[Cite as State v. Soto, 2017-Ohio-4348.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                         C.A. No.      16CA011024

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
VITTORIO SOTO                                         COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   14CR090763

                                  DECISION AND JOURNAL ENTRY

Dated: June 19, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, the State of Ohio, appeals from the judgment of the Lorain County

Court of Common Pleas, granting Appellee, Vittorio Soto’s, motion to suppress. For the reasons

set forth below, this Court reverses.

                                                 I.

        {¶2}     Mr. Soto was indicted on two counts of rape involving a person less than 10 years

of age. Prior to his arrest, Mr. Soto was interviewed by Detective Tabitha Angello at the Lorain

Police Department. During the interview, Mr. Soto gave a videotaped statement wherein he

admitted the allegations. Mr. Soto moved to suppress all of his statements made during the

interview, arguing that Detective Angello did not inform him of his Miranda rights and his

confession was induced by direct and indirect promises made by Detective Angello during the

interview. The trial court concluded that Mr. Soto’s confession was not induced by direct or
                                                 2


indirect promises, but he was in custody and entitled to Miranda rights when he made his

confession. The trial court granted Mr. Soto’s motion to suppress.

         {¶3}   The State timely appeals the trial court’s ruling and raises three assignments of

error.

                                                II.

                              FIRST ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN GRANTING MR. SOTO’S MOTION TO
         SUPPRESS BECAUSE THE FINDINGS OF FACT ARE NOT SUPPORTED
         BY COMPETENT, CREDIBLE EVIDENCE.

         {¶4}   The State argues that the trial court committed two errors relative to the findings

of fact. First, the State asserts the trial court’s findings of fact regarding Detective Angello’s

uniform are not supported by competent, credible evidence. Second, the State maintains the trial

court failed to make certain findings of fact that were supported by the evidence. This Court

disagrees with the first argument, but agrees with the second argument.

         {¶5}   A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio

St.3d 357, 366 (1992). Thus, a reviewing court gives deference to and “must accept the trial

court’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8,

citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “Accepting these facts as true, the appellate

court must then independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.”       Burnside at ¶ 8, citing State v.

McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997). Therefore, this Court grants deference
                                                 3


to the trial court’s findings of fact, but conducts a de novo review of whether the trial court

applied the appropriate legal standard to those facts. State v. Booth, 151 Ohio App.3d 635, 2003-

Ohio-829, ¶ 12 (9th Dist).

Detective Angello’s uniform

         {¶6}   The State argues the trial court’s finding of fact that Detective Angello was in a

uniform during Mr. Soto’s interview is not supported by competent, credible evidence. “[A]n

appellate court’s review of the trial court’s findings of fact looks only for clear error, giving due

deference as to the inferences drawn from the facts by the trial court.” State v. Hunter, 151 Ohio

App.3d 276, 2002-Ohio-7326, ¶ 24 (9th Dist.), citing State v. Russell, 127 Ohio App.3d 414, 416

(9th Dist.1998).

         {¶7}   The trial court found that during the interview Detective Angello was “dressed in

her police uniform, with her badge on and * * * carrying her sidearm.” On cross-examination,

Detective Angello testified that she was not wearing her “actual police uniform” but was wearing

her “detective outfit” which included a black shirt with a gold emblem saying “Lorain Police.”

Additionally, she testified she was “designated as a police officer,” and had a badge and her

service revolver on her at the time of the interview. The video depicts Detective Angello wearing

a black polo shirt with a large gold emblem shaped like a badge on her upper left chest and khaki

pants.

         {¶8}   The State takes issue with the trial court’s finding that Detective Angello was

wearing “her police uniform.” While Detective Angello was not wearing a patrolman’s uniform,

the evidence before the trial court reflected she was dressed in her detective’s uniform. The shirt

displayed a prominent emblem identifying Detective Angello as a member of the Lorain Police

Department.     Additionally, Detective Angello stated her clothing identified her as a police
                                                 4


officer. Her clothing, combined with the presence of her badge and sidearm functionally created

a “police uniform.” Accordingly, the trial court’s finding of fact that Detective Angello was

wearing a police uniform is supported by competent, credible evidence.

