[Cite as State v. Smith, 2013-Ohio-342.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLANT,                        )
                                                    )             CASE NO. 12 MA 64
V.                                                  )
                                                    )                   OPINION
LARRY LEE SMITH,                                    )
                                                    )
        DEFENDANT-APPELLEE.                         )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 10CR1209

JUDGMENT:                                           Affirmed

APPEARANCES:
For Plaintiff-Appellant                             Paul Gains
                                                    Prosecutor
                                                    Ralph M. Rivera
                                                    Assistant Prosecutor
                                                    21 W. Boardman St., 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellee                              Atty. John Jeffrey Limbian
                                                    201 E. Commerce St.
                                                    Suite 346
                                                    Youngstown, Ohio 44503

                                                    Attorney Mark Lavelle
                                                    1045 Tiffany Blvd. Suite 3
                                                    Youngstown, Ohio 44514
JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                    Dated: February 1, 2013
[Cite as State v. Smith, 2013-Ohio-342.]
DONOFRIO, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals from a Mahoning County
Common Pleas Court judgment suppressing the statements made to police by
defendant-appellee, Larry Lee Smith.
        {¶2}     On October 6, 2010, a woman came to the Canfield Police Department
where she told Detective Brian McGivern that appellee had performed oral sex on her
against her will. Appellee is a physician who had his office in Canfield. The woman
alleged the rape had occurred during an office visit.
        {¶3}     Two days later, Detectives McGivern and Brian Datillo went to
appellee’s office. They informed appellee of the allegations against him and asked
him some questions.             Appellee asked the detectives if they could continue the
questions later because he had patients to see. The detectives agreed and left
appellee’s office.
        {¶4}     A few hours later, appellee went to the police department where he
spoke with Detectives McGivern and Datillo. Detective Datillo told appellee that he
was not under arrest and that he was free to leave. The detectives did not read
appellee his Miranda rights. The detectives then once again informed appellee what
the victim had alleged and asked to hear his side of the story. Detective Datillo told
him that he needed to know if appellee had consensual oral sex with the woman and
he explained the differences between forced sex and consensual sex.             He told
appellee several times that if the sex was consensual, it was not rape. At the time,
Detective Datillo was unaware that if a doctor has sex with his patient, he is guilty of
sexual battery. After repeated questions by the detectives, and repeated denials by
appellee, appellee eventually admitted to having consensual oral sex with the
woman. The entire interview lasted a little over an hour after which appellee left the
police station.
        {¶5}     A Mahoning County Grand Jury indicted appellee on one count of rape,
a first-degree felony in violation of R.C. 2907.02(A)(2)(B), and one count of sexual
battery, a third-degree felony in violation of R.C. 2907.03(A)(6).
        {¶6}     Appellee filed a motion to suppress the statement he gave to police.
                                                                              -2-


Appellee asserted that the police interrogation resulted in his involuntary confession,
asserting that the police never gave him his Miranda warnings and tricked him into
confessing by giving him false information.
      {¶7}   The trial court held a hearing on appellee’s motion where it heard
testimony from Detective McGivern. It subsequently found that the police repeatedly
made a false promise to appellee that if he admitted consensual sex with his patient,
it would not be considered a crime.      This promise, the court found, undermined
appellee’s “capacity for self-determination [so] that his election to waive the right
[against self-incrimination] and incriminate himself is fatally impaired.”    For this
reason, the court granted appellee’s motion to suppress. The court also stated that it
made no finding as to whether the detectives’ failure to give Miranda warnings
rendered the statements inadmissible.
      {¶8}   The state filed a timely notice of appeal on April 4, 2012.
      {¶9}   The state raises a single assignment of error that states:

             THE TRIAL COURT SHOULD HAVE DENIED APPELLANT’S
      [sic] MOTION TO SUPPRESS, BECAUSE COMPETENT AND
      CREDIBLE EVIDENCE ESTABLISHED THAT HE VOLUNTARILY
      OFFERED INCULPATORY STATEMENTS AFTER DET. McGIVERN
      MADE A CORRECT STATEMENT OF THE LAW, WHICH WAS FREE
      FROM COERCION AND UNDUE PRESSURE.

