Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2016-CR-1517/1 (Criminal Appeal from Common
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Attorney for
SWIFT, Atty. Reg. Attorney for Defendant-Appellant.
1} Jermar W. White was convicted after a bench trial
in the Montgomery County Court of Common Pleas of unlawful
sexual conduct with a minor (10 or more years older than the
victim), pandering obscenity involving a minor, two counts of
trafficking in persons, and two counts of compelling
prostitution in furtherance of human trafficking. White was
acquitted of two additional charges. The trial court
designated him a Tier II sex offender and sentenced him to
concurrent sentences totaling 11 years in prison.
2} White appeals from his convictions, raising five
assignments of error. He claims that (1) the trial court
erred in denying his motion to suppress evidence, (2) his
convictions were based on insufficient evidence and against
the manifest weight of the evidence, (3) he received
ineffective assistance of counsel, (4) the trafficking in
persons statute, R.C. 2905.32(A)(2)(a), is unconstitutionally
vague, and (5) the State engaged in misconduct when it
offered at trial the testimony of his co-defendant, Iesha
3} For the following reasons, the trial court's
judgment as to the charge of pandering obscenity involving a
minor (Count 4) will be reversed. In all other respects, the
trial court's judgment will be affirmed.
Motion to Suppress
4} In his first assignment of error, White claims
that the trial court erred in failing to suppress statements
that he made to the police, as well as evidence that was
seized pursuant to a search warrant that was obtained in
reliance on those statements.
5} In deciding a motion to suppress, the trial court
assumes the role of trier of facts and is in the best
position to resolve questions of fact and evaluate the
credibility of witnesses. State v. Pence, 2d Dist.
Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing
State v. Hopfer, 112 Ohio App.3d 521, 548, 679
N.E.2d 321 (2d Dist.1996). The court of appeals must accept
the trial court's findings of fact if they are supported
by competent, credible evidence in the record. State v.
Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733,
¶ 8, citing State v. Retherford, 93 Ohio App.3d
586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as
true, the appellate court must then determine as a matter of
law, without deference to the trial court's legal
conclusion, whether the applicable legal standard is
6} Detective John Howard of the Dayton Police
Department, Street Crimes Unit, was the sole witness at the
suppression hearing. The State also presented two exhibits:
(1) a DVD of Howard's interviews with White and Heard at
the police station, and (2) a search warrant packet for the
home where White was staying. Howard's testimony and the
State's exhibits established the following facts.
7} In April 2016, 15-year-old J.J. met White (age
31) and White's girlfriend, Heard, at a friend's
house in Huber Heights. White was introduced as
"Shiloh." Approximately three weeks later, on or
about May 8, 2016, J.J. was walking with two friends when a
car driven by White pulled up; Heard was in the front
passenger seat. J.J. entered the vehicle, and they went to a
residence on Lilac Avenue in Dayton.
8} On May 10, 2016, J.J reported several encounters
that she had with "Shiloh" to two employees at her
school. The employees transported J.J. to the police
department, where J.J. indicated that sexual conduct and
activity occurred in a house, which she could describe. J.J.
described White and Heard and the vehicle they were driving.
J.J. directed a uniformed officer to the house on Lilac
9} The police conducted surveillance on the
residence. The police saw White and Heard enter the vehicle
that J.J. had described. Officers conducted a traffic stop of
the vehicle, and White and Heard were transported to the
10} Detective Howard and Detective Mistan Bailey
were assigned to the case. Their unit, the Street Crimes
Unit, investigates street-level drug dealers, prostitution,
human trafficking, and liquor permits, with an emphasis on
prostitution and human trafficking. Detective Howard
separately interviewed J.J., Heard, and White at the police
station on May 10; Detective Bailey was present and took
notes. Both of the interviews of Heard and White occurred in
an interview room that was equipped with an audiovisual
recording device. Heard corroborated many of the statements
that J.J. had made.
11} Detective Howard spoke with White after
interviewing Heard. After confirming White's name and
address and asking a few preliminary questions, Howard
advised White of his Miranda rights using a card
that he was provided by the prosecutor's office. White
stated that he understood each of his rights. Howard asked
White a few additional questions, and White answered.
12} Shortly after the questioning began, White
stated, "I really don't right now even want to
answer any questions," and he expressed that he thought
he was brought to the police station illegally and described
how he was brought there. Howard responded, "So do you
want to talk to me or do you not." White replied that he
did not know what the process was, and he wanted to know if
he would be booked into the jail that night. The detectives
explained that it was a possibility that White would go to
jail. For approximately ten minutes, Howard asked more
questions about what occurred between White, Heard, J.J., and
S.M. (another juvenile victim), and White responded. White
denied knowledge of the Backpage website, taking photos of
S.M. and J.J., and having J.J. perform oral sex on him. At
the end of the interview, Howard told White that he would be
booked into the jail. The entire interview lasted
approximately 15 minutes. White did not, at any time,
indicate that he wanted a lawyer.