Incomplete facts

        {¶9}    The State also argues the trial court failed to make any findings regarding ten

facts that were supported by Detective Angello’s testimony and/or the videotape of the interview

and such facts were relevant to making a determination of whether Mr. Soto was in custody

during the interview. Mr. Soto concedes the trial court’s findings of fact are silent as to these ten

facts, but argues these facts are not relevant. Additionally, Mr. Soto asserts this Court has all the

evidence before it and, thus, there is no prejudice to the State if any facts were omitted in the

findings of fact.

        {¶10} As noted above, this Court will accept a trial court’s factual findings if they are

supported by competent, credible evidence. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶

8. However, a trial court’s findings of fact are deemed incomplete when they fail to include

pertinent facts that were presented during the hearing and which are necessary to conduct the

legal analysis. See State v. Trivett, 9th Dist. Medina No. 15CA0041-M, 2016-Ohio-8204, ¶ 7-8.

Additionally, the findings of fact are incomplete when the trial court fails to evaluate the

credibility of the witnesses and resolve questions of fact. See State v. Martin, 9th Dist. Summit

No. 24812, 2009-Ohio-6948, ¶ 14. As indicated earlier, the trier of fact evaluates the credibility

of the witnesses, weighs the evidence, and resolves questions of fact in a suppression hearing.

Burnside at ¶ 8. This Court has a limited standard of review as to the facts and is not permitted to

fill-in gaps. Martin at ¶ 14, citing State v. Guysinger, 86 Ohio App.3d 592, 594 (4th Dist.1993).

In the absence of necessary facts and determinations as to credibility and disputed facts, the
                                                 5


reviewing court cannot conclude the trial court’s findings of fact are supported by competent,

credible evidence. See Martin at ¶ 13-14; see Trivett at ¶ 8.

       Custodial interrogation

       {¶11} “‘[C]ustody’” for purposes of entitlement to Miranda rights exists only where

there is a “‘formal arrest or restraint on freedom of movement’ of the degree associated with a

formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983), quoting Oregon v. Mathiason,

429 U.S. 492, 495 (1977). “‘Whether a suspect is in custody depends on the facts and

circumstances of each case.’” State v. Butler, 9th Dist. Summit No. 23786, 2008-Ohio-781, ¶ 27,

quoting State v. Dunn, 9th Dist. Lorain No. 04CA008549, 2005-Ohio-1270, ¶ 24. “Relevant

factors include the location of the questioning, its duration, statements made during the

interview, the presence or absence of physical restraints during the questioning, and the release

of the interviewee at the end of the questioning.” (Internal citations omitted.) Howes v. Fields,

565 U.S. 499, 509 (2012). Other factors considered by courts when determining when a person is

in custody include whether the suspect is informed he is not under arrest and may leave, the

ability to leave at the conclusion of the interview, access to a cell phone during the interview,

whether an officer is armed and displays the weapon in a threatening fashion, being in a room

with a closed, unlocked door, and voluntarily going to the police station for the interview. See,

e.g., State v. Brantley, 9th Dist. Wayne No. 27466, 2016-Ohio-4680, ¶ 60-62 (collecting cases).

When evidence of these factors are present in the record, it is necessary to examine such factors

to determine, “‘whether, under the totality of the circumstances, a reasonable person would have

believed that he was not free to leave.’” Butler at ¶ 27, quoting Dunn at ¶ 24.

       {¶12} The trial court’s findings of fact, although supported by the record, are based

almost entirely on the content of the videotaped interview. The limited findings about the
                                                   6


location and atmosphere of the interview are that it was held at the Lorain Police Department

headquarters in a conference room with the door closed and Detective Angello was in her police

uniform complete with a badge and gun. The State argues there are multiple gaps in the findings

of fact that are pertinent to the analysis of custodial interrogation. These facts include the size

and the layout of the room, who was present in the room, the positioning of Mr. Soto and

Detective Angello in the room, any obstructions to the exit, whether any restraints were used on

Mr. Soto, when the door was open and closed during the duration Mr. Soto was in the room, how

far the door was open, if the door was locked, whether Mr. Soto had access to his cell phone and

whether he used it, how often and for how long Mr. Soto was alone in the briefing room, the

length of the interview, whether Mr. Soto appeared voluntarily for the interview, Mr. Soto’s

means of travel to the police station, whether anyone accompanied Mr. Soto to the police station

and was waiting for him at the station, what happened to Mr. Soto at the conclusion of the

interview, whether Mr. Soto was arrested, Detective Angello’s demeanor throughout the

interview, and whether Detective Angello displayed her sidearm in a threatening fashion.

