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State v. White

Court of Appeals of Ohio, Second District, Montgomery

August 3, 2018

STATE OF OHIO Plaintiff-Appellee
JERMAR W. WHITE Defendant-Appellant

          Trial Court Case No. 2016-CR-1517/1 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Attorney for Plaintiff-Appellee

          BEN M. SWIFT, Atty. Reg. Attorney for Defendant-Appellant.


          FROELICH, J.

         {¶ 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 Heard.

         {¶ 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.

         I. 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 satisfied. Id.

         {¶ 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 Avenue.

         {¶ 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 police station.

         {¶ 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 White.

         {¶ 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 received.

         {¶ 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 ...

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