[Cite as State v. Jackson,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26234

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JASON T. JACKSON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2010-11-3045

DECISION AND JOURNAL ENTRY

Dated: August 22, 2012

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellant, Jason Jackson, appeals from his conviction in the Summit

County Court of Common Pleas. This Court affirms.

I

{¶2} In August 2010, N.J. admitted to her mother that her father, Jackson, had sexually

abused her. The abuse occurred toward the end of June 2010 when N.J. had spent the night

alone with her father and much younger brother. N.J. stated that her father took her into his

bedroom and told her to take off her pants. Her father then came near her on the bed and

touched her with his fingers “in [her] privacy area.” N.J. was eleven years old at the time.

{¶3} When the police interviewed Jackson regarding N.J.’s allegations, he denied that

he ever abused her. He then consented to undergo a polygraph examination. When Jackson

finished the polygraph examination, the examiner informed him that several of his answers were

deceptive in nature and asked him to explain himself. Jackson then verbally confessed that he 2

had touched his daughter. He also completed a written statement in which he wrote: “penis was

on bare butt and rubbed on vagina” and “while finger was rubbing it went up and down the

vagina not inside.”

{¶4} A grand jury indicted Jackson on the following counts: (1) rape, in violation of

R.C. 2907.02(A)(2); and (2) two counts of gross sexual imposition, in violation of R.C.

2907.05(A)(4). Jackson filed a motion to suppress any oral or written statements he made at the

time of his polygraph examination. The trial court held a suppression hearing, but ultimately

denied the motion. A jury trial then commenced. The jury found Jackson guilty of a single

count of gross sexual imposition and not guilty of the remaining counts. The trial court

sentenced Jackson to five years in prison and classified him as a Tier II Sex Offender/Child

Victim Offender Registrant.

{¶5} Jackson now appeals from his conviction and raises four assignments of error for

our review. For ease of analysis, we rearrange and consolidate several of the assignments of

error.

II

Assignment of Error Number One

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS.

{¶6} In his first assignment of error, Jackson argues that the trial court erred by

denying his motion to suppress. Specifically, he argues that his statements to the polygraph

examiner should have been suppressed because they were obtained through coercion in violation

of his Fifth Amendment rights. 3

{¶7} The Ohio Supreme Court has held that:

[a]ppellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills,

(1992). Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning,

(1982). Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara,

(4th Dist. 1997).

State v. Burnside,

,

, ¶ 8. Accordingly, this Court reviews

the trial court’s factual findings for competent, credible evidence and considers the court’s legal

conclusions de novo. State v. Conley, 9th Dist. No. 08CA009454,

, citing

Burnside at ¶ 8.

{¶8} Jackson asserts that he did not knowingly, intelligently, and voluntarily waive his

Miranda rights before he spoke with the polygraph examiner and completed a written statement.

He further argues that his confession was involuntary because he confessed as a result of

coercion.

{¶9} “Pursuant to the Fifth Amendment of the United States Constitution, no person

shall be compelled to be a witness against himself. * * * [S]tatements resulting from custodial

interrogations are admissible only after a showing that law enforcement officers have followed

certain procedural safeguards.” North Ridgeville v. Hummel, 9th Dist. No. 04CA008513, 2005-

Ohio-595, ¶ 27, citing Miranda v. Arizona,

(1966). “A defendant may waive

his/her Miranda rights, provided that the waiver was made knowingly, voluntarily and

intelligently.” State v. Grunder, 9th Dist. No. 04CA0071-M,

. Before the

strictures of Miranda even apply, however, a defendant must have been placed into custody and

subjected to questioning by either law enforcement or a person acting as an agent of law 4

enforcement. State v. Watson,

(1971). See also State v. Evans,

(1st Dist. 2001); Estelle v. Smith,

(1981) (law

enforcement agent characteristics discussed).

{¶10} “Custody” for purposes of entitlement to Miranda rights exists only where there is

a “‘restraint on freedom of movement’ of the degree associated with a formal arrest.” California

v. Beheler,

(1983), quoting Oregon v. Mathiason,

(1977). “Whether a suspect is in custody depends on the facts and circumstances of each case.”

State v. Butler, 9th Dist. No. 23786,

, quoting State v. Dunn, 9th Dist. No.

04CA008549,

. The test is “whether, under the totality of the

circumstances, a reasonable person would have believed that he was not free to leave.” Butler at

¶ 27, quoting Dunn at ¶ 24.

{¶11} Detective Shannon Davis testified that she contacted Jackson after receiving a

report that Jackson’s daughter had made allegations of sexual abuse against him. Detective

Davis met with Jackson on September 22, 2010, and Jackson agreed to submit to a polygraph

examination. Detective Davis scheduled the examination for October 19, 2010, at the Bureau of

Identification and Investigation (“BCI”) in Richfield. Jackson declined Detective Davis’ offer to

drive Jackson to BCI, so the two drove separately. On the morning of the examination,

Detective Davis drove to Jackson’s apartment where she found Jackson already waiting in his

truck with his girlfriend. Jackson then followed Detective Davis to BCI in his truck and brought

his girlfriend. When they arrived, Detective Davis took Jackson and his girlfriend to a waiting

room so that she could notify the examiner they were there. Once the examiner arrived,

Detective Davis left the room. She later watched the examination on a closed-circuit television.

When the examination ended, Detective Davis testified, she informed Jackson that he was free to 5

leave. Jackson and his girlfriend then left BCI in his truck. Jackson’s formal arrest did not occur

until nearly two weeks later.

{¶12} Confronted with factual scenarios similar to the one at issue here, numerous

appellate districts have determined that when a person voluntarily submits to a polygraph

examination he or she is not in custody so as to trigger his or her Miranda rights. See State v.

Tussing, 3d Dist. No. 8-10-11,

; State v. King,

, 2008-

Ohio-5363 (2d Dist.); State v. Caulley, 10th Dist. No. 97AP-1590,

, * 7-9 (Mar.

14, 2002); State v. Jett, 11th Dist. No. 97-P-0023,

, *6-8 (Mar. 31, 1998); State

v. Howell, 4th Dist. No. 97CA636,

, *8 (Dec. 16, 1997); State v. Krebs, 6th

Dist. No. H-91-7,

, *1-2 (Dec. 20, 1991); State v. Smith, 12th Dist. No. CA88-

03-049,

, *3 (Oct. 16, 1989). We agree with the logic set forth in those

decisions and conclude that Jackson was not in custody when he underwent a polygraph

examination. Jackson voluntarily agreed to take the examination, drove to the examination of his

own accord, and left in the same manner when the exam concluded. Detective Davis testified

that Jackson was free to leave at any time. Moreover, the consent to interview form that Jackson

signed before the polygraph was administered provided that Jackson was informed of his right to

refuse to submit to the examination and that he was undergoing the examination of his own free

will. The record reflects that Jackson was not in custody on October 19, 2010, the day he

submitted to the polygraph examination. Because Jackson was not in custody at the time, his

Miranda rights were inapplicable and could not have been violated. See State v. Butler, 9th Dist.

No. 23786,

.

{¶13} “Even when Miranda warnings are not required, the Due Process Clause of the

Fourteenth Amendment requires the exclusion of confessions that are involuntarily given by an 6

accused.” State v. Antoline, 9th Dist. No. 02CA008100,

, ¶ 21. Accord State v.

Chase,

(1978) (“[T]he question of whether the accused’s statements were

in fact voluntary is separate from the question of compliance with Miranda.”). A confession

cannot be said to be voluntary if, under the circumstances surrounding its procurement, the

defendant’s “will was overborne.”

quoting Lynumn v. Illinois,

(1963).

In determining whether a confession was voluntary, the court considers the totality of the circumstances, including the defendant’s ‘age, mentality, and prior criminal experience * * *[;] the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.

Grunder,

, quoting State v. Edwards,

(1976), at

paragraph two of the syllabus, vacated on other grounds,

(1978). “Absent

evidence that a defendant’s will was overborne and that his capacity for self-determination was

critically impaired because of coercive police conduct, the decision of a suspect to waive his

right to Fifth Amendment privilege against self-incrimination is considered voluntary.” State v.

Wooden, 9th Dist. No. 23992,

.

{¶14} Jackson argues that his confession was inadmissible because the polygraph

examiner, Michael LoPresti, engaged in coercive and deceptive behavior to elicit it. Initially, we

note that all of the transcript citations Jackson cites in support of this argument are citations to

the trial transcript. Trial testimony, however, has no bearing upon a court’s suppression ruling.

Our review of a trial court’s suppression ruling is limited to the testimony produced at the

suppression hearing. State v. Kurjian, 9th Dist. No. 06CA0010-M,

. The

only two witnesses to testify at the suppression hearing were Detective Davis and LoPresti.

Consequently, theirs is the only testimony relevant to this assignment of error.

7

{¶15} Detective Davis observed the polygraph examination that LoPresti administered

by way of a closed-circuit television. She testified that she did not observe any aggressive or

hostile behavior on LoPresti’s part and that LoPresti primarily sat in his chair with a clipboard.

LoPresti testified that it takes him approximately two and a half to three hours to administer a

polygraph. LoPresti spent over an hour with Jackson before the test reviewing the aspects of the

test, having Jackson sign paperwork, and formulating all of the questions Jackson would be

asked. LoPresti testified that he repeatedly informs his subjects that they are free to leave any

time they wish, including in the middle of the test. LoPresti did, in fact, have Jackson complete a

written Miranda waiver as a part of the consent to interview form that Jackson signed. The form

reiterated Jackson’s rights as LoPresti had orally presented them and also informed Jackson, in

writing, that he could stop the examination at any time. Once the pre-testing portion of the exam

was complete, LoPresti gave Jackson an opportunity to get water or use the restroom before the

test commenced. He then administered the test, which resulted in Jackson giving several

deceptive answers.

{¶16} Once LoPresti finished Jackson’s exam, he began a post-examination interview.

He informed Jackson that several of his answers were deceptive and that he had failed the

polygraph. LoPresti then asked Jackson to explain himself and indicated that Jackson had the

opportunity to tell the truth and to give LoPresti his side of the story. LoPresti also told Jackson

that if he did not explain himself, others might take his polygraph failure “in the wrong sense”

and “anything your daughter says will be believable.” Jackson then gave LoPresti a verbal

confession. LoPresti asked Jackson if he would like to write down his statement, and Jackson

agreed. LoPresti testified that Jackson completed the written confession within ten to fifteen

minutes after the examination had ended. 8

{¶17} The record does not contain any support for Jackson’s assertion that his will was

overborne as a result of coercive conduct. Jackson was 33 years old at the time of the

examination and the consent to interview form he signed indicated that he finished the eleventh

grade. See Grunder,

. There is no indication in the record that he did not

understand the paperwork he signed, and he was not subjected to any deprivation or

mistreatment before he confessed. See

Further, the examination itself was not overly long.

See

Jackson confessed within fifteen minutes of the examination ending. Although LoPresti

encouraged Jackson to explain himself and tell the truth so that his side of the story would be

heard, “[a]dmonitions to tell the truth are considered to be neither threats nor promises and are

permissible.” State v. Loza,

(1994). Accord In re Wilson, 9th Dist. No.

16640,

, *3 (Dec. 14, 1994). Upon our review of the record, Jackson has not

shown that his confession was procured by police coercion. See State v. Powe, 9th Dist. No.

21026,

, ¶ 7-10. Jackson’s Miranda rights were not violated, and his confession

was not involuntary. Consequently, the trial court did not err by denying his motion. See

Berghuis v. Thompkins, ___ U.S. ___,

, 2259–2264 (2010) (defendant’s

statements properly admitted when there was no indication that he did not understand his rights,

his course of conduct indicated he waived his rights, and there was no evidence that his

statement was coerced). Jackson’s first assignment of error is overruled.

Assignment of Error Number Four

THE TRIAL COURT ERRED IN DENYING JACKSON’S MOTION FOR A MISTRIAL.

{¶18} In his fourth assignment of error, Jackson argues that the trial court erred by

denying his motion for a mistrial. We disagree. 9

{¶19} “Mistrials need be declared only when the ends of justice so require and a fair

trial is no longer possible.” State v. Franklin,

(1991). “The essential

inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely

affected. Great deference is afforded to a trial court’s decision regarding a motion for mistrial.

Accordingly, this Court reviews the denial of a motion for mistrial for an abuse of discretion.”

(Internal citations, alterations, and quotations omitted.) State v. Howes, 9th Dist. No. 24665,

, ¶ 11. An abuse of discretion means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore,

(1983).

