STATE OF OHIO, Plaintiff-Appellee v. ALYSA N. GIVENS, Defendant-Appellant
C.A. CASE NO. 26782
T.C. NO. 15CR763
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 15, 2016
2016-Ohio-4978
FROELICH, J.
(Criminal Appeal from Common Pleas Court)
BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 W. Fourth Street, Suite 250, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
FROELICH, J.
{¶ 1} After the trial court overruled her motion to suppress evidence, Alysa Givens pled no contest to engaging in solicitation after a positive HIV test, in violation of
{¶ 2} Givens appeals from her conviction, claiming that the trial court erred in denying her motion to suppress. For the following reasons, the trial court‘s judgment will be affirmed.
I. Factual and Procedural History
{¶ 3} At the suppression hearing, the parties agreed that, in lieu of testimony, the court would resolve the motion to suppress based on four exhibits: (1) a copy of a video recording from the Dayton police cruiser into which Givens was placed upon her arrest (due to an equipment malfunction, the recording did not include any audio); (2) a copy of the pre-interview rights card that was used to notify Givens of her Miranda rights; (3) a certified copy of the search warrant for Givens‘s medical records; and (4) Dayton Police Department Report No. 1503120992, which contained synopses by three detectives of what occurred. The evidence established the following facts.
{¶ 4} During the week of March 9, 2015, Detective Gordon Cairns of the Dayton police department and other detectives from the Street Crimes Unit investigated complaints of alleged prostitution activity in the area of East Third Street in Dayton. The detectives received information from several sources that a woman named “Allie,” who had dark hair and was wearing a pink jacket and jeans, was engaging in prostitution after having been diagnosed with HIV. Givens had been observed on East Third Street during that week, and on March 11, 2015, she was seen wearing a pink jacket and jeans.
{¶ 5} At approximately 2:18 p.m. on March 12, 2015, Detective Cairns, working undercover in an unmarked vehicle, located Givens at the intersection of East Third Street and South Jersey Street, staring, smiling, and waving at passing vehicles; Cairns
{¶ 6} At approximately 2:20 p.m., Detective Cairns stopped along the west curb of southbound South Jersey Street. Givens approached the passenger side of the vehicle and, without invitation, entered the vehicle through the front passenger door. Detective Cairns drove south with Givens. After apparently satisfying herself that Detective Cairns was not a police officer, Givens agreed to perform oral sex without a condom for $25. Detective Howard monitored the conversation from another vehicle.
{¶ 7} Detective Cairns drove with Givens to a particular parking lot that the detectives had prearranged to be an arrest location. Detectives Howard and Gustwiller also went to that location, and two uniformed officers were asked to come and assist with Givens‘s arrest. Detective Howard removed Givens from Cairns‘s vehicle, patted Givens down (nothing was located), and asked Givens for her name, address, and the name of the driver of the vehicle in which she was found (Givens claimed the driver was a friend).1 Detective Howard read Givens her Miranda rights using a card provided by the prosecutor‘s office, and he began to interrogate her about the agreed sexual transaction; the parties agree that Givens was properly notified of her Miranda rights. Ultimately, Detective Howard handcuffed Givens and advised her that she was under arrest.
{¶ 8} Givens stated several times that she was sorry and wanted to help. After placing Givens in handcuffs, Detective Howard asked Givens if she had HIV or AIDS or
{¶ 9} Thereafter, Detective Gustwiller interviewed Givens regarding the encounter and whether Givens took a “cocktail” of drugs for HIV. Givens responded in the affirmative, although Detective Howard stated that she may have believed that “cocktail” referred to illegal drug use. Subsequently, Detective Howard placed Givens in the backseat of a police cruiser.
{¶ 10} After a few seconds, Detective Howard spoke with Givens as she sat in the cruiser. During this conversation, Howard “asked Givens did she have HIV and or AIDS. I explained to Givens that it was against the law to work as a prostitute after testing positive for HIV. I did tell Givens it‘s also against the [law] to lie to the police about HIV.” Givens started to cry and acknowledge that she was HIV positive. Howard walked away from the cruiser.
