[Cite as State v. Guzzi, 2015-Ohio-4426.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2014-L-101
        - vs -                                       :

JOSEPH T. GUZZI,                                     :

                 Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR
000607.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant Joseph T. Guzzi pled no contest to two counts of rape, a felony

of the first degree, in violation of R.C. 2907.02(A)(2). He was sentenced to two, nine-

year prison terms to be served concurrently. On appeal, Guzzi claims that the trial court

erred in overruling his motion to suppress his statements to the police. For the following

reasons, we affirm.
       {¶2}   On August 12, 2013, detectives from the Lake County Sherriff’s office

sought to question Guzzi on a matter unrelated to his charges. They believed he could

help them with their investigation regarding the rape of a sixteen-year-old girl. This girl

had reportedly been raped while babysitting M.N., who turned out to be Guzzi’s ten-

year-old victim. Although the detectives knew that Guzzi was present on the night that

the sixteen-year-old was raped, he was not a suspect. Moreover, the detectives had no

knowledge that Guzzi had victimized M.N.

       {¶3}   Detectives Donald Seamon and his partner arrived at Guzzi’s residence

and requested that he accompany them to the station to give a statement. Guzzi said

that he wanted to help out, but did not have a car. The detectives therefore offered him

a ride. Guzzi was then transported in an unmarked police car to the station. He was

not restrained in any way.

       {¶4}   Upon arrival, the detectives escorted Guzzi to an interview room where he

was permitted to keep his cell phone. The detectives removed their weapons before

entering the room and activated a video and audio recording device.

       {¶5}   At the very beginning of the interview, the detectives stated that they just

wanted to talk to Guzzi, and they informed him, “You are not under arrest. You are not

in custody. You are going home when we are done talking to you. Okay. All we are

going to do is talk to you. No matter what we talk about today you are going home.”

       {¶6}   During the beginning of the interview, the detectives and Guzzi largely

talked about his relationship with the babysitter, and what he knew about the babysitter

and her relationship with members of M.N.’s family and circle of friends. However,

Guzzi briefly mentioned his relationship with M.N. and said that he would never harm




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her. He also said that they frequently played video games at one another’s homes.

After telling the detectives that M.N. would sometimes play video games in his room,

Guzzi remarked that he has no adult pornographic material in his room, but that if he

did, M.N. would not find them.

       {¶7}     At this point, the interview began to focus on M.N., Guzzi, and

pornography instead of the sixteen-year-old’s rape. Upon further questioning, Guzzi

admitted that he has some “guy magazines” in his room, but claimed they were hidden.

He also admitted that he has pornographic movies in his room. Guzzi said that he told

M.N. that he would give her these movies when she turned 18. When asked how he

and M.N. got on the topic of pornography, Guzzi claimed that he caught her on

pornographic websites on her tablet. He also said that M.N. was confused about her

sexual orientation.

       {¶8}     The interview then briefly returned to the babysitter rape investigation, and

Guzzi revealed that he was afraid of the babysitter’s mom because she is a “cop.”

Thereafter Guzzi informed them that once while sleeping near the babysitter, he awoke

with his hand on her breast. Upon further questioning, the detectives asked whether a

similar incident had occurred with M.N.        Guzzi denied that anything of that nature

occurred with M.N.

       {¶9}     After about an hour of questioning, the detectives took a break. They told

Guzzi to “just relax,” asked him if he wanted anything to drink, and told him to “sit tight”

for a minute.

       {¶10} Upon their return, the interview resumed with an immediate focus on M.N.,

Guzzi, and pornography. The detectives informed Guzzi that M.N. told them that Guzzi




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was helping her explore her sexuality by looking at pornography. Guzzi then confessed

that he would bring up “categories” of pornography on her tablet without actually

showing her videos. Guzzi continued to deny that he showed M.N. any pornography.

