Appeals from Lima Municipal Court Trial Court Nos.
17CRB01386, 17CRB01387, and 17CRB01385
C. Belli for Appellant.
Anthony L. Geiger for Appellee.
Defendant-appellant, James A. Gideon ("Gideon"),
appeals the May 11, 2018 judgment entries of sentence of the
Lima Municipal Court. For the reasons that follow, we
This case stems from an investigation of Gideon for allegedly
inappropriately touching patients in his capacity as a
licensed physician. As part of the investigation, Sergeant
Tyler Hochstetler ("Sergeant Hochstetler") of the
Bluffton Police Department criminally investigated the
patient complaints, while Investigator Chad Yoakam
("Investigator Yoakam") of the State Medical Board
pursued an administrative investigation for possible
violations of the statutes and rules governing the practice
Sergeant Hochstetler and Investigator Yoakam agreed "to
cooperate with each other" by trading information during
the course of their investigations. (Oct. 13, 2017 Tr. at
51-52). According to Investigator Yoakam, it is advantageous
for state investigators to cooperate with law enforcement
under "what they call a bootstrap on a criminal
case" because proving an administrative-sanction case is
easier "from a criminal conviction" as opposed to
"through witness testimony." (Id. at
15-16). Thus, Investigator Yoakam met with Sergeant
Hochstetler "to determine how [he] was going to proceed
with the criminal case." (Id. at 15). After
learning from Sergeant Hochstetler that Gideon denied the
patients' allegations to Sergeant Hochstetler,
Investigator Yoakam informed Sergeant Hochstetler that he was
going to interview Gideon himself. Importantly, Investigator
Yoakam warned Sergeant Hochstetler against participating in
his interview with Gideon-because Gideon was statutorily
obligated to cooperate with his investigation-so that any
confession could be used in a criminal proceeding against
Gideon. (See Oct. 13, 2017 Tr. at 28-29, 55-56);
(Defendant's Ex. 4).
In accordance with that agreement, Investigator Yoakam
arrived unannounced at Gideon's medical office and asked
Gideon "if he would have a few minutes to chat
with" him to which Gideon-who was aware of his duty to
cooperate with Investigator Yoakam's
investigation-responded that he did. (Aug. 22, 2017 Tr. at
5). Commensurate with his duty to cooperate and provide
truthful answers to Investigator Yoakam's questions,
Gideon provided Investigator Yoakam with an oral and written
statement. Thereafter, Investigator Yoakam immediately shared
the information from his interview of Gideon with law
enforcement "because the doctor had  an interview with
[law enforcement] where he denied any impropriety so I wanted
to tell [law enforcement] what happened during [his]
interview." (Oct. 13, 2017 Tr. at 26-27).
On May 26, 2017, three complaints were filed in the Lima
Municipal Court, each charging Gideon with sexual imposition
in violation of R.C. 2907.06(A)(1), third-degree
misdemeanors. (Case No. 17CRB01385, Doc. No. 3); (Case No.
17CRB01386, Doc. No. 3); (Case No. 17CRB01387, Doc. No. 3).
The complaints were assigned case numbers 17CRB01385,
17CRB01386, and 17CRB01387, respectively. (Id.);
(Id.); (Id.). Gideon appeared for
arraignment and entered pleas of not guilty on June 6, 2017.
(Case No. 17CRB01385, Doc. No. 7); (Case No. 17CRB01386, Doc.
No. 7); (Case No. 17CRB01387, Doc. No. 7).
On July 5, 2017, Gideon filed a motion to suppress evidence.
(Case No. 17CRB01385, Doc. No. 10); (Case No. 17CRB01386,
Doc. No. 12); (Case No. 17CRB01387, Doc. No. 11).
Specifically, Gideon requested that "his written and
recorded statements given during an interrogation conducted
by [Investigator Yoakam]" be suppressed because
"the statements were involuntary and elicited in
violation of [Gideon's] right to Due Process and the
Privilege against Self- Incrimination guaranteed under the
Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio
Constitution." (Id.); (Id.);
(Id.). After the conclusion of suppression hearings
on August 22, 2017 and October 13, 2017, the trial court
determined that Gideon "made voluntary statements during
a noncustodial interview" and denied the motion to
suppress his statements. (Case No. 17CRB01385, Doc. Nos. 12,
14, 17); (Case No. 17CRB01386, Doc. Nos. 14, 17); (Case No.
17CRB01387, Doc. No. 12, 14). (See also Case No.
17CRB01385, Doc. Nos. 14, 15, 16).
On February 6, 2018, the State filed a motion to join case
numbers 17CRB01385, 17CRB01386, 17CRB01387. (Case No.
17CRB01385, Doc. No. 18). Gideon filed a memorandum in opposition
to the State's joinder request on February 23, 2018.