      {¶10} The state argues that the trial court should not have suppressed the
statements appellee made to police. It contends that competent, credible evidence
does not support the trial court’s decision. More specifically, the state asserts that
Det. McGivern’s statement to appellee that consensual sex with a patient does not
constitute rape was a correct statement of the law. It points out that while Det.
McGivern was mistaken as to the effect of sexual contact between a patient and a
doctor (sexual battery), his statement regarding consensual sex and rape were
correct. The state goes on to point out that during the interview Det. McGivern never
                                                                                -3-


raised his voice, did not frisk appellee, told appellee he was free to leave at any time,
and did not make any threats.
       {¶11} Our standard of review with respect to a motion to suppress is first
limited to determining whether the trial court's findings are supported by competent,
credible evidence. State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th
Dist.1996), citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802
(9th Dist.1994). Such a standard of review is appropriate as, “[i]n a hearing on a
motion to suppress evidence, the trial court assumes the role of trier of fact and is in
the best position to resolve questions of fact and evaluate the credibility of
witnesses.”   State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th
Dist.1994). An appellate court accepts the trial court's factual findings and relies
upon the trial court's ability to assess the witness's credibility, but independently
determines, without deference to the trial court, whether the trial court applied the
appropriate legal standard. State v. Rice, 129 Ohio App.3d 91, 94, 717 N.E.2d 351
(7th Dist.1998). A trial court's decision on a motion to suppress will not be disturbed
when it is supported by substantial credible evidence. Id.
       {¶12} The trial court’s factual findings in this case were as follows.         The
detectives told appellee he was accused of raping a female patient. They repeatedly
assured appellee that if he admitted to having oral sex with the woman and it was
consensual, it would not be a crime. The detectives repeated this and other similar
statements regarding the perceived legality of sex with patients over and over again
to appellee. Finally, after repeated denials, appellee told the detectives, “Is that what
you want to hear, that it was consensual?” Appellee then admitted to sexual contact
with the victim.
       {¶13} The court further found that the interrogation was conducted without
Miranda warnings in a 17’ x 11’ booking room where appellee was not offered
seating.   Appellee was not handcuffed or threatened.           The interrogation was
dominated by police questioning. Appellee is a well-educated 70-year-old man who
has been subject to police investigation and criminal charges in the past.
                                                                                     -4-


       {¶14} The trial court’s factual findings are supported by competent, credible
evidence. In addition to the hearing transcript, the parties submitted a copy of the
audio tape of the interview.      The tape of the interview supports the trial court’s
findings.
       {¶15} Early in the interview, Det. McGivern asked appellee if he performed
oral sex on the woman in question. Appellee responded “no.” As the interview
moved along, Det. McGivern asked appellee at least five more times if he performed
oral sex on the woman and each time appellee said “no.”
       {¶16} After approximately 30 minutes, with appellee denying performing oral
sex each time Det. McGivern asked, Det. McGivern changed his tactics. Det.
McGivern told appellee that he knew oral sex occurred and he believed the woman
came in and things got a little out of hand. Det. McGivern then told appellee that he
believed the sex was consensual, “which is not a crime.”               Det. McGivern told
appellee: “You are allowed to have sexual relationships with your clients. Is it
unethical? Yes. Is it illegal? No, it’s not illegal.” Det. McGivern then asked appellee
once again if he had oral sex with the woman and again appellee denied it.
       {¶17} Det. McGivern, along with Det. Datillo, again told appellee that they
knew oral sex occurred. Det. McGivern asked appellee if he still believed having sex
with patients was illegal and appellee said “yes.” Det. McGivern then told appellee:
“I know the law, obviously * * * and I’m telling you it is not illegal * * * to have sex with
your patients” and “It’s wrong, it’s unethical,” but “I’m not the ethical police.”
       {¶18} Again Det. McGivern asked appellee if he still believed it was illegal to
have sex with his patients and again appellee said “yes.”               So Det. McGivern
continued by telling appellee: “I’m telling you there’s an Ohio Revised Code with all
the Ohio state laws that it is not illegal as a physician to have sex with your client”
and “I’m telling you there is nowhere in that book [the Ohio Revised Code] that says
you are not allowed to have sex with your patient.”
       {¶19} And once again Det. McGivern told appellee that he knew oral sex
occurred. He told appellee, “If this shit was consensual, I can live with that.” This
                                                                               -5-


