[Cite as In re D.K., 2020-Ohio-4156.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 IN RE: D.K.                                    :
                                                :
                                                :   Appellate Case No. 28728
                                                :
                                                :   Trial Court Case No. 2019-2172
                                                :
                                                :   (Appeal from Common Pleas Court-
                                                :   Juvenile Division)
                                                :
                                                :

                                          ...........

                                          OPINION

                            Rendered on the 21st day of August, 2020.

                                          ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Appellee, State of Ohio

CRISTY N. OAKES, Atty. Reg. No. 0081401, 2312 Far Hills Avenue, Suite 143, Dayton,
Ohio 45419
      Attorney for Appellant, D.K.

                                         .............




TUCKER, P.J.
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       {¶ 1} Appellant, D.K., appeals from the trial court’s adjudication of his guilt on two

counts of illegal use of a minor in nudity-oriented material or performance. Raising two

assignments of error, D.K. argues that the trial court erred by overruling his motion to

suppress evidence obtained as the result of a purportedly custodial interrogation for which

he was not advised of his Miranda rights, and by failing to merge the two counts for

purposes of disposition. We hold that the trial court did not err by overruling D.K.’s

motion because the evidence in question would inevitably have been discovered during

a routine search of his person incident to his arrest, and we hold further that the trial court

did not err by failing to merge the two counts for which he was adjudicated. Therefore,

D.K.’s adjudication is affirmed.

                             I. Facts and Procedural History

       {¶ 2} On April 28, 2019, officers with the Dayton Police Department investigated

allegations that D.K., a minor, had raped another minor. Transcript of Hearing on Motion

to Suppress 9:24-11:25 and 49:20-55:1, July 10, 2019. The accuser indicated that D.K.

might have captured video of the incident with his cellular telephone. Id. at 12:5-12:13.

Later that evening, the officers responded to D.K.’s residence, apparently with the

intention of formally arresting him; the officers found D.K. at home and placed him in

handcuffs. See id. at 55:2-58:8. The officers did not inform D.K. of his Miranda rights

at that time. Id. at 64:2-64:23.

       {¶ 3} After they had handcuffed D.K., the officers patted him down and asked

whether he had any belongings on his person—specifically asking whether he had his

cellular telephone. Id. at 57:17-58:16 and 64:12-64:15. D.K. initially told the officers

that he left his telephone in the basement of the residence, but once that statement proved
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to be incorrect, D.K. told the officers that the telephone was in or near the waistband of

his pants, which proved to be accurate. 1      See id. at 58:9-58:24. The officers then

transported D.K. to the City of Dayton Safety Building. Id. at 64:2-65:10. Several hours

later, officers informed D.K. of his Miranda rights, and he executed a written waiver. See

id. at 27:3-28:18. An interview followed.

       {¶ 4} On May 14, 2019, the State filed an amended complaint against D.K. in the

Montgomery County Court of Common Pleas, Juvenile Division, charging him with two

counts of rape, in violation of R.C. 2152.02 and 2907.02(A)(2); one count of attempted

rape, in violation of R.C. 2152.02 and 2923.02(A); and two counts of illegal use of a minor

in nudity-oriented material or performance, in violation of R.C. 2152.02 and

2907.323(A)(1). D.K. moved to suppress all statements and other evidence, and after

holding a hearing, the trial court overruled the motion in its decision of July 17, 2019.

       {¶ 5} On January 21, 2020, D.K. entered admissions of guilt to the two counts of

illegal use of a minor in nudity-oriented material or performance, and the State dismissed

the remaining counts. The trial court ordered that D.K. be committed to the Department

of Youth Services for one year on each count, with the terms to be served consecutively.

D.K. timely filed a notice of appeal on February 26, 2020.

                                        II. Analysis

       {¶ 6} For his first assignment of error, D.K. contends that:

              THE TRIAL COURT ERRED BY R[E]FUSING TO SUPPRESS


1 The telephone seemed to have slipped from the waistband of D.K.’s pants but was
suspended between a pant leg and D.K.’s thigh, perhaps by the tension of the fabric or,
conversely, caught in a fold of slack fabric. See Transcript of Hearing on Motion to
Suppress 58:9-58:24.
                                                                                         -4-


       JUVENILE-APPELLANT’S STATEMENTS (AND CELLPHONE) MADE

       DURING CUSTODIAL INTERROGATION AND WITHOUT MIRANDA

       WARNINGS[.]

