hmm –

       [Trial Court]:    Or –

       [R.D.]:           I don’t – I don’t know.

       [Trial Court]:    Okay. So, now, you’re – you’re in a Courtroom, do you

                         know that?

       [R.D.]:           Um-hum.

       [Trial Court]:    Have you been in here before?

       [R.D.]:           No.


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Case No. 9-16-35


       [Trial Court]:   Okay.

                        Did they bring you in last week may be to –

       [R.D.]:          Yeah.

       ***

       [Trial Court]:   Your – your mother’s here in Court, right? And you live

                        with her? Okay. Did she talk to ya [sic] about comin [sic]

                        in here today?

       [R.D.]:           -- (Inaudible) --

       [Trial Court]:   And did she give you any advice or tell you what you

                        should say when you were in Court?

       [R.D.]:          Yes.

       [Trial Court]:   What did she tell you?

       [R.D.]:          All those things about Harold.

(Id. at 20, 22, 28). Notwithstanding those responses, after further inquiry from the

trial court, R.D. provided the following responses demonstrating that she understood

the concept of truthfulness and knew that there were consequences for not telling

the truth:

       [Trial Court]:   Now, when we’re in Court, it’s real important that you tell

                        the truth. Do you know what it means to tell the truth?

                        That’s kinda [sic] a hard word.


                                         -31-
Case No. 9-16-35


      [R.D.].          Hmm.

                       Tell the truth you won’t get in trouble.

      [Trial Court]:   So what happens if you don’t tell the truth?

      [R.D.]:          You’ll get in trouble.

      [Trial Court]:   Okay.

                       How do you know that?

      [R.D.]:          Because I’m smart.

      ***

      [Trial Court]:   Now, if you’re asked some questions in Court, will you tell

                       the truth about what you’re asked? Now, let me ask you

                       kind of a silly question. If I said that I’m wearing a red

                       robe, would that be the truth?

      [R.D.]:          No.

      [Trial Court]:   Okay.

                       Why wouldn’t it be the truth?

      [R.D.]:          That would be a lie.

      [Trial Court]:   And why would it be a lie?

      [R.D.]:          Because it’s not red.

      [Trial Court]:   It’s not red.

                       What color is it?


                                       -32-
Case No. 9-16-35


      [R.D.]:          Black.

      [Trial Court]:   So if I said I was wearing a black robe, would that be the

                       truth?

      [R.D.]:          Yes.

      [Trial Court]:   And if I was in Court and I had to take an oath or a promise

                       to tell the truth and they asked me what color by [sic] robe

                       is what should I say?

      [R.D.]:          I promise I’ll tell the truth.

      [Trial Court]:   Okay.

                       And so let’s say you were – had to promise to tell the truth

                       and we asked ya [sic] what color by [sic] is, what would

                       your answer be?

      [R.D.]:          Your robe’s black.

      ***

      [Trial Court]:   Did [your mother] tell you whether you should tell the truth

                       or not?

      [R.D.]:          Truth.

      [Trial Court]:   She said tell ya [sic] the – the truth?

                       Okay. And by truth, what do you think that means?




                                        -33-
Case No. 9-16-35


       [R.D.]:            When you tell the truth you’ll be good and not be bad and

                          you won’t be – when you tell the truth you – you’ll not be

                          grounded or nothing.

(Id. at 23, 26-27, 29).

Regarding the incidents involving Pickens, the trial court had the following

exchange with R.D.:

       [Trial Court]:     Would you – would you go to his house sometimes?

       [R.D.]:            Yeah

                          And stay the night sometimes.

       [Trial Court]:     Okay.

                          Now, were there some things that happened at his house

                          that you told people about?

       [R.D.]:            Hmm.

                          Well, we take a bath with each other.      We leave our

                          underwears on.

       [Trial Court]:     Okay.

                          You would – what, you say you would take a bath?

       [R.D.]:            Yeah.

       [Trial Court]:     And what, [Pickens] would help give you the bath? Or

                          would he take a bath also?


                                         -34-
Case No. 9-16-35


       [R.D.]:           I’ll take a bath with him.

       ***

       [Trial Court]:    Do you remember some ladies from Children Services

                         talkin’ [sic] to you?

       [R.D.]:           Yes.

       [Trial Court]:    Okay.

                         And did you tell them about what [Pickens] had done?

       [R.D.]:           Hmm, yeah.

(Id. at 25-26).

       {¶55} “The Supreme Court of Ohio has stated that ‘a child may be competent

to testify even though the child is unable to recollect some facts or initially does not

recognize the concept of truth, so long as other answers demonstrate that the child

can perceive and recall generally and understands the concept of truthfulness.’”

Spencer, 2015-Ohio-52, at ¶ 55, citing State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, ¶ 76, citing State v. Anderson, 154 Ohio App.3d 789, 2003-Ohio-5439, ¶ 62

(finding the six-year-old witness competent even though she answered some

questions incorrectly). See also Prado v. Elsayed, 2d Dist. Montgomery No. 24528,

2012-Ohio-290, ¶ 42 (stating that a child can be found competent to testify even

when the child is initially “unable to recollect some facts or initially does not

recognize the concept of truth, so long as the voir dire continues on to demonstrate


                                         -35-
Case No. 9-16-35


that the child can perceive and recall generally and understands the concept of

truthfulness”).

       {¶56} Similar to child-victim in Spencer, although the record reflects that

R.D. “seemed confused and had initial difficulty answering some of the specific

questions posed by the trial court,” the totality of the record reflects R.D. is able to

receive just impressions and relate them truthfully. Spencer at ¶ 56. R.D.’s

responses to other questions from the trial court demonstrate “that she knew the

difference between truth and falsity and understood that she should tell the truth.”

Id. Therefore, we conclude that R.D. exhibited sufficient ability to receive, recall,

and communicate accurate impressions of fact, understand truth and falsity, and

appreciate the responsibility to tell the truth as required under Evid. R. 601(A). Id.

Accordingly, the trial court did not abuse its discretion by finding R.D. competent

to testify. Pickens’s second assignment of error is overruled.

       {¶57} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




                                         -36-
