[Cite as State v. Wilson,
2019-Ohio-5099.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29227
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CRAIG A. WILSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CR-2018-05-1611
DECISION AND JOURNAL ENTRY
Dated: December 11, 2019
CARR, Presiding Judge.
{¶1} Appellant, the State of Ohio, appeals from the decision of the Summit County
Court of Common Pleas, granting Appellee, Craig Wilson’s, motion to suppress. This Court
affirms.
I.
{¶2} Wilson’s eighteen-year-old niece told her high school counselor that Wilson had
engaged in sexual activity with her. The counselor notified the authorities, and a police officer
came to the school to speak with the counselor and the niece. As a result of those conversations,
the investigating officer learned that the niece was in special education classes and was
intellectually disabled.
{¶3} Later that same day, Wilson came to the police station to speak with the
investigating officer. He initially denied that he had engaged in any type of sexual activity with
his niece. The investigating officer repeatedly noted that the niece was eighteen, however, and
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urged Wilson to admit to any consensual sexual activity that might have occurred. She
repeatedly informed him that an admission to consensual sexual activity would allow her to close
the case and avoid a drawn-out investigation. She did not comment on the niece’s intellectual
disability or how it might affect her ability to consent. As a result of the investigating officer’s
representations, Wilson ultimately made several admissions.
{¶4} A grand jury indicted Wilson on two counts of rape, two counts of sexual battery,
and a single count of gross sexual imposition. Two of his charges alleged that he forced or
coerced his niece, but his remaining charges were based on her having lacked the capacity to
consent as the result of a substantial impairment. Wilson filed a motion to suppress, arguing that
his admissions were involuntary and a direct result of the investigating officer’s deceptive
tactics. The court held a hearing on his motion and ultimately agreed that Wilson’s admissions
were a product of coercion. The court granted Wilson’s motion to suppress, and the State
immediately appealed from its decision.
{¶5} The State’s appeal is now before us and contains a single assignment of error for
our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION
TO SUPPRESS EVIDENCE.
{¶6} In its sole assignment of error, the State argues that the trial court erred by
granting Wilson’s motion to suppress. The State argues that there was no evidence the
investigating officer used an inherently coercive tactic when interviewing Wilson. Further, it
argues that Wilson’s admissions were voluntary under the totality of the circumstances. Upon
review, we reject the State’s argument.
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{¶7} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 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., citing State v. Mills,
62 Ohio
St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if
they are supported by competent, credible evidence.” Burnside at ¶ 8. “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.” Id., citing State v.
McNamara,
124 Ohio App.3d 706 (4th Dist.1997).
{¶8} “[T]he Due Process Clause of the Fourteenth Amendment requires the exclusion
of confessions that are involuntarily given by an accused.” State v. Antoline, 9th Dist. Lorain
No. 02CA008100, 2003-Ohio-1130, ¶ 21. “A confession is involuntary … if it is the product
of ‘coercive police activity.’” State v. Loza,
71 Ohio St.3d 61, 66 (1994), quoting Colorado v.
Connelly,
479 U.S. 157, 167 (1986). See also State v. Ward, 9th Dist. Lorain No. 95CA006214,
1996 WL 425904, *1 (July 31, 1996) (“‘Voluntariness’ is the absence of physical and
psychological coercion on the part of the police.”). When ruling on the admissibility of an
allegedly coerced confession, a court must consider whether the police used an inherently
coercive tactic to secure it. State v. Osie,
140 Ohio St.3d 131,
2014-Ohio-2966, ¶ 93, quoting
State v. Perez,
124 Ohio St.3d 122,
2009-Ohio-6179, ¶ 71. If so, the court must evaluate the
voluntariness of the confession under the totality of the circumstances.
Perez at ¶ 71. Accord
State v. Cleland, 9th Dist. Medina No. 09CA0070-M,
2011-Ohio-6786, ¶ 5-6. The State bears
the burden of proving voluntariness. State v. Hill,
64 Ohio St.3d 313, 318 (1992).
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{¶9} Inherently coercive tactics can be either physical or psychological in nature.
Blackburn v. Alabama, 361 U.S. 199, 206 (1960). Accord United States v. Finch,
998 F.2d 349,
356 (6th Cir.1993). Examples include (1) physical abuse, State v. Clark,
38 Ohio St.3d 252, 261
(1988); (2) “deprivation of food, medical treatment, or sleep,” id.; (3) threats of physical
violence, Beecher v. Alabama,
389 U.S. 35, 38 (1967); (4) illusory promises of leniency, United
States v. Johnson,
351 F.3d 254, 262 (6th Cir.2003); and (5) threats to prosecute third parties
when no legal basis for those threats exist,
Osie at ¶ 96-97. “‘[A] mere threat to take action
which would be lawful and necessary absent cooperation is not objectionable.’”