{¶20} Jackson submitted to a polygraph examination, and the examiner determined that

Jackson gave several deceptive answers. The actual results of the examination, however, were

not introduced at trial. Instead, the State only sought to admit the confession Jackson made to

LoPresti at the end of the examination. Because LoPresti received Jackson’s confession, the

State called him to testify. The State only referred to LoPresti as an interviewer during direct

examination. The prosecutor framed Jackson’s meeting with LoPresti as an investigative

interview and never referenced LoPresti having administered a polygraph examination. On

cross-examination, Jackson’s counsel questioned LoPresti about why LoPresti had not recorded

the interview with Jackson. The following exchange took place:

[DEFENSE COUNSEL:] As I stand here today, I hate to imply that anybody is doing anything wrong, but can I ask you why nothing was recorded?

[LOPRESTI]: Policy at the time is we don’t record polygraphs.

Defense counsel objected to LoPresti’s response, and the trial court immediately instructed the

jury to disregard LoPresti’s response. The court told the jury that “[a]ny reference to 10

polygraphing is out of order and is not part of this case.” Defense counsel then requested a

sidebar.

{¶21} At sidebar, defense counsel moved for a mistrial. The court ultimately denied the

motion, but agreed to instruct the jury further. The court gave the following instruction to the

jury:

Ladies and gentlemen, I don’t know if anybody knows what a polygraph is, probably not. That had nothing to do with this case. It is not in evidence, and I think it was probably a misstatement of the witness.

In any event, you’re to disregard it. As far as the evidence you received so far, [it] is that this witness on the stand interviewed the Defendant, and you heard what happened during that interview. * * * [T]hat’s what occurred.

Accordingly, the trial court twice instructed the jury not to consider any reference to a polygraph

examination.

{¶22} Much of the authority Jackson cites in his brief addresses the admission of

polygraph results at trial. The results of Jackson’s polygraph examination were never discussed

at trial. LoPresti’s statement reflected, at most, that a polygraph examination had taken place.

Even so, the trial court specifically instructed the jury not to consider that testimony. See State v.

Garner,

(1995) (“A jury is presumed to follow the instructions, including

curative instructions, given it by a trial judge.”). LoPresti’s statement was the only reference to

Jackson having taken a polygraph examination that arose in this matter. “Considering the brief

mention of the test, the timely sustained objection, the issuance of a curative instruction, and the

absence of any discussion of test results or the import of denying a request to take a test, this

Court cannot find that [Jackson] was materially prejudiced by the mention of a polygraph test.”

State v. Minor, 9th Dist. No. 20504,

, *2 (Nov. 7, 2001), overruled on other

grounds, State v. Fischer,

,

, ¶ 16 (9th Dist.). Jackson 11

confessed to sexually abusing his daughter and has not explained how, in light of his confession,

LoPresti’s single reference to polygraph examinations not being recorded prejudiced his defense.

See App.R. 16(A)(7). Further, to the extent that Jackson now challenges the specific language

the trial court used in its curative instructions to the jury, he did not take issue with the court’s

instructions at the time of trial. See State v. Saravia, 9th Dist. No. 25977,

(“This Court will not consider arguments made by an appellant for the first time on appeal.”).

Based on our review of the record, the trial court did not abuse its discretion by refusing to grant

Jackson’s motion for a mistrial. Jackson’s fourth assignment of error is overruled.

Assignment of Error Number Two

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT WITHOUT CONSIDERATION OF THE OVERRIDING PURPOSES OF FELONY SENTENCING OR THE MANDATORY SENTENCING FACTORS[.]

Assignment of Error Number Three

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT WITHOUT ARTICULATING JUDICIALLY REVIEWABLE REASONS FOR IMPOSITION OF THE SENTENCE[.]

{¶23} In his second and third assignments of error, Jackson argues that the trial court

erred by sentencing him to five years in prison. We disagree.

{¶24} Trial courts have “full discretion * * * to sentence defendants within the bounds

prescribed by statute.” State v. Evans, 9th Dist. No. 09CA0049-M,

, ¶ 32, citing

State v. Foster,

,

, paragraphs one through seven of the syllabus.

Appellate courts apply a two-step approach in reviewing the sentence that a trial court has

imposed upon a defendant.

, quoting State v. Kalish,

, 2008-

Ohio-4912, ¶ 4. “First, they must examine the sentencing court’s compliance with all applicable

rules and statutes in imposing the sentence to determine whether the sentence is clearly and 12

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be

reviewed under an abuse-of-discretion standard.”

