from Marion County Common Pleas Court Trial Court No.
E. Cesner, Jr. for Appellant.
P. Collins for Appellee.
Defendant-appellant, Harold A. Pickens ("Pickens"),
appeals the June 7, 2016 judgment entry of sentence of the
Marion County Court of Common Pleas. He argues that the trial
court erred by denying his motion to suppress evidence and by
concluding that the victim, who was under the age of ten, was
competent to testify. For the reasons that follow, we affirm.
On January 28, 2016, the Marion County Grand Jury indicted
Pickens on Count One of gross sexual imposition in violation
of R.C. 2907.05(A)(4), a third-degree felony, and Count Two
of rape in violation of R.C. 2907.02(A)(1)(b), a first-degree
felony. (Doc. No. 2).
On February 1, 2016, Pickens appeared for arraignment and
entered pleas of not guilty. (Doc. No. 7). The State filed a
bill of particulars on February 26, 2016. (Doc. No. 17).
On March 24, 2016, Pickens filed a motion to suppress
evidence. (Doc. No. 38). After a hearing on April 19-20,
2016, the trial court denied Pickens's motion to suppress
evidence on May 3, 2016. (Doc. No. 50).
On May 27, 2016, the parties stipulated that "the school
records, including mental and achievement evaluations"
are "to be considered in the competency hearing of the
alleged child victim" "in lieu of calling as
witnesses those school administrators, teachers, and other
officials to testify at the time of said hearing." (Doc.
No. 53). On June 6, 2016, after a hearing on June 2, 2016,
the trial court filed an entry concluding that the alleged
child victim is competent to testify. (Doc. No. 68).
On June 3, 2016, Pickens withdrew his pleas of not guilty and
entered a no-contest plea to Count Two of an amended
indictment. (Doc. No. 66). In exchange for his change of plea, the
State agreed to dismiss Count One of the original indictment
and amend Count Two to remove the allegation that "the
victim is under the age of 10 years old."
(Id.). That same day, the trial court amended the
indictment and dismissed Count One. (Doc. No. 69). Also that
day, the trial court accepted Pickens's plea to the
amended indictment, found him guilty, and sentenced him to
"an indefinite prison term consisting of a minimum term
of 10 years and a maximum term of life imprisonment, "
and concluded that he is a Tier III sex offender.
(Id.). The trial court filed its judgment entries of
sentence and sex-offender classification on June 7, 2016.
Pickens filed his notice of appeal on June 30, 2016. (Doc.
No. 73). He raises two assignments of error for our review.
of Error No. I
Trial [sic] Erred by Denying the Motion to Suppress
Statements and Admissions Made by the Defendant at Police
Headquarters on January 14 and 15, 2016. Specifically,
Defendant Was Not Advised of His Miranda Rights While in
a Custodial Setting on January
14th. When the Interrogation Was Resumed on
15th [sic], the Defendant Was Given No Opportunity
to Exercise or Waive His Miranda Rights Either Orally or in
Writing. Under the Totality of the Circumstances,
Defendant's Statements and Admissions Were Therefore
In his first assignment of error, Pickens argues that the
trial court erred by denying his motion to suppress evidence.
Specifically, Pickens argues that his statements to law
enforcement on January 14, 2016 are inadmissible because
those statements were provided during a custodial interview,
and he was not advised of his Miranda rights.
Further, Pickens argues that his statements to law
enforcement on January 15, 2015 are inadmissible because he
did not knowingly, intelligently, or voluntarily waive his
"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.
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.
Id. 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; therefore, we must decide whether the
facts satisfy the applicable legal standard. Id.,
citing State v. McNamara, 124 Ohio App.3d 706, 710
"The Fifth Amendment to the U.S. Constitution provides a
privilege against self-incrimination." State v.
Edmond, 10th Dist. Franklin No. 15AP-574,
2016-Ohio-1034, ¶ 11, citing State v. Hall, 179
Ohio App.3d 727, 2008-Ohio-6228, ¶ 12 (10th Dist.),
citing Minnesota v. Murphy, 465 U.S. 420, 426, 104
S.Ct. 1136 (1984). "To protect this right, the United
States Supreme Court has held that 'the 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., quoting Miranda v. Arizona, 384 U.S. 436, 444,
86 S.Ct. 1602 (1966). "Thus, Miranda warnings
are required when a suspect is subjected to custodial
interrogation." Id., citing State v.
Garnett, 10th Dist. Franklin No. 09AP-1149,
2010-Ohio-5865, ¶ 30. "Custodial interrogation is
defined in Miranda as 'questioning initiated by
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.'" Id., quoting Miranda at
"Recently, the United States Supreme Court has provided
further guidance on the meaning of custody for purposes of
Miranda." Id. at ¶ 12.