Osie at ¶ 98,
quoting 2 LaFave, Israel, King & Kerr, Criminal Procedure, Section 6.2(c), at 623 (3d Ed.2013),
fn. 96. Likewise, “[o]fficers may discuss the advantages of telling the truth, advise suspects that
cooperation will be considered, or even suggest that a court may be lenient with a truthful
defendant.” State v. Belton,
149 Ohio St.3d 165,
2016-Ohio-1581, ¶ 111.
{¶10} “[T]he totality of the circumstances regarding the voluntariness of a [confession]
includes ‘the age, mentality, and prior criminal experience of the accused; the length, intensity,
and frequency of interrogation; the existence of physical deprivation or mistreatment; and the
existence of threat or inducement.’” State v. Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-
1629, ¶ 37, quoting State v. Edwards, 49 Ohio St.2d 31 (1976), paragraph two of the syllabus.
“The use of deceit by the authorities is not conclusive in the voluntariness determination.” Ward
at *3. Accord State v. Downing, 9th Dist. Summit No. 22012,
2004-Ohio-5952, ¶ 65. It is
“merely one of the relevant factors bearing on the issue [of voluntariness].” Ward at *3. Even
so, in certain instances, an officer’s “misstatement of the law may cause [] a confession to be
involuntary.” State v. Robinson, 9th Dist. Summit No. 16766,
1995 WL 9424, *4 (Jan. 11,
1995). See also State v. Smith, 7th Dist. Mahoning No. 12 MA 64,
2013-Ohio-342, ¶ 26-27;
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State v. Arrington, 14 Ohio App.3d 111, 115-116 (6th Dist.1984). “[E]ach case turns on its own
set of special circumstances.” Ward at *2.
{¶11} The trial court found that the officer who investigated this matter interviewed
Wilson’s niece at her high school after the niece informed school officials that she and Wilson
had engaged in sexual activity. Once she spoke with the niece, the investigating officer initiated
an investigation because she believed the niece to be intellectually challenged. That same day,
Wilson and his parents came to the police station so that the investigating officer could speak
with him about his niece’s allegations.
{¶12} The trial court found that, at the start of their interview, the investigating officer
told Wilson he was not under arrest and was free to leave at any time. At no point in time did
Wilson ask to leave or stop the interview. Although he repeatedly denied his niece’s allegations,
the court found that the investigating officer’s tactics ultimately caused Wilson to admit to some
degree of inappropriate sexual activity. Those tactics included the officer (1) telling Wilson the
situation was not even a criminal matter yet; (2) telling him his niece had alleged consensual
sexual activity; (3) repeatedly asking him to corroborate his niece’s story; (4) repeatedly telling
him the investigation would go on for months unless he and his niece gave consistent accounts;
(5) repeatedly assuring him that she was unconcerned with any consensual activity that had taken
place; (6) emphasizing that the niece was an adult and could make her own decisions; and (7)
casting aspersions on the niece’s boyfriend by indicating that he did not understand what had
happened and was “wrong” to describe it as a rape.
{¶13} The trial court found that the investigating officer misrepresented the law on
multiple occasions when she made it appear that any consensual sexual activity that might have
taken place between Wilson and his niece was not a criminal act. Because the officer was aware
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of the niece’s intellectual disability, the court found that her “representation to [Wilson] that the
[niece] [was] an adult and able to make decisions amount[ed] to falsehoods upon which [Wilson]
reasonably relied ….” (Emphasis omitted.) The court found that the investigating officer
engaged in a pattern of deception and “indirectly told [Wilson,] if he confirmed the [niece’s]
statement, there would be no charges against him.” It ultimately determined “that the totality of
the circumstances surrounding [Wilson’s] interview rendered his statements involuntary because
[the investigating officer’s] tactics … amounted to coercion such that his will was overborne.”
{¶14} The State argues that the trial court erred by granting Wilson’s motion to suppress
for two reasons. First, it argues that the court erred when it found that the investigating officer
had subjected Wilson to inherently coercive tactics. According to the State, the only outright
threat the officer made was that her investigation would continue for months if Wilson could not
corroborate the niece’s statement. Because that statement was true, the State argues, it was not
inherently coercive. Likewise, the State contends that the investigating officer’s representations
about the legality of consensual sexual activity between adults were accurate, just incomplete.
By not informing Wilson that substantially impaired individuals cannot consent, the officer only
reinforced Wilson’s own false belief that his niece’s age would immunize him from prosecution.
The State maintains that, at most, the officer’s statements amounted to “a barrage of balderdash.”
