[Cite as In re J.S., 2016-Ohio-255.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




IN RE:
                                                         CASE NO. 9-15-26
        J.S.,

ALLEGED DELINQUENT CHILD.                                OPINION

[STATE OF OHIO – APPELLANT]




                  Appeal from Marion County Common Pleas Court
                                  Family Division
                            Trial Court No. 15 DL 0162

                        Judgment Reversed and Cause Remanded

                            Date of Decision: January 25, 2016




APPEARANCES:

        Matthew P. Frericks for Appellant

        David H. Lowther for Appellee
Case No. 9-15-26


PRESTON, J.

       {¶1} Appellant, the State of Ohio, appeals the June 30, 2015 and July 1,

2015 judgment entries of the Marion County Court of Common Pleas, Family

Division, granting appellee’s, J.S., motion to suppress evidence and suppressing

statements J.S. made during interrogation by law enforcement officers. For the

reasons that follow, we reverse.

       {¶2} On April 27, 2015, a complaint was filed against J.S. charging him

with Count One of aggravated arson in violation of R.C. 2909.02(A)(1), a felony

of the first degree if committed by an adult, and Count Two of aggravated arson in

violation or R.C. 2909.02(A)(2), a felony of the second degree if committed by an

adult. (Doc. No. 4). The complaint arose from an April 22, 2015 incident in

which J.S., a juvenile, and another juvenile allegedly set fire to an abandoned

warehouse in Marion, Ohio. (Id.); (June 20, 2015 Tr. at 5).

       {¶3} On April 28, 2015, the State filed a “Notice of State’s Intent to Seek a

Serious Youthful Offender Dispositional Sentence.” (Doc. No. 5). Also on April

28, 2015, J.S. filed a written denial of all of the counts in the complaint. (Doc. No.

6).

       {¶4} On May 27, 2015, J.S. filed a motion to suppress statements he made

“on or about April 23, 2015, in connection with any interview by an officer of the

Marion City Police Department.” (Doc. No. 23). J.S. argued that he was in

custody when Officer Ben Graff (“Graff”) of the Marion City Police Department
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Case No. 9-15-26


questioned J.S. at his residence with his father present without informing J.S. of

his Miranda rights. (Id.).

       {¶5} The trial court held a suppression hearing on June 25, 2015. (June 25,

2015 Tr. at 1). One witness—Graff—testified at the hearing. (See id. at 3-31).

       {¶6} The trial court issued its judgment entries on June 30, 2015 and July 1,

2015 granting J.S.’s motion to suppress and suppressing all statements made by

J.S. as a result of the interrogation process, including statements J.S. made while

being interviewed by Graff. (Doc. Nos. 30, 32). The trial court concluded that

J.S. was in custody but not informed of his Miranda rights when he made

incriminating statements. (Doc. No. 32).

       {¶7} The State filed its notice of appeal on July 6, 2015 and raises two

assignments of error for our review. (Doc. No. 33). Because it is dispositive, we

address only the State’s first assignment of error.

                             Assignment of Error No. I

       The trial court erred and abused its discretion in granting
       appellee’s motion to suppress evidence.

       {¶8} In its first assignment of error, the State argues that the trial court

erred by granting J.S.’s motion to suppress. Specifically, the State argues that the

totality of the circumstances surrounding the questioning of J.S. demonstrates that

J.S. was not in custody when he made incriminating statements to Graff.

Therefore, the State argues, Graff was not required to inform J.S. of his Miranda


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Case No. 9-15-26


rights. J.S. argues, on the other hand, that the trial court correctly suppressed

J.S.’s statements because J.S. was subjected to a custodial interrogation without

first being informed of his Miranda rights, and because, even assuming he was not

in custody, J.S.’s statements were not voluntary. We agree with the State.

