State v. MareshState v. Maresh
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-565381-A
R. Brian Moriarty
1370 Ontario, Suite 2000
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Kevin R. Filiatraut
Assistant Cuyahoga County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Michael Maresh (“Maresh“), appeals the denial of his motion to suppress and his convictions for sexual battery. For the reasons set forth below, we affirm.
{¶2} In September 2012, Maresh was charged with two counts of sexual battery in violation of
{¶3} On July 11, 2012, B.M.‘s attorney notified Loeding of allegations that Maresh had a sexual relationship with B.M. while he served as her probation officer. After obtaining a statement from B.M., Loeding secured a search warrant for Maresh‘s cell phone. Loeding learned through Maresh‘s supervisor in North
{¶4} While he was still in Ravenna, Maresh called his then fiancee, Alyssa Gilpin (“Gilpin“), crying and apologizing for having an inappropriate relationship with a girl that was on probation with him. Gilpin and Maresh hаve a son and were living together at the time of the incident with B.M. He told Gilpin that the police came to Ravenna and served him a search warrant for his phone. Gilpin told Maresh that she was taking their son and leaving and Maresh “essentially flipped out.” At that time, Maresh talked about killing himself. On a prior occasion, Maresh threatened to kill himself after Gilpin caught him cheating on her through a dating website. Subsequently, Gilpin alerted a commanding officer at the Ravenna base and asked that Maresh stay at training until everything was figured out.
{¶5} After Maresh called Gilpin, Loeding contacted her about Maresh‘s cell phone to figure out how to view pictures on Maresh‘s cell phone that were protected by a password. Gilpin told Loeding that she did not want to get involved and to speak with Maresh himself, as he wanted to speak with the police. Loeding learned from Gilpin that Maresh was in the V.A. Hospital in Cleveland.
{¶7} Loeding testified that he went to the V.A. hospital with North Royalton Detective Floann Rybicki (“Rybicki“) on July 25, 2012, to speak with Maresh. Rybicki accompanied Loeding to the hospital and observed Loeding‘s interaction with Maresh. Rybicki and Loeding had to lock up their firearms with the hospital police before meeting with Maresh. Rybicki testified that Maresh wanted to speak with Loeding to “clear things up.” Rybicki further testified that she did not observe Maresh to be in any type of mental distress. She thought that the interview lasted between one and one-half to two hours. The interview occurred in a conference room, not Maresh‘s hospital room. Hospital police brought Maresh to the room and were standing outside the door during the interview. Rybicki stood near the door while Loeding and Maresh sat at the table in the room. At one point, both Rybicki and Loeding left the room so Maresh
{¶8} Loeding testified that he has been a police officer for 25 years and has been a detective for 18 of those years. He testified that the hospital police brought Maresh to him and Rybicki in a separate meeting room on Maresh‘s floor. Loeding was unsure if Maresh was under “custody.” He thought “military direction” was more appropriate because Maresh was escorted to the room by hospital police, and it did not seem that Maresh was able to leave the hospital if he wanted to. Loeding advised and explained to Maresh his Miranda rights orally and in writing. Maresh signed a form stating that he understood his rights, wished to waive his rights, and speak with Loeding. Loeding testified that the interview lasted approximately three hours. Loeding testified that Maresh was polite, cooperative, willing, and gave more than what was asked. “There were many times when there was not really an interrogation of questioning, it was more of [Maresh] talking fluidily.” Maresh wanted Loeding to know that there was no rape. Maresh told Loeding that he had a sexual relationship with his probationer, B.M. Maresh spoke of two instances of sexual activity that occurred at B.M.‘s
{¶9} Loeding testified that at no time did Maresh exercise his right to a lawyer or wish to stop the interview. Maresh began tо write his statement about halfway through the interview. The handwritten statement is single-spaced and consists of three pages. The statement details the sexual relationship Maresh had with B.M. Loeding testified that he and Rybicki were in close proximity to Maresh as he wrote his statement. Loeding further testified that during the entire interview, Maresh never gave Loeding any concern that he was under any mental distress. He testified that Maresh gave the statement voluntarily. Loeding believed that Maresh was frustrated and upset about “a lot of a things in his life” and Maresh wanted to “clear the air.”
{¶10} After thе hearing, the trial court denied Maresh‘s motion to suppress. In its ruling, the trial court found that Maresh reviewed the Miranda rights form and signed all indicated portions of the form; Maresh willingly came to the conference room to speak with the detectives; there was no evidence that Maresh was not alert or disoriented at the time of his interview; and there was no evidence by any mental health professionals to substantiate any medical treatment or even suggest that Maresh was not competent or sane at the time of his interrogation and
{¶11} On June 5, 2012, Parma Municipal Court assigned B.M. to report to Maresh after being sentenced for her second OVI. B.M. met with Maresh and signed paperwork outlining the rules of her probation. This form also contained her contact information, including her cell phone number.