However, upon further questioning, Guzzi admitted that he showed M.N. a variety of

pornography to explain different sexual orientations to her.    Guzzi also admitted to

allowing M.N. to watch one pornographic video a week.       Guzzi later admitted that he

went to counseling “for this stuff” when he was 10 or 12 years old. He also stated that

he almost molested his sister when she was a toddler.

      {¶11} The detectives told Guzzi that M.N. had told them more information than

he had told them, and they needed him to be honest with them. The detectives stated

that M.N. needed help and that “[they] need[ed] [Guzzi’s] help to help [M.N.].” With a

desire to help M.N. get the counseling she needed, Guzzi admitted that he stuck his

fingers in her vagina three times. Shortly thereafter, the detectives ended the interview

and took Guzzi home. They obtained a warrant and arrested Guzzi the next day.

      {¶12} A grand jury eventually indicted Guzzi for three counts of rape in violation

of R.C. 2907.02(A)(1)(b) and one count of disseminating materials harmful to juveniles

in violation of R.C. 2907.31(A)(1). Guzzi moved to suppress his statements to the

detectives because they failed to secure a waiver of his Miranda rights and since his

statements were involuntary. The trial court overruled the motion. Guzzi subsequently

entered a no contest plea to two amended counts of rape in violation of R.C.

2907.02(A)(2). This appeal follows.

      {¶13} As his sole assignment of error, Guzzi asserts:




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       {¶14} “The trial court erred when it denied the defendant-appellant’s motion to

suppress in violation of his due process rights under the Fifth, Sixth, and Fourteenth

Amendments of the United States Constitution and Section 10, Article 1 of the Ohio

Constitution.”

       {¶15} Within this assignment, Guzzi reasserts his arguments that his statements

to the police should have been suppressed because the detectives failed to obtain

Guzzi’s waiver of his Miranda rights and his statements were involuntary.

       {¶16} “An appellate court’s review of a motion to suppress presents a mixed

question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d

1. In reviewing the trial court’s findings of fact, an appellate court must give due weight

to inferences drawn from those facts by the trial court because the trial court is in the

best position to resolve questions of fact and evaluate the credibility of witnesses. State

v. Hopfer (1996), 112 Ohio App.3d 521, 548, 679 N.E.2d 321, appeal not allowed

(1996), 77 Ohio St.3d 1488, 673 N.E.2d 146. Accordingly, an appellate court reviews a

trial court’s findings of fact only for clear error. State v. Russell (1998), 127 Ohio App.3d

414, 416, 713 N.E.2d 56. A trial court’s legal conclusions, however, are reviewed by an

appellate court de novo. Id. at 416.” State v. Yeager, 9th Dist. Summit Nos. 21091,

21112, 21120, 2003-Ohio-1808, ¶5.

       {¶17} The requirement that police administer Miranda warnings is triggered only

when interrogations are custodial in nature. State v. Lynch, 98 Ohio St.3d 514, 2003-

Ohio-2284, ¶47 (citation omitted). Custodial interrogation means “questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise




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deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S.

436, 444 (1966).

       {¶18} In determining whether an individual is in custody for purposes of Miranda,

the court considers “the circumstances surrounding the interrogation” and whether,

under those circumstances, “a reasonable person [would] have felt he or she was not at

liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99,

112 (1995). A non-custodial interrogation becomes custodial when there is a “formal

arrest or restraint on freedom of movement” similar to that of a formal arrest. California

v. Beheler, 463 U.S. 1121, 1125 (1983) (citation omitted). A determination of whether

an interrogation is custodial or non-custodial depends on the objective circumstances of

the interrogation, not the subjective views held by either the officer or the person being

questioned. Stansbury v. California, 511 U.S. 318, 323 (1994).

       {¶19} In this case, Guzzi argues the following factors demonstrate that he was in

custody for Miranda purposes: (1) the detectives showed up armed and unannounced;

(2) Guzzi was not advised that he did not have to speak with the police, (3) Guzzi was

separated from his parents when he was questioned; (4) Guzzi was led through five

different doors at the police station to the interview room, and two of those doors

required a key card to enter; (5) he was instructed to have a seat in the interview room

and waited in isolation for a brief period; (6) the police informed him that he could go

home when they were done talking to them; (7) he was not informed that he could

terminate the interview; and (8) he was questioned for two hours without being informed

of his Miranda rights.




