[Cite as State v. Winger,
2017-Ohio-7660.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-17-12
PLAINTIFF-APPELLANT,
v.
ASHLEE WINGER, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 17-CR-0048
Judgment Affirmed
Date of Decision: September 18, 2017
APPEARANCES:
Kevin P. Collins for Appellant
Nathan Witkin for Appellee
Case No. 9-17-12
WILLAMOWKSI, J.
{¶1} Plaintiff-Appellant the State of Ohio (“the State”) brings this appeal
from the judgment of the Court of Common Pleas of Marion County granting the
motion to suppress the statements made by Defendant-Appellee Ashlee Winger
(“Winger”). The State claims that the trial court’s decision was not supported by
competent, credible evidence and that the trial court applied the wrong legal
standard. For the reasons set forth below, the judgment is affirmed.
{¶2} On February 9, 2017, the Marion County Grand Jury indicted Winger
on one count of Possession of Heroin in violation of R.C. 2925.11(A)(C)(6), a
felony of the fifth degree. Doc. 2. Winger entered a plea of not guilty to the charge.
Doc. 8. On March 10, 2017, Winger filed a motion to suppress. Doc. 18. The State
filed its response on April 3, 2017. Doc. 24. On April 4, 2017, a hearing was held
on the motion to suppress. Doc. 29. At the hearing, the State presented the
testimony of Officer Dylan Reese (“Reese”) of the Marion Police Department.
{¶3} On January 28, 2017, Reese stopped a vehicle, in which Winger was a
passenger, for making an improper turn. Tr. 4. Winger initially gave the wrong
name, but later admitted her true identity. Tr. 6-8. During the stop, Reese found a
pouch with needles in it between the frame of the car and the back seat on the
driver’s side. Tr. 10. Reese also found a book bag containing some pills which
were later identified as Tramadol. Tr. 12. Winger initially denied that the pouch
and the syringes were hers. Tr. 13. Reese told her that if she admitted the pouch
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was hers, she would not be charged with felony possession, only a misdemeanor.
Tr. 25. Reese only asked her to admit to owning the pouch, not its contents. Tr. 25.
Eventually, she admitted that the pouch was hers. Tr. 24. Reese arrested her on
suspicion of multiple criminal offenses. Tr. 16. When he was searching the pouch
at the police station, Reese found a packet of what he suspected to be heroin that he
had not previously seen.1 Tr. 18-19. Reese admitted that he told Winger that she
would only be charged with a misdemeanor to get her to admit to owning the pouch
to conclusively prove that the contents of the pouch were Wingers. Tr. 24. When
making the offer to Winger, Reese stated that the misdemeanor charge was in return
for her admitting to being the owner of the pouch. Tr. 26 and Ex. 1. The video
showed that although Reese repeatedly asked Winger if the pouch was hers, she
repeatedly denied it. Ex. 1. The video did not show the actual discussion between
Reese and Winger about what would happen if she admitted to owning the pouch.2
Ex. 1.
{¶4} On April 7, 2017, the trial court denied the portion of the motion to
suppress which requested that the prosecution for felony possession of heroin be
dismissed pursuant to the agreement. Doc. 29. As to the portion of the motion
asking that Winger’s statements admitting to owning the pouch be suppressed, the
1
At the hearing on the motion to suppress it was indicated that the paper did not contain heroin, but instead
contained carfentanyl. Tr. 34. A supplemental indictment was filed on April 6, 2017 adding a charge of
Aggravated Possession of Drugs in violation of R.C. 2925.11(A)(C)(1), a felony of the fifth degree, as well
as the original charge of Possession of Heroin. Doc. 26.
2
The discussion may have been at the beginning of the second video, but there was no audio for that portion.
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trial court granted the motion. On April 10, 2017, the State filed its notice of appeal
and its certification that without the admission, the proof regarding the pending
charge was so weak as to destroy any reasonable possibility of an effective
prosecution. Doc. 33. On appeal the State raises the following assignment of error.
The trial court erred in granting [Winger’s] motion to suppress
evidence.
{¶5} In the sole assignment of error, the State claims that the trial court erred
in granting Winger’s motion to suppress. To support this claim, the State makes
two arguments: 1) the findings of the trial court were not supported by competent,
credible evidence and 2) the trial court improperly determined that the confession
was not voluntary. “An appellate review of the trial court's decision on a motion to
suppress involves a mixed question of law and fact.” State v. Fittro, 3d Dist. Marion
No. 9-14-19, 2015-Ohio-1884, ¶ 11.