(Case No. 17CRB01385, Doc. No. 20). The trial court granted
the State's motion on April 9, 2018 and joined all of the
cases for trial. (Case No. 17CRB01385, Doc. No. 27A); (Case
No. 17CRB01386, Doc. No. 18A); (Case No. 17CRB01387, Doc. No.
15A). (See Case No. 17CRB01385, Doc. Nos. 21, 25,
27). (See also Case No. 17CRB01385, Doc. No. 22).
The cases proceeded to a jury trial on April 18-20, 2018.
(Apr. 18, 2018 Tr., Vol. I, at 1); (Apr. 19, 2018 Tr., Vol.
II, at 1); (Apr. 20, 2018 Tr., Vol. III, at 1). The jury
found Gideon guilty of the sexual-imposition charge in case
number 17CRB01385, 17CRB01386, and 17CRB01387, respectively.
(Case No. 17CRB01385, Doc. No. 42); (Case No. 17CRB01386,
Doc. No. 22); (Case No. 17CRB01387, Doc. No. 19).
On May 11, 2018, the trial court sentenced Gideon to 60 days
in jail in case number 17CRB01385, 60 days in jail in case
number 17CRB01386, and 60 days in jail in case number
17CRB01387. (Case No. 17CRB01385, Doc. No. 45); (Case No.
17CRB01386, Doc. No. 25); (Case No. 17CRB01387, Doc. No. 22).
The jail terms imposed were ordered to be served
consecutively for an aggregate sentence of 180 days in jail.
(Id.); (Id.); (Id.). The trial
court also classified Gideon as a Tier I sex offender.
(Id.); (Id.); (Id.).
Gideon filed his notice of appeal on May 11, 2018, and raises
four assignments of error for our review. (Case No.
17CRB01385, Doc. No. 46); (Case No. 17CRB01386, Doc. No. 26);
(Case No. 17CRB01387, Doc. No. 23). Because it is
dispositive, we address only Gideon's first assignment of
Assignment of Error No. I
The Denial of Defendant-Appellant's Motion to
Suppress His Oral and Written Statements to the Medical Board
Investigator and the Admission of Those Statements in the
State's Case-In-Chief Violated His Rights Under the Fifth
and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 of the Ohio Constitution.
In his first assignment of error, Gideon argues that the
trial court erred by denying his motion to suppress oral and
written statements that he made to Investigator Yoakam as
evidence. In particular, Gideon contends that the trial court
erred by concluding that his belief that his statements were
coerced was objectively unreasonable under the circumstances.
In making that determination, Gideon argues that the trial
court "failed to consider the degree to which
[Investigator] Yoakam's disciplinary investigation was
intertwined with the police department's criminal
investigation." (Appellant's Brief at
A review of the denial of a motion to suppress involves mixed
questions 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, "an
appellate court must accept the trial court's findings of
fact if 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 (4th Dist.1997).
First, we will address Gideon's argument that his
pre-trial statements "were procured in violation of his
right to due process * * *." (Appellant's Brief at
5). Separate from the consideration of whether a
defendant's statements should be suppressed under the
Fifth Amendment's self-incrimination privilege, is the
consideration of whether the defendant's statements were
voluntary. See, e.g., Oregon v. Elstad, 470 U.S.
298, 304, 105 S.Ct. 1285 (1985) ("Prior to
Miranda, the admissibility of an accused's
in-custody statements was judged solely by whether they were
'voluntary' within the meaning of the Due Process
Clause."); State v. Jenkins, 15 Ohio St.3d 164,
231 (1984) (noting that "due process provisions of the
federal Constitution dictate that the state must meet by a
preponderance of the evidence its burden of proving that any
inculpatory statement was made voluntarily"); State
v. Tussing, 3d Dist. Logan No. 8-10-11, 2011-Ohio-1727,
¶ 32 (stating that "the Due Process Clause requires
an inquiry regarding the voluntariness of a defendant's
confession, which is a separate inquiry from the
considerations regarding whether a defendant is subject to a
custodial interrogation"), citing State v.
Petitjean, 140 Ohio App.3d 517, 526 (2d Dist.2000),
citing Dickerson v. United States, 530 U.S.
428, 434, 120 S.Ct. 2326 (2000); State v. Scholl,
10th Dist. Franklin No. 12AP-309, 2012-Ohio-6233, ¶ 7
("The voluntariness of a confession presents 'an
issue analytically separate from those issues surrounding
custodial interrogations and Miranda
warnings.'"), quoting State v. Walker, 10th
Dist. Franklin No. 04AP-1107, 2005-Ohio-3540, ¶ 24,
citing State v. Kelly, 2d Dist. Greene No.
