[Cite as State v. Jacks,
2022-Ohio-4374.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J
:
-vs- :
: Case No. CT2022-0013
JORDAN JACKS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2021-0424
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 7, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON
Prosecuting Attorney 8138 Somerset Road
BY: TAYLOR P. BENNINGTON Thornville, OH 43076
Assistant Prosecutor
27 North Fifth Street, Box 189
Zanesville, OH 43702
Muskingum County, Case No. CT2022-0013 2
Gwin, P.J.,
{¶1} Defendant-appellant Jordan Jacks [“Jacks”] appeals his convictions and
sentences after a jury trial in the Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶2} The Muskingum County Grand Jury returned an Indictment charging Jacks
with one count of Domestic Violence, a misdemeanor of the first degree in violation of
R.C. 2919.24(A), one count of Abduction, a felony of the third degree in violation of R.C.
2905.02(A)(2), four counts of Kidnapping, felonies of the first degree in violation of R.C.
2905.01(A)(3), and one count of Felonious Assault, a felony of the second degree in
violation of R.C. 2903.11(A)(1). The charges were the result of a domestic dispute
occurring on August 8, 2021.
{¶3} On November 30, 2021, Jacks filed a Motion to Suppress based on a
violation of his right against self-incrimination. Specifically Jacks argued that he was “in
custody” when he was questioned by the responding sheriff’s deputy. Jack’s further
argued that because the deputy failed to read Jacks his rights pursuant to Miranda v.
Arizona, 384 U.S. 436, 444,
86 S. Ct. 1602,
16 L. Ed.2d 694 (1966), all of Jack’s
statements should be suppressed.
{¶4} The trial court conducted an evidentiary hearing on Jack’s motion on
December 14, 2021.
The Suppression Hearing
{¶5} Sergeant Wade Kanavel of the Muskingum County Sherriff’s Office testified
that he was dispatched to a domestic call during the night or early morning hours of
August 8, 2021. Supp. T. at 6. Deputy Finley arrived a short time later. Id. at 7. After
Muskingum County, Case No. CT2022-0013 3
observing the couple through a window engaged in a verbal argument, Sergeant Kanavel
knocked on the door. Sergeant Kanavel shone his flashlight upon himself so the
occupants would know he was a law enforcement officer. Jacks answered the door.
Sergeant Kanavel testified that he asked Jacks what was going on and if he would come
outside to talk to the deputy. Id. at 7. Deputy Finley went inside the residence to speak
with Jack’s girlfriend. Supp. T. at 8.
{¶6} Jacks was sitting on the top step of the front porch of the residence. Id. at
9. Sergeant Kanavel was at the bottom of the steps. Jacks denied doing anything
physical to his girlfriend. Id. at 8. Jacks never told the Sergeant that he does not wish to
answer questions, or that he wanted to leave. Sergeant Kanavel testified that he did not
tell Jacks that he was forbidden from leaving at any time. Id. at 10.
{¶7} Deputy Finley exited the residence and he and Sergeant Kanavel walked
away from the home toward the street where the police cruiser was parked to confer. Id.
at 9. After conferring, Sergeant Kanavel again spoke to Jacks to ask him about the
statements that the girlfriend made to Deputy Finley. Id. at 10. Deputy Finley went back
inside the residence to speak again with the girlfriend. Id. at 11.
{¶8} When Deputy Finley exited the residence, he and Sergeant Kanavel again
walked toward the street to confer. Supp. T. at 11. At this point the decision was made
to place Jacks under arrest. Jacks was handcuffed and secured in Deputy Finley’s patrol
car. Id. At no time was Jacks advised of his Miranda rights. Id.