{¶ 11} Detective Gustwiller approached the cruiser and spoke with Givens again. She told him that she had been tested for HIV at Miami Valley Hospital and had been positive for six months. Gustwiller asked for the number of men with whom she had engaged in sexual intercourse over the past six months. At that point, Givens stated that she did not wish to speak further with Detective Gustwiller. Approximately five minutes had elapsed from the time that Givens was placed into the cruiser until the she ended the interview with Gustwiller.
{¶ 12} At 2:44 p.m., Givens was transported to the Montgomery County Jail. Approximately 24 minutes had elapsed since Givens entered Detective Cairns‘s vehicle.
{¶ 13} The next day, on March 13, 2015, Detective Gustwiller obtained a search
{¶ 14} On March 19, 2015, Givens was indicted for engaging in solicitation after a positive HIV test and loitering to engage in solicitation after a positive HIV test, both based on the March 12 incident. Two weeks later, Givens moved to suppress the statements she had made to the police on March 12 and any evidence derived from those statements, including evidence obtained pursuant to the search warrant for her medical records. Givens claimed that her statements to the police were made involuntarily.
{¶ 15} A hearing on the motion to suppress was scheduled for July 10, 2015, but the parties agreed at the hearing that the motion would be resolved based on the four exhibits described above. No testimony was taken.
{¶ 16} On July 22, 2015, the trial court overruled the motion to suppress. Initially, the trial court noted that defense counsel had agreed that Givens was properly advised of her Miranda rights. As to the voluntariness of Givens‘s statements, the trial court concluded that Givens‘s will was not overborne by Detective Howard‘s statement that it
{¶ 17} In addition, the trial court found no basis to suppress the evidence obtained pursuant to the search warrant. The court stated that there was a substantial basis for the magistrate to conclude that probable cause existed for the warrant and, even if Givens‘s statement regarding her HIV should have been suppressed, the remainder of the affidavit provided probable cause for the warrant.
{¶ 18} The day after the trial court‘s ruling on her motion to suppress, Givens pled no contest to engaging in solicitation after a positive HIV test. She was subsequently sentenced to community control. Givens appeals the trial court‘s judgment.
II. Voluntariness of Statements to Police
{¶ 19} On appeal, Givens claims that the trial court erred in overruling the motion to suppress “because the statements made by the Appellant were not made knowingly, intelligently, and voluntarily.” Givens asserts that Detective Howards‘s statement that it was “against the [law] to lie to the police about having HIV” was a threat of additional charges if Givens did not confess to having HIV, and that the evidence indicated that
{¶ 20} In ruling on a motion to suppress, the trial court “assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Retherford at 592. “Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court‘s conclusion, whether they meet the applicable legal standard.” Id.
{¶ 21} Under the
{¶ 22} Whether a statement was made voluntarily and whether an individual knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct issues. State v. Eley, 77 Ohio St.3d 174, 178, 672 N.E.2d 640 (1996); State v. Kelly, 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305. Regardless of whether Miranda
{¶ 23} A defendant‘s statements to police after a knowing, intelligent, and voluntary waiver of the individual‘s Miranda rights are presumed to be voluntary. Miranda, supra. “The Miranda presumption applies to the conditions inherent in custodial interrogation that compel the suspect to confess. It does not extend to any actual coercion police might engage in, and the Due Process Clause continues to require an inquiry separate from custody considerations and compliance with Miranda regarding whether a suspect‘s will was overborne by the circumstances surrounding his confession.” State v. Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.), citing Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
{¶ 24} “In deciding whether a defendant‘s confession is involuntarily induced, the court should consider the totality of the circumstances, including 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. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). See also State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d 491 (1990); State v. Beaty, 2d Dist. Montgomery No. 24048, 2011-Ohio-5014, ¶ 16.
{¶ 25} In general, the State has the burden to show by a preponderance of the evidence that a defendant‘s confession was voluntarily given. State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978).