       {¶ 7} D.K. posits that officers of the Dayton Police Department inappropriately

conducted a custodial interrogation by asking him, before he had been advised of his

Miranda rights, where his cellular telephone was. Appellant’s Brief 8-9. Based on this

proposition, D.K. argues that any statements he made thereafter, along with the

telephone itself and any other evidence, should have been suppressed as fruits of a

poisonous tree. Id. at 9.

       {¶ 8} Appellate “review of a [trial court’s ruling on a] motion to suppress presents

a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, the trial court “is in the best position to

weigh * * * evidence * * * and evaluate [the credibility of] witness[es],” so the “appellate

court must accept the trial court’s findings of fact if they are supported by competent,

credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982);

State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing

State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting

the trial court’s findings of fact as true, “the appellate court must then independently

determine, without deference to the [trial court’s legal] conclusion[s],” whether the “facts

satisfy the applicable * * * standard.” (Citations omitted.) Burnside at ¶ 8.

       {¶ 9} Here, D.K. argues that the trial court should have sustained his motion to

suppress because he was improperly subjected to a custodial interrogation without a

Miranda warning. Appellant’s Brief 8-9. The prosecution “may not use statements, * * *,
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stemming from [police officers’] custodial interrogation of [an accused] unless it

demonstrates the use of procedural safeguards effective to secure the [accused’s]

privilege against self-incrimination.” See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966). Nevertheless, “[p]olice are not required to administer

Miranda warnings to everyone whom they question.” State v. Biros, 78 Ohio St.3d 426,

440, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.

711, 50 L.Ed.2d 714 (1977). Only “custodial interrogation[s] [implicate] the need for

Miranda warnings.”     (Emphasis omitted.)      Id., citing Mathiason at 494.      Police

questioning is “custodial” where the person being questioned “has [expressly] been taken

into custody or otherwise deprived of his freedom to the degree associated with a formal

arrest,” and asking questions of the person constitutes an “interrogation” where the “the

police should know” that the questions themselves, as well as “any words or actions on

the part of the police,” other than “those [words or actions] normally attendant to arrest

and custody,” are “reasonably likely to elicit an incriminating response.” Rhode Island v.

Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Vineyard, 2d

Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 32.

      {¶ 10} The State, in this case, concedes that D.K. was in custody when officers

asked him where they could find his cellular telephone, meaning that the officers’ inquiry

would have been improper if the officers knew, or should have known, that D.K.’s

response would likely be incriminating. Appellee’s Brief 5; see Transcript of Hearing on

Motion to Suppress 11:8-13:4 and 57:12-60:23. D.K. maintains that the question about

his telephone was likely to elicit an incriminating response because “the phone was the

evidence the police needed to prove” the accusation against him, and that the question
                                                                                          -6-


“was not a routine booking question because [the officers were] specifically looking for

the phone as evidence of a possible rape.” Appellant’s Brief 9-10.

       {¶ 11} D.K.’s argument is unavailing because he had his cellular telephone on his

person at the time the officers took him into custody. Regardless of whether the officers

should have delivered a Miranda warning before asking D.K. where the telephone was,

the officers would inevitably have discovered the telephone once they transported him to

the City of Dayton Safety Building and completed a routine inventory and collection of

items on his person. See, e.g., State v. Smith, 2019-Ohio-4706, 149 N.E.3d 184, ¶ 5 (2d

Dist.) (noting that evidence obtained unconstitutionally is admissible if it would inevitably

have been discovered during the course of a lawful investigation); see Transcript of

Hearing on Motion to Suppress 60:8-60:14. D.K.’s first assignment of error is overruled.

       {¶ 12} Additionally, we reject the State’s argument that D.K. waived his right to

challenge the trial court’s ruling on his motion to suppress by entering an admission of

guilt. We acknolwedge that other districts have held otherwise, but unlike adult criminal

proceedings, in a juvenile proceeding, D.K. did not have the option of entering a plea of

no contest to preserve his right to appeal the trial court’s ruling.