{¶9} Jacks testified he was ordered to come outside and sit down by Sergeant
Kanavel. Supp. T. at 29. At one point, Jacks stood up to go and get a cigarette and
Sergeant Kanavel told him to sit back down. Id. at 33-34. However, Jacks was able to
Muskingum County, Case No. CT2022-0013 4
walk away to retrieve a cigarette, return to his seat on the steps of the porch, and to
smoke the cigarette while talking to Sergeant Kanavel. Id. at 34. Jacks testified that he
was physically intimidated by Sergeant Kanavel, especially when he was told to sit back
down. Supp. T. at 30. Jacks further testified that he felt he was required to answer the
Sergeant’s questions. Id. Jacks claimed, “He kept pressing more information from me,
and I wasn’t wanting to give any more information or wanting to talk anymore, but he just
kept asking and kept asking.” Id. Jacks testified that Sergeant Kanavel and Deputy Finley
were 30 feet away when he was told to stay there while they were conferring near the
police cruiser. Id. at 38.
{¶10} By Judgment Entry filed December 14, 2021, the trial court overruled Jacks’
motion to suppress.
{¶11} A jury trial was commenced on December 14, 2021 and concluded the
following day. The jury found Jacks guilty of domestic violence, abduction and felonious
assault. The jury found Jacks not guilty of four counts of kidnapping. Sentencing was
deferred pending a Pre-sentence investigation report.
{¶12} A sentencing hearing took place on February 7, 2022. The trial court
sentenced Jacks to 180 days of jail on the conviction for domestic violence, 30 months
incarceration on the conviction for abduction and an indefinite term of five years to 7 ½
years on the felonious assault conviction. The sentences were ordered to be served
concurrently.
Assignment of Error
{¶13} Jacks raises one Assignment of Error,
Muskingum County, Case No. CT2022-0013 5
{¶14} “I. THE DETENTION OF THE APPELLANT, BY DEPUTY KANAVEL, WAS
CUSTODIAL AND THEREFORE THE APPELLANT'S RIGHT AGAINST SELF-
INCRIMINATION PURSUANT TO THE FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION WOULD APPLY. SINCE NO MIRANDA WARNING WAS GIVEN, THE
TRIAL COURT'S ORDER DENYING THE MOTION TO SUPPRESS EVIDENCE, BASED
ON THE CUSTODIAL DETENTION, WAS IN ERROR.”
Law and Analysis
{¶15} In his sole Assignment of Error, Jacks argues that Sergeant Kanavel
subjected him to improper custodial interrogation without advising him of his Miranda
rights. Jacks further contends that the trial court’s comparison of the questioning in this
case as similar to a traffic stop was error.1
Standard of Appellate Review
{¶16} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155,
2003-Ohio-5372,
797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap,
73 Ohio St.3d 308,314,
1995-Ohio-243,
652 N.E.2d 988;
State v. Fanning,
1 Ohio St.3d 19, 20,
437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See
Burnside, supra; Dunlap, supra; State v. Long,
127 Ohio
App.3d 328, 332,
713 N.E.2d 1(4th Dist. 1998); State v. Medcalf,
111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
1Jacks does not raise any assignment of error relating to his jury trial. Jacks confines his
arguments to the trial court’s ruling upon his motion to suppress.
Muskingum County, Case No. CT2022-0013 6
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara,
124 Ohio
App.3d 706,
707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu,
534
U.S. 266,
122 S.Ct. 744,
151 L.Ed.2d 740(2002); Ornelas v. United States,
517 U.S. 690,
116 S.Ct. 1657,
134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review
Ornelas, supra.
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.”
Ornelas, supra at 698,
116 S.Ct. at 1663.
{¶17} “[T]he weights of the evidence and credibility of witnesses are primarily for
the trier of the facts. … This principle is applicable to suppression hearings as well as
trials.” State v. Fanning, 1 Ohio St.3d 19, 20, 1 OBR 57,
437 N.E.2d 583(1982). Accord
State v. DeHass,
10 Ohio St.2d 230,
39 O.O.2d 366,
227 N.E.2d 212(1967), paragraph
one of the syllabus; State v. Mills,
62 Ohio St.3d 357, 366,
582 N.E.2d 972(1992).
Issue for appellate review: Whether Jacks was subjected to custodial
interrogation
Miranda v. Arizona.