"'"[C]ustody" is a term of art that
specifies circumstances that are thought generally to present
a serious danger of coercion.'" Id.,
quoting Howes v. Fields, 565 U.S. 499, 508-509 132
S.Ct. 1181 (2012). "'"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. Gartrell, 3d Dist. Marion No. 9-14-02,
2014-Ohio-5203, ¶ 62, quoting State v.
Billenstein, 3d Dist. Mercer No. 10-13-10,
2014-Ohio-255, ¶ 38, quoting State v. Hoffner,
102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 27. "In
considering a suspect's freedom of movement, a court must
consider the totality of the circumstances, including the
following relevant factors: (1) the location of the
questioning, (2) its duration, (3) statements made during the
interview, (4) the presence or absence of physical restraints
during the questioning, and (5) the release of the
interviewee at the end of the questioning."
Edmond at ¶ 12, citing Howes at 509.
"However, freedom of movement is not a solely
determinative factor, and courts must consider 'whether
the relevant environment presents the same inherently
coercive pressures as the type of station house questioning
at issue in Miranda.'" Id.,
quoting Howes at 509.
A suspect may knowingly and intelligently waive his
Miranda rights and agree to make a statement.
State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575,
¶ 35, citing Miranda at 479. "If a
defendant later challenges a confession as involuntary, the
state must prove a knowing, intelligent, and voluntary waiver
by a preponderance of evidence." Id., citing
Miranda at 475 and Colorado v. Connelly,
479 U.S. 157, 168-169, 107 S.Ct. 515 (1986). "To
determine whether a valid waiver occurred, we 'consider
the totality of the circumstances, 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.'" Id.,
quoting State v. Edwards, 49 Ohio St.2d 31 (1976),
paragraph two of the syllabus, and citing Arizona v.
Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246 (1991).
The trial court denied Pickens's motion to suppress
evidence after concluding that Pickens was not in custody for
purposes of the January 14, 2016 interview at the police
station, and after concluding that Pickens on January 15,
2016 "knowingly, intelligently, and voluntarily waived
his Miranda rights based on the totality of the
circumstances." (Doc. No. 50).
In particular, the trial court concluded that Pickens was not
in custody on January 14, 2016 after weighing the totality of
the circumstances. Weighing in favor of the conclusion that
Pickens was in custody, the trial court found that the
"interview took place at a police station, that
[Pickens] was taken there in the back of a police cruiser,
and that his initial contact with the officers was due to
them coming to his house with a search warrant."
(Id.). Weighing against the conclusion that Pickens
was in custody, the trial court found that Pickens "made
a voluntary decision to go with the officers to the police
station and was motivated by an effort to exonerate himself
from any accusations" as well as that "the officers
clearly explained to [Pickens] that he was not required to go
with them, that he was not being arrested, and that the
interview was voluntary on his part." (Id.).
Further, weighing against the conclusion that Pickens was in
custody, the trial court found that "at no time were any
physical restraints used and, following the interview, the
officers did take [Pickens] back to his house."
With respect to the January 15, 2016 interview, the trial
court concluded that Pickens "knowingly, intelligently,
and voluntarily waived his Miranda rights based on
the totality of the circumstances." (Id.).
Weighing in favor of the conclusion that Pickens knowingly,
intelligently, and voluntarily waived his Miranda
rights, the trial court found that law enforcement (1)
"read [Pickens] his Miranda rights, " (2)
"had [Pickens] sign a Miranda rights form,
" and (3) "explained the rights separately and took
care to inquire regarding [Pickens's] educational level
and ability to understand the rights." (Id.).
Weighing against that conclusion, the trial court found that
law enforcement "did not specifically ask [Pickens] if
he wished to waive his rights or have him sign the waiver of
rights portion of the form." (Id.). The trial
court further weighed, "[w]hile [law enforcement]
assertively challenged [Pickens's] statements, there is
no evidence that his will was overborn." (Id.).
As such, the trial court concluded that Pickens's
statements were not involuntary.
Our review of the record, including the suppression-hearing
transcript and the interview video, reveals that the trial
court's factual findings regarding the January 14 and 15,
2016 interviews are supported by competent, credible
evidence. See State v. Luke, 3d Dist. Allen No.
1-06-103, 2007-Ohio-5906, ¶ 12, citing State v.
Ransom, 3d Dist. Van Wert No. 15-06-05, 2006-Ohio-6490,
At the suppression hearing, Lieutenant Chris Adkins
("Lieutenant Adkins") of the Marion Police
Department testified that he interviewed Pickens on January
14 and 15, 2016 at the Marion Police Station. (Apr. 20, 2016
Tr. at 9). The video recording of Lieutenant Adkins's
interviews with Pickens on January 14 and 15, 2016 were
played for the trial court. (Id. at 6, 8-9);
(State's Exs. 1, 2).