time appellee responded, “Okay, what do you want me to say, it’s consensual?” Det.
McGivern told appellee he wanted to know the truth. Appellee then stated, “Okay, it’s
consensual.” The confession came approximately 47 minutes into the interview.
      {¶20} Because the trial court’s findings of fact are supported by competent,
credible evidence, we must move on to consider whether the trial court applied the
appropriate legal standard.
      {¶21} Based on the facts set out above, the trial court concluded that
appellee’s capacity for self-determination as to whether to make incriminating
statements was undermined by the detectives’ false statements.
      {¶22} A suspect voluntarily makes his decision to waive his right against self-
incrimination unless his will is overborne and his capacity for self-determination is
critically impaired due to coercive conduct by the police. State v. Otte, 74 Ohio St.3d
555, 562, 660 N.E.2d 711 (1996).        A confession is not voluntarily made if it is
extracted by any sort of threats or violence, if it is obtained through any direct or
implied promises, even slight promises, or if it is obtained by the exertion of improper
influence. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489 (1964), citing Bram v.
United States, 168 U.S. 532, 18 S.Ct. 183 (1897). General admonitions to tell the
truth do not render a confession involuntary. State v. Patel, 2d Dist. No. 2010-CA-77,
2011-Ohio-6329, ¶75.
      {¶23} In finding that appellee’s confession was not made voluntarily, the trial
court relied on State v. Jenkins, 192 Ohio App.3d 276, 2011-Ohio-754, 948 N.E.2d
1011 (2d Dist.). In that case Jenkins was arrested on burglary charges. He made
the police aware of his drug problem. An officer then made statements to Jenkins
that suggested he could get Jenkins treatment in lieu of conviction. Jenkins then
made several incriminating statements to police. However, Jenkins was not eligible
for treatment in lieu of conviction. On Jenkins’s motion, the trial court suppressed his
statements to police based on the officer’s misstatement of the law, finding that it
rendered Jenkins’s confession involuntary.
      {¶24} On the state’s appeal, the Second District concluded that while the
                                                                                -6-


officer did not guarantee treatment in exchange for Jenkins’s confession, the officer’s
conduct and words implied that such a benefit was a possibility. Id. at ¶54. Quoting
its previous decision in State v. Jackson, 2d Dist. No. 02CA00001, 2002-Ohio-4680,
¶40, the court stated, “false promises made by police to a criminal suspect that he
can obtain lenient treatment in exchange for waiving his Fifth Amendment privilege
so undermines the suspect's capacity for self-determination that his election to waive
the right and incriminate himself in criminal conduct is fatally impaired.” Jenkins, at
¶51. The court concluded in Jenkins’s case that intervention in lieu of conviction was
not available as a matter of law, and the officer’s false representations undermined
Jenkins's “capacity for self-determination and impaired his decision to provide
incriminating statements.” Id. at ¶54.
       {¶25} The case at bar, the state alleges, is distinguishable from Jenkins
because in this case Det. McGivern’s statement to appellee that consensual sex
between a doctor and a patient is not rape is a correct statement of the law. Thus, it
contends that in this case there was not a complete misstatement of the law as there
was in Jenkins. The state further alleges that Det. McGivern never expressed to
appellee that he would not be prosecuted for any other crimes that might result from
the investigation. Therefore, the state contends, appellee made his confession freely
and voluntarily.
       {¶26} Contrary to the state’s assertion, the case at bar is very similar to
Jenkins. The distinctions that the state attempts to draw do not accurately portray
the facts in this case. The state alleges that Det. McGivern’s statements to appellee
were that consensual sex between a doctor and a patient is not rape, which is a
correct statement of the law.       But Det. McGivern made many other incorrect
statements of the law. Det. McGivern told appellee, repeatedly, that having sex with
a patient was not illegal and was not a crime. This is not a correct statement of the
law. In fact, appellee was charged with violating R.C. 2907.03(A)(6), which provides:
“No person shall engage in sexual conduct with another, not the spouse of the
offender, when any of the following apply * * * The other person is * * * or a patient in
                                                                                    -7-


a hospital or other institution, and the offender has supervisory * * * authority over the
other person.”    Thus, when Det. McGivern told appellee that nowhere does the
Revised Code state you are not allowed to have sex with your patient, he gave him
an incorrect statement of the law.
       {¶27} And not only did Det. McGivern give appellee an incorrect statement of
the law, he repeated the incorrect statement over and over in an attempt to convince
appellee to admit to consensual sex. The detective’s statements included “you are
allowed to have sexual relationships with your clients,” “Is it illegal? No, it’s not
illegal,” and “I know the law, obviously * * * and I’m telling you it is not illegal * * * to
have sex with your patients.” Appellee denied having oral sex with his patient no less
than five times through 47 minutes of police interrogation before finally admitting to
consensual oral sex. And his admission only came after Det. McGivern told him at
least seven times that it was not illegal for him to have sex with his patient. Given
these facts and the incorrect statement of the law, the trial court applied the
appropriate legal standard when it found that appellee’s will was overborne and his
capacity for self-determination was critically impaired due to coercive conduct by the
police. Therefore, the trial court did not err in granting appellee’s motion to suppress.
       {¶28} Accordingly, the state’s sole assignment of error is without merit.
       {¶29} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Vukovich, J., concurs.

Waite, J., concurs.
