[Cite as State v. Pablo, 2017-Ohio-8834.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                  Plaintiff-Appellant,            :
                                                                   No. 16AP-888
v.                                                :            (C.P.C. No. 16CR-1476)

David Pablo,                                      :           (REGULAR CALENDAR)

                  Defendant-Appellee.             :



                                            D E C I S I O N

                                    Rendered on December 5, 2017


                  On brief: Ron O'Brien, Prosecuting Attorney, Steven L.
                  Taylor, and Valerie B. Swanson, for appellant. Argued:
                  Valerie B. Swanson.

                  On brief: Yousef M. Faroniya, for appellee. Argued: Yousef
                  M. Faroniya.

                    APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
          {¶ 1} Plaintiff-appellant, State of Ohio, appeals a decision of the Franklin County
Court of Common Pleas issued on December 21, 2016 which suppressed statements the
defendant-appellee, David Pablo, made to the police in an interrogation on September 24,
2014. Because Pablo was not afforded the presence of a parent or responsible adult in
determining whether to waive his Miranda1 rights, because he had no prior experience with
the police, because English was not his first or primary language, because evidence
suggested his level of intelligence was not high, and because he indicated that he signed the
rights waiver form because he thought he had to, we agree with the trial court. Under the




1   Miranda v. Arizona, 384 U.S. 436 (1966).
No. 16AP-888                                                                                2


totality of the circumstances, Pablo's Miranda waiver was not valid and Pablo's statement
to the police was correctly suppressed.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} On September 24 and 25, 2014, Pablo was charged as a juvenile with three
counts of rape, two counts of kidnapping, one count of gross sexual imposition, and one
count of felonious assault in connection with two incidents involving two different women
on September 9 and 22, 2014. (Sept 24, 2014 Compl. Franklin C.P. No. 14JU-12291;
Sept. 25, 2014 Compl. Franklin C.P. No. 14JU-12370.) Following proceedings in the
Juvenile Division on both cases, the Juvenile Division issued an entry on March 14, 2016
transferring the case to the General Division of the Franklin County Court of Common Pleas
for criminal prosecution of Pablo as an adult. (Mar. 14, 2016 Bindover Entry.) On March
23, a grand jury indicted Pablo as an adult for 14 offenses similar to the juvenile charges in
connection with the same two incidents. (Mar. 23, 2016 Indictment.) Pablo pled not guilty.
(Mar. 30, 2016 Plea Form.)
       {¶ 3} Approximately four months later, on August 3, 2016, Pablo filed a motion to
suppress statements made to the police during an interrogation on September 24, 2014.
(Aug. 3, 2016 Mot. to Suppress.) On December 5, 2016, the trial court held a hearing on
the matter. (Dec. 5, 2016 Hearing Tr., filed Feb. 6, 2017.) At the hearing, the State
presented a Miranda rights form, signed by Pablo, and a video recording of the
interrogation. (State's Exs. 1-2.) In addition, three witnesses testified, one of the detectives
who interviewed Pablo, Pablo himself, and Pablo's mother.
       {¶ 4} The detective testified first. He testified that after he became suspicious (for
reasons which are not disclosed in the record) that Pablo was involved in the incidents with
the two women, he traveled to Pablo's school. (Hearing Tr. at 6, 16.) The detective said
that Pablo had been brought to an administrator's office at the school and that after telling
Pablo the police needed to talk to him, he had a patrol officer transport Pablo to the Franklin
County Sheriff's Office.    (Hearing Tr. at 6-7, 16-19.)      The detective testified that a
"translator" from the school called Pablo's parents but the detective admitted he was not in
the room when the call took place; he testified that, to the extent he could overhear, he did
not understand what he heard. (Hearing Tr. at 18, 24.)
       {¶ 5} Video revealed that at the Franklin County Sheriff's Office, two detectives
interviewed Pablo for approximately 26 minutes in an interrogation room. (State's Ex. 2.)
No. 16AP-888                                                                              3


In addition to having Pablo sign the Miranda rights form, one of the detectives read Pablo
the rights portion of the form verbatim, pausing after each right to ask Pablo if he
understood. (State's Ex. 2 at 0:15-0:56.) In each pause, Pablo nodded to some visible
degree. Id. After the reading, Pablo signed the form. (State's Ex. 2 at 0:54-1:02.) The form
provided in relevant part as follows:

               Before we ask you any questions you must understand your
               rights.