{¶18} The Fifth Amendment to the United States Constitution guarantees that
“‘[n]o person … shall be compelled in any criminal case to be a witness against himself,’
and that ‘the accused shall … have the Assistance of Counsel.’” (Ellipses sic.) Miranda
v. Arizona, 384 U.S. 436, 442,
86 S.Ct. 1602,
16 L.Ed.2d 694 (1966); Accord, State v.
Barker,
149 Ohio St.3d 1,
2016-Ohio-2708,
73 N.E.3d 365, ¶21. The inherently coercive
nature of custodial interrogation heightens the risk that a suspect will be denied the Fifth
Amendment privilege not to be compelled to incriminate himself because custodial
Muskingum County, Case No. CT2022-0013 7
interrogation can “‘undermine the individual’s will to resist and … compel him to speak
where he would not otherwise do so freely.’” (Ellipsis sic.) J.D.B. v. North Carolina,
564
U.S. 261,
131 S.Ct. 2394, 2401,
180 L.Ed.2d 310 (2011), quoting
Miranda at 467, 86
S.Ct. 1602; Dickerson v. United States,
530 U.S. 428, 435,
120 S.Ct. 2326,
147 L.Ed.2d
405 (2000).
{¶19} In light of the inherent coercion involved in custodial interrogation, Miranda
established “a set of prophylactic measures” to safeguard the constitutional privilege
against self-incrimination. Id. In broad terms, Miranda held that the state may not use a
defendant’s statements from custodial interrogation “unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda at 444, 86 S.Ct. 1602. Prior to questioning, the police must warn the suspect
“that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.”
Id. The Supreme Court recognized the importance of a suspect’s
“real understanding” of his rights and his intelligent decision whether to exercise them.
Id. at 469,
86 S.Ct. 1602; State v. Barker,
149 Ohio St.3d 1,
2016-Ohio-2708,
73 N.E.3d
365, ¶22.
{¶20} Miranda conditioned the admissibility at trial of any custodial confession on
warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver
of rights before custodial questioning generally requires exclusion of any statements
obtained. Missouri v. Seibert, 542 U.S. 600, 608,
124 S.Ct. 2601,
159 L.Ed.2d 643(2004).
Custody under Miranda.
{¶21} The United States Supreme Court has explained,
Muskingum County, Case No. CT2022-0013 8
As used in our Miranda case law, “custody” is a term of art that
specifies circumstances that are thought generally to present a serious
danger of coercion. In determining whether a person is in custody in this
sense, the initial step is to ascertain whether, in light of “the objective
circumstances of the interrogation,” Stansbury v. California, 511 U.S. 318,
322–323, 325, 114 S.Ct. 1526,
128 L.Ed.2d 293 (1994) (per curiam), a
“reasonable person [would] have felt he or she was not at liberty to
terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S.
99, 112,
116 S.Ct. 457,
133 L.Ed.2d 383 (1995). And in order to determine
how a suspect would have “gauge[d]” his “freedom of movement,” courts
must examine “all of the circumstances surrounding the interrogation.”
Stansbury, supra, at 322, 325,
114 S.Ct. 1526 (internal quotation marks
omitted). Relevant factors include the location of the questioning, see
Shatzer, supra, at –––– – ––––, 130 S.Ct., at 1223–1226, its duration, see
Berkemer v. McCarty, 468 U.S. 420, 437–438,
104 S.Ct. 3138,
82 L.Ed.2d
317 (1984), statements made during the interview, see Mathiason, supra,
at 495, 97 S.Ct. 711; Yarborough v. Alvarado,
541 U.S. 652, 665,
124 S.Ct.
2140,
158 L.Ed.2d 938 (2004);
Stansbury, supra, at 325,
114 S.Ct. 1526,
the presence or absence of physical restraints during the questioning, see
New York v. Quarles, 467 U.S. 649, 655,
104 S.Ct. 2626,
81 L.Ed.2d 550
(1984), and the release of the interviewee at the end of the questioning, see
California v. Beheler, 463 U.S. 1121, 1122–1123,
103 S.Ct. 3517,
77
L.Ed.2d 1275 (1983) (per curiam).