      {¶9} “Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

See also In re R.S., 3d Dist. Paulding No. 11-13-10, 2014-Ohio-3543, ¶ 14, citing

Burnside at ¶ 8. At a suppression hearing, the trial court assumes the role of trier

of fact and, as such, is in the best position to evaluate the evidence and the

credibility of witnesses. Burnside at ¶ 8. See also State v. Carter, 72 Ohio St.3d

545, 552 (1995). When reviewing a ruling on a motion to suppress, deference is

given to the trial court’s findings of fact so long as they are supported by

competent, credible evidence. Burnside at ¶ 8, citing State v. Fanning, 1 Ohio

St.3d 19 (1982). With respect to the trial court’s conclusions of law, however, our

standard of review is de novo, and we must independently determine whether the

facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124

Ohio App.3d 706, 710 (4th Dist.1997).

      {¶10} “The Fifth Amendment to the United States Constitution provides

individuals with protection against self-incrimination.” In re R.S. at ¶ 15, citing

Chavez v. Martinez, 538 U.S. 760, 765, 123 S.Ct. 1994 (2003). “‘Juveniles are

entitled both to protection against compulsory self-incrimination under the Fifth
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Case No. 9-15-26


Amendment and to Miranda warnings where applicable.’” In re K.W., 3d Dist.

Marion No. 9-08-57, 2009-Ohio-3152, ¶ 12, quoting State v. Thompson, 7th Dist.

Jefferson Nos. 98 JE 28 and 98 JE 29, 2001 WL 69197, *8 (Jan. 24, 2001), citing

In re Gault, 387 U.S. 1, 54, 87 S.Ct. 1428 (1967).

       {¶11} “[W]hen an individual is taken into custody or otherwise deprived of

his freedom by the authorities in any significant way and is subjected to

questioning, the privilege against self-incrimination is jeopardized.” Miranda v.

Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602 (1966). “[T]he prosecution may not

use statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.” Id. at 444.

“Police are not required to administer Miranda warnings to every person they

question.” In re R.S. at ¶ 16, citing State v. Biros, 78 Ohio St.3d 426, 440 (1997),

citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711 (1977). Rather, a

police officer is required to administer Miranda warnings only where the

individual questioned is subject to “custodial interrogation.” Id., citing Biros at

440, citing Mathiason at 494. See also In re K.W. at ¶ 12 (“Since custodial

interrogation is inherently coercive, statements from those interrogations not

preceded by the Miranda warnings are not admissible.”), citing In re R.H., 2d

Dist. Montgomery No. 22352, 2008-Ohio-773, ¶ 17.



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Case No. 9-15-26


      {¶12} “[T]o 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, 116 S.Ct. 457

(1995). “The first inquiry is distinctly factual.” In re R.S., 2014-Ohio-3543, at ¶

17, citing Keohane at 112.     “Once the factual circumstances surrounding the

interrogation are reconstructed, the court must apply an objective test to resolve

‘the ultimate inquiry’ of whether there was a ‘“formal arrest or restraint on

freedom of movement” of the degree associated with a formal arrest.’” Hoffner at

¶ 27, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517 (1983),

quoting Mathiason at 495.       “The subjective views harbored by either the

interrogating officers or the person being questioned are of no consequence in the

Miranda analysis.” In re R.S. at ¶ 17, citing Stansbury v. California, 511 U.S.

318, 323, 114 S.Ct. 1526 (1994).

      {¶13} “In resolving ‘the ultimate inquiry’ courts must consider the totality

of the circumstances surrounding the questioning.” Id., citing State v. Gumm, 73

Ohio St.3d 413, 429 (1995) and Beheler at 1125. Relevant factors to consider in

determining whether a custodial interrogation took place are: (1) the mentality

and prior criminal experience of the accused; (2) the location of the questioning;
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Case No. 9-15-26


(3) the duration of the questioning; (4) the intensity and frequency of

interrogation; (5) statements made during the interview; (6) the presence or

absence of physical restraints; (7) the existence of physical deprivation or

mistreatment; (8) the existence of threat or inducement; and (9) whether the

interviewee was released at the end of the interview.            Id., citing State v.

Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 44, citing Howes v.