. An abuse of discretion implies

an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable.

Blakemore,

.

{¶25} Jackson argues that his sentence is contrary to law because the trial court did not

consider the principles and purposes of felony sentencing set forth in R.C. 2929.11 and 2929.12

before imposing his sentence. R.C. 2929.11 governs the overriding purposes of felony

sentencing and defines those purposes as the need “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on [S]tate * * *

resources.” R.C. 2929.11(A). It instructs a sentencing court, in selecting a sentence, to

“consider the need for incapacitating the offender, deterring the offender and others from future

crime, rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.”

“R.C. 2929.12(A) sets forth the general guidance factors associated with felony

sentencing, including the seriousness of the conduct, the likelihood of recidivism, and ‘any other

factors that are relevant to achieving those purposes and principles of sentencing.’” State v.

Jones, 9th Dist. No. 24469,

, ¶ 39, quoting R.C. 2929.12(A). Although a

sentencing judge must consider the principals and purposes of sentencing in imposing a sentence,

he or she is not required to make findings or give their reasons before imposing a maximum

sentence. State v. Mathis,

,

, paragraph three of the syllabus.

“[W]here the trial court does not put on the record its consideration of [R.C.] 2929.11 and

2929.12, it is presumed that the trial court gave proper consideration to those statutes.” 13

(Alterations omitted.) State v. Steidl, 9th Dist. No. 10CA0025-M,

,

quoting

.

{¶26} The trial court stated in its sentencing entry that it had considered the principles

and purposes of sentencing contained in R.C. 2929.11 as well as the seriousness and recidivism

factors contained in R.C. 2929.12. Jackson has not pointed this Court to any authority that

would have required the court to make specific findings either on the record or in its sentencing

entry to reflect its consideration of R.C. 2929.11 or 2929.12. See State v. Murray, 9th Dist. No.

25250,

, ¶ 7. His sentence was within the statutory guideline range for his

offense and the court was not required to make findings before imposing his sentence. Mathis at

paragraph three of the syllabus. Jackson’s argument that his sentence is contrary to law lacks

merit. See Murray at ¶ 7.

{¶27} Next, Jackson argues that the trial court abused its discretion in sentencing him to

five years in prison because it failed to articulate any reasons for its imposition of the maximum

sentence. The trial court imposed a five-year sentence on Jackson after listening to both the

prosecutor and defense counsel. In doing so, the court stated: “Mr. Jackson, from my point of

view, this is one of the worst kinds of crimes, to take advantage of a minor kid. It is not often it

is your own. So it is the judgment of this Court that I sentence you to the term of five years’

time * * *.” The court also wrote in its sentencing entry that it based its sentencing decision on

the evidence in the record, the statements of counsel, and the factors set forth in R.C. 2929.11

and 2929.12.

{¶28} In considering all of the foregoing, the trial court determined that Jackson’s

sexual crime against his own daughter was egregious and warranted the imposition of the

maximum sentence. The trial court was not required to elaborate further. State v. Vu, 9th Dist. 14

No. 11CA0058-M,

, quoting State v. Foster,

, 2006-Ohio-

856, paragraph seven of the syllabus. “Trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or give their

reasons for imposing maximum, consecutive, or more than the minimum sentences.” Foster at

paragraph seven of the syllabus. Based on our review of the record, we cannot conclude that

Jackson’s five-year sentence amounted to an abuse of the trial court’s discretion. Jackson’s

second and third assignments of error are overruled.

III

{¶29} Jackson’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 15

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

DICKINSON, J. CONCURS.

BELFANCE, J. CONCURRING.

{¶30} I concur based upon the record in this case. It is well-established that this Court

must examine the totality of the circumstances in determining whether a confession is voluntary

or coerced. Given the questionable reliability of polygraph examinations, see generally Michael

D. Morgan, Lying in the Heartland: Problems and Solutions Regarding Polygraph Evidence in

Ohio Criminal Procedure, 26 Ohio N.U.L. Rev. 89 (2000), and the fact that police deception and

trickery have constitutional limits, the use of a polygraph examination in order to obtain a

confession may not pass constitutional muster in all cases. In this case, Mr. Jackson did not

dispute any of the testimony offered by the State, and, thus, I agree that the trial court did not err

in denying the motion to suppress the confession.

APPEARANCES:

DONALD R. HICKS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.