       {¶ 13} For his second assignment of error, D.K. contends that:

              THE TRIAL COURT ERRED IN FAILING TO MERGE THE TWO

       CHARGES FOR THE PURPOSES OF SENTENCING BECAUSE THE

       OFFENSES WERE ALLIED OFFENSES OF SIMILAR IMPORT[,] THUS

       SUBJECT TO MERGER UNDER R.C. 2941.25[.]

       {¶ 14} D.K. argues that the trial court should have merged the two counts for which

he was adjudicated because both of the “counts involve[d] the same victim * * * and arose
                                                                                          -7-


out of the same incident.” Appellant’s Brief 11. At the end of his sentecing hearing,

D.K. “place[d] on record an objection to the consecutive [terms of committment to the

Department of Youth Services because] the two videos, * * *, were [associated] with one

incident, one animus.” Transcript of Sentencing Hearing 18:5-18:10, Mar. 31, 2020.

D.K. did not elaborate on this argument, cite to the record or offer any evidence in support.

See id. at 17:23-18:15.

       {¶ 15} The “Double Jeopardy Clause of the United States Constitution,” along with

Section 10, Article I of the Ohio Constitution, “prohibits * * * multiple punishments for the

same offense.” (Citation omitted.) State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-

4569, 895 N.E.2d 149, ¶ 10. In practice, the import of the prohibition is to “prevent[ ] a

sentencing court from prescribing greater punishment than the legislature intended.”

(Citation omitted.) Id. at ¶ 11. Ohio’s merger statute, R.C. 2941.25, “resolves both the

constitutional and state statutory inquiries regarding the General Assembly’s intent to

permit cumulative punishments for the same conduct.”          (Citation omitted.)   State v.

Freeders, 2d Dist. Montgomery No. 23952, 2011-Ohio-4871, ¶ 13.

       {¶ 16} As a “practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25,” a court must consider

whether: (1) “the offenses [were or were not] dissimilar in import or significance”; (2) the

offenses were committed separately; and (3) the offenses were “committed with separate

animus or motivation.” An “appellate court should apply a de novo standard of review

[on consideration of] a trial court’s * * * merger determination.” State v. Williams, 134

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶ 17} On the record before us, we hold that the trial court did not err by declining
                                                                                          -8-


to merge the two counts for which D.K. entered admissions of guilt. Notwithstanding that

each of the two counts of illegal use of a minor in nudity-oriented material or performance

related to video recordings of sex acts involving the same victim, we concur with the

State’s argument that by capturing two separate video recordings, D.K. committed two

separate violations of R.C. 2907.323(A)(1). See Appellee’s Brief 8-9. For example,

with respect to “[o]ffenses involving distinct [acts] of sexual activity[,] each [act]

constitute[s] a separate crime with a separate animus.” (Citations omitted.) State v.

Washington, 10th Dist. Franklin No. 01AP-727, 2002-Ohio-2086, ¶ 12; see also State v.

McLoughlin, 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426, ¶ 44. This principle

applies even if the distinct sexual acts are “part of one assaultive event.” State v. Jordan,

2d Dist. Champaign No. 2016-CA-17, 2017-Ohio-5827, ¶ 10-11. D.K. did not develop

the record below such that, for purposes of the instant appeal, this court has a sufficient

factual basis to conclude that the trial court erred by not merging the two counts for

purposes of disposition. D.K.’s second assignment of error is overruled.

                                      III. Conclusion

       {¶ 18} The trial court did not err by overruling D.K.’s motion to suppress because

his cellular telephone would inevitably have been discovered during a routine search of

his person incident to his arrest. In addition, the trial court did not err by declining to

merge the two counts of illegal use of a minor in nudity-oriented material or performance

for purposes of disposition. Therefore, the assignments of error are overruled, and

D.K.’s adjudication is affirmed.



                                      .............
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DONOVAN, J. and WELBAUM, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Cristy N. Oakes
Serah Siemann
D.A.
Hon. Anthony Capizzi
