State v. White

• Decision Date: 03 August 2018
• Docket Number: No. 27749,27749
• Citation: 118 N.E.3d 410,2018 Ohio 3076
• Parties: STATE of Ohio, Plaintiff-Appellee v. Jermar W. WHITE, Defendant-Appellant
• Court: Ohio Court of Appeals

118 N.E.3d 410

2018 Ohio 3076

STATE of Ohio, Plaintiff-Appellee

v.Jermar W. WHITE, Defendant-Appellant

No. 27749

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on August 3, 2018

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5^th Floor, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee.

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449, Attorney for Defendant-Appellant.

OPINION

FROELICH, J.

{¶ 1} Jermar W. White was convicted after a bench trial in the Montgomery County Court of Common Pleas of unlawful sexual conduct with a minor (10 or more years older than the victim), pandering obscenity involving a minor, two counts of trafficking in persons, and two counts of compelling prostitution in furtherance of human trafficking. White was acquitted of two additional charges. The trial court designated him a Tier II sex offender and sentenced him to concurrent sentences totaling 11 years in prison.

{¶ 2} White appeals from his convictions, raising five assignments of error. He claims that (1) the trial court erred in denying his motion to suppress evidence, (2) his convictions were based on insufficient evidence and against the manifest weight of the evidence, (3) he received ineffective assistance of counsel, (4) the trafficking in persons statute, R.C. 2905.32(A)(2)(a), is unconstitutionally vague, and (5) the State engaged in misconduct when it offered at trial the testimony of his co-defendant, Iesha Heard.

{¶ 3} For the following reasons, the trial court's judgment as to the charge of pandering obscenity involving a minor (Count 4) will be reversed. In all other respects, the trial court's judgment will be affirmed.

I. Motion to Suppress

{¶ 4} In his first assignment of error, White claims that the trial court erred in failing to suppress statements that he made to the police, as well as evidence that was seized pursuant to a search warrant that was obtained in reliance on those statements.

{¶ 5} In deciding a motion to suppress, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Pence , 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing State v. Hopfer , 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court of appeals must accept the trial court's findings of fact if they are supported by competent, credible evidence in the record. State v. Isaac , 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford , 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, the appellate court must then determine as a matter of law, without deference to the trial court's legal conclusion, whether the applicable legal standard is satisfied. Id.

{¶ 6} Detective John Howard of the Dayton Police Department, Street Crimes Unit, was the sole witness at the suppression hearing. The State also presented two exhibits: (1) a DVD of Howard's interviews with White and Heard at the police station, and (2) a search warrant packet for the home where White was staying. Howard's testimony and the State's exhibits established the following facts.

{¶ 7} In April 2016, 15-year-old J.J. met White (age 31) and White's girlfriend, Heard, at a friend's house in Huber Heights. White was introduced as "Shiloh." Approximately three weeks later, on or about May 8, 2016, J.J. was walking with two friends when a car driven by White pulled up; Heard was in the front passenger seat. J.J. entered the vehicle, and they went to a residence on Lilac Avenue in Dayton.

{¶ 8} On May 10, 2016, J.J reported several encounters that she had with "Shiloh" to two employees at her school. The employees transported J.J. to the police department, where J.J. indicated that sexual conduct and activity occurred in a house, which she could describe. J.J. described White and Heard and the vehicle they were driving. J.J. directed a uniformed officer to the house on Lilac Avenue.

{¶ 9} The police conducted surveillance on the residence. The police saw White and Heard enter the vehicle that J.J. had described. Officers conducted a traffic stop of the vehicle, and White and Heard were transported to the police station.

{¶ 10} Detective Howard and Detective Mistan Bailey were assigned to the case. Their unit, the Street Crimes Unit, investigates street-level drug dealers, prostitution, human trafficking, and liquor permits, with an emphasis on prostitution and human trafficking. Detective Howard separately interviewed J.J., Heard, and White at the police station on May 10; Detective Bailey was present and took notes. Both of the interviews of Heard and White occurred in an interview room that was equipped with an audiovisual recording device. Heard corroborated many of the statements that J.J. had made.