       {¶13} All of these factors were discernible upon reviewing the videotape of the

interview and the testimony of Detective Angello and were pertinent to the analysis of whether

Mr. Soto was in custody. However, the trial court made no determinations regarding any of

these facts. Consequently, this Court cannot determine the extent to which they were considered.

Accordingly, the trial court’s findings of fact are incomplete.

       {¶14} Further, the findings of fact contained no analysis or discussion of Detective

Angello’s testimony. Detective Angello testified that as they walked to the briefing room she

“thanked [Mr. Soto] for coming, told him [he] shouldn’t be here too long[, ] asked him if he had

a ride or if he got dropped off[, ] explained to him [they] were going to talk for a little bit, that he
                                                 7


wasn’t under arrest and [she] usually shut[s] the door for noise and privacy issues.” Detective

Angello testified this discussion occurred in the hallway and was not recorded. On cross-

examination, Detective Angello conceded her report did not specify when or where this

conversation occurred.

        {¶15} Additionally, Detective Angello initially testified on cross-examination that she

told Mr. Soto during the interview that he was free to leave. However, upon further cross-

examination she conceded that the transcript of the interview does not contain any such

statement by her.

        {¶16} Detective Angello was the only witness at the suppression hearing. Detective

Angello’s testimony regarding the discussions immediately preceding the interview was crucial

evidence regarding whether Mr. Soto was in custody. However, the trial court did not make any

findings of fact as to any conflicting evidence or discrepancies and did not address witness

credibility as it may have pertained to any discrepancies. Because the trial court is the trier of

fact in a suppression hearing, it is in the best position to resolve questions of fact and evaluate

witness credibility. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. Because such

determinations were not made, the findings of fact are incomplete.

        {¶17} Having concluded that the trial court’s findings of fact are incomplete, this Court

concludes the trial court erred in granting Mr. Soto’s motion to suppress. Because the trial court

has failed to adequately set forth its findings of fact, this Court cannot properly apply the law.

Accordingly, this Court must remand to the trial court to set forth its findings of fact with regard

to 1) the omitted factors listed above, and 2) any discrepancies in the evidence and witness

credibility.
                                                   8


        {¶18} The State’s first assignment of error is sustained solely as it pertains to the

findings of fact that the trial court failed to make.

                              SECOND ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED BY APPLYING INCORRECT LAW WHEN IT
        DETERMINED THAT MR. SOTO WAS ENTITLED TO A READING OF THE
        MIRANDA RIGHTS WARNING DURING THE NON-CUSTODIAL
        INTERVIEW.

        {¶19} The State contends the trial court applied an incorrect legal standard to the facts of

this case. Specifically, the State points to the trial court’s reliance upon subjective elements in

determining the interview was custodial. This Court agrees.

        {¶20} The disputed issue in the suppression hearing was whether the interview was a

custodial interrogation, thereby triggering Miranda warnings.

            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. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 27, citing Thompson v. Keohane, 516

U.S. 99, 112 (1995). After constructing the factual circumstances of the interrogation, the court

must apply an objective test to determine whether there was a “‘formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” Hoffner at ¶ 27, quoting

Beheler, 463 U.S. at 1125, quoting Mathiason, 429 U.S. at 495. The custody determination

“depends on the objective circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being questioned.” State v. Henry,

12th Dist. Preble No. CA2008-04-006, 2009-Ohio-434, ¶ 13; see State v. Sublett, 9th Dist.

Medina No. 1914, 1990 WL 177462, *2 (Nov. 7, 1990). “[T]he only relevant inquiry is how a
                                                 9


reasonable man in the suspect’s position would have understood his situation.” Berkemer v.

McCarty, 468 U.S. 420, 442 (1984).

       {¶21} The trial court’s decision cited to similar principles of law. It went on to address

the objective circumstances of the interview by discussing the location and the atmosphere

surrounding the interview. However, the trial court deviated from its objective analysis when it

said “[w]hat [Mr. Soto] was thinking is an important consideration.” This is an improper inquiry

into Mr. Soto’s subjective view. The trial court incorrectly cited to Berkemer in support of this

proposition. However, Berkemer stated that “the only relevant inquiry is how a reasonable man

in the suspect’s position would have understood his situation.” Id. at 442. Despite the case law,

the trial court considered “[w]hat [Mr. Soto] was thinking.”