               You have the right to remain silent.

               Anything you say can be used against you in court.

               You have the right to talk to a lawyer for advice before we ask
               you any questions, and to have him present with you during
               questioning.

               If you are unable to pay a lawyer, one will be appointed for you
               prior to any questioning, if you so desire.

               If you wish to answer questions now, without a lawyer present,
               you have the right to stop answering questions at any time.

               You also have the right to stop answering at any time until you
               talk to a lawyer.

(State's Ex. 1.)
       {¶ 6} Only the portion of the video involving the reading of rights was played
during the hearing but the entire video was introduced as an exhibit. (Hearing Tr. at 15.)
Although the rest of the video was not played during the hearing, the testifying detective
stated that the interrogation remained calm throughout the entire 26-minute period, and
Pablo was neither threatened nor promised anything. Id. The detective confirmed that no
parent or adult responsible for Pablo was present during the interrogation and that the
police made no attempt to contact any such person. (Hearing Tr. at 24.)
       {¶ 7} Pablo testified that on the date of the interview, September 24, 2014, he had
just turned 16 and was in ninth grade (having been held back). (Hearing Tr. at 27.) He
testified that he was a "D" student and that while he understands and speaks English fully
(having lived in the United States his whole life), his first and primary language is Spanish.
(Hearing Tr. at 28, 31.) He recounted that the principal took him out of class and to the
No. 16AP-888                                                                              4


office where a detective and two officers were waiting. (Hearing Tr. at 28-29.) The detective
told him to put his hands behind his back and he was then taken to the police station.
(Hearing Tr. at 29.) He had never been interrogated or even visited a police station before.
Id. No one offered him a phone call, or to let someone know where he was, or to notify his
parents. Id. Although he admitted that he understood that the police were telling him he
had the right to talk to a lawyer, he signed the form because he thought he had to sign.
(Hearing Tr. at 29-32.) He did not read it. (Hearing Tr. at 30.) He confirmed that the
detectives made neither threats nor promises and admitted that he never asked permission
to telephone his parents. (Hearing Tr. at 32.)
       {¶ 8} Pablo's mother testified by means of an interpreter. (Hearing Tr. at 35.) She
testified that Pablo did not come home from school in a timely fashion and that she had
been worried. (Hearing Tr. at 35-36.) She only found out that he had been arrested around
midnight when her sister saw it on the news and contacted her. Id. She testified that the
school had contacted her before at home and knew her number. (Hearing Tr. at 36.)
Despite the fact that she was home that day, no one from the school or the police contacted
her. Id.
       {¶ 9} In reaching a decision, the trial court recounted the factual circumstances of
the case. (Dec. 21, 2016 Entry at 1-2.) It particularly noted that the defendant was not a
good student, that he had no experience with the police, that the police and school "did very
little to arrange for the defendant to have any independent advice as to his rights," and that
he was "taken from his normal environment and [] placed in intimidating surroundings
with no familiar support." Id. at 2. Accordingly, the court concluded that "this young
defendant was too likely to say whatever he believed the authorities wanted him to say,"
and thus "the statements on the subject date should be suppressed." Id.
       {¶ 10} Pursuant to R.C. 2945.67(A), Crim.R. 12(K), and App.R. 4(B)(4), the State
has appealed as of right, certifying that "the trial court's ruling on the motion to suppress
has rendered the State's proof with respect to the pending charge so weak in its entirety that
any reasonable possibility of effective prosecution has been destroyed." (Dec. 28, 2016
Notice of Appeal.)
II. ASSIGNMENT OF ERROR
       {¶ 11} The State asserts a single assignment of error for review:
No. 16AP-888                                                                             5


             THE TRIAL COURT ERRED WHEN IT SUPPRESSED
             DEFENDANT'S VOLUNTARY STATEMENTS OBTAINED
             AFTER A VALID WAIVER OF HIS MIRANDA RIGHTS.