{¶15} Second, the State argues that, even if the investigating officer employed one or
more inherently coercive tactics, Wilson’s statements were voluntary under the totality of the
circumstances. The State argues that Wilson was a competent adult who admitted he had prior
criminal experience. It notes that his interview lasted less than an hour, he was never subjected
to any form of deprivation, he was told more than once that he was free to leave, and he came to
and left the station with his parents. According to the State, any deception on the part of the
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investigating officer was not enough to outweigh the remaining circumstances in support of a
finding of voluntariness.
{¶16} Even if the investigating officer never overtly or indirectly threatened Wilson, the
record supports the trial court’s conclusion that she used inherently coercive tactics when
interviewing him. The investigating officer acknowledged on cross-examination that she had
used a “deceitful interview technique.” She admitted that she had information the niece was
intellectually disabled and knew the law regarding consent, but nevertheless wanted to make
Wilson believe what had happened was consensual. Throughout the interview, she repeatedly
assured Wilson she was not concerned with any consensual sexual activity that might have
occurred between him and his niece. She stated that she “[did not] … care what [the two] did
as consenting adults. She’s 18 and you’re an adult. … What you guys do in your private
homes is your business.” She also stated: “As long as you guys both know what happened and
that you both were consenting and you both said stop and you both stopped, that’s all you need
to worry about.” The investigating officer portrayed the niece as an adult capable of deciding
whether to engage in consensual sexual activity. At one point, she stated:
we don’t have to make it a rape case and send everything to the Bureau of
Criminal Investigation. Why waste their time? If it was consensual and some
stuff happened and I can close the case, then thank goodness. Why waste
everybody’s time for something that did happen and [was] consensual? There’s
no point in wasting anyone’s time, not yours, not mine, … not BCI’s, not the
hospital[’s].
The investigating officer repeatedly informed Wilson that she could close the case if he
confirmed his niece’s story.
{¶17} The investigating officer’s statements throughout the interview made it appear
that Wilson would not be criminally liable for any sexual activity that occurred so long as it was
consensual. Thus, the trial court properly determined that she employed inherently coercive
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tactics when interviewing him. See State v. Copley, 170 Ohio App.3d 217,
2006-Ohio-6478, ¶
18-21 (9th Dist.), citing Robinson,
1995 WL 9424, at *4. See also Smith,
2013-Ohio-342, at ¶
26-27; Arrington,
14 Ohio App.3d at 115-116. The only question is whether her tactics rendered
Wilson’s inculpatory statements involuntary under the totality of the circumstances. See Perez,
124 Ohio St.3d 122,
2009-Ohio-6179, at ¶ 71.
{¶18} Upon review, we cannot conclude that the trial court erred when it determined
that Wilson’s statements were involuntary under the totality of the circumstances. We recognize
that deceit is only one factor in a voluntariness determination, Ward, 1996 WL 425904, at *3,
and that several other factors present in this case weigh in favor of a finding of voluntariness.
Those factors include the relatively short length of Wilson’s interview, the fact that he was told
twice that he was free to leave, and the fact that he was not subjected to any form of physical
deprivation or mistreatment. See Edwards,
49 Ohio St.2d 31 at paragraph two of the syllabus.
Even so, if egregious enough under the circumstances, an officer’s “misstatement of the law may
cause [] a confession to be involuntary.”
Robinson at *4. See also
Ward at *2 (as to the issue of
voluntariness “each case turns on its own set of special circumstances”). Further, “evidence
induced by a promise of immunity [is] coerced evidence and cannot be used against the
accused.” Robinson at *6. Accord Copley,
2006-Ohio-6478, at ¶ 18-19. The record reflects that
the investigating officer engaged in a pattern of misconduct and repeated her misrepresentations
“over and over in an attempt to convince [Wilson] to admit to consensual sex.” See Smith, 2013-
Ohio-342, at ¶ 27. Wilson only admitted to some degree of sexual activity after the investigating
officer repeatedly indicated that consensual sexual activity with the victim was legal and that she
could close the case if the sexual activity that occurred was consensual. See
Robinson at *6.;
State v. Logan, 9th Dist. Summit Nos. 12904, 12926, 12927,
1987 WL 14436, *5 (July 15,
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1987). “[S]ince [the officer’s] statements and representations were the motivating cause of
[Wilson’s] decision to speak, his incriminating statements, not being freely self-determined, were
improperly induced, were involuntary and were inadmissible as a matter of law.” Arrington at
116. Accord
Smith at ¶ 27. Accordingly, the trial court did not err by granting Wilson’s motion
to suppress. The State’s sole assignment of error is overruled.
III.
{¶19} The State’s sole assignment of error is 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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellant.
DAVID M. LOWRY, Attorney at Law, for Appellee.
