[Cite as State v. Humphrey, 2010-Ohio-5950.]


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


STATE OF OHIO,                                  :
                                                :
             Plaintiff-Appellee,                :   Case No: 10CA3150
                                                :
             v.                                 :
                                                :   DECISION AND
JEFFREY HUMPHREY,                               :   JUDGMENT ENTRY
                                                :
             Defendant-Appellant.               :
                                                :   File-stamped date: 11-29-10


                                           APPEARANCES:

Eric W. Brehm, Columbus, Ohio, for Appellant.

Michael Ater, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.


Kline, J.:

        {¶1}      Jeffrey Humphrey appeals his convictions for breaking and entering,

possession of criminal tools, and tampering with evidence. Humphrey contends that the

trial court erred by failing to suppress a statement he gave to the police. Because we

find that competent and credible evidence supports the trial court’s determination that

Humphrey was sufficiently sober to waive his rights, and because we find under the

totality-of-the-circumstances that the trial court did not err in determining that

Humphrey’s voluntarily gave his statement, we disagree.

        {¶2}      Humphrey next contends that the trial court erred by failing to merge his

convictions for breaking and entering and possession of criminal tools as allied offenses

of similar import. Because the Supreme Court of Ohio has previously rejected
Ross App. No. 10CA3150                                                                     2


Humphrey’s argument, we disagree. Accordingly, we affirm the judgment of the trial

court.

                                              I.

          {¶3}   On July 13, 2009, officers from the Ross County Sheriff’s Office

responded to an alarm activation (the record does not describe the building broken

into). As Corporal Sam Johnson arrived at the scene, he observed a vehicle depart

(again there does not appear to be a description of the vehicle in the record). Johnson,

presumably using his radio, notified the other responding officers of the vehicle. Deputy

Matt Kelly was also en route to the scene. He observed the vehicle headed away from

the scene, and, in response to Johnson’s notification, he turned his vehicle around to

follow.

          {¶4}   Kelly followed the vehicle for a short distance. He observed the driver

commit several traffic infractions. Kelly then initiated a traffic stop based on those

infractions. The driver of the vehicle, Humphrey, admitted that he was driving on a

suspended license. A passenger in the vehicle, Landon Craft, refused to speak to the

police. Kelly also smelled the odor of alcohol both upon Humphrey and the vehicle.

The record is unclear as to whether Kelly conducted any field sobriety tests on

Humphrey. Kelly did later testify that Humphrey did not appear impaired or intoxicated.

          {¶5}   Johnson requested that Kelly transport Humphrey along with his

passenger back to the scene of the break-in. Once there, Johnson gave Humphrey

warnings pursuant to Miranda v. Arizona (1966), 384 U.S. 436, and then began to

question Humphrey. But shortly after giving the warnings, the owner of the building or

the owner’s agent arrived on the scene. The record does not establish who the owner
Ross App. No. 10CA3150                                                                  3


or owner’s agent was, and Johnson merely refers to him as a “key holder”. Johnson

then had Kelly transport Humphrey to the police station while Johnson conferred with

the owner or owner’s agent.

       {¶6}   Humphrey was placed in one of the interrogation rooms of the police

station. When Johnson arrived, he provided Humphrey with the Miranda warnings

again. Humphrey waived his Miranda rights, and Humphrey gave the statement

incriminating himself in the break-in. Johnson later testified that he could smell no

alcohol on Humphrey, that Humphrey was not slurring his speech, and that Humphrey

appeared alert and capable of understanding the proceedings. As an inducement,

Johnson promised Humphrey that, regardless of what Humphrey said, Johnson would

not file a complaint against him. But Johnson also specifically stated that he had no

control over what the prosecutor’s office would do.

       {¶7}   The Ross County Grand Jury returned a three-count indictment against

Humphrey for complicity to breaking and entering, possession of criminal tools, and

tampering with evidence.

       {¶8}   Later, Humphrey filed a motion to suppress the statement that Johnson

had obtained during his interview. Humphrey argued that he was too intoxicated to

knowingly waive his Miranda rights. In support of this motion, Humphrey produced

Stephanie Yoakem as a witness. Yoakem testified that she picked up Humphrey from

the Sheriff’s Department and that Humphrey was visibly intoxicated, incoherent, and

unsteady on his feet.

       {¶9}   Based on the testimony of Johnson and Kelly, the trial court overruled

Humphrey’s motion. Humphrey then pleaded no contest to the three counts in the
Ross App. No. 10CA3150                                                                        4


indictment. The court found Humphrey guilty of all three counts. After a sentencing

hearing, the trial court sentenced Humphrey to 12 months in prison for both complicity

to breaking and entering and possession of criminal tools. The trial court also

sentenced Humphrey to five years in prison for his conviction of tampering with

evidence. The trial court determined that all sentences should be served concurrently.

       {¶10}    Humphrey now appeals and assigns the following errors for our review:

I. “THE TRIAL COURT DID ERR BY DENYING THE MOTION TO SUPPRESS

APPELLANT’S STATEMENT. (T.h., p. 95)[.]” And, II. “THE TRIAL COURT DID ERR

BY FAILING TO MERGE ALLIED OFFENSES OF SIMILAR IMPORT. (T.p., p. 22)[.]”

                                              II.

       {¶11}    Humphrey claims in his first assignment of error that the trial court

should have granted his motion to suppress. “‘[A]ppellate review of a trial court’s

decision regarding a motion to suppress evidence involves mixed questions of law and

fact.’” State v. Featherstone, 150 Ohio App.3d 24, 2002-Ohio-6028, at ¶10, quoting

State v. Vest, Ross App. No. 00CA2576, 2001-Ohio-2394 (alteration sic). “At a

suppression hearing, the evaluation of evidence and the credibility of witnesses are

issues for the trier of fact.” State v. Mills (1992), 62 Ohio St.3d 357, 366 (citation

omitted). Consequently, in its review, an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence. State v.

Guysinger (1993), 86 Ohio App.3d 592, 594. However, an appellate court determines

as a matter of law, without deferring to the trial court’s conclusions, whether these facts

meet the applicable legal standard. State v. Klein (1991), 73 Ohio App.3d 486, 488.
Ross App. No. 10CA3150                                                                       5


       {¶12}    Waiver of the Fifth Amendment right not to incriminate oneself must be

made “voluntarily, knowingly and intelligently.” Miranda at 444. Absent evidence that

coercive police conduct overcame a defendant’s will and critically impaired his capacity

for self-determination, we presume that a defendant’s decision to waive his Fifth

Amendment privilege was voluntary. State v. Dailey (1990), 53 Ohio St.3d 88, 91-92.

To determine whether a waiver was voluntary, the court must consider “the totality of

the circumstances” and look specifically at the defendant’s “age, mentality, and prior

criminal experience * * *; the length, intensity, and frequency of interrogation; the

existence of physical deprivation or mistreatment; and the existence of threat or

inducement.” State v. Edwards (1976), 49 Ohio St.2d 31, paragraph two of the

syllabus, overruled on other grounds by Edwards v. Ohio (1978), 438 U.S. 911.

Evidence that the defendant signed a written waiver of his rights is strong proof that the

waiver is valid. State v. Dennis, 79 Ohio St.3d 421, 425, 1997-Ohio-372.

       {¶13}    Humphrey contends that his waiver was ineffective because it was “clear

that [Humphrey] had consumed enough alcohol to impair his ability to reason.”

Humphrey’s Brief at 9. The trial court concluded that whatever alcohol Humphrey

consumed was insufficient to render him too intoxicated to waive his Miranda rights.

       {¶14}    We now consider the trial court’s finding that “whatever [Humphrey] had

consumed did not make him unable to voluntarily waive his Miranda rights or

understand those rights, and properly waive them.” We review the record to see if the

trial court’s conclusion is supported by competent and credible evidence. In the present

case, the State produced two witnesses who testified that Humphrey did not appear

impaired or intoxicated. One of those witnesses testified that he could not even smell
Ross App. No. 10CA3150                                                                           6


any alcohol in Humphrey’s presence. Humphrey waived his rights, and, based on the

form used by the Ross County Sheriff’s Office, he placed an initial next to each

individual right he was waiving. Furthermore, Humphrey personally wrote out his

statement. Given these facts, we find competent, credible evidence supports the trial

court’s determination that Humphrey was not too intoxicated to waive his rights. See

State v. VanHoose, Pike App. No. 07CA765, 2008-Ohio-1122, at ¶21 (finding sufficient

evidence based on a signed waiver and the testimony of witnesses that the defendant

did not appear to be intoxicated other than a stale odor of an alcoholic beverage).

       {¶15}    We also note that it is questionable whether a showing of intoxication

without any showing of coercion on the part of the government is sufficient to lead to the

exclusion of the evidence. United States v. Newman (C.A.6, 1989), 889 F.2d 88, 94

(“Evidence that a defendant suffered, at the relevant time, from a condition or deficiency

that impaired his cognitive or volitional capacity is never, by itself, sufficient to warrant

the conclusion that his confession was involuntary for purposes of due process; some

element of police coercion is always necessary.”) (citations omitted); State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, at ¶34 (“A defendant’s mental condition may be a

‘significant factor in the ‘voluntariness’ calculus. But this fact does not justify a

conclusion that a defendant’s mental condition, by itself and apart from its relation to

official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’’”),

quoting Colorado v. Connelly (1986), 479 U.S. 157, 164.

       {¶16}    Humphrey next contends that Johnson rendered his waiver involuntary

because Johnson “told [Humphrey] that if he cooperated, that [Johnson] would not
Ross App. No. 10CA3150                                                                       7


charge him, but [Johnson] could not speak for the Prosecutor’s Office[.]” Suppression

Hearing Transcript at 54-55.

       {¶17}    “Where an accused’s decision to speak was motivated by police officers’

statements constituting ‘direct or indirect promises’ of leniency or benefit and other

representations regarding the possibility of probation which were misstatements of the

law, his incriminating statements, not being freely self-determined, were improperly

induced, involuntary and inadmissible as a matter of law.” State v. Arrington (1984), 14

Ohio App.3d 111, paragraph two of the syllabus. But “[u]nder the ‘totality of

circumstances’ standard, the presence of promises does not as a matter of law, render

a confession involuntary.” Edwards, Ohio St.2d at 41.

       {¶18}    “To support a determination that a confession was coerced, the

evidence must establish that: (1) the police activity was objectively coercive; (2) the

coercion in question was sufficient to overbear defendant’s will; and (3) defendant’s will

was, in fact, overborne as a result of the coercive police activity.” United States v.

Rigsby (C.A.6, 1991), 943 F.2d 631, 635. Here, we find that Johnson’s statement was

not objectively coercive.

       {¶19}    As the trial court noted: “the important half of what the deputy testified

he said[,] which was, if you give [me a] statement I won’t charge you, but I can’t speak

for the prosecutor’s office. That’s the important part, and that’s the part that serves to

make this not a product of any improper inducement. He said I won’t charge you, but [I]

can’t say what the prosecutor’s going to do. A correct statement.” Suppression Hearing

Transcript at 93.
Ross App. No. 10CA3150                                                                       8


       {¶20}    As noted above in Edwards, not all promises are coercive. And this

promise was a correct statement, which serves to distinguish it from Arrington. See

Arrington at 115 (“substantially more than simple exhortation, and something less than

accurate legal advice, was involved here”). The United States Court of Appeals for the

Sixth Circuit has noted that “a promise of lenient treatment or of immediate release may

be so attractive as to render a confession involuntary.” United States v. Wrice (C.A.6,

1992), 954 F.2d 406, 411, citing Streetman v. Lynaugh (C.A.5, 1987), 812 F.2d 950,

957. But the Sixth Circuit has also concluded that the rule is “that promises of leniency

may be coercive if they are broken or illusory.” United States v. Johnson (C.A.6, 2003),

351 F.3d 254, 262. Here, the promise was fulfilled, and Johnson did not in fact charge

Humphrey. The Sixth Circuit defines an illusory promise, in this context, as “a

statement in the form of a promise, but lacking its substance in that it does not actually

commit the police to undertake or refrain from any particular course of action.” Id. at

262, fn. 1. Here, Johnson’s promise both committed the police to a particular course of

conduct and also indicated that the prosecutor’s office may still charge Humphrey for his

conduct. As such, we find that the promise was neither broken nor illusory and,

therefore, not coercive.

