[Cite as In re B.J., 2014-Ohio-5701.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF: B.J., : OPINION DELINQUENT CHILD. : CASE NO. 2013-L-091
Appeal from the Lake County Court of Common Pleas, Juvenile Division. Case No. 2013 DL 00998.
Judgment: Affirmed in part, reversed and vacated in part.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee State of Ohio).
Neil R. Wilson, Neil R. Wilson Co., L.P.A., FirstMerit Bank Building, 56 Liberty Street, Suite 205, Painesville, OH 44077 (For Appellant B.J., a minor).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, B.J., a minor, appeals an adjudication of delinquency by the
Lake County Court of Common Pleas, Juvenile Division, for unlawful possession of a
dangerous ordnance, illegal manufacture or processing of explosives, and complicity to
criminal mischief. We find appellant’s second assignment of error with merit to the
extent discussed below and reverse the finding of “true” by the trial court on those
counts. {¶2} On August 12, 2013, an amended complaint was filed against appellant
alleging seven counts of delinquency. The complaint alleged that appellant committed
certain acts that, had he been an adult, would have constituted the following offenses:
Count One - Unlawful Possession of a Dangerous Ordnance in violation of R.C. 2923.17(A);
Count Two - Illegal Manufacture or Processing of Explosives in violation of R.C. 2923.17(B);
Count Three - Complicity to Unlawful Possession of Dangerous Ordnance in violation of R.C. 2923.03(A)(2);
Count Four - Complicity to Illegal Manufacture or Processing of Explosive in violation of R.C. 2923.03(A)(2);
Count Five - Complicity to Criminal Mischief in violation of R.C. 2923.03(A)(2);
Count Six - Complicity to Criminal Mischief in violation of R.C. 2923.03(A)(2); and
Count Seven - Disorderly Conduct in violation of R.C. 2917.11(A)(1).
{¶3} Appellant entered a plea of “not true” to Counts One through Six.
Appellant pled no contest to Count Seven, disorderly conduct.
{¶4} On August 16, 2013, a suppression hearing was held at which appellant
sought to have his interview with Matthew Gosnik, an officer with the Madison Township
Police Department, suppressed. At the hearing, the court heard the testimony of Officer
Gosnik and of appellant’s father. The court then overruled the motion to suppress,
finding that appellant was not in police custody and that the questioning was a
“consensual conversation.”
{¶5} Immediately after the suppression hearing, a trial was held. At trial, the
state called the following as witnesses: Officer Matthew Gosnik; David Green, a
2 criminalist at the Lake County Crime Laboratory; and the three other juveniles involved
in the March 9, 2013 incidents. The defense did not call any witnesses. The court
found the complaint “true” as to Count One, unlawful possession of a dangerous
ordnance; Count Two, illegal manufacture or processing of explosives; and Count Five,
complicity to criminal mischief. The court found the complaint “not true” as to Count
Three, Count Four, and Count Six.
{¶6} The court ordered appellant to a minimum of six months in the legal
custody of Ohio Department of Youth Services (“DYS”) and a maximum period not to
exceed appellant attaining the age of 21 on Count One; a minimum of one year in the
legal custody of Ohio DYS and a maximum period not to exceed appellant attaining the
age of 21 on Count Two; and 90 days in the Lake County Juvenile Detention Facility on
Count Five. The commitment of appellant to both Ohio DYS and the Lake County
Juvenile Detention Facility was suspended on the condition that appellant “follows rules
of Court and laws of the State of Ohio.”
{¶7} The facts adduced at trial are relatively undisputed. During the afternoon
of March 9, 2013, three other juveniles went to the Wal-Mart on North Ridge Road and
purchased the materials necessary to create a “Works Bomb.”1 A Works Bomb is
typically assembled using three common household products—an empty plastic soda
bottle, toilet bowl cleaner, and aluminum foil. First, aluminum foil is inserted into an
1. Works Bombs are evidently extremely popular. Indeed, the growing prevalence of Works Bombs has been reported by groups as diverse as the CDC, NPR, Slate, and the UK Daily Mail (which reported an 18-year-old Utah beauty pageant queen was forced to return her crown after an indictment on charges similar to those in this case). Daily Mail Reporter, Beauty Queen Accused of Throwing Homemade Explosives Agrees to Plea Deal (Sept. 26, 2013), available at http://www.dailymail.co.uk/news/article- 2434079/Kendra-Gill-Utah-Beauty-queen-accused-throwing-homemade-explosives-agrees-plea- deal.html. A search for “Works Bomb” on YouTube.com returns nearly a quarter-million videos of backyard bomb builders.