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), 62 Ohio St.3d 357, 366,
582 N.E.2d 972.
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), 1 Ohio St.3d 19, 1 OBR 57,
437
N.E.2d 583. 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 (1997), 124 Ohio
App.3d 706,
707 N.E.2d 539.
State v. Burnside,
100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, ¶ 8.
Generally, the State may not appeal rulings in criminal prosecutions, but Crim.R.
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12(K) does provide a limited right to appeal a granting of a motion to suppress.
State v. Bassham, 94 Ohio St.3d 269,
2002-Ohio-797,
762 N.E.2d 963. The State
must certify that the appeal is not taken for the purpose of delay and that the State’s
case is so weakened that no effective prosecution is possible. Crim.R. 12(K). If the
judgment of the trial court granting the motion to suppress is affirmed, the State is
barred from prosecuting the defendant for the offenses charged. Crim.R. 12(K).
Competent Credible Evidence
{¶6} First, the State argues that the trial court’s decision was not supported
by competent, credible evidence. As discussed above, an appellate court must
accept the trial court’s findings of facts if they are supported by competent, credible
evidence. The only evidence presented at the hearing was the testimony of Reese,
and the body cam videos in Exhibit 1. The trial court determined that Reese had
specifically told Winger that if she acknowledged ownership of the pouch which
contained the syringes, she would not be prosecuted for a felony drug offense, but
only for a misdemeanor offense of possession of drug paraphernalia with respect to
the contents of the pouch. Doc. 29 at 8. The actual statements of Reese to Winger
were not available for review. However, Reese testified that he told Winger that if
she admitted to owning the pouch, she would only be charged with the misdemeanor
offense of possession of drug paraphernalia rather than a felony charge. Tr. 25.
Upon cross-examination, Reese admitted that he only specifically asked about the
pouch, not the needles. Id. Although Reese testified that he really meant the needles,
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not the pouch, that is not what he communicated to Winger. His statement to
Winger was about the pouch according to his own testimony.
{¶7} The trial court also found that Winger would not have acknowledged
ownership without the promise of Reese. Although Winger did not testify, the video
footage in Exhibit 1 shows that Winger was continuously denying owning the
pouch. Even when Reese told her that she was the one with the best access to the
pouch, Winger still denied the pouch was hers. Reese testified that Winger
repeatedly denied ownership of the pouch until he told her that she would only be
charged with a misdemeanor rather than a felony if she admitted ownership. Tr. 24-
26. Winger only admitted to the ownership of the pouch after Reese had promised
that she would not be charged with a felony. Id. Given the content of the video and
the testimony of Reese, the trial court’s conclusions were supported by competent,
credible evidence. The fact that different conclusions could possibly be reached, as
is argued by the State, does not necessarily make the trial court’s determinations
unreasonable. The evidence, the credibility of which is determined by the trial
court, does not show that the trial court was incorrect or unreasonable in its
determination. Thus, this court must accept the factual findings of the trial court.
Voluntariness of the Admission
{¶8} The State also argues that if the trial court’s facts are supported by
competent credible evidence, then the trial court misapplied the law. Upon a
challenge to the admissibility of a confession, the prosecution must prove the
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voluntariness of the statements by a preponderance of the evidence. State v. Barker,
149 Ohio St.3d 1,
2016-Ohio-2708,
73 N.E.3d 365, ¶ 32. “Constitutional principles
of due process preclude the use of coerced confessions as fundamentally unfair,
regardless of whether the confession is true or false.”
Id. at 31. “A reviewing court
must determine whether the totality of the circumstances surrounding the confession
indicates that a defendant's ‘will was overborne and his capacity for [self-
determination] was critically impaired because of coercive police conduct.’ ” State
v. Hazlett, 3d Dist. Logan No. 8-06-04,
2006-Ohio-6927, ¶ 13 quoting State v. Otte,
74 Ohio St.3d 555, 562,
1996-Ohio-108,
660 N.E.2d 711. The circumstances to be
reviewed include many factors, such as the age, mentality, prior criminal experience
of the accused, the circumstances of the interrogation, and the existence of a threat
or inducement. State v. Tussing, 3d Dist. Logan No. 8-10-11,
2011-Ohio-1727, ¶
33. The “test for voluntariness is whether, in light of the totality of the
circumstances, the police obtained the incriminating statements by coercion or
improper inducement.” State v. Arrington,
14 Ohio App.3d 111,
470 N.E.2d 211
(6th Dist. 1984) (emphasis added) citing Haynes v. Washington,
373 U.S. 503, 513-
514,
83 S.Ct. 1336, 10 L.E.d2d 513. “Consequently, a confession ‘must not be
extracted by any sort of threats or violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any improper influence.”