       {¶21}    Unquestionably, Humphrey drank some amount of alcohol on the night

in question. But, under the totality-of-the-circumstances, we find that the amount of

Humphrey’s alcohol consumption, even when combined with Johnson’s statement, did

not serve to overbear Humphrey’s will.

       {¶22}    Accordingly, we overrule Humphrey’s first assignment of error.

                                            III.
Ross App. No. 10CA3150                                                                        9


       {¶23}    Humphrey contends in his second assignment of error that the trial court

erred by failing to merge allied offenses of similar import.

       {¶24}    Under Ohio law, “[w]here the same conduct by defendant can be

construed to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be

convicted of only one.” R.C. 2941.25(A). But “[w]here the defendant’s conduct

constitutes two or more offenses of dissimilar import, or where his conduct results in two

or more offenses of the same or similar kind committed separately or with a separate

animus as to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.” R.C. 2941.25(B).

       {¶25}    This statute “codified the judicial doctrine of merger” and “prohibited the

‘cumulative punishment of a defendant for the same criminal act where his conduct can

be construed to constitute two statutory offenses, when, in substance and effect, only

one offense has been committed.’” State v. Ware (1980), 63 Ohio St.2d 84, 86, quoting

State v. Roberts (1980), 62 Ohio St.2d 170, 172-73. We must engage in a two step

analysis in order to determine whether merger was appropriate. State v. Jones, 78

Ohio St.3d 12, 13, 1997-Ohio-38, citing State v. Blankenship (1988), 38 Ohio St.3d 116.

       {¶26}    “In the first step, the elements of the two crimes are compared. If the

elements of the offenses correspond to such a degree that the commission of one crime

will result in the commission of the other, the crimes are allied offenses of similar import

and the court must then proceed to the second step. In the second step, the

defendant’s conduct is reviewed to determine whether the defendant can be convicted

of both offenses. If the court finds either that the crimes were committed separately or
Ross App. No. 10CA3150                                                                   10


that there was a separate animus for each crime, the defendant may be convicted of

both offenses.” Blankenship at 117. The statute “permit[s] cumulative sentencing for

the commission of (1) offenses of dissimilar import and (2) offenses of similar import

committed separately or with separate animus.” State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, at ¶17, citing State v. Rance, 85 Ohio St.3d 632, 636, 1999-Ohio-291.

       {¶27}    In the present case, Humphrey contends that the trial court should have

merged his convictions for breaking and entering and possession of criminal tools. The

Supreme Court of Ohio has rejected this argument. See State v. Talley (1985), 18 Ohio

St.3d 152, syllabus (“[T]he offenses of breaking and entering, grand theft, and

possessing criminal tools are not allied offenses of similar import inasmuch as these

offenses have elements which do not correspond to such a degree that the commission

of one offense will result in the commission of the other. Accordingly, inquiry into

whether the crimes were committed with separate animus as to each is unnecessary.”).

Accordingly, we overrule Humphrey’s second assignment of error.

                                            IV.

       {¶28}    Having overruled both of Humphrey’s assignments of error, we affirm

the judgment of the trial court.

                                                                 JUDGMENT AFFIRMED.
Ross App. No. 10CA3150                                                                   11




Harsha, J., concurring:

{¶29}     State v. Talley (1985), 18 Ohio St.3d 152 predates the Supreme Court of

Ohio’s recent clarification of the proper analysis concerning crimes of similar import by

more than 20 years. Yet it still passes muster under State v. Cabrales, 118 Ohio St.3d.

54, 2008-Ohio-1625, which explains that exact alignment of the elements of the

offenses is not necessary. When comparing the corresponding elements, all that is

required is a finding that the offenses are so similar that the commission of one will

necessarily result in the commission of the other. Id. at syllabus 1.

{¶30}     Therefore, I agree that Talley remains viable and dispositive of the Second

Assignment of Error.
Ross App. No. 10CA3150                                                                  12


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and appellant 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 Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.


      Abele, J.: Concurs in Judgment and Opinion.
      Harsha, J.: Concurs with Concurring Opinion.



                                         For the Court


                                         BY:
                                               Roger L. Kline, 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.