Fields, ___ U.S. ___, 132 S.Ct. 1181, 1189 (2012); In re K.W., 2009-Ohio-3152,

at ¶ 12, citing Thompson, 2001 WL 69197, at *8. “[T]he United States Supreme

Court held that a juvenile’s age may be considered in the Miranda analysis, so

long as the juvenile’s age was known to the officer at the time of questioning or

would have been objectively apparent to a reasonable officer.” In re R.S. at ¶ 18,

citing J.D.B. v. North Carolina, 564 U.S. 261, 131 S.Ct. 2394 (2011). “While a

juvenile’s age may be considered in the Miranda custody analysis, the Supreme

Court cautioned that ‘this does not mean that a child’s age will be a determinative,

or even a significant, factor in every case * * *.’” Id., quoting J.D.B. at syllabus.

       {¶14} “Separate from the issue of compliance with Miranda in custodial

interrogations is the voluntariness of the pretrial statement.” In re R.L., 2d Dist.

Montgomery No. 26232, 2014-Ohio-5065, ¶ 21, citing In re N.J.M., 12th Dist.

Warren No. CA2010-03-026, 2010-Ohio-5526, ¶ 18, citing State v. Chase, 55

Ohio St.2d 237, 246 (1978). “Even where Miranda warnings are not required, ‘a

confession may [still] be involuntary [and excludable] if on the totality of the
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Case No. 9-15-26


circumstances, the defendant’s will was overcome by the circumstances

surrounding the giving of the confession.’” (Brackets sic.) In re N.J.M. at ¶ 18,

quoting State v. Fille, 12th Dist. Clermont No. CA2001-08-066, 2002-Ohio-3879,

¶ 15, citing Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326 (2000).

       {¶15} We begin with a review of the relevant facts in this case. After

comparing the factual findings in the trial court’s July 1, 2015 judgment entry with

the transcript of the suppression hearing, we decline to defer to the trial court’s

findings of fact because the trial court failed to recite and consider the totality of

the circumstances. See State v. Way, 12th Dist. Butler No. CA2008-04-098, 2009-

Ohio-96, ¶ 31-34 (declining to defer to the trial court’s version of the facts because

the trial court failed to consider the totality of the circumstances).

       {¶16} At the suppression hearing, Graff testified that on April 22, 2015, he

was assigned to investigate an arson that took place at 142 North Vine Street in

Marion, Ohio. (June 20, 2015 Tr. at 4). Graff’s investigation led him to a juvenile

suspect, C.C., who told Graff that J.S. was also involved in the arson. (Id. at 5,

16). However, C.C. gave Graff a similar but incomplete name for J.S., so Graff

contacted the middle school resource officer who identified J.S. as the person to

whom C.C. was likely referring. (Id. at 5, 16-17).

       {¶17} According to Graff, he and two fire investigators went to J.S.’s

house. (Id. at 5-8). Graff was not wearing his uniform and was instead dressed in

plain clothes, with his badge visible and his firearm at his side. (Id. at 7-8, 20).
                                          -8-
Case No. 9-15-26


The two fire investigators were wearing khaki pants and black shirts with “the Fire

Marshall emblem on [them].” (Id. at 8). Graff testified that when they arrived at

J.S.’s residence, Graff and the fire investigators found him there with his cousin

and told J.S. that they “needed to talk to him.” (Id. at 5-6). According to Graff,

they asked J.S. if his parents were home, and J.S. said that his father was at a

nursing home. (Id. at 6). Graff and the fire investigators “asked that he call his

dad and asked [sic] him to come home because we really needed to talk to him.”

(Id.). Graff testified that through his training, he is not required to have a parent

present when questioning a juvenile, but, because of the seriousness of the offense,

he wanted to afford J.S. the benefit of having his father present. (Id.).

       {¶18} According to Graff, while they were waiting on J.S.’s father to

arrive, Graff and one of the fire investigators “were kinda [sic] off to the side,”

and the other fire investigator engaged J.S. in conversation, but not about the arson

investigation. (Id. at 7). Graff testified that J.S.’s father arrived within 10 or 15

minutes after Graff and the fire investigators arrived, at which time they began

questioning J.S. in the house. (Id. at 6-9).