{¶12} On her way home from court, B.M. received a text from a number she did not recognize, stating, “You looked really sexy in that dress.” B.M. texted back, “Who is this?” She received a text in response stating, “It‘s your probatiоn officer.” B.M. was shocked and found the text inappropriate. B.M. testified that because this was her second OVI conviction, she had to get restricted license plates. Subsequently, she had to go back to court another day in June to get a signature from a Parma Municipal Court judge. B.M. had to meet first with Maresh, who then took the paperwork to the judge. B.M. commented on how quickly Maresh returned with the paperwork. Maresh replied, “me and [the judge] are pretty tight.” B.M. testified that Maresh made it seem as though he and the judge were friends. Maresh asked B.M. to call him evеryday on her way to work.
{¶13} Over the next couple of weeks, B.M. received at least 50 text messages from Maresh. Maresh first began texting B.M. about her “butt” and texted naked pictures of himself. Maresh demanded that B.M. send him pictures. B.M.
{¶14} On June 20, 2012, Maresh sent B.M. several texts, including naked pictures of himself. He told B.M. that “i can‘t guarantee that i won‘t rape u Friday limited” and “i won‘t tell ne one how naughty u are....its Ur probation officer and your secret!” In response, B.M. texted Maresh naked pictures of herself. The next day, on June 21, 2012, Maresh texted B.M. “What happened to calling me this morning.” He also texted her sexually explicit messages. B.M. testified that Maresh showed up at her apartment at approximately 3:45 p.m. that afternoon, which was the same apartment listed on her probation forms.
{¶15} B.M. testified that she was about to take a shower when she heard her apartment buzzer. She buzzed Maresh in thinking it was one of her daughter‘s
{¶16} B.M. testified that Maresh continued to text her over the next several days, including a text on June 24, 2012, that stated, “[w]e still on for tomorrow?” and texts on June 25, 2012, that stated, “[w]e still on today?” “[o]kay I‘ll take my lunch around 12:45” and “[y]eah that‘s okay. Tell them your officer is paying you a visit.” B.M. testified Maresh came to the apartment on June 25, 2012, at approximately 12:30 p.m. She told him not to come, so she was not expecting him. B.M. was with her daughter and her daughter‘s friends. They were getting ready to go to the pool in her apartment complex. Maresh told B.M.‘s daughter and her friends to go outside, telling them that he had paperwork for B.M. As soon as her
{¶17} Then, on July 4, 2012, B.M. was arrested for drinking and driving in Brunswick, Ohio. She notified Maresh of the violation, as required by probation terms. Maresh responded to her by text, stating “Im.not going to violate Ur probatiоn [B.M.]” After B.M.‘s arrest, she told her attorney about her and Maresh, who then contacted Loeding.
{¶18} B.M. further testified that all of the above activity occurred while she was ordered to report to Maresh as her probation officer. At no time was she dating Maresh, nor did she want to have a sexual relationship with him.
{¶19} On cross-examination, B.M. acknowledged that she hired another attorney and has a pending civil lawsuit against the city of Parma. B.M. testified that when she took her phone to the police, she informed them that she deleted most of the texts she sent Maresh. She exрlained that either she manually deleted them or her phone automatically deleted them. B.M. testified that even though she knew that the texts and naked pictures were inappropriate, she did not immediately notify the authorities or her attorney.
{¶21} On cross-examination, Loeding testified that B.M. told him she had a “mutual flirtation” with Maresh and she returned “sexual comments” to him. B.M. also told Loeding that she knew Maresh was coming to her apartment on June 21, 2012. She buzzed Maresh in and knew that “sex was going to happen.”
{¶22} Joel Gaiser (“Gaiser“), the Court Administrator for Parma Municipal Court, testified that he was Maresh‘s direct supervisor while Maresh was a probation officer with the court. As a рrobation officer, Maresh was a direct link between B.M., as the probationer, and the judge. It was Maresh‘s job, as a probation officer, to supervise defendants assigned to him, make sure the probationers were doing what the judge ordered them to do, and notify the judge if the probationers violated any of the terms of their probation, which were ordered by Parma Municipal Court.