Lieutenant Adkins testified that he did not advise Pickens of
his Miranda rights on January 14, 2016 because
Pickens came to the police station "[v]oluntarily and
[because law enforcement] had no plans to arrest him that
day." (Apr. 20, 2016 Tr. at 13). Lieutenant
Adkins also informed Pickens that day that he did not plan to
arrest him. (Id.).
Regarding the January 15, 2016 interview, Lieutenant Adkins
testified that Pickens executed a "Rights Waiver
Form." (Id. at 10-11); (State's Ex. 4).
Lieutenant Adkins read Pickens the "Waiver Rights"
on the form one-by-one to ensure that he understood his
rights. (Apr. 20, 2016 Tr. at 11). Lieutenant Adkins
testified that he was satisfied that Pickens understood his
rights based on Pickens's ninth-grade education, that
Pickens can read and write the English language, and that
Lieutenant Adkins read the waiver form to Pickens
line-by-line and asked after each line whether Pickens
understood his rights. (Id. at 18).
He further testified, He waived 'em [sic] at the top [of
the form]. He signed he acknowledged his rights. He never
said he wanted an attorney. He said he would talk to me. He
never refused to answer any questions I asked him. So, to me,
he waived his Miranda Rights at the time.
(Id. at 25).
Moreover, Lieutenant Adkins testified that his interview of
Pickens on January 15, 2016 was not a continuation of his
January 14, 2016 interview of Pickens because the January 14,
2016 interview was not
an interrogation. It was a pure gathering of information for
the sole fact that [the victim] needed to be interviewed
again. So, the 14th we had absolutely no plans to arrest him.
We made it perfectly clear with him on the 15th, at that
point in time, I felt that thee [sic] interview would turn
into what we called an interrogation to try to get more
information out of him and that's why - - and the
possibility of him not walking out there, that's why I
read him his Miranda Rights.
(Id. at 19). According to Lieutenant Adkins,
"If [Pickens] would have said, 'I wanna [sic]
leave' [during the January 14, 2016 interview], we would
of walked him out and let him leave." (Id. at
20). Lieutenant Adkins did not have any concerns as to
whether Pickens was coherent during either interview on
January 14 or 15, 2016. (Id. at 12).
Patrolman Michael Woods ("Patrolman Woods") of the
Marion Police Department testified that he was present when a
search warrant was executed at Pickens's residence on
January 14, 2016. (Apr. 19, 2016 Tr. at 78). Patrolman Woods
testified that he remained in the garage with Pickens,
Patrolman Sam Walter ("Patrolman Walter"), and two
case workers from Marion County Children's Services-Mandy
Davis ("Davis") and Ellen Thrush
("Thrush"), -while detectives from the Marion
Police Department searched Pickens's house. (Id.
at 79). Patrolman Woods testified that he spoke with Pickens
in the garage with the garage door open. (Id. at
79-80). He testified that Patrolman Walter, Davis, and Thrush
were present while he spoke with Pickens, and that
Pickens's son was present for a portion of that
conversation. (Id. at 80). According to Patrolman
Woods, the conversation lasted 20 to 25 minutes, and Pickens
was willing to answer his questions. (Id. at 80-81).
Pickens was not handcuffed during the conversation.
(Id. at 81-82).
Later in the conversation, Patrolman Woods asked Pickens
"if he'd come down willingly to do a - - a voluntary
interview at the Police Department, " to which Pickens
agreed. (Id. at 82-83). As a result, Patrolman Woods
transported Pickens to the police station with Pickens seated
in the backseat of Patrolman Woods's cruiser.
(Id. at 83). Pickens rode in the backseat of the
cruiser because Patrolmen Woods and Walter rode in the front
seats of the cruiser. (Id. at 84). According to
Patrolman Woods, Patrolman Walter conducted a
"precautionary" pat-down search of Pickens for
weapons prior to allowing him in the cruiser. (Id.
Prior to arriving at the police station, Patrolman Woods
stopped at Pickens's son's house for "[n]ot
long. Five, maybe ten minutes at the most" to look for
an item that was described in the search warrant.
(Id. at 83-84, 111). From Pickens's son's
house, Patrolman Woods drove to the police station, where
Pickens was directed to the "Interview Room."
(Id. at 85). The interview of Pickens with Patrolman
Woods, Davis, and Thrush on January 14, 2016 at the police
station was recorded, and that recording was played for the
trial court at the suppression hearing. (Id. at 85,
89, 98, 101, 103, 106); (State's Ex. 1).
Patrolman Woods informed Pickens that "being there was
voluntary [and that h]e was free to leave at any time."
(Apr. 19, 2016 Tr. at 85). According to Patrolman Woods, he
"didn't coerce [Pickens] or there wasn't any
threats or anything like that made towards him or promises
for him" coming to the police station for the interview.
(Id.). That interview lasted approximately 40
minutes. (Id. at 86).
According to Patrolman Woods, Pickens did not ask to leave
the interview or make any movement indicating that he wanted
to leave the interview. (Id. at 87). Pickens did not
refuse to answer any questions. (Id.). Neither
Patrolman Woods nor Davis or Thrush raised their voices.
(Id.). The door to the interview room was closed but
not locked. (Id. at 87-88). After the 40-minute
interview, Lieutenant Adkins spoke with Pickens in the same
interview room at the police station, and then Patrolman
Woods returned Pickens to his residence. (Id. at
After speaking with Pickens, Lieutenant Adkins, Davis, and
Thrush again interviewed the victim, which revealed
additional questions that they wanted to ask of Pickens.
(Id. at 90-91). As such, Patrolman Woods testified
that he and Patrolman Walter went to Pickens's residence
on January 15, 2016, saw Pickens in the driveway, and asked
Pickens if he would be willing to again go to the police
station, to which Pickens agreed. (Id. at 91-92).
Next, Patrolman Walter testified that he was present for
"most" of the conversation with Pickens at
Pickens's residence on January 14, 2016. (Id. at
117). He testified that he conducted a pat-down search of the
outside of Pickens's clothing for weapons prior to
transporting Pickens to the police station that day.
(Id. at 118). Patrolman Walter recalled that Pickens
was "willing to come down to the Station for an
interview." (Id. at 121).
He testified that he accompanied Patrolman Woods to
Pickens's residence on January 15, 2016. (Id. at
119). According to Patrolman Walter, Pickens was again
willing to go with them to the police station for another
interview. (Id. at 122).
Davis testified that she accompanied law enforcement to
Pickens's residence for the January 14, 2016
search-warrant execution "to speak with [Pickens]
regarding the allegations." (Id. at 16-17).
According to Davis, Pickens was willing to speak with them
but denied the allegations. (Id. at 22). According
to Davis, Pickens was willing to go to the police station
because "he had nothing to hide and he wanted to clear
his name." (Id. at 32). Davis testified that
law enforcement told Pickens on January 14, 2016 while at his
residence that he did not have to go to the police station
for the interview and that he was not under arrest.
(Id. at 52, 54). Davis testified that, during the
January 14, 2016 interview at the police station, Pickens was
informed that he was not under arrest; Pickens was not
threatened; no one raised their voice; and the interview
lasted 25 minutes. (Id. at 34). She testified that
she asked him the majority of the questions, while Thrush and
Officer Woods asked a few questions. (Id.). Davis
characterized the interview as "conversational."
(Id. at 35). She testified that the door to the
interview room was closed but not locked. (Id.).
Thrush testified that she accompanied Davis to Pickens's
residence to speak with Pickens while law enforcement
executed the search warrant. (Id. at 57). She
testified that Pickens "was very willing to speak with
us. He just kept telling us * * * he had nothing to hide. We
were more than welcome to come to his home. That he
didn't know why we had a search warrant cause [sic] we
just could of came. He has nothing to hide. * * * He was very
cooperative with us." (Id. at 58-59).
Thrush testified, regarding the January 14, 2016 interview at
the police station, that Pickens was "very willing to
go. Said he had no issue. * * * He was absolutely willing to
go. Said he would talk to us however long we wanted to * * *
and that he would, you know, tell us whatever we needed to do
[sic] to get his name cleared." (Id. at 59-60).
Thrush recalled that Patrolmen Woods and Walter "made it
very clear to [Pickens] that * * * he didn't have to come
[to the police station]. It was absolutely on his willingness
to come." (Id. at 60). She testified that,
during the January 14, 2016 interview at the police station,
Pickens did not indicate at any time that he wanted to end
the interview or leave the interview room. (Id. at
63-65). According to Thrush, no one raised their voice during
the interview or expressed "displeasure" with
Pickens's responses. (Id. at 65).
We will first address whether Pickens was in custody on
January 14, 2016; then, we will address whether Pickens
knowingly, intelligently, and voluntarily waived his
Miranda rights on January 15, 2016.
Pickens was interviewed twice on January 14, 2016-at his home
and at the police station. Because Pickens does not challenge
on appeal the interview conducted at his residence, we will
not address it. Weighing the totality of the trial
court's factual findings regarding whether Pickens was in
custody on January 14, 2016, we conclude that a reasonable
person in Pickens's position would believe that he was
free to ...