2004-CA-20, 2005-Ohio-305, ¶ 10. See also United
States v. Goodpaster, 65 F.Supp.3d 1016, 1021-1022
(D.Or.2014). "Using an involuntary statement against a
defendant in a criminal trial is a denial of due process of
law." State v. Carse, 10th Dist. Franklin No.
09AP-932, 2010-Ohio-4513, ¶ 23, citing Mincey v.
Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408 (1978).
Statements are considered involuntary when, under the
totality of the circumstances, the "defendant's will
was overborne." Schneckloth v. Bustamonte, 412
U.S. 218, 226, 93 S.Ct. 2041 (1973). Some of the
circumstances that are commonly considered include the
defendant's age, education, intelligence, and knowledge
of his rights; the duration and nature of detention and
questioning; and whether physical punishment was used or
Although Gideon asserts that he is challenging the
admissibility of his pre-trial statements under the Due
Process Clause, he failed to make any argument in support of
that contention. "[A] defendant has the burden of
affirmatively demonstrating the error of the trial court on
appeal." State v. Stelzer, 9th Dist. Summit No.
23174, 2006-Ohio-6912, ¶ 7, citing State v.
Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶
27. "Moreover, '[i]f an argument exists that can
support this assignment of error, it is not this court's
duty to root it out.'" Id., quoting
Cook at ¶ 27. "App.R. 12(A)(2) provides
that an appellate court 'may disregard an assignment of
error presented for review if the party raising it fails to
identify in the record the error on which the assignment of
error is based or fails to argue the assignment separately in
the brief, as required under App.R. 16(A).'"
State v. Jackson, 10th Dist. Franklin No. 14AP-670,
2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2).
"Additionally, App.R. 16(A)(7) requires that an
appellant's brief include '[a]n argument containing
the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in
support of the contentions, with citations to the
authorities, statutes, and parts of the record on which
appellant relies.'" Id., quoting App.R.
16(A)(7). Notwithstanding Gideon's failure to include an
argument regarding how his pre-trial statements were
inadmissible under the Due Process Clause, the voluntariness
of his statements are immaterial to the resolution of his
suppression argument because we conclude that his statements
were otherwise per se compelled under the Fifth Amendment to
the United States Constitution.
"'The Fifth Amendment to the United States
Constitution, made applicable to the states by the Fourteenth
Amendment, states that "[n]o person * * * shall be
compelled in any criminal case to be a witness against
himself."'" State v. Jackson, 154 Ohio
St.3d 542, 2018-Ohio-2169, ¶ 14, quoting State v.
Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, ¶ 19,
quoting the Fifth Amendment to the U.S. Constitution.
See also Ohio Constitution, Article I, Section 10.
"It has long been held that this prohibition not only
permits a person to refuse to testify against himself at a
criminal trial in which he is a defendant, but also
'privileges him not to answer official questions put to
him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future
criminal proceedings.'" Minnesota v.
Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136 (1984),
quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94
S.Ct. 316 (1973).
"The privilege against self-incrimination is generally
not self-executing; a person 'ordinarily must assert the
privilege rather than answer if he desires not to incriminate
himself.'" Graham at ¶ 19, quoting
Murphy at 429. See also Murphy at
427 (noting that "[t]his principle has been applied in
cases involving a variety of criminal and noncriminal
investigations"). Thus, "[i]f a witness-even one
under a general compulsion to testify-answers a question that
both he and the government should reasonably expect to
incriminate him, the Court need ask only whether the
particular disclosure was 'compelled' within the
meaning of the Fifth Amendment." Murphy at 428.
There are well-known exceptions to the requirement of
asserting the privilege: (1) "custodial
interrogation"; (2) situations where the assertion is
penalized to an extent that a "'free choice to
remain silent'" is foreclosed; and (3) situations
where parties fail to file tax returns rather than
identifying themselves as gamblers and asserting the Fifth
State v. Schimmel, 2d Dist. Clark No. 2017-CA-23,
2017-Ohio-7747, ¶ 17, quoting Murphy at
429-430, 434, 439, quoting Garner v. United States,
424 U.S. 648, 661, 96 S.Ct. 1178 (1976). See also
Goodpaster, 65 F.Supp.3d at 1022-1023 ("Rather than
ask whether statements were actually compelled, a
prophylactic rule asks whether certain other conditions were
met and provides that statements made under those conditions
are deemed per se compelled.), citing Elstad, 470
U.S. at 307. "A prophylactic rule, therefore,
'sweeps more broadly than the Fifth Amendment itself'
and may exclude even 'patently voluntary
statements.'" (Emphasis sic.) Goodpaster at
1023, quoting Elstad at 306-307.
Here, the trial court addressed two of the exceptions to the
requirement of asserting the privilege: the Miranda
and the Garrity rules. Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602 (1966); Garrity v. New
Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967). Accordingly,
we will review the trial court's application of the
Miranda and Garrity rules to the facts and
circumstances presented by this case.
The first well-known exception under Miranda
excludes "'statements, whether exculpatory or
inculpatory, stemming from custodial interrogation
of the defendant unless [the state] demonstrates the use of
procedural safeguards effective to secure the privilege
against self-incrimination.'" (Emphasis added.)
Jackson, 154 Ohio St.3d 542, 2018-Ohio-2169, at
¶ 14, quoting Miranda at 444.
"The basic insight of Miranda is that custody
contains 'inherently compelling pressures which work to
undermine the individual's will to resist and to compel
him to speak where he would not otherwise do so
freely.'" Goodpaster at 1023, quoting
Miranda at 467. "To offset this coercion,
Miranda mandated that certain warnings be given
before a suspect in custody is interrogated."
Id., citing Miranda at 478-479.
"Absent these warnings, * * * a suspect's statements
made during custodial interrogation * * * may not be used
against him * * *." Id., citing Elstad
at 307 and Miranda at 478-479.
"The prophylactic rule of Miranda, therefore,
substitutes the totality-of-the-circumstances voluntariness
inquiry with" a four-prong inquiry: First, was the
suspect in custody? Second, was the suspected being
interrogated? Third, was the custodial interrogation
conducted by law enforcement? Fourth, if the first three
inquiries produce an affirmative result, were adequate
warnings given? See id.
A "custodial interrogation" within the meaning
of Miranda "'means "questioning
initiated by law enforcement after a person has been
taken into custody"'" (Emphasis
added.) Jackson at ¶ 15, quoting State v.
Watson, 28 Ohio St.2d 15 (1971), paragraph five of the
syllabus, quoting Mranda at 444, and citing
State v. Bernard, 31 So.3d 1025, 1029 (La.2010)
(noting that Miranda applies only if "the
interrogation is conducted by a 'law enforcement
officer' or someone acting as their agent"). See
also Rhode Island v. Innis, 446 U.S. 291, 300-301, 100
S.Ct. 1682 (1980) (defining "interrogation" as
"express questioning or its functional
equivalent"). "When determining whether an
individual is in custody for Miranda purposes, we
must consider whether there was a formal arrest or the
functional equivalent of 'a restraint of an
individual's freedom of movement commensurate with that
of a formal arrest.'" In re M.H., 8th Dist.
Cuyahoga No. 105742, 2018-Ohio-4848, ¶ 20, quoting
State v. Jones, 8th Dist. Cuyahoga No. 83481,
2004-Ohio-5205, ¶ 39, citing Miranda at 444.
"In considering whether an individual is in custody for
Miranda purposes, "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.'"
Id. at ¶ 24, quoting 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). "In so doing, we examine the totality of the
circumstances and how a reasonable person would have
understood the circumstances." Id. at ¶
20, citing State v. Montague, 8th Dist. Cuyahoga No.
97958, 2012-Ohio-4285, ¶ 8, citing Berkemer v.
McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138 (1984).
"Relevant factors to consider in determining whether a
custodial interrogation took place are: (1) the location of
the questioning; (2) duration of the questioning; (3)
statements made during the interview; (4) the presence or
absence of physical restraints; and (5) whether the
interviewee was released at the end of the interview."
State v. Billenstein, 3d Dist. Mercer No. 10-13-10,
2014-Ohio-255, ¶ 44, citing Howes v. Fields,
565 U.S. 499, 132 S.Ct. 1181 (2012).
However, generally, "[t]he Miranda requirements
do not apply when admissions are made to persons who are not
law enforcement officers or their agents, even if an
individual's efforts aid in law enforcement."
In re M.H. at ¶ 19, citing Jackson at
¶ 15. See also id at ¶ 21
("Generally, courts have held that [state
investigators-namely, social workers-]do not have a duty to
advise suspects of their Miranda rights because they
are private citizens with no power to arrest."), citing
Jones at ¶ 40, State v. Coonrod, 12th
Dist. Fayette No. CA2009-08-013, 2010-Ohio-1102, ¶ 9,
State v. Thoman, 10th Dist. Franklin No. 04AP-787,
2005-Ohio-898, ¶ 7, State v. Dobies, 11th Dist.
Lake No. 91-L-123, 1992 WL 387356, *3 (Dec. 18, 1992), and
State v. Simpson, 4th Dist. Ross No. 1706, 1992 WL
37793, *4 (Feb. 21, 1992). Nevertheless, when a state
investigator acts as an agent of law enforcement, that
investigator may be required to provide Miranda
warnings. Id. at ¶ 22. A state investigator is
an agent of law enforcement when he or she ...