[Cite as In re S.B., 2016-Ohio-7732.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



IN THE MATTER OF: S.B.                       :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
ALLEGED DELINQUENT CHILD                     :       Hon. W. Scott Gwin, J.
                                             :       Hon. Patricia A. Delaney, J.
                                             :
                                             :       Case No. 16CA27
                                             :
                                             :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Juvenile Division, Case No.
                                                     2016DEL45



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 9, 2016




APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

DANIEL M. ROGERS                                     DAVID M. WATSON
38 South Park Street                                 3 North Main Street
Mansfield, OH 44902                                  Suite 702
                                                     Mansfield, OH 44902
Richland County, Case No. 16CA27                                                         2

Farmer, P.J.

      {¶1}     On January 15, 2016, appellee, S.B., a juvenile, was alleged to be

delinquent by virtue of committing one count of rape in violation of R.C. 2907.02 with a

serious youthful offender specification pursuant to R.C. 2152.11. On March 9, 2016, the

Richland County Grand Jury indicted appellee for the specification.

      {¶2}     On April 1, 2016, appellee filed a motion to suppress her statements made

to police, claiming she did not understand or voluntarily waive her rights. Hearings were

held on April 6, and May 10, 2016. By judgment entry filed May 16, 2016, the trial court

granted the motion, finding appellant, the state of Ohio, failed to meet its burden that

appellee understood and knowingly waived her rights.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

      {¶4}     "THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S

'MOTION TO SUPPRESS JUVENILE'S STATEMENT', AS APPELLEE WAS NOT

SUBJECTED TO CUSTODIAL INTERROGATION AND MADE THE STATEMENTS

VOLUNTARILY."

                                             I

      {¶5}     Appellant claims the trial court erred in granting appellee's motion to

suppress under the totality of the circumstances, as appellee was not in custody and

her statements were made voluntarily. We disagree.

      {¶6}     There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.
Richland County, Case No. 16CA27                                                              3


In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the

trial court failed to apply the appropriate test or correct law to the findings of fact. In that

case, an appellate court can reverse the trial court for committing an error of law. State

v. Williams, 86 Ohio App.3d 37 (4th Dist.1993).          Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court's conclusion, whether the facts meet the appropriate legal standard in

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

       {¶7}   In its judgment entry filed May 16, 2016, the trial court granted appellee's

motion to suppress, finding she was not in custody and therefore Miranda warnings

were not necessary, even though Detective David Scheurer read the "Miranda Card"

(State's Exhibit 1) to appellee:
Richland County, Case No. 16CA27                                                       4


             5. The Court finds based upon the totality of the circumstances that

      the Juvenile did not understand her Miranda rights at the time of her

      questioning.

             6. The Court finds there is no credible evidence on the electronic

      recording to indicate the Juvenile understood her right to an attorney

      based upon the perfunctory manner in which the Miranda rights were

      presented to her.

             7. The Court further finds that the detective misled the Juvenile

      about what it was and why she was signing a waiver of rights.

             8. The Court finds the Juvenile did not knowingly and intelligently

      waive her rights based upon a totality of the circumstances.



      {¶8}   Appellee signed the Miranda Card on the back which states, "I have read

on this card the statement of my rights and understand what my rights are. I do not

wish to remain silent. I do not want an attorney present."

      {¶9}   Detective Scheurer admitted he told appellee to sign the card to prove

"that I read it to her." T. at 21. He testified appellee was fifteen years old and in his

opinion, she understood the conversation they were having, why she was being

questioned, and the words he was using, and she appeared normal and did not appear

to have diminished capacity. T. at 13-15, 18. He stated the interview lasted between

forty-five minutes to one hour. T. at 15. Appellee never requested her mother or

counsel. T. at 18-19.
Richland County, Case No. 16CA27                                                         5


      {¶10} Marlo Brown, a school psychologist with Townsend Community School,

administered two General Intelligence Tests and an Academic Test to appellee and

testified appellee had a composite quotient of 65 and based on her age, she would be in

the lowest one per cent of same aged peers.            T. at 55-56, 58, 59-60, 65, 75;

Defendant's Exhibit A.     Ninety-nine percent "of all other students or kids in that

particular group would be higher than her." T. at 60. However, it was acknowledged

that appellee functioned sufficiently in a "brick and mortar" school when in elementary

school. T. at 79.

