[Cite as State v. Matthews,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2012-09-175 Plaintiff-Appellee, : OPINION : 8/12/2013 - vs - :

SEAN BRYAN MATTHEWS, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-04-0614

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, 5145 Pleasant Avenue, Suite 18, P.O. Box 18424, Fairfield, Ohio 45018- 0424, for defendant-appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Sean Bryan Matthews, appeals his convictions in the

Butler County Common Pleas Court for criminal child enticement, gross sexual imposition,

and public indecency. For the reasons stated below, we affirm the convictions.

{¶ 2} On April 26, 2012, appellant was indicted on one count of criminal child

enticement in violation of R.C. 2905.05 as to N.F., an 11-year-old boy (Count One), one Butler CA2012-09-175

count of criminal child enticement in violation of R.C. 2905.05 as to W.B., a 13-year-old boy

(Count Two), one count of criminal child enticement in violation of R.C. 2905.05 as to T.W.,

an eight-year-old boy (Count Three), one count of criminal child enticement in violation of

R.C. 2905.05 as to N.W., a 10-year-old boy (Count Four), one count of gross sexual

imposition in violation of R.C. 2907.05(A)(4) as to N.W. (Count Five), and one count of public

indecency in violation of R.C. 2907.09(A)(1) as to N.W. (Count Six). The criminal child

enticement charges arose out of allegations that, on separate occasions from October 2011

until March 2012, appellant attempted to coax or entice the victims into a vehicle in Hamilton,

Butler County, Ohio. The gross sexual imposition and public indecency charges arose out of

allegations that appellant touched N.W.'s penis and exposed his penis to N.W.

{¶ 3} In June 2012, appellant moved to suppress statements he made to detectives

while under arrest as well as the pretrial photo-identification of appellant by N.W. and W.B.

Appellant also sought to sever the six counts of the indictment into three trials. After a

hearing held July 18, 2012, the trial court denied all three motions.

{¶ 4} Consequently, on August 3, 2012, appellant entered no contest pleas on all six

counts of the indictment. Appellant was found guilty of all counts and sentenced to 180 days

for each criminal child enticement conviction, 48 months for the gross sexual imposition

conviction, and 30 days for the public indecency conviction, all sentences to be served

concurrently with one another.

{¶ 5} From his convictions, appellant appeals, raising three assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

OVERRULING HIS MOTION TO SUPPRESS STATEMENTS MADE DURING A

CUSTODIAL INTERROGATION.

{¶ 8} In his first assignment of error, appellant argues the trial court erred by denying -2- Butler CA2012-09-175

his motion to suppress, thereby admitting statements detectives obtained in violation of

appellant's constitutional right against self-incrimination. Essentially, appellant contends that

his constitutional rights were violated when he was questioned by detectives without having

waived his Miranda rights and the trial court deemed these statements admissible. See

Miranda v. Arizona,

,

(1966).

{¶ 9} "An appellate court's review of a motion to suppress presents a mixed question

of law and fact." State v. Gray, 12th Dist. Butler No. CA2011-09-176,

, ¶ 15,

citing State v. Burnside,

,

, ¶ 8. "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." Id.; State

v. Bird, 12th Dist. Butler No. CA2002-05-106,

, ¶ 9; State v. Mills,

(1992). Consequently, an appellate court may not disturb a trial court's ruling

on a motion to suppress where it is supported by substantial, credible evidence. Bird at ¶ 9;

State v. McNamara,

(4th Dist. 1997). "Accepting these facts as

true, the appellate court must independently determine, without deference to the trial court,

whether the trial court's conclusions of law are correct." Gray at ¶ 15, citing Bird at ¶ 9.

{¶ 10} "It is well-established that before law enforcement officials question a suspect in

custody, the suspect must be advised of his Miranda rights and make a knowing and

intelligent waiver of those rights before any statements obtained during the interrogation will

be admissible as evidence." State v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-

068,

, ¶ 8, citing State v. Treesh,

,

.