       {¶19} When asked to describe the house, Graff testified that it “was in the

process of being remodeled.” (Id. at 8). Graff continued:

            [T]he room where we spoke with [J.S.] was open – was like a

       living room. There’s a large, open room. There’s another room

       behind us, not separated by a wall but the kitchen was * * * off to
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Case No. 9-15-26


       my left behind me.       And I think there’s a stairwell off to my

       immediate left that went upstairs.

            ***

            There’s not doors closing every room off but the kitchen was

       closed off and * * * I think there’s a little small hallway * * *. But

       the room where we were talkin’ to [J.S.] was open.

(Id. at 8-9). Present when J.S.’s father arrived were J.S., J.S.’s father, J.S’s

brother, J.S.’s uncle, two cousins of J.S., Graff, and the two fire investigators. (Id.

at 8). According to Graff, when he began questioning J.S., J.S.’s father was in the

room, as well as one of the fire investigators. (Id. at 10). Others were coming and

going from the room, but Graff could not recall who exactly was in the room.

(Id.). J.S. was seated on a loveseat, and Graff was “six, eight feet away from

him,” with a coffee table between them. (Id. at 12). According to Graff, no one

stood over J.S. or was in his space. (Id.).

       {¶20} Graff testified that he did not read J.S. his Miranda rights before

questioning him because “[w]e didn’t think it was a custodial interview” because

they were at his house and “hadn’t told him he was under arrest.” (Id. at 10).

Graff elaborated:

            We’re at his house. He’s free and we’re in his home. We

       haven’t told him he’s under arrest. We haven’t told him [sic] put

       hand cuffs out. We haven’t threatened him with anything. We just
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       told him we wanted the truth, we wanted the story of what happened,

       to tell us what happened.

             ***

             [W]e just told him that we wanted the truth. We wanted to

       know what happened, to tell us what happened. We didn’t make any

       threats to him, we didn’t – there was no coercion.

             ***

             You know, * * * in our minds he was not in custody because

       we’re at his house. I – there’s no safer place for him to be than at his

       house. His dad’s there. He’s at the comfort of his place. Where

       else is he gonna go? He’s at home.

(Id. at 10-11, 16).

       {¶21} When asked about J.S.’s demeanor during the interview, Graff

testified, “[J.S.] was nervous. But he settled down into it and he told us what

happened.” (Id. at 11). When asked if J.S. was being elusive with his answers

during the interview, Graff responded, “Initially, he was, but when we were able

to counter with what we knew, * * * he settled into it and told us what happened.

But there was no raising voices, there was [sic] no threats.” (Id. at 12). J.S.

admitted to starting the fire. (Id. at 13-14).

       {¶22} Graff testified that J.S.’s father was not present in the room for the

entire interview. (Id. at 12). Graff elaborated:
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             I think the realization of what happened and what was – hit dad

       and it really – it devastated him. You know, it really bothered him.

       I can’t express what was going on but he was really shaken – he

       wasn’t angry.    He wasn’t mad.      It was – I gotta use the word

       devastated.

             ***

             At what point, I don’t know. I just knew he went into the

       kitchen. Again, that was in another room separated. * * * [B]ut the

       doors were open.

(Id. at 12-13).

       {¶23} According to Graff, he and the fire investigators questioned J.S. for

“20 or 30 minutes.” (Id. at 11). At no time did J.S. give Graff and the fire

investigators an indication that he did not want to speak with them. (Id.). Graff

testified that, in his experience, it was not a lengthy interrogation, and it was not

“difficult as far as thee [sic] admission.” (Id. at 14). Graff was a School Resource

Officer at a middle school and, in that position, received specific training

concerning interviewing juveniles. (Id.). Graff agreed that that training “[came]

into play here.” (Id.). When asked if Graff was aware at the time of the interview

or became aware after the interview “of any prior contact [J.S.] had with Law




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Case No. 9-15-26


Enforcement,” Graff responded, “I’m aware now, yes.”1 (Id.). At the conclusion

of the interview, J.S. was arrested and taken in a cruiser to the juvenile detention

center. (Id. at 16, 18).