Arrington, supra at 114.
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Case No. 9-17-12
The line to be drawn between permissible police conduct and
conduct deemed to induce or tend to induce an involuntary
statement does not depend upon the bare language of inducement
but rather upon the nature of the benefit to be derived by a
defendant if he speaks the truth, as represented by the police. …
*
“ ‘When the benefit pointed out by the police to a suspect is merely
that which flows naturally from a truthful and honest course of
conduct, we can perceive nothing improper in such police activity.
On the other hand, if in addition to the foregoing benefit, or in the
place thereof, the defendant is given to understand that he might
reasonably expect benefits in the nature of more lenient treatment
at the hands of the police, prosecution or court in consideration of
making a statement, even a truthful one, such motivation is
deemed to render the statement involuntary and inadmissible.
The offer or promise of such benefit need not be expressed, but
may be implied from equivocal language not otherwise made
clear.’ ”
Id. at 115 quoting People v. Flores,
144 Cal.App.3d 459, 192 Cal.Rptr 772, 776-
777 quoting People v. Hill,
66 Cal.2d 536, 549,
58 Cal.Rptr. 340,
426 P.2d 908
(1967). See also, State v. Booher,
54 Ohio App.3d 1,
560 N.E.2d 786 (3d Dist.
1988), State v. Phillips, 2d Dist. Clark No. 2003-CA-15,
2004-Ohio-4688 and State
v. Leonard, 4th Dist. Ross No. 16CA3573,
2017-Ohio-1541. The voluntariness of a
confession depends upon the absence of police overreaching rather than “free
choice”. State v. Hughbanks,
99 Ohio St.3d 365,
2003-Ohio-4121,
792 N.E.2d
1081, ¶ 62 and State v. Scholl, 10th Dist. Franklin No. 12AP-309,
2012-Ohio-6233.
{¶9} Here, the State argues that the trial court erred in determining that
Winger was coerced by Reese into admitting ownership. Instead, according to the
State, the promise made by Reese was an offer of leniency meant to persuade or
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influence, not to coerce. This court does not doubt that the promise made by Reese
was intended to persuade and influence Winger into admitting ownership of the
pouch and the contents. However, persuasion and influence of a suspect crosses the
line into coercion when a promise is made that if a suspect confesses, he or she will
face a reduced charge. See Arrington, supra (police told defendant that if he
confessed, certain charges would not be brought and others would be dropped);
Tussing, supra (police told defendant that if he confessed, he would not go to jail);
State v. Wilson,
117 Ohio App.3d 290,
690 N.E.2d 574 (1st Dist. 1996) (police told
defendant that if he confessed, he would only face a theft charge, not one for
aggravated robbery); and State v.
Phillips, supra (police told defendant that if he
confessed he would only be charged with a misdemeanor, not a felony). As
discussed above, the trial court made specific findings of fact that Winger would not
have confessed to being the owner of the pouch without the promise that she would
not face felony charges if she did so. The circumstances, as seen through the
recording in Exhibit 1, show that until that promise was made, Winger repeatedly
denied that she owned the pouch. Reese admitted in his testimony that he made the
promise in order to get her to admit ownership.3 The video showed that Winger
understood the difference between a felony charge and a misdemeanor charge and
wanted to avoid felony charges. Given the facts, as determined by the trial court,
3
In the video Reese stated that although Winger was denying ownership of the pouch, she was still going to
be charged because she was the one with the access.
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we agree that Reese made a specific promise to induce Winger to confess. The trial
court’s determination that this inducement was sufficient to make the confession
involuntary is supported by the evidence and the law. Therefore, the trial court did
not err in reaching the conclusions it did. The assignment of error is overruled.
{¶10} Having found no error in the particulars assigned and argued, the
judgment of the Court of Common Pleas of Marion County is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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