{¶24} After the conclusion of the trial, the court found Maresh guilty of both counts of sexual battery. The court merged both counts for purposes of sentencing, and the state elected to proceed with sentencing on Count 2. The court sentenced Maresh to three years in prison and found him to be a Tier II sex offender.
{¶25} Maresh now appeals, raising the following five assignments of error for review, which shall be discussed together where appropriate.
Assignment of Error One
The trial court erred and/or abused its discretion in denying [Maresh‘s] motion to suppress.
Assignment of Error Two
Assignment of Error Three
The trial court committed prejudicial error by employing the wrong standard of review in its deliberations.
Assignment of Error Four
The guilty verdict was based upon insufficient evidence.
Assignment of Error Five
The guilty verdict was the manifest weight of the evidence.
Motion to Suppress
{¶26} In the first and second assignments of error, Maresh challenges the trial court‘s denial of his motion to suppress. Maresh maintains that he was in custody at the time he gave his statement and his statement was involuntary. He cites to the fact that he was at the V.A. Hospital for mental treatment because he stated that he wanted to kill himself, and he was escorted by hospital police to the conference room.
{¶27} We note that appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In dеciding a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve factual questions and
{¶28} Under Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a person who is taken into custody or otherwise significantly deprived of his freedom and subjected to interrogation by law enforcement officials must be informed of certain constitutional rights and make a knowing and intelligent waiver of those rights before statements obtained during the interrogation will be admissible as evidence against him. The question of whether a waiver was knowing and intelligent is a factual issue that must be determined based on the totality of the circumstances. State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d 491 (1990), citing State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976).
{¶29} The totality of the circumstances analysis is triggered by evidence of police coercion. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). “[C]oercive police activity is a necessary predicate to thе finding that a suspect involuntarily waived his Miranda rights and involuntarily
[A] defendant‘s mental condition is only one factor in the totality of circumstances to be considered in determining voluntariness. A defendant‘s mental condition may be a “significant factor in the ‘voluntariness’ calculus. But this fact does not justify a conclusion that a defendant‘s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.‘”
(Citation omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 34, quoting Connelly at 164.
{¶30} In the instant case, the record demonstrates, and the trial court thoughtfully stated:
[Maresh is] relying on [Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)]. * * * The court had an opportunity to review that case, and I‘m going to find that that case is distinguishable from our case. * * *
[I]n that case * * * the individual who was being interviewed, that interview lasted nearly four hours. The defendant lay in a bed in a hospital. He had tubes, catheters, intravenous feeding devices attached to his body. During the interview, Mincey was in and out of consciоusness. He was interrupted during those periods of consciousness where the interview continued to take place. He lapsed
into unconsciousness during the interrogation and interview by the investigators. And then he also continued to ask that the interview stop, and despite his statements that he did not want to go forward, the interview continued to go forward. I‘m going to factually distinguish that case from our case. In our case, I will note for the record, the defendant is an educated person. He was interviewed on July 25th of 2012, at the Wade Memorial VA Hospital. At that time he was thеre and placed there by his commanding officers.
Exhibit 1 was provided to the Court and that‘s * * * the statement of his rights. It was provided to the defendant, it was testified it was read to the defendant, and he also signed on all indicated portions of that statement.
* * *
He was provided a chance as well to read it and he was given that opportunity before he signed it.
I‘m going to indicate that in the testimony provided to the Court by both detectives there was very little in the way of interrogation of this defendant. The officers had an opportunity to sit with him, they had be advised that he wanted to sрeak with them. I note that he was brought willingly to the conference room. * * * [I]n this case knowing that the detectives had come to interview him, he was escorted by the security guards willingly to the conference room where he was interviewed by the detectives.
* * *
There was no evidence presented that the defendant was not alert or disoriented at the time of his interview. There was no evidence presented by any mental health professionals to substantiate any medical treatment that the defendant was receiving at that time. That there was any diagnosis that thе defendant was receiving medication, or receiving any treatment at the VA to confirm or even suggest that
the defendant was not competent or sane at the time of his interrogation and interview. The defendant‘s statement was I believe proper, it was given knowingly and voluntarily[.] He had an opportunity to write his statement without any pressure from the two detectives. They did stand outside the door but only because they were instructed not to leave him alone. And he provided a very detailed three and-a-half or three full pages provided to the detectives. And the majority of the interview, I think which lasted more than three hours, was allowing the defendant an opportunity to write his statement.
So I note that he was not interviewed in his hospitalization room, and that his statement was a proper statement, again knowingly and voluntarily given, after he waived his right to counsel.
{¶31} We agree with the trial court‘s analysis. Maresh‘s statement to Loeding was not coerced, nor was it involuntary. Accordingly, the trial court properly denied Maresh‘s motion to suppress.
{¶32} The first and second assignments of error are overruled.
Standard of Review
{¶33} In the third assignment of error, Marеsh argues the trial court erred by finding that
{¶34} However, in State v. Fortson, 8th Dist. Cuyahoga No. 92337, 2010-Ohio-2337, this court stated:
Sexual battery in violation of
R.C. 2907.03(A)(6) is a strict liability offense; therefore, an offender‘s state of mind, or mens rea, is irrelevant in determining guilt.R.C. 2907.03(A)(6) states that “[n]o person shall engage in sexual conduct with another * * * when * * * [t]he other person is in custody of law * * * and the offender has supervisory or disciplinary authority over the other person.” Additionally,R.C. 2901.21(B) states that “[w]hen the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense.”
See also State v. Singleton, 11 Dist. Lake No. 2002-L-077, 2004-Ohio-1517, at ¶ 56 (holding that sexual battery of a victim “under the direct control or supervision” of the offender is a strict liability offense).
{¶35} Based on the foregoing, the trial court, in the instant case, considered the correct mental state during its deliberations.
{¶36} Therefore, the third assignment of error is overruled.
Sufficiency of the Evidence
{¶37} In the fourth assignment of error, Maresh contends that there was no evidence presented that B.M. was placed in custody or detained against her will as required by
Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶39} Maresh focuses his sufficiency argument on his sexual battery conviction in violation of
[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he other person is in custody of law or a patient in a hospital оr other institution, and the offender has supervisory or disciplinary authority over the other person.
{¶40} Maresh argues that the state failed to present any evidence that B.M. was placed in custody or detained against her will. Rather, he claims the evidence demonstrates that B.M. “buzzed” Maresh into her apartment and she knew that “sex was going to happen.”
{¶41} However, as the Third District Court of Appeals in State v. Chipps, 3d Dist. Union Nos. 14-82-1 and 14-82-2, 1983 Ohio App. LEXIS 13030, *3 (May 17, 1983), stated:
R.C. 2907.03(A)(6) represents an exception to the general rule which permits sexual activity between consenting adults. As reflected in the committee comment[,] the section proscribеs even voluntary sexual activity between an inmate and a person who has supervisory or disciplinary authority over the inmate. The purpose of the statute is to protect from sexual abuse those who come under the care and custody of the State. The statute is directed at those situations where the offender, through power conferred by the State, is able to coerce or force sexual activity by the misuse of that authority.
See also State v. Arega, 10th Dist. Franklin No. 12AP-263, 2012-Ohio-5774, ¶ 14.
{¶42} The Ohio Supreme Court has stated that
[p]robation * * * merely grants grace to the guilty person with the evident purpose of helping him to reform; yet the рrobated offender is still under surveillance although at large. He is not a free man; he is subject to the restraints and conditions imposed by the court during the period of his temporary freedom.
State ex rel. Gordon v. Zangerle, 136 Ohio St. 371, 376-377, 26 N.E.2d 190 (1940).
{¶43} In the instant case, the record demonstrates that B.M. was under probation with the Parma Municipal Court at the time of both incidents. It is clear that she was Maresh‘s probationer. She began to report to Maresh on June 5, 2012. As B.M.‘s probation officer, Maresh was a direct link between B.M. and the judge. Maresh was responsible for supervising B.M., making sure she did what the judge ordered her to do, and notifying the judge if B.M. violated any of the terms of her court-ordered probation. Therefore, B.M.‘s status as a probationer, the several conditions imposed on B.M., and the consequences B.M. faced for violating the
{¶44} Therefore, after viewing the evidence in a light most favorable to the state, we conclude that any rational trier of fact could have found the essential elements of sexual battery, in violation of
{¶45} Aсcordingly, the fourth assignment of error is overruled.
Manifest Weight of the Evidence
{¶46} In the fifth assignment of error, Maresh argues his conviction under
{¶47} We note that in contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52, 678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:
[T]he reviewing court asks whose evidence is more persuasive — the state‘s or the defendant‘s? * * * “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” [Thompkins at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.
{¶48} Moreover, an appellate court may not merely substitute its view for that of the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case in which the evidence weighs heavily against the conviction.‘” Id., quoting Martin.
{¶49} In the instant case, any conflicting testimony as to whether B.M. and Maresh‘s sexual encounters were consensual is inconsequential to Maresh‘s conviction under
{¶50} Therefore, the fifth assignment of error is overruled.
{¶51} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, A.J., and LARRY A. JONES, SR., J., CONCUR