         {¶24} On cross-examination, Graff testified that when he arrived at J.S.’s

residence, J.S. and his cousin were on the front porch.                            (Id. at 20).         Graff

approached but did not walk onto the porch and identified himself as a police

officer. (Id.). According to Graff, his badge and firearm were visible to J.S. (Id.).

J.S. is 13 years old2 and “smaller,” Graff testified. (Id. at 21). Graff testified that

he is six feet, one inch tall and 255 pounds. (Id.). One of the fire investigators is

larger than Graff, and the other “is shorter but stalky [sic].” (Id. at 22). Graff

agreed that they are “three pretty good sized men.” (Id.). Graff admitted that

while he could not recall the exact language used, they said to J.S. something to

the effect, “[W]e need to talk to you. Would you please call your dad?” (Id. at

23). Between the time when Graff and the fire investigators first approached the

front porch and the time J.S.’s father arrived, they made only “small talk” with J.S.

1
  J.S.’s counsel did not object to this question and answer. (See June 20, 2015 Tr. at 14-15). However,
when asked to elaborate on J.S.’s prior contact with law enforcement, J.S.’s counsel objected based on
relevance, arguing that testimony concerning J.S.’s prior contact with law enforcement would be relevant
only if Graff was aware of it at the time of the questioning. (Id. at 15). The test that courts apply to resolve
whether there was a custodial interrogation is an objective one under which the subjective knowledge of the
officer and accused is irrelevant. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, at ¶ 27, citing Beheler,
463 U.S. at 1125, 103 S.Ct. 3517; In re R.S., 2014-Ohio-3543, at ¶ 17, citing Stansbury, 511 U.S. at 323,
114 S.Ct. 1526. Notwithstanding the objective nature of the test, the trial court sustained J.S.’s counsel’s
objection, concluding that because Graff was unaware of J.S.’s prior contact with law enforcement at the
time he interviewed J.S., J.S.’s prior contact with law enforcement is irrelevant. (See June 20, 2015 Tr. at
16). Nevertheless, as we will explain below under the State’s second assignment of error, in light of our
disposition of the State’s first assignment of error, we need not address this issue.
2
  Defendant’s Exhibit 1 from the suppression hearing contains J.S.’s date of birth, which indicates that he
was 14 years old on the day that Graff and the fire investigators interviewed J.S. at his home.

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Case No. 9-15-26


(Id. at 25). Graff admitted that, had J.S. “decided to start walking down the street”

at that point, he probably would have stopped him. (Id. at 24). During the time

they were waiting for J.S.’s father, Graff testified, “[J.S.’s] cousin was in and out

of the house but [J.S.] sat out on the front porch with us. Then once dad got home

we all went into the house.” (Id. at 25).

       {¶25} Graff testified that, during the interview in the house, he said to J.S.,

“You need to tell us the truth,” and, “You need to tell us what happened.” (Id. at

26). Graff never told J.S. or J.S.’s father that J.S. did not need to talk to Graff and

the fire investigators. (Id. at 24-25, 27). Nor did Graff tell J.S. or J.S.’s father that

J.S. could leave. (Id. at 24, 27). Graff testified that they did not arrest J.S. right

after the interview; however, Graff eventually placed handcuffs on J.S. and placed

him in a marked patrol car for which Graff called. (Id. at 28). Graff called for the

marked patrol car because his vehicle was unmarked. (Id.).

       {¶26} On the trial court’s examination, Graff testified that, while J.S. was

not immediately arrested, he was arrested before he left the residence. (Id. at 29).

Graff recalled that after J.S.’s father arrived, and while Graff was in the front yard,

he informed J.S.’s father, in J.S.’s presence, that Graff and the fire investigators

were investigating a fire and needed to speak with J.S. (Id.).

       {¶27} On re-direct examination, Graff testified that, before placing J.S.

under arrest, Graff gave no indication that J.S. was in custody. (Id. at 30).



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        {¶28} At the conclusion of the hearing, the trial court said that it was

“deeply concerned” about the interrogation for several reasons, many of which

related to Graff’s state of mind during the interrogation, including Graff’s

testimony that he probably would not have allowed J.S. to leave the residence.