However, "the duty to advise a suspect of constitutional rights pursuant to Miranda * * * arises

only when questioning by law enforcement rises to the level of a custodial interrogation." In

re J.S., 12th Dist. Clermont No. CA2011-09-067,

, citing In re J.B., 12th Dist.

Butler No. CA2004-09-226,

. Miranda defines custodial interrogation -3- Butler CA2012-09-175

as any "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." (Emphasis

added). Miranda,

.

{¶ 11} In this case, Detective Paul Davis of the Hamilton Police Department (the

"Police Department") spoke with appellant on two separate occasions regarding the

allegations against him: once at appellant's residence and again at the Police Department.

During the first discussion at appellant's residence, Davis sought to discuss the allegations

with appellant's roommate, who owned the vehicle involved in the incidents. During the visit,

appellant indicated to Davis that he had not driven the vehicle in several months.

{¶ 12} During the second discussion at the Police Department, appellant was under

arrest and being booked for the charges upon which he was subsequently indicted. Davis

explained at the suppression hearing that, during this booking process, Davis read appellant

his Miranda rights, but appellant refused to sign a card waiving those rights. Nonetheless,

Davis testified that appellant "continued to talk" and "state[d] that he hadn't done anything."

At some point during the booking process, appellant admitted that he had driven his

roommate's vehicle on the days that the incidents occurred but denied doing "anything" to the

victims. Davis then asked appellant "why he had lied to [Davis] the first time about driving

and [appellant] indicated because he was [driving] under suspension[.]"

{¶ 13} The trial court determined, and appellant concedes, that Davis' first

conversation with appellant at appellant's residence was not a custodial interrogation subject

to Miranda. The trial court further found that appellant had been properly Mirandized before

the second discussion at the Police Department. However, the trial court suppressed

appellant's response to Davis' question of "why did you lie to me" because appellant had not

waived his Miranda rights. Finally, the trial court determined that appellant's remaining

statements made during the booking process, including that he used his roommate's vehicle, -4- Butler CA2012-09-175

were admissible as the statements were "not in response to an interrogation" and were made

after appellant "had been properly Mirandized."

{¶ 14} While the parties argue extensively about whether appellant waived his Miranda

rights prior to making statements regarding use of his roommate's vehicle, we find that

whether appellant waived his Miranda rights is immaterial to the case at hand, as all but one

statement made by appellant was voluntary and unprovoked by police conduct.

{¶ 15} "The requirements of Miranda do not affect the admission of volunteered

statements made without police coercion or inducement." State v. Becherer, 12th Dist.

Warren No. CA99-07-085,

, *3 (Feb. 14, 2000), citing State v. Tucker,

, 435 (1998). A defendant's voluntary, unprovoked statements to police do

not fall within the protections of Miranda, even though the defendant was placed under

arrest. Id., citing State v. Williams, 12th Dist. Butler No. CA92-07-133,

, *4

(June 1, 1993); State v. Jaradat, 8th Dist. Cuyahoga No. 88290,

("voluntary, spontaneous statements made without police coercion or inducement do not fall

within the protection of Miranda even if the defendant was under arrest and in custody").

{¶ 16} In this case, testimony at the suppression hearing revealed that, although

appellant refused to sign a waiver of his Miranda rights, appellant continued to make

statements during the booking process. There is no evidence these statements were

provoked by police coercion or inducement or were not otherwise voluntary. The only

statement which was elicited by police concerned why appellant had lied to Davis about using

the vehicle and this statement was excluded by the trial court.

{¶ 17} Based upon our review of the record, we find that appellant's constitutional

rights were not violated by the trial court's denial of the motion to suppress. All but one of the

statements in question were voluntary, unprovoked statements made by appellant, and the

sole statement actually elicited by police was excluded from evidence. -5- Butler CA2012-09-175

{¶ 18} Accordingly, appellant's first assignment of error is overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHTS BY

FINDING THAT THE STATE COMPLIED WITH THE STATUTORY IDENTIFICATION

PROCEDURES.