III. DISCUSSION
      {¶ 12} Generally speaking:

             "The determination of whether there has been an intelligent
             waiver of [the] right to counsel must depend, in each case, upon
             the particular facts and circumstances surrounding that case,
             including the background, experience, and conduct of the
             accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,
             82 L.Ed. 1461 (1938).

State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 35.
      {¶ 13} Due process protects juveniles with the result that they are afforded the right
to Miranda warnings. In re Gault, 387 U.S. 1, 55 (1967). With respect to whether a juvenile
has validly waived his Miranda rights, the Supreme Court of Ohio has said:

             If custodial interrogation continues in the absence of an
             attorney after a police officer advises a suspect of his rights, the
             government bears "a heavy burden" to demonstrate by a
             preponderance of the evidence that the suspect "knowingly and
             intelligently waived his privilege against self-incrimination and
             his right to retained or appointed counsel" before speaking to
             the police. Miranda at 475, citing Escobedo v. Illinois, 378 U.S.
             478, 490, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), fn. 14; [Colo. v.
             ]Connelly, 479 U.S. [157,] 169[(1986)]. See also State v. Treesh,
             90 Ohio St.3d 460, 470, 2001 Ohio 4, 739 N.E.2d 749 (2001)
             (recognizing requirement of knowing, intelligent waiver). A
             court may not presume a valid waiver either from the suspect's
             silence after warnings are given or from the fact that the
             suspect eventually confessed. Miranda at 475. Rather, the
             record must show "'that an accused was offered counsel but
             intelligently and understandingly rejected the offer. Anything
             less is not waiver.'" Id., quoting Carnley v. Cochran, 369 U.S.
             506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). If the state does
             not satisfy its burden, "no evidence obtained as a result of
             interrogation can be used." Id. at 479.

             To determine whether a suspect knowingly, intelligently, and
             voluntarily waived his Miranda rights, courts examine the
             totality of the circumstances. State v. Clark, 38 Ohio St.3d 252,
             261, 527 N.E.2d 844 (1988). When the suspect is a juvenile, the
             totality of the circumstances includes "the juvenile's age,
             experience, education, background, and intelligence" as well as
No. 16AP-888                                                                               6


              his "capacity to understand the warnings given him, the nature
              of his Fifth Amendment rights, and the consequences of
              waiving those rights." Fare v. Michael C., 442 U.S. 707, 725, 99
              S.Ct. 2560, 61 L.Ed.2d 197 (1979).

State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, ¶ 23-24.
       {¶ 14} Whether a juvenile has voluntarily confessed (following a valid waiver of
rights under Miranda), the Supreme Court has explained:

              In deciding whether a juvenile's confession is involuntarily
              induced, [a trial] court should consider the totality of the
              circumstances, including the age, mentality and prior criminal
              experience of the accused; the length, intensity, and frequency
              of interrogation; and the existence of physical deprivation or
              inducement.

In re Watson, 47 Ohio St.3d 86 (1989), paragraph one of the syllabus.
       {¶ 15} Some jurisdictions have recognized an "independent advice/interested adult"
principle which holds that a juvenile can only validly waive his rights to an attorney and to
remain silent if both the child and a parent (or other "interested adult") are advised of those
rights and are given the opportunity to confer regarding the advisability of waiving, free
from coercion, force, or inducement. Id. at 89. The Supreme Court has expressly declined
to adopt the "independent advice/interested adult" view as a per se rule in juvenile
interrogations. Id. at 89-90. But the Court has not forbidden it as a consideration under
the "totality of the circumstances." Id. at paragraph one of the syllabus. And the Supreme
Court has explained that, "[a] juvenile's access to advice from a parent, guardian or
custodian also plays a role in assuring that the juvenile's waiver is knowing, intelligent, and
voluntary." Barker at ¶ 24, citing In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, ¶ 96.
       {¶ 16} In reviewing decisions made on motions to suppress, we afford deference to
the trial court's factual determinations and review the trial court's recitation of historical
facts for "clear error;" however, we review statements of law and their application to facts
de novo. See, e.g., Ornelas v. United States, 517 U.S. 690, 699 (1996); In re A.J.S., 120 Ohio
St.3d 185, 2008-Ohio-5307, ¶ 50; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8.
       {¶ 17} Consistent with the record, the trial court noted in its decision that Pablo had
just turned 16 at the time of the interrogation, was a poor student repeating ninth grade,
No. 16AP-888                                                                                             7