3 empty plastic bottle. Next, toilet bowl cleaner is added, and the bottle is sealed by
screwing on the cap. Once sealed, the chemical reaction between the aluminum foil
and the toilet bowl cleaner releases gases. This causes the pressure in the bottle to
build until it exceeds what the bottle can withstand. At this point, the bottle explodes.
{¶8} After purchasing their necessary supplies, the three juveniles returned to
one of their homes. Sometime shortly thereafter, appellant joined the other juveniles.
The four juveniles rolled aluminum foil into balls, thereby beginning the process of
assembling the Works Bombs. Appellant participated in rolling several pieces of foil into
balls.
{¶9} At around eight or nine o’clock that evening, the four boys drove in one of
the juvenile’s trucks to Wood Road. Once at Wood Road, one of the juveniles added
toilet bowl cleaner to one of the plastic bottles that contained aluminum foil. The bottle
was then sealed with a cap and thrown into an open field. The four juveniles waited in
the vehicle for the Works Bomb to explode. Once the Works Bomb exploded, the
juveniles drove away.
{¶10} The juveniles set off additional Works Bombs that evening, including one
on Townline Road and one on Hazel Road, which were thrown into the front yards of
occupied homes. No evidence was presented at trial that any of the Works Bombs
discharged that evening caused any personal injury or property damage. Indeed, none
of the incidents that evening were reported to the police. Police began investigating the
March 9, 2013 incidents when investigating another string of Works Bomb explosions
that did not implicate or otherwise involve appellant.
4 {¶11} On March 25, 2013, Officer Matthew Gosnik from the Madison Township
Police Department contacted appellant’s father upon learning that appellant may have
been involved in the March 9, 2013 incidents. Appellant’s father arranged to bring
appellant to the police department for questioning later that day.
{¶12} Appellant’s father drove appellant to the police station to be interviewed.
Officer Gosnik, who was in full uniform, escorted appellant and his father to an interview
room at the station. Once in the interview room, Officer Gosnik decided not to inform
appellant of his Miranda rights. Officer Gosnik testified at the suppression hearing that
he did not read appellant his Miranda rights because he did not think he was conducting
a custodial interrogation.
{¶13} During the course of the interview, appellant confessed to having rolled up
pieces of aluminum foil to be used in the Works Bombs as well as being in the truck
when the three other juveniles threw the Works Bombs. Appellant made a written
statement consistent with his verbal confession.
{¶14} Appellant timely appeals the adjudication of delinquency, raising two
assignments of error. Appellant’s first assignment of error states:
{¶15} “The trial court erred when it failed to grant the motion of the appellant to
suppress statements made to a police officer while he was in custody and had not been
given his Miranda warnings.”
{¶16} Under this assignment of error, appellant argues that his statement made
to police should have been suppressed because appellant did not come to the police
station voluntarily, was not advised of his right to remain silent, and was subject to
coercive pressure to confess.
5 {¶17} The requirement that police administer Miranda warnings is triggered only
when interrogations are custodial in nature. State v. Lynch, 98 Ohio St.3d 514, 2003-
Ohio-2284, ¶47 (citation omitted). Custodial interrogation means “questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S.
436, 444 (1966).
{¶18} In determining whether an individual is in custody for the purposes of
Miranda, the court considers “the circumstances surrounding the interrogation” and
whether, under those circumstances, “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 (1995). A non-custodial interrogation becomes custodial when there is a
“formal arrest or restraint on freedom of movement” similar to that of a formal arrest.
California v. Beheler, 463 U.S. 1121, 1125 (1983) (citation omitted). A determination of
whether an interrogation is custodial or non-custodial depends on the objective
circumstances of the interrogation, not the subjective views held by either the officer or
the person being questioned. Stansbury v. California, 511 U.S. 318, 323 (1994).
{¶19} In the present case, we recognize there are factors weighing both for and
against a finding that the interview was custodial. Weighing against a finding that the
interview was custodial is the fact that B.J. was told he did not need to talk. However,
appellant was also told that “he didn’t want to be the only guy not telling the truth.” The
fact that the interview took place in a police interview room, at a station to which
appellant was brought by his father, weighs in favor of a finding that the interview was
custodial. Officer Gosnik told appellant that he faced “consequences” for his actions.
6 At the suppression hearing, Officer Gosnik testified that by “consequences” he meant
that appellant would be charged in the juvenile system. However, appellant’s father
was also present in the interview room. This factor weighs against a finding that the
interview was custodial. See In re C.M., 8th Dist. Cuyahoga No. 99599, 2013-Ohio-
5426, ¶42-44. In addition to being present in the room, appellant’s father was insistent
that appellant give a statement to the officer about the incidents in question. The
interview was of a short duration, lasting less than 30 minutes. Finally, B.J.’s age
weighs against a finding that the interview was custodial. At the time of the interview,
B.J was 17 years old and, by all accounts, a mature and intelligent individual.
{¶20} Weighing all the circumstances surrounding appellant’s interrogation, we
find that appellant was not in custody at the time of his confession.
{¶21} Appellant’s first assignment of error is without merit.
{¶22} In his second assignment of error, appellant states:
{¶23} “The trial court erred when it made findings of true to counts 1, 2, 5, and 7,
where there was no evidence or insufficient evidence to arrive at a finding of true.”
{¶24} Under this assignment of error, appellant challenges the sufficiency of the
evidence supporting the findings of “true.”
{¶25} The standard of review applied in determining whether a juvenile court’s
finding of delinquency is supported by sufficient evidence is the same standard applied
in adult criminal convictions. In re J.A.S., 12th Dist. Warren No. CA2007-04-046, 2007-
Ohio-6746, ¶11.
{¶26} When measuring the sufficiency of the evidence, an appellate court “must
consider whether the state set forth enough adequate evidence to sustain the jury’s
7 verdict as a matter of law.” Kent v. Kinsey, 11th Dist. Portage No. 2003-P-0056, 2004-
Ohio-4699, ¶11, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A verdict is
supported by sufficient evidence when, after viewing the evidence most strongly in favor
of the prosecution, there is substantial evidence upon which a jury could reasonably
conclude that the state proved all elements of the offense beyond a reasonable doubt.
State v. Schaffer, 127 Ohio App.3d 501, 503 (11th Dist.1998), citing State v. Schlee,
11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *14-15 (Dec. 23, 1994).
{¶27} Under Count One, appellant was charged with unlawful possession of a
dangerous ordnance in violation of R.C. 2923.17(A). R.C. 2923.17(A) states: “[n]o
person shall knowingly acquire, have, carry, or use any dangerous ordnance.”
Appellant’s sufficiency of the evidence challenge requires us to closely examine the
revised code sections related to the regulation of dangerous ordnances.
{¶28} As it applies in R.C. 2923.17, “dangerous ordnance” means “[a]ny
explosive device or incendiary device[.]” R.C. 2923.11(K)(2). Furthermore, an
“explosive device” is “any device designed or specially adapted to cause physical harm
to persons or property by means of an explosion, and consisting of an explosive
substance or agency and a means to detonate it.” R.C. 2923.11(H). The definition of
“explosive device” includes, without limitation, “any bomb, any explosive demolition
device, any blasting cap or detonator containing an explosive charge, and any pressure
vessel that has been knowingly tampered with or arranged so as to explode.” Id.
{¶29} R.C. 2923.11(L)(6) also provides a number of exclusions as to what
constitutes a “dangerous ordnance.” Specifically, “dangerous ordnance” does not
include “[a]ny device that is expressly excepted from the definition of a destructive
8 device pursuant to the ‘Gun