{¶ 26} We have reviewed the exhibits submitted by the parties, and we agree with
{¶ 27} Detective Howard‘s synopsis indicated that Givens had a “drug habit” and that she admitted to taking a “cocktail” of some sort. Detective Howard wrote, “Detective Gustwiller and I learned from Givens that she did see a doctor several months ago and the doctor did give her some medication to take. Detective Gustwiller asked Givens was the medication called a ‘cocktail’ which Gives [sic] stated said, Yes. Givens was questioned about the name of the drugs. Givens stated she thought he was talking about drugs and her drug habit, and she was taking any medication.” Although Howard‘s synopsis reflects that Givens took drugs, there is no indication from the record that Givens was under the influence of drugs or alcohol when she was questioned by the police on March 12.
{¶ 28} Givens‘s encounter with the police began at 2:20 p.m., when she entered Detective Cairns‘s unmarked vehicle, and the detectives’ questioning ended at 2:44 p.m., when uniformed officers began transporting her to the Montgomery County Jail; Givens spoke with the detectives for no more than 24 minutes. The cruiser video and the detectives’ synopses indicate that detectives spoke with Givens over several short sequences.
{¶ 30} The second conversation occurred while Givens was seated on the front bumper/hood of Howard‘s unmarked police car. Detective Gustwiller asked Givens questions about the proposed sexual transaction, whether Givens had any sexually transmitted diseases, and whether she was taking medication. At 2:38 p.m. (according to the cruiser video), after this brief discussion, Givens was placed into the back of a marked cruiser.
{¶ 31} At 2:39, Howard spoke again with Givens. During this conversation, Howard “explained to Givens that it was against the law to work as a prostitute after testing positive for HIV * * * and it‘s also against the [law] to lie to the police about having HIV.” Givens admitted to having HIV. This conversation lasted approximately one minute.
{¶ 32} Detective Gustwiller again spoke with Givens at 2:41 p.m., asking additional questions about where Givens was tested for HIV and how many men Givens had “slept with in the last 6 months.” Gustwiller‘s conversation with Givens lasted approximately
{¶ 33} Nothing on the cruiser video or in the synopses indicate that the officers engaged in any conduct that would render Givens‘s statements involuntary. While Givens was in the cruiser, the detectives spoke with Givens while standing outside the rear passenger door across from where Givens was seated; the door was open. Although no audio is available, nothing in the detectives’ posture or mannerisms appeared to be threatening.
{¶ 34} Givens asserts that Detective Howard‘s statement that it was “against the [law] to lie to the police about having HIV” was a threat that induced her to admit to having HIV. “Generally, a correct statement of the law does not rise to the level of coercion necessary to render a confession involuntary.” State v. Robinson, 9th Dist. Summit No. 16766, 1995 WL 9424 (Jan. 11, 1995); see also State v. Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 38 (2d Dist.).
{¶ 35} Detective Howard correctly told Givens that it was against the law to work as a prostitute after testing positive for HIV, see
{¶ 36} Even if Detective Howard‘s statement were a misstatement of law, we do not conclude that Givens‘s will was overborne by Howard‘s statement that it was against the law to lie to the police about her HIV status. With the information before us, Detective Howard‘s statement was not said in such a way that it necessarily compelled a response from Givens. Howard‘s statement did not suggest, in any way, that she would face a negative consequence if she failed to answer his questions about her HIV status. In fact, the statement could have been construed as a warning to Givens that she should remain silent, rather than lie, if she did not want to reveal her HIV status. Moreover, Howard‘s statement did not suggest that Givens would receive more lenient treatment if she provided her HIV status to the officers.
{¶ 37} Considering the totality of the circumstances, the trial court did not err in concluding that Givens‘s statements to the police about her HIV status were made voluntarily. Given that conclusion, the trial court also did not err in denying Givens‘s request to suppress evidence subsequently obtained based on those statements. Givens‘s assignment of error is overruled.
III. Conclusion
{¶ 38} The trial court‘s judgment will be affirmed.
FROELICH, J.
HALL, J. and WELBAUM, J., concur.
Michele D. Phipps
Brent E. Rambo
Hon. Steven K. Dankof