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       {¶20} In support, Guzzi directs us to State v. Buckholz, 11 Ohio St.3d 24 (1984),

that involved comparable facts and where the court held that a Miranda warning was

required. However, the issue before the court was whether Miranda safeguards are

implicated only in felony investigations.        It held that the warnings are required

regardless of whether the suspected crime is a misdemeanor or a felony.

       {¶21} Further, even assuming the facts in Buckholz are analogous to this case,

the Ohio Supreme Court did not hold that the defendant was in custody as a matter of

law based on those facts. Rather, the Ohio Supreme Court stated, “[t]he state in the

case at bar has not raised on appeal the question of whether [the defendant] was

subject to custodial interrogation at the time he gave the second statement. In light of

the state’s argument that Miranda is inapplicable solely because [the defendant] was

convicted of a misdemeanor, we assume that the state concedes that [the defendant]

was in custody and subjected to interrogation.” Buckholz, 11 Ohio St.3d at 26, fn. 2.

Consequently, other courts have found Buckholz is of limited value when the state

contests whether the defendant was in custody. State v. Lawson, 5th Dist. Licking No.

08-CA-52, 2009-Ohio-115; State v. Springer, 135 Ohio App.3d 767 (7th Dist.1999). As

the state has contested custody in this case, Buckholz is inapplicable.

       {¶22} Furthermore, Guzzi’s arguments ignore that he was never restrained by

the police, that he voluntarily went to the police station, and that the police informed him

that he was not in custody or under arrest. Further, the detectives placed no emphasis

on the “we” when they stated that the interview would end “when we are done talking

with you.” Given the prior notifications that Guzzi was not under arrest or in custody, a

reasonable person would not have felt that he was not at liberty to terminate the




                                             7
interview and leave. Finally, the detective’s statement that Guzzi should “sit tight” did

not negate their prior statement that he was not in custody or under arrest. Accordingly,

we find that Guzzi was not in custody for Miranda purposes at the time of his

incriminating statements.

       {¶23} Next, Guzzi argues that his developmental disabilities and problems

interacting with people, combined with the detectives’ pressure, made his statements

involuntary. Specifically, the defense claims that the police used the following tactics as

psychological pressure: expressing confidence in the suspect’s guilt; focusing on why

rather than if the suspect committed the act; relating the suspect’s motivation for

committing the act; minimizing the moral seriousness of the offense; casting blame on

the victim or society; claiming that the victim made allegations when she had not; and

claiming that the victim would not receive counseling without Guzzi’s help. Guzzi was a

high school graduate and was not taking any prescription medications at the time of his

interview.

       {¶24} In determining the voluntary nature of a waiver of a criminal suspect's

Miranda rights, a reviewing court will look at the “totality of the circumstances.” State v.

Gumm, 73 Ohio St.3d 413, 429, 1995-Ohio-24, 653 N.E.2d 253 (1995). In deciding

whether a defendant’s statement is voluntary, the trial court should consider factors

including, “the age, mentality, and prior criminal experience of the accused; the length,

intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.” (Citation omitted.) State v.

Worley, 11th Dist. Trumbull No. 2001-T-0048, 2002-Ohio- 4516, ¶161. “A suspect's

decision to waive his Fifth Amendment privilege against compulsory self-incrimination is




                                             8
made voluntarily absent evidence that his will was overborne and his capacity for self-

determination was critically impaired because of coercive police conduct.”    State v.

Dailey, 53 Ohio St.3d 88, 559 N.E.2d 459 (1990), paragraph two of the syllabus.

Contrary to Guzzi’s assertions, his statements were voluntary and were not made in

response to police coercion, threats, or misconduct.