(See id. at 36-37). The trial court “suppress[ed] any statements made by the

juvenile as a result of thee [sic] interrogation process,” including a written

statement J.S. provided to law enforcement.3 (Id. at 38). In its judgment entry

granting J.S.’s motion to suppress, the trial court, at times, applied an objective

test to resolve whether there was a custodial interrogation; however, at other

points in its entry, the trial court focused impermissibly on the subjective views

harbored by Graff. (See Doc. No. 32). For example, the trial court stated, “The

detective also testified that he realized their investigation of the alleged offenses

would be more difficult if [J.S.] did not speak to them freely which was another

reason he did not advise [J.S.] or his Father of their legal rights.” (Id.).

        {¶29} Balancing the totality of the circumstances surrounding the

questioning in this case, “we recognize there are factors weighing both for and

against a finding that the interview was custodial.” In re B.J., 11th Dist. Lake No.

2013-L-091, 2014-Ohio-5701, ¶ 19. Ultimately, however, we conclude that J.S.

3
  The completed written statement form, Defendant’s Exhibit 1, is dated “4/23/15” but also provides, “This
statement was completed * * * on the 23 day of February 2015.” (Emphasis added.) (Defendant’s Ex. 1).
Given that the alleged arson occurred on April 22, 2015, it appears that the February 23, 2015 date was
written in error. (Id.). Moreover, the record is unclear concerning when J.S. provided the written statement
relative to Graff and the fire investigators questioning him at his home; however, J.S. appears to have
provided the written statement after he was arrested following the questioning.

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Case No. 9-15-26


was not in custody when Graff and the fire investigators questioned him.

Weighing in favor of a finding that the interview was custodial is that Graff did

not simply request to speak with J.S. and instead told J.S., “We need to talk to

you,” and that they “wanted the truth.” See id. Graff and the fire investigators are

“three pretty good sized men” compared to J.S., who is “smaller.” Graff’s badge

and firearm were visible to J.S. See In re R.H., 2008-Ohio-773, at ¶ 20. Graff did

not inform J.S. or his father that J.S. did not need to speak with him and that J.S.

could leave at any time. See In re B.J. at ¶ 19. J.S. was initially nervous during

the interview. J.S.’s father was not present for the entire interview. See In re R.H.

at ¶ 20.    Finally, although J.S. was not arrested “immediately” after the

questioning, he was arrested that day before he left the residence, placed in a

cruiser, and taken to the juvenile detention facility. Compare In re R.S., 2014-

Ohio-3543, at ¶ 26.

       {¶30} Other, more numerous factors weigh against a finding that the

interview was custodial. Graff and the fire investigators did not begin questioning

J.S. until his father arrived. See In re B.J. at ¶ 19, citing In re C.M., 8th Dist.

Cuyahoga No. 99599, 2013-Ohio-5426, ¶ 42-44. While waiting for J.S.’s father,

Graff and the fire investigators waited outside on the front lawn; they did not enter

into an enclosed space with J.S. While Graff’s badge and firearm were visible to

J.S., Graff and the fire investigators were wearing plain clothes, and they arrived

in an unmarked vehicle. See In re J.C., 11th Dist. Geauga No. 2011-G-3017,
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Case No. 9-15-26


2011-Ohio-5864, ¶ 76. Once J.S.’s father arrived, the questioning occurred in a

large, open, living-room space in J.S.’s own home. See In re Gunton, 9th Dist.

Wayne No. 2890, 1994 WL 581435, *2 (Oct. 19, 1994). The room had openings,

not separated by doors, to other rooms. In addition to J.S., Graff, and the fire

investigators, five other people were present at the house once J.S.’s father

arrived—all of them J.S.’s relatives. People came and went from the living room

during the interview. Although Graff and the fire investigators were large relative

to J.S.’s size, none of the men invaded J.S.’s space. In fact, Graff and J.S. were

separated by six to eight feet during the interview, and a coffee table was between

them.

        {¶31} Aside from telling J.S. that they wanted the truth, Graff and the fire

investigators did not threaten or coerce J.S. See In re R.L., 2014-Ohio-5065, at ¶

28. Although J.S. was at first nervous and elusive during the interview, “he settled

down into it” and told Graff and the fire investigators what happened. While

J.S.’s father was not present for the entire interview, when he did leave the room

after becoming “devastated,” he went to the adjacent kitchen, and the door was

open between the living room and kitchen. The interview was not intense and

lasted only a short time—20 or 30 minutes. See In re B.J. at ¶ 19 (stating that an

interview “lasting less than 30 minutes” “was of a short duration”). J.S. had prior

contact with law enforcement. See In re R.S. at ¶ 26. Finally, J.S. was 13 or 14 at

the time of the interview, and J.S.’s “age was known to the officer at the time of
                                        -17-
Case No. 9-15-26


questioning or would have been objectively apparent to a reasonable officer”

because Graff learned of J.S.’s identity through J.S.’s middle school’s resource

officer.

       {¶32} Under the particular facts of this case, we conclude that J.S. was not

in custody when he was interviewed at his residence by Graff and the fire

investigators. Therefore, Graff was not required to inform J.S. of his Miranda

rights before questioning him. The trial court erred in concluding that J.S. was in

custody at the time of his interrogation and in granting J.S.’s motion to suppress

his statements.

       {¶33} In support of his argument that the trial court correctly concluded

that he was in custody, J.S. argues that “Graff intentionally did not advise [J.S.] of

his rights because it would make their investigation more difficult.” (Appellee’s

Brief at 5). The trial court made similar statements in its analysis. (See Doc. No.

32).   However, J.S.’s argument and the trial court’s analysis ignore that the

subjective views harbored by the interrogating officer “are of no consequence in

the Miranda analysis.” In re R.S., 2014-Ohio-3543, at ¶ 17. There is no evidence

that Graff’s subjective views were made relevant by a communication to J.S. of

Graff’s reasons for not informing J.S. of his Miranda rights. See State v. Sell, 2d

Dist. Montgomery No. 26458, 2015-Ohio-1940, ¶ 17; State v. Cherry, 9th Dist.

Summit No. 20771, 2002-Ohio-3738, ¶ 58. Therefore, we reject J.S.’s argument.



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       {¶34} For reasons similar to those discussed above in our custodial-

interrogation analysis, we conclude that J.S.’s statements were not involuntary.

As we discussed above, Graff and the fire investigators interviewed J.S. in his own

home with multiple relatives present. They did not act coercively other than to tell

J.S. to tell the truth, did not threaten J.S., did not employ deprivation or

inducement, and did not prevent the involvement of J.S.’s father while J.S. was

being questioned.   See In re R.L., 2014-Ohio-5065, at ¶ 28; In re J.M., 3d Dist.

Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 24-25. Considering the totality of the

circumstances, including J.S.’s youth, we conclude that, because J.S.’s will was

not overcome by the circumstances surrounding the giving of the confession, his

statements were not involuntary.

       {¶35} For the reasons above, we conclude that, because J.S. was not in

custody at the time he was questioned, and because his statements were not

involuntary, the trial court erred in granting J.S.’s motion to suppress and in

suppressing statements made by J.S.

       {¶36} The State’s first assignment of error is sustained.

                           Assignment of Error No. II

       The trial court erred in sustaining an objection thus not allowing
       the introduction of relevant evidence which would go to the
       totality of the circumstances.




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       {¶37} In its second assignment of error, the State argues that the trial court

erred by sustaining J.S.’s objection to evidence concerning specific details of

J.S.’s prior contact with law enforcement.

       {¶38} In light of our decision to sustain the State’s first assignment of error,

its second assignment of error is rendered moot, and we decline to address it. See

State v. Tyson, 3d Dist. Marion No. 9-14-49, 2015-Ohio-3530, ¶ 39, citing State v.

Duke, 9th Dist. Lorain No. 12CA010225, 2013-Ohio-743, ¶ 14, citing App.R.

12(A)(1)(c).

       {¶39} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                             Judgment Reversed and
                                                                  Cause Remanded

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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