       {¶22} The trial court went on to state “[t]he focus of a court’s inquiry should be on the

detainee rather than the interrogator.” The court gave no legal citation for this proposition.

Nonetheless, this statement is incorrect. The subjective views of both the interrogator and the

detainee are not relevant when determining if a person is in custody. See Henry at ¶13; see

Sublett at *2. Instead, the court is to consider whether “a reasonable person would have felt he

or she was not at liberty to terminate the interview and leave.” Hoffner at ¶ 27.

       {¶23} Additionally, the trial court’s confusion as to the correct legal standard arose

during the suppression hearing.

       THE COURT: Well, really, the issue is for the [c]ourt to determine whether or
       not, based on the facts presented at this hearing, [Mr. Soto] would have thought
       whether he was free to leave or not, not what the detective thinks.

       [DEFENSE COUNSEL]: Judge, that’s true, * * * but the law requires, and I’ll
       show it to you, it’s an objective analysis, not a subjective analysis.

       THE COURT: Which is why I’m able to make the decision objectively, looking
       at the facts a reasonable person would believe that they got.
                                                10


       [DEFENSE COUNSEL]: Reasonable person. Got it.

       THE COURT: I understand that.

       [DEFENSE COUNSEL]: But her position that he was not in custody, all right, is
       evidence to the [c]ourt, her thinking process on that issue.

       THE COURT: Well, what she thinks doesn’t really matter to this court.

       ***

       THE COURT: The facts you’ve laid out so far about her being in a uniform,
       where they were located, whether the door was open or shut, those are objective
       facts –

       [DEFENSE COUNSEL]: Right.

       THE COURT: – that I could consider. Whether [Mr. Soto] – whether the
       detective thought he was under arrest or not isn’t the issue. She didn’t give the
       statement.

While the trial court indicated the need to look at the objective circumstances of the interview

and not to consider the subjective views of the detective, it appeared to have remained fixated on

what Mr. Soto thought. That is an application of the subjective standard and not the objective

reasonable person standard. The trial court then made a statement that it can “make the decision

objectively.” This statement does not comport with the correct legal standard.

       {¶24} Mr. Soto “[a]dmitted[] the trial court [] segued into the aforementioned language

regarding Mr. Soto’s subjective responses to this stimuli and the trial court’s dubious assertion

that what Mr. Soto thought is an important consideration.” However, Mr. Soto attempted to

minimize this incorrect statement of law by noting the remainder of the decision where the trial

court recited the law correctly. While the trial court made correct statements of law, it also made

incorrect statements of law and applied both to the facts of this case. This Court cannot separate

out the incorrect statements of law from the correct statements of law as the trial court’s analysis

is intertwined with both. Nor can this Court ignore the incorrect statements of law.
                                                 11


       {¶25} Because the trial court improperly applied both the subjective and objective

standards to the custody analysis, the trial court committed an error of law. Having concluded

that the trial court applied the incorrect law, this Court concludes the trial court erred in granting

Mr. Soto’s motion to suppress. Accordingly, this Court must remand to the trial court for it to

apply the correct law.

       {¶26} The State’s second assignment of error is sustained.

                              THIRD ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING MR. SOTO’S MOTION TO
       SUPPRESS BECAUSE THE TRIAL COURT INCORRECTLY FOUND THAT
       A REASONABLE PERSON IN MR. SOTO’S POSITION WOULD NOT HAVE
       BELIEVED THAT HE WAS FREE TO [LEAVE] THE INTERVIEW AND
       THEREFORE WAS ENTITLED TO A READING OF THE MIRANDA RIGHTS
       WARNING.

       {¶27} In the third assignment of error, the State argues that the trial court incorrectly

determined that Mr. Soto was in custody and entitled to Miranda rights at the interview.

However, this Court’s resolution of the State’s first and second assignments of error renders the

third assignment of error moot and this Court declines to address it. See App.R. 12(A)(1)(c).

                                                 III.

       {¶28} The State’s first and second assignments of error are sustained. This Court

declines to address the State’s third assignment of error as it has been rendered moot. The

judgment of the Lorain County Court of Common Pleas is reversed and the cause is remanded

for further proceedings consistent with this opinion.

                                                                                  Judgment reversed
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.
                                                12


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



CARR, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.

MICHAEL J. DUFF, Attorney at Law, for Appellee.