{¶ 21} In his second assignment of error, appellant argues that the trial court erred in

denying his motion to suppress evidence of two photo lineups shown to W.B. and N.W., from

which he was identified as the perpetrator. Specifically, appellant contends that the photo

lineup procedure utilized by the Police Department did not substantially comply with the

requirements of R.C. 2933.83 by failing to utilize the "folder system." Therefore, appellant

asserts that the identifications of appellant by W.B. and N.W. should have been suppressed.

We reject this contention and affirm the trial court's determination that the Police Department

complied with R.C. 2933.83 in conducting the photo lineup and in overruling appellant's 1 motion to suppress his identification.

{¶ 22} As stated above, an appellate court may not disturb a trial court's ruling on a

motion to suppress where it is supported by substantial, credible evidence. State v. Bird,

at ¶ 9.

{¶ 23} At the July 18, 2012 motions hearing, Detective Donald Taylor recalled

conducting two lineups of six photographs—referred to as the "six-pack" photo array—which

were separately shown to W.B. and N.W. Taylor testified that he acted as a "blind

1. Before the trial court, appellant sought only the suppression of his identification based upon the photo lineups. Appellant now concedes that suppression is not a remedy for noncompliance with R.C. 2933.83. Therefore, rather than seeking suppression of his identification, appellant now seeks remand of this issue with direction that the trial court permit him to submit evidence of noncompliance with R.C. 2933.83 and instruct the jury that it may consider such noncompliance in determining the reliability of his identification. These were not remedies sought before the trial court and, therefore, are not properly preserved for appeal. Additionally, these remedies were waived by appellant's no contest plea. Our discussion of this matter will be confined to the trial court's ruling on the motion to suppress regarding compliance with R.C. 2933.83. -6- Butler CA2012-09-175

administrator" during the lineups, meaning that he had not created the photo lineups, was

unaware who the suspect was in the case, and did not know whether the suspect was even

depicted in one of the six photographs. Taylor additionally testified concerning the

"investigative photo array procedure checklist" that he followed in administering the photo

lineup. He explained that the checklist "documents the requirements of what you're trying to

accomplish with the photo array" and "describes who the assigned investigator is; who the

blind administrator is; a statement indicating that the suspect may or may not be included;

[and] photos." Taylor testified that, when presenting the photo lineup to each victim, he

would read statements verbatim from the checklist and follow all the necessary steps. Taylor

then showed the six-pack photo lineup to W.B. and N.W. on separate occasions and both

witnesses identified appellant "very quickly" out of the lineup.

{¶ 24} "R.C. 2933.83(B) requires any law enforcement agency or criminal justice entity

that conducts live lineups and photo lineups to adopt specific procedures for conducting the

lineups," and to comply with minimum requirements outlined in the statute. State v. Ruff, 1st

Dist. Hamilton No. C-110250,

.

{¶ 25} Appellant does not contend that the Police Department failed to satisfy the

requirements of R.C. 2933.83(B). In fact, appellant acknowledges that the trial court

determined that the six-pack photo array was not unreliable or impermissibly suggestive.

Rather, appellant's argument is that the six-pack photo array used in this case was improper

under R.C. 2933.83 simply because it was not the folder system detailed in R.C.

2933.83(A)(6). Specifically, appellant contends that R.C. 2933.83 mandates that only the

folder system or, at a minimum, a substantially similar system, can be used to identify a

perpetrator through a photo lineup and, as the folder system was not used by the Police

Department, the case must be reversed.

{¶ 26} We find appellant's argument unpersuasive. After a thorough review of R.C. -7- Butler CA2012-09-175

2933.83, we can find no indication that the folder system or a substantially similar system

must be utilized by law enforcement agencies or criminal justice entities in performing a

photo lineup. See State v. Henry, 6th Dist. Lucas No. L-11-1157,

, ¶ 41

("The statute does not require the use of the folder system"). On the contrary, R.C.

2933.83(B) requires only that a law enforcement agency or criminal justice entity "adopt

specific procedures for conducting" lineups which meet the minimum requirements outlined in

the statute. The statute neither expressly nor impliedly mandates the sole use of the folder

system or a substantially similar system. Even R.C. 2933.83(D), which allows a law

enforcement agency or criminal justice entity to adopt a different type of lineup procedure so

long as it is considered "more effective" by the "scientific community," does not mandate the

use of the folder system. Rather, R.C. 2933.83(D) provides that systems utilizing

requirements other than those enumerated in R.C. 2933.83(B) may be permissible in

conducting live or photo lineups.

{¶ 27} Thus, as the Police Department in this case established a procedure wherein

Taylor, a blind administrator, made separate written records for each witness that included

the signatures of the witnesses and the identification of appellant, and otherwise complied

with R.C. 2933.83(B), we find that the trial court did not err in denying appellant's motion to

suppress.

{¶ 28} Even if the Police Department failed to comply with R.C. 2933.83 by not using

the folder system or a substantially similar system, the trial court still did not err in denying

appellant's motion to suppress, as suppression is not the remedy for a violation of R.C.

2933.83. Although R.C. 2933.83(C)(1) provides that evidence of any failure to comply with

the statute "shall be considered by trial courts in adjudicating motions to suppress eyewitness

identification resulting from or related to the lineup," the statute "does not provide an

independent ground for suppression" and "noncompliance with R.C. 2933.83(B) alone is -8- Butler CA2012-09-175

insufficient to warrant suppression." See Ruff,

; State v. Simpson,

2d Dist. Montgomery No. 25069,

("the 'penalty' for failure to comply with the

statute is not suppression, but the other remedies provided for in the statute"); State v.

Jackson, 4th Dist. Pickaway No. 11CA20,

("failure to comply with R.C.

2933.83 does not, by itself, warrant the suppression of evidence"); State v. Parks, 7th Dist.

Columbiana No.

,

("the statue does not provide for automatic

exclusion of a line-up conducted in a manner different than that provided thereunder"); State

v. Alexander, 8th Dist. Cuyahoga No. 98941,

("R.C. 2933.83(C)(1),

however, does not provide an independent basis upon which to suppress evidence, and a

trial court errs in solely relying on the statute in suppressing an identification"). "Indeed, the

'penalty' for failure to comply with R.C. 2933.83 is not suppression, but that 'the jury shall be

instructed that it may consider credible evidence of noncompliance in determining the

reliability of any eyewitness identification.'" State v. Stevenson, 2d Dist. Montgomery No.

24821,

, quoting R.C. 2933.83(C)(3).

{¶ 29} In order to seek suppression of a photo lineup, a defendant must argue that the

procedure of the photo lineup did not comply with R.C. 2933.83 and that the photo lineup

was a violation of his constitutional rights.

(noting that the defendant expressly

declined to argue that the photo lineups were impermissibly suggestive under the Fourteenth

Amendment). In the case at hand, appellant does not raise a constitutional issue, stating that

constitutional considerations "are not at issue here." Rather, appellant solely asserts that the

statutory requirements of R.C. 2933.83 are not satisfied by the six-pack photo array system

and, therefore, the identifications of appellant by W.B. and N.W. should have been

suppressed.

{¶ 30} For the foregoing reasons, we find that the trial court did not err in denying

appellant's motion to suppress. -9- Butler CA2012-09-175

{¶ 31} Accordingly, appellant's second assignment of error is overruled.

{¶ 32} Assignment of Error No. 3:

{¶ 33} APPELLANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE

MISJOINDER OF UNRELATED CRIMINAL OFFENSES.

{¶ 34} In his third assignment of error, appellant argues that the trial court committed

plain error by permitting the joinder of unrelated offenses. Specifically, appellant argues that

the trial court should have granted his motion to sever the six counts into three trials: one trial

on Count One, one trial on Count Two, and one trial on Counts Three through Six. Appellant

contends that a consolidated trial on all six counts would have resulted in the admission of

"other acts" evidence that would be inadmissible in separate trials and that the jury would

hear "inflammatory" testimony regarding T.W. and N.W. that would adversely affect the

charges relating to N.F. and W.B. Thus, appellant claims that he was prejudiced by the trial

court's decision denying his request for severance.