{¶ 11} Detective Howard spoke with White after interviewing Heard. After confirming White's name and address and asking a few preliminary questions, Howard advised White of his Miranda rights using a card that he was provided by the prosecutor's office. White stated that he understood each of his rights. Howard asked White a few additional questions, and White answered.

{¶ 12} Shortly after the questioning began, White stated, "I really don't right now even want to answer any questions," and he expressed that he thought he was brought to the police station illegally and described how he was brought there. Howard responded, "So do you want to talk to me or do you not." White replied that he did not know what the process was, and he wanted to know if he would be booked into the jail that night. The detectives explained that it was a possibility that White would go to jail. For approximately ten minutes, Howard asked more questions about what occurred between White, Heard, J.J., and S.M. (another juvenile victim), and White responded. White denied knowledge of the Backpage website, taking photos of S.M. and J.J., and having J.J. perform oral sex on him. At the end of the interview, Howard told White that he would be booked into the jail. The entire interview lasted approximately 15 minutes. White did not, at any time, indicate that he wanted a lawyer.

{¶ 13} Howard testified at the suppression hearing that White was then placed in a different interview room closer to the detectives' desks so that he (Howard) could complete paperwork. Shortly after being placed in the second room, which did not have audiovisual equipment, White knocked on the door, wanting to speak with Detective Howard. Howard and Bailey entered the room and told White that if he wanted to talk, they could return to the first interview room. White told the detectives that he did not want to go back to the other room, but that "people are always making these types of accusations or complaints against him." White stated that the "same thing happened two or three years ago." Detective Howard told White that if White wanted to keep talking, they could go back to the first interview room. White declined, and the detectives stopped talking with White.

{¶ 14} After the interview with White, the police obtained a search warrant for the residence on Lilac Avenue, which belonged to White's sister. The warrant was based on statements by J.J., Heard, and White. The warrant was signed by a judge and executed within three days.

{¶ 15} In denying White's motion to suppress, the trial court found that Howard advised White of his Miranda rights, that White "willingly participated in the conversation with the police officers" and "spoke freely to the police after acknowledging that he understood his rights." The trial court further found that White's statements were made voluntarily. Finally, the trial court concluded that the search warrant was supported by probable cause.

{¶ 16} Under the Fifth Amendment to the United States Constitution, no person shall be compelled to be a witness against himself or herself. In order to ensure that this right is protected, statements resulting from custodial interrogations are admissible only after a showing that the procedural safeguards described in Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed. State v. Earnest , 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶ 21. To counteract the coercive pressure of custodial interrogations, police officers must warn a suspect, prior to questioning, that he or she has a right to remain silent and a right to the presence of an attorney. Maryland v. Shatzer , 559 U.S. 98, 103–104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010), citing Miranda .

{¶ 17} A "suspect may effectively waive [his or her Miranda ] rights * * * only if the waiver is made voluntarily, knowingly and intelligently." State v. Dailey , 53 Ohio St.3d 88, 91, 559 N.E.2d 459 (1990), citing Miranda at 444, 86 S.Ct. 1602. Thus, a court may recognize the validity of a waiver of Miranda rights only if it finds that (1) "the relinquishment of the right[s] [was] voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception[,]" and (2) the person had "a full awareness of both the nature of the right[s] being abandoned and the consequences of the decision to abandon [them]." Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ; State v. Marejka , 2d Dist. Montgomery No. 27662, 2018-Ohio-2570, ¶ 14. "[A] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police." Berghuis v. Thompkins , 560 U.S. 370, 388-389, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). Courts examine the totality of the circumstances to determine whether a suspect has knowingly, intelligently, and voluntarily waived his or her Miranda rights....