and had no previous contact with the police. (Dec. 21, 2016 Entry at 2.) The record is clear
that the trial court considered " 'the juvenile's age, experience, education, background, and
intelligence' as well as his 'capacity to understand the warnings given him, the nature of his
Fifth Amendment rights, and the consequences of waiving those rights.' " Barker at ¶ 24,
quoting Fare v. Michael C., 442 U.S. 707, 725 (1979).
        {¶ 18} These considerations are also relevant and significant to determining
voluntariness such as, "the age, mentality and prior criminal experience of the accused." In
re Watson at paragraph one of the syllabus. In admitting the videotaped confession and
hearing testimony about its circumstances and character, the trial court also would have
considered (though it did not explicitly mention) other voluntariness factors including, "the
length," (short, 26 minutes), "intensity," (low key) "frequency of interrogation" (one
session), and "the existence of physical deprivation or inducement" (essentially none2). Id.;
State's Ex. 2.
        {¶ 19} The trial court also considered what the school and police did (essentially
nothing) to ensure that Pablo's parents were aware of the situation and could assist Pablo
in understanding his rights. (Dec. 21, 2016 Entry at 1-2.) This is important because, "[a]
juvenile's access to advice from a parent, guardian or custodian also plays a role in assuring
that the juvenile's waiver is knowing, intelligent, and voluntary." Barker at ¶ 24. And
parental involvement may have been of enhanced importance here, as the trial court noted.
Pablo did not achieve high grades in school. He had no prior experience with the police.
And Pablo's first and primary language is Spanish, not English. (Dec. 21, 2016 Entry at 2.)
There is further evidence of this from the detective's testimony that an interpreter had to
call Pablo's home from his school.
        {¶ 20} We find the trial court acted within the valid exercise of its factfinding
discretion to conclude that the evidence did not support a finding that Pablo's waiver of his
Miranda rights, unaccompanied by a parent or interested adult to assist him, was knowing
and voluntary. Under the law, someone in their early to mid-teens " 'cannot be compared
with an adult in full possession of his senses and knowledgeable of the consequences of his
admissions.' " Barker at ¶ 39, quoting Gallegos v. Colorado, 370 U.S. 49, 53-54 (1962).


2Though we note that at one point a detective advised Pablo that he needed to start telling the truth because
he was in a "world of trouble." (State's Ex. 2 at 6:44-6:50.)
No. 16AP-888                                                                              8


Accordingly, we agree that, under all of the factual circumstances cited by the trial court
and as contained in the record, Pablo's waiver of his Miranda rights was not knowing and
voluntary and as such does not stand. At a minimum, he should have been accompanied
by a parent or interested adult to aid him in understanding and determining whether to
waive his Miranda rights. And when this absence of a parent is considered in conjunction
with the other circumstances in Pablo's case (age, experience, education, and background),
including the trial court's observation that Pablo said he signed the waiver because he
thought he had no choice, we agree that Pablo's waiver, under the circumstances, was not
valid. (Dec. 21, 2016 Entry at 2.)
       {¶ 21} We overrule the State's sole assignment of error and affirm the trial court's
decision suppressing Pablo's statements, including his confession, to the police.
IV. CONCLUSION
       {¶ 22} Consistent with Supreme Court of Ohio precedent, the trial court expressly
considered Pablo's age, mentality, experience, education, background, and intelligence. It
found, consistent with the record, indications that Pablo's intelligence level was not high,
English was not his first or primary language, and he had no prior experience with the
police. The trial court also validly considered, under the totality of the circumstances, that
Pablo was not provided access to a parent or interested adult to help him to understand his
rights. Under the factual circumstances, the trial court did not err in determining that Pablo
did not validly waive his rights and that his statements should be suppressed. We overrule
the State's sole assignment of error and affirm the judgment of the Franklin County Court
of Common Pleas.
                                                                        Judgment affirmed.
                          TYACK, P.J., and HORTON, J., concur.