      {¶25} Accordingly, the sole assignment of error lacks merit, and the judgment of

the Lake County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                               ____________________




COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶26} I find merit with the first issue presented by Mr. Guzzi under his

assignment of error: he was subjected to custodial interrogation without benefit of his

Miranda rights. I would reverse and remand, instructing the trial court to grant the

motion to suppress.    I would not reach the second issue raised: i.e., whether his

statements were involuntary.

      {¶27} The police differentiate between an “interview” and an “interrogation.” The

purposes of an interview are to “[o]btain relevant information about the situation or

crime”; [e]stablish rapport with the subject”; and “gather information and determine

facts.” Ohio Peace Officer Training Commission, Education & Policy Section, Peace



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Officer Basic Training, Interview & Interrogation, Unit 11 – Topic 15, at 10 (Jan. 1,

2014). It “generally has a non-accusatory tone.” Id. By contrast, an interrogation is

used not merely to gather information relevant to an investigation, but to “establish

innocence,” or to obtain information leading “to a confession or an admission.” Id. at 13.

      {¶28} In this case, the detectives initially conducted an interview with Mr. Guzzi:

they simply were trying to gather information regarding the alleged rape of the sixteen-

year-old babysitter.   However, during the course of the interview, Mr. Guzzi began

giving information about his conduct with the child being babysat – M.N.               He

acknowledged allowing this ten-year-old to see pornography. The detectives took a

break, telling Mr. Guzzi to “just relax,” and “sit tight,” and leaving him alone in the

interrogation room. When the detectives returned, they concentrated their questions on

Mr. Guzzi’s conduct with M.N., eliciting the information which led to Mr. Guzzi’s

indictment. The “interview” had clearly become an “interrogation.” The question is,

whether the interrogation was custodial, requiring the detectives to give Mr. Guzzi

Miranda warnings.

      {¶29} “The right to Miranda warnings is grounded in the Fifth Amendment’s

prohibition against compelled self-incrimination.   Moran v. Burbine (1986), 475 U.S.

412, 420, * * *.    Police are not required to administer Miranda warnings to every

individual they question. State v. Biros (1997), 78 Ohio St.3d 426, 440, * * *. Only

custodial interrogations trigger the need for Miranda warnings. Id., citing Oregon v.

Mathiason (1977), 429 U.S. 492, 495, * * *.

      {¶30} “An individual is in custody for purposes of Miranda when there has been

a formal arrest or when the person’s freedom of movement is restrained such that a




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reasonable person in the suspect’s position would believe that he or she is under arrest.

State v. Petitjean (2000), 140 Ohio App.3d 517, 523, * * *; Berkemer v. McCarty (1984),

468 U.S. 420, 442, * * *. A police officer’s subjective view of whether the person is in

custody is not relevant to the analysis. Stansbury v. California (1994), 511 U.S. 318,

319, * * *.” (Parallel citations omitted.) State v. Tate, 7th Dist. Mahoning No. 07 MA

130, 2008-Ohio-3245, ¶41-42.

      {¶31} First, Mr. Guzzi was told, at the break in questioning, to remain where he

was, having already been told by the detectives he would be taken home when they

were done with him – not when he chose to terminate the proceedings. Second, the

interrogation room is deep inside the Sheriff’s department, behind five doors. None of

these lock from inside – but what civilian, unfamiliar with the premises, would know this?

Finally, there is the simple fact that Mr. Guzzi does not drive, and could not leave

without being driven by the detectives.     Under these circumstances, a reasonable

person would not feel free to leave, or end the interrogation. He or she would feel under

arrest. Further, the record makes clear Mr. Guzzi suffers from certain developmental

disabilities, which is apparent from the DVD of the interrogation. The learned trial judge

perceived this, as evidenced by his questioning of the testifying detective at the

suppression hearing.

      {¶32} I think there was a sufficient limitation on Mr. Guzzi’s freedom to invoke

Miranda.

      {¶33} I respectfully dissent.




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