{¶ 35} "The decision to grant or deny a motion to sever is a matter in the trial court's

discretion, and therefore, we review the trial court's decision under an abuse of discretion

standard." State v. Rose, 12th Dist. Butler No. CA2011-11-214,

, citing

State v. Moshos, 12th Dist. Clinton No. CA2009-06-008,

, ¶ 76. "An abuse of

discretion implies that the trial court's decision was unreasonable, arbitrary, or

unconscionable."

citing State v. Hancock,

,

, ¶ 130.

{¶ 36} "'The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if

the offenses charged 'are of the same or similar character.'" Id. at ¶ 12, quoting State v. Lott,

(1990); State v. Torres,

(1981). "However, a

defendant is allowed, under Crim.R. 14, to move to sever offenses that have otherwise been

properly joined where it appears that joinder would be prejudicial."

citing State v. Schaim,

(1992). - 10 - Butler CA2012-09-175

{¶ 37} To prevail on a claim that the trial court erred in denying a motion to sever, the

appellant must affirmatively demonstrate that "(1) his rights were prejudiced, (2) he provided

the trial court with sufficient information enabling it to weigh the consideration favoring joinder

against the defendant's right to a fair trial, and (3) the trial court abused its discretion in

refusing to separate the charges for trial."

; Rose at ¶ 13.

{¶ 38} "The state may negate a claim of prejudice in one of two ways." Rose at ¶ 14.

"The first is through the 'other acts' test, where the 'state must demonstrate it could have

introduced evidence of the joined offenses at separate trials, pursuant to the 'other acts'

provision of Evid.R. 404(B).'"

citing

. "Alternatively, under the 'joinder test' the

state can refute a claim of prejudice by showing 'that evidence of each crime joined at trial is

simple and direct.'"

citing Moshos at ¶ 79. If the state can establish that the evidence is

"simple and direct," then there is no need to meet the more strict "other acts" test.

citing

State v. Hensley, 12th Dist. Warren No. CA2009-11-156,

, ¶ 40. In other

words, a demonstration by the state "that the evidence relating to each crime is simple and

direct negates any claims of prejudice and renders joinder proper." Moshos at ¶ 80.

{¶ 39} In this case, the trial court determined that the evidence relative to each count

of the indictment is simple and direct and that appellant failed to meet his burden of

demonstrating that joinder of these counts is prejudicial. We find no abuse of discretion in

the trial court's determination.

{¶ 40} "Ohio appellate courts have upheld joinder in sex abuse cases involving

multiple child victims where the evidence as to each offense is separate, uncomplicated and

sufficient to support a conviction without necessitating the use of evidence relating to other

offenses." State v. Ashcraft, 12th Dist. Butler No. CA2008-12-305,

, ¶ 19,

citing State v. Eads, 8th Dist. Cuyahoga No. 87636,

; State v.

Campbell, 11th Dist. Lake No. 2004-L-126,

(reversed on other - 11 - Butler CA2012-09-175

grounds); State v. Owens, 2d Dist. Montgomery No. 17394,

, *10-11 (Feb.

25, 2000); State v. Strobel,

(3d Dist. 1988).

{¶ 41} At the July 18, 2012 motions hearing, the trial court heard evidence that the

charges alleged in this case involved four different victims, occurred at different times, and

occurred in different places. Although appellant drove the same vehicle during each offense,

he approached different victims at different locations. In addition, there is no indication in the

record that appellant would have defended the charges differently had they been tried

separately as opposed to jointly. See Ashcraft at ¶ 25; State v. Franklin,

(1991).

{¶ 42} Based upon the foregoing, and after a thorough review of the record, we find

the trial court did not err in denying appellant's request for severance where the evidence

concerning each offense was separate and distinct, and simple and direct. See Ashcraft at ¶

27. Because our analysis as to this issue is determinative, we need not address the issue of

whether evidence of each offense would have been admissible at separate trials pursuant to

Evid.R. 404(B). See Lott,

.

{¶ 43} Accordingly, appellant's third and final assignment of error is overruled.

{¶ 44} Judgment affirmed.

RINGLAND, P.J., and PIPER, J., concur.

- 12 -