13} Howard testified at the suppression hearing that
White was then placed in a different interview room closer to
the detectives' desks so that he (Howard) could complete
paperwork. Shortly after being placed in the second room,
which did not have audiovisual equipment, White knocked on
the door, wanting to speak with Detective Howard. Howard and
Bailey entered the room and told White that if he wanted to
talk, they could return to the first interview room. White
told the detectives that he did not want to go back to the
other room, but that "people are always making these
types of accusations or complaints against him." White
stated that the "same thing happened two or three years
ago." Detective Howard told White that if White wanted
to keep talking, they could go back to the first interview
room. White declined, and the detectives stopped talking with
14} After the interview with White, the police
obtained a search warrant for the residence on Lilac Avenue,
which belonged to White's sister. The warrant was based
on statements by J.J., Heard, and White. The warrant was
signed by a judge and executed within three days.
15} In denying White's motion to suppress, the
trial court found that Howard advised White of his
Miranda rights, that White "willingly
participated in the conversation with the police
officers" and "spoke freely to the police after
acknowledging that he understood his rights." The trial
court further found that White's statements were made
voluntarily. Finally, the trial court concluded that the
search warrant was supported by probable cause.
16} Under the Fifth Amendment to the United States
Constitution, no person shall be compelled to be a witness
against himself or herself. In order to ensure that this
right is protected, statements resulting from custodial
interrogations are admissible only after a showing that the
procedural safeguards described in Miranda v.
Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), have been followed. State v. Earnest, 2d
Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶ 21. To
counteract the coercive pressure of custodial interrogations,
police officers must warn a suspect, prior to questioning,
that he or she has a right to remain silent and a right to
the presence of an attorney. Maryland v. Shatzer,
559 U.S. 98, 103-104, 130 S.Ct. 1213, 175 L.Ed.2d 1045
(2010), citing Miranda.
17} A "suspect may effectively waive [his or
her Miranda] rights * * * only if the waiver is made
voluntarily, knowingly and intelligently." State v.
Dailey, 53 Ohio St.3d 88, 91, 559 N.E.2d 459 (1990),
citing Miranda at 444. Thus, a court may recognize
the validity of a waiver of Miranda rights only if
it finds that (1) "the relinquishment of the right[s]
[was] voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation,
coercion, or deception[, ]" and (2) the person had
"a full awareness of both the nature of the right[s]
being abandoned and the consequences of the decision to
abandon [them]." Moran v. Burbine, 475 U.S.
412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); State v.
Marejka, 2d Dist. Montgomery No. 27662, 2018-Ohio-2570,
¶ 14. "[A] suspect who has received and understood
the Miranda warnings, and has not invoked his
Miranda rights, waives the right to remain silent by
making an uncoerced statement to the police."
Burghuis v. Thompkins, 560 U.S. 370, 388-389, 130
S.Ct. 2250, 176 L.Ed.2d 1098 (2010). Courts examine the
totality of the circumstances to determine whether a suspect
has knowingly, intelligently, and voluntarily waived his or
her Miranda rights. State v. Clark, 38 Ohio
St.3d 252, 261, 527 N.E.2d 844 (1988).
18} The opportunity to exercise Miranda
rights exists throughout the interrogation, and thus, the
interrogation must cease when the defendant exercises his
right to end the questioning. State v. Villegas, 2d
Dist. Montgomery No. 27234, 2017-Ohio-2887, ¶ 13;
State v. Miller, 7th Dist. Mahoning No. 13 MA 12,
2014-Ohio-2936, ¶ 41, citing Miranda at 473-474
and Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct.
321, 46 L.Ed.2d 313 (1975) (recognizing that a
defendant's right to "cut off questioning" must
be "scrupulously honored").
19} "Whether a statement was made voluntarily
and whether an individual knowingly, voluntarily, and
intelligently waived his or her Miranda rights are
distinct issues." State v. Lovato, 2d Dist.
Montgomery No. 25683, 2014-Ohio-2311, ¶ 30. A
defendant's statements to police after a knowing,
intelligent, and voluntary waiver of the individual's
Miranda rights are presumed to be voluntary.
Id., citing Miranda. "The
Miranda presumption applies to the conditions
inherent in custodial interrogation that compel the suspect
to confess. It does not extend to any actual coercion police
might engage in, and the Due Process Clause continues to
require an inquiry separate from custody considerations and
compliance with Miranda regarding whether a
suspect's will was overborne by the circumstances
surrounding his confession." State v. Porter,
178 Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶
14 (2d Dist.), citing Dickerson v. United States,
530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
20} "In deciding whether a defendant's
confession is involuntarily induced, the court should
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." State v.
Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976),
paragraph two of the syllabus, overruled on other grounds,
438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). See
also State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d
491 (1990); State v. Beaty, 2d Dist. Montgomery No.
24048, 2011-Ohio-5014, ¶ 16.
21} In general, the State has the burden to show by
a preponderance of the evidence that a defendant's
confession was voluntarily given. State v. Melchior,
56 Ohio St.2d 15, 381 N.E.2d 195 (1978).
22} At the outset, the State contends that White was
not in custody at the time of the interview at the police
station. The State notes that, although White was transported
to the station by the police, he was not handcuffed or
restrained, the door to the interview room was open, and
Detective Howard told White that he (White) might be booked
into jail that day, but he (Howard) did not know yet.
23} Miranda defined custodial interrogation
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." Miranda, 384 U.S. 436, 444, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). "[T]he ultimate inquiry is
simply whether there [was] 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, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), citing
Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.
711, 50 L.Ed.2d 714 (1977). Whether a person is subject to
custodial interrogation is an objective question, focusing on
how a reasonable person in the suspect's position would
have understood the situation. J.D.B. v. North
Carolina, 564 U.S. 261, 270, 131 S.Ct. 2394, 180 L.Ed.2d
310 (2011); Berkemer v. McCarty, 468 U.S. 420, 442,
104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).
24} Detective Howard testified at the suppression
hearing that officers were conducting surveillance of the
Lilac Avenue residence while he and Detective Bailey
interviewed J.J. at the police station. After officers
observed White and Heard get into a vehicle that matched the
description J.J. had given, officers conducted a traffic stop
of the vehicle. Officers then transported White and Heard to
the police station, where Detective Howard interviewed them
after providing Miranda warnings. Statements made by
White during his interview reflected that he did not believe
that he had been lawfully brought to the police station and
that he was not there voluntarily. White indicated to
Detective Howard that he was handcuffed while he was
transported to the police station, although the record does
not indicate on what grounds he was brought to the station.
Given that White was transported involuntarily to the police
station in handcuffs and that he was interviewed at the
station, we conclude that White was in custody when he was
interviewed by Howard.
25} We have reviewed the video-recording of
White's interview at the police station. The interview
occurred in a small interview room equipped with a table
against the wall and three chairs, which were occupied by
White and Detectives Howard and Bailey. Howard asked White a
few preliminary questions to confirm White's name and
address and whether he had previously been read his
Miranda rights, and then Howard read White his
Miranda rights from a card provided by the
prosecutor's office. White indicated that he understood
his rights. White was not asked if he wished to waive his
Miranda rights, but he proceeded to answer Detective
Howard's questions. We find nothing in the interview
process that would suggest that White's decision to
subsequently speak to the detective was involuntary.
26} Turning to the voluntariness of White's
statements, the record reflects that White's interview
began at approximately 9:00 p.m. and lasted for less than 20
minutes. White carried a glass of water when he entered the
room; he was not handcuffed. White provided his birthdate to
Detective Howard; he was 31 years old. White had previously
been arrested, most recently the year before the interview;
White's answer to whether he had previously been informed
of his rights was difficult to hear, but it sounded like he
did not recall. White did not appear to be under the
influence of drugs or alcohol, and he appeared to be
intelligent. Although some of the exchanges between White and
Detective Howard were argumentative, Howard made no threats,
promises, or any other coercive statements. There is no
evidence of coercive police activity. The record thus
supports the trial court's conclusion that White's
statements were voluntarily made.
27} Within a few minutes of the start of the
interview, White expressed that he "really don't
right now even want to answer any questions," and he
expressed that he thought the stop of his vehicle and his
transportation to the police station were unlawful. While a
suspect's right to "cut off questioning" must
be "scrupulously honored," the suspect's
invocation of that right must be clear and unambiguous.
Burghuis, 560 U.S. at 381, 130 S.Ct. 2250, 176
L.Ed.2d 1098; State v. Blythe, 2d Dist. Montgomery
No. 24961, 2013-Ohio-1688, ¶ 25. White's comment
about not wanting to answer questions was immediately
followed by several statements complaining about how he was
brought to the police station. Taken together, White did not
clearly or unambiguously state that he wanted the interview
to cease; rather, he expressed to Detective Howard that he
did not want to talk until he understood why he was there.
Based on White's unclear statement regarding whether he
wanted to invoke his right to remain silent, Detective Howard
properly asked White if he wanted to continue talking.
See Davis v. United States, 512 U.S. 452, 461, 114
S.Ct. 2350, 129 L.Ed.2d 362 (1994) ("[W]hen a suspect
makes an ambiguous or equivocal statement [regarding an
attorney, ] it will often be good police practice for the
interviewing officers to clarify whether or not he actually
wants an attorney."). White responded by asking
Detective Howard what the process was and whether he was
going to be booked into jail; Howard responded,
"Possibly." White told Howard that another officer
had said that White would be arrested, and the two men
discussed the inconsistency in the responses that White had
28} Detective Howard then asked White again if he
wanted to talk to him (Howard). White stated, "I
don't understand why I should talk to you if I can't
just get a solid answer about whether he (White) was going to
be jailed. Detective Howard responded that he had given White
a solid answer, and Detective Bailey told White that Howard
was trying to explain the situation to him. White then stated
that he did not know anything about Backpage and had
"nothing to do with" Backpage, and he asked Howard
what was going on. Howard then asked White about whether J.J.
and S.M. had been to his ...