Muskingum County, Case No. CT2022-0013 9
Determining whether an individual's freedom of movement was
curtailed, however, is simply the first step in the analysis, not the last. Not
all restraints on freedom of movement amount to custody for purposes of
Miranda. We have “decline[d] to accord talismanic power” to the freedom-
of-movement inquiry, Berkemer, supra, at 437,
104 S.Ct. 3138, and have
instead asked the additional question whether the relevant environment
presents the same inherently coercive pressures as the type of station
house questioning at issue in Miranda. “Our cases make clear ... that the
freedom-of-movement test identifies only a necessary and not a sufficient
condition for Miranda custody.” Shatzer, 559 U.S., at ––––, 130 S.Ct. at
1224.
Howes v. Fields, 565 U.S. 499, 508–09,
132 S.Ct. 1181, 1189,
182 L.Ed.2d 17 (2012).
However, the test involves no consideration of the particular suspect's “actual mindset.”
Yarborough v. California,
541 U.S. 652, 667,
124 S.Ct. 2140,
158 L.Ed.2d 938(1994).
Accord, State v. Mason,
82 Ohio St.3d 144, 153,
1998-Ohio-370,
694 N.E.2d 932(1998);
State v. Gumm,
73 Ohio St.3d 413, 429,
1995 Ohio 24,
653 N.E.2d 253(1995).
{¶22} The United States Supreme Court has recognized custodial interrogation is
not limited to a police stationhouse interrogation. See, Mathis v. United States, 391 U.S.
1,
88 S.Ct. 1503,
20 L.Ed.2d 38191968) (questioning of defendant by an agent from the
Internal Revenue Service while defendant was incarcerated); and Orozco v. Texas,
394
U.S. 324,
89 S.Ct. 1095,
22 L.Ed.2d 311(1969) (questioning of defendant, by the police,
in defendant’s bedroom). Also, Fifth Amendment protection is not limited to any single
source of official interrogation. Where a defendant is subject to the inherently compelling
Muskingum County, Case No. CT2022-0013 10
pressures of a custodial situation, he is entitled to warning before any official interrogation.
Estelle v. Smith,
451 U.S. 454,
101 S.Ct. 1866,
68 L.Ed.2d 359(1981) (statements made
to court-appointed psychiatrist).
{¶23} On the other hand, police are not required to administer Miranda warnings
to everyone whom they question. Oregon v. Mathiason, 429 U.S. 492, 495,
97 S.Ct. 711,
714,
50 L.Ed.2d 714, 719 (1977). “Nor is the requirement of warnings to be imposed
simply because the questioning takes place in the station house, or because the
questioned person is one whom the police suspect.”
Id. Accord, State v. Biros,
78 Ohio
St.3d 426, 440,
1997-Ohio-204,
678 N.E.2d 891. “General on-the-scene questioning as
to facts surrounding a crime or other general questioning of citizens in the fact-finding
process is not affected by our holding.” Miranda,
384 U.S. at 477,
86 S.Ct. 1602,
16
L.Ed.2d 694. Accord, State v. Hoffner,
102 Ohio St.3d 358,
2004-Ohio-3430,
811 N.E.2d
48, ¶27.
Interrogation requiring Miranda Warnings.
