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State v. Gideon

Court of Appeals of Ohio, Third District, Allen

June 24, 2019


          Appeals from Lima Municipal Court Trial Court Nos. 17CRB01386, 17CRB01387, and 17CRB01385

          Dennis C. Belli for Appellant.

          Anthony L. Geiger for Appellee.


          ZIMMERMAN, P.J.

         {¶1} 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 reverse.

         {¶2} 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 of medicine.

         {¶3} 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).

         {¶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).

         {¶5} 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).

         {¶6} 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).

         {¶7} On February 6, 2018, the State filed a motion to join case numbers 17CRB01385, 17CRB01386, 17CRB01387. (Case No. 17CRB01385, Doc. No. 18).[1] 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).

         {¶8} 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).

         {¶9} 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.).

         {¶10} 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 error.

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. (Apx.A-7)

         {¶11} 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 8).[2]

         Standard of Review

         {¶12} 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).

         Due Process Voluntariness

         {¶13} 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 threatened. Id.

         {¶14} 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.

         Fifth Amendment

         {¶15} "'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. [3] 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).

         {¶16} "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 Amendment privilege.

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.

         {¶17} 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.


         {¶18} 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.

         {¶19} "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.

         {¶20} 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).

         {¶21} 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." [4]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 ΒΆ 22. A state investigator is an agent of law enforcement when he or she ...

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