      {¶11} The trial court had the benefit of viewing Detective Scheurer's entire

interview with appellee (State's Exhibit 2). We have also reviewed the entire interview.

At the outset, Detective Scheurer knew appellee was the only suspect of the criminal

act. Appellee was alone in the room with the door closed, and her mother was outside

the room. Although Detective Scheurer read the Miranda Card, he did not tell appellee

that her signature was a waiver of those rights. Immediately after making statements,

appellee was detained, cuffed, and placed into custody. The length of the interview was

in excess of one hour.

      {¶12} Appellee was in tears over one-third of the interview. She chewed her

fingers, covered her head with a hood, and looked away from the detective. When

confronted with the fact that her first stories were not the truth and the detective knew

she did it, appellee told Detective Scheurer at least three times just to take her to jail.

On the other hand, Detective Scheurer had a calm and fatherly approach to appellee.

He kept his voice low and was persuasive that appellee could say it was just an

accident.
Richland County, Case No. 16CA27                                                  6

      {¶13} In State v. Barker, ___ Ohio St.3d ___, 2016-Ohio-2708, ¶ 39, 41-42, the

Supreme Court of Ohio stated the following:



             The totality-of-the-circumstances test takes on even greater

      importance when applied to a juvenile. A 14- or 15-year-old "cannot be

      compared with an adult in full possession of his senses and

      knowledgeable of the consequences of his admissions."        Gallegos v.

      Colorado, 370 U.S. 49, 53–54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), citing

      Haley, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224. The United States

      Supreme Court has observed:



                    [A] 14–year–old boy, no matter how sophisticated, is

             unlikely to have any conception of what will confront him

             when he is made accessible only to the police. That is to

             say, we deal with a person who is not equal to the police in

             knowledge and understanding of the consequences of the

             questions and answers being recorded and who is unable to

             know how to protect his own interests or how to get the

             benefits of his constitutional rights.



      Id. at 54, 82 S.Ct. 1209.
Richland County, Case No. 16CA27                                                     7


            " 'It is now commonly recognized that courts should take "special

      care" in scrutinizing a purported confession or waiver by a child.' " In re

      C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 106,

      quoting In re Manuel R., 207 Conn. 725, 737–738, 543 A.2d 719 (1988),

      citing Haley, 332 U.S. at 599, 68 S.Ct. 302, 92 L.Ed. 224. When an

      admission is obtained from a juvenile without counsel, "the greatest care

      must be taken to assure that the admission was voluntary, in the sense

      not only that it was not coerced or suggested, but also that it was not the

      product of ignorance of rights or of adolescent fantasy, fright or despair."

      In re Gault, 387 U.S. at 55, 87 S.Ct. 1428, 18 L.Ed.2d 527.

            The totality of the circumstances from which a court must determine

      the voluntariness of a juvenile's statement includes not only the details of

      the interrogation but also the juvenile's unique characteristics.      That

      analysis here would necessarily include consideration of factors such as

      Barker's age, the late-night time of the interrogation, the absence of a

      parent or guardian, Barker's "borderline intelligence" and third-grade

      reading level, Barker's statement that he was not familiar with Miranda

      rights other than having heard of them from television, and Barker's

      apparent confusion about what an attorney was.          Application of the

      statutory presumption would remove all consideration of the juvenile's

      unique characteristics from the due-process analysis unless the juvenile

      introduced evidence to disprove voluntariness when the interrogation was

      electronically recorded. But there is no rational relationship between the
Richland County, Case No. 16CA27                                                     8


      existence of an electronic recording and the voluntariness of a suspect's

      statement. This is especially true where, as with R.C. 2933.81(B), the

      statute requires only that the statement sought to be admitted, not the

      entire interrogation, be recorded.



      {¶14} We are disinclined to embrace the trial court's conclusion that appellee

was not in custody.    We further find there is no affirmative waiver of appellee's

constitutional rights. Appellee's signature on State's Exhibit 1 was at the detective's

direction and was a mere acknowledgment that he had read her the rights card.

      {¶15} Appellee's I.Q., demeanor, and childlike actions during the interview lead

us to conclude that the admissions were at the suggestion of the detective and not

voluntary.

      {¶16} Upon review, we find the trial court did not err in granting the motion to

suppress.

      {¶17} The sole assignment of error is denied.
Richland County, Case No. 16CA27                                               9


      {¶18} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Delaney, J. concur.




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