{¶24} In Rhode Island v. Innis, the United States Supreme Court defined
“interrogation,”
We conclude that the Miranda safeguards come into play whenever
a person in custody is subjected to either express questioning or its
functional equivalent. That is to say, the term “interrogation” under Miranda
refers not only to express questioning, but also to any words or actions on
the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect. The latter portion of this definition
Muskingum County, Case No. CT2022-0013 11
focuses primarily upon the perceptions of the suspect, rather than the intent
of the police. This focus reflects the fact that the Miranda safeguards were
designed to vest a suspect in custody with an added measure of protection
against coercive police practices, without regard to objective proof of the
underlying intent of the police. A practice that the police should know is
reasonably likely to evoke an incriminating response from a suspect thus
amounts to interrogation. But, since the police surely cannot be held
accountable for the unforeseeable results of their words or actions, the
definition of interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably likely to elicit
an incriminating response.
446 U.S. 291, 300-302,
100 S.Ct. 1682,
64 L.Ed.2d 297(1980 (footnotes omitted). The
Court further noted, “[a]ny knowledge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of persuasion might be an important factor
in determining whether the police should have known that their words or actions were
reasonably likely to elicit an incriminating response from the suspect.”
446 U.S. 302,
100
S.Ct. 1682,
64 L.Ed.2d 297, n.8.
{¶25} On the other hand, “[v]olunteered statements of any kind are not barred by
the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda,
384 U.S. at 478,
86 S.Ct. at 1630,
16 L.Ed.2d at 726. Moreover, there is no requirement
that officers interrupt a suspect in the course of making a volunteered statement to recite
the Miranda warnings. State v. Tucker,
81 Ohio St.3d 431, 438,
1998-Ohio-438,
692
N.E.2d 171. In the context of obtaining a voluntary consent to search, the United States
Muskingum County, Case No. CT2022-0013 12
Supreme Court observed, “[w]hile most citizens will respond to a police request, the fact
that people do so, and do so without being told they are free not to respond, hardly
eliminates the consensual nature of the response.” INS v. Delgado,
466 U.S. 210, 216,
104 S.Ct. 1758,
80 L.Ed.2d 247(1984); United States v. Drayton,
536 U.S. 194, 205,
122
S.Ct. 2105,
153 L.Ed.2d 242 (2002). Therefore, it can be assumed that no Fifth
Amendment violation occurs when the police ask an individual to speak with them without
expressly informing the citizen of his or her right to say no.
Jacks was not in custody for Miranda purposes
{¶26} At the time of his arrival, Sergeant Kanavel was investigating a report of a
domestic disturbance. Sergeant Kanavel and Deputy Finley questioned the parties in
separate locations in an effort to determine what had transpired between the parties.
Jacks was not handcuffed and was interviewed on the front porch of the residence, a
public place. Jacks admits that he was able to retrieve his cigarettes and to smoke during
his time with Sergeant Kanavel. Jacks never attempted to leave, nor did he ever express
his desire not to speak with the police to Sergeant Kanavel.
{¶27} Simply requesting an individual to remain at his home while the officers
gather information concerning the report of a domestic dispute lacks the inherently
coercive pressures of interviews occurring in the confines of a police station. Keeping the
parties separated while investigating allegations of a domestic disturbance is a matter of
safety of the parties and the officers rather than a restriction on the freedom of movement
associated with an arrest. The record reveals that Jacks was not subjected to the
inherently compelling pressures of a custodial situation.
Muskingum County, Case No. CT2022-0013 13
{¶28} We find that a reasonable person in Jacks’ position during the interview
would have understood that, while he could not be in the same room as his girlfriend,
Jacks was free to move about, walk away, or decline to answer the questions by the
officers. State v. Mason, 82 Ohio St.3d 144, 153-154,
694 N.E.2d 932,
1998-Ohio-370.
There were no restraints on his freedom of movement to the degree associated with a
formal arrest.
{¶29} Because Jacks was not in custody, he was not entitled to Miranda warnings.
Therefore, the trial court’s analogy of the questioning in this case to a roadside stop is
inconsequential, and error, if any, is harmless beyond a reasonable doubt.
{¶30} The trial court properly denied Jacks’ motion to suppress.
{¶31} Jacks’ Assignment of Error is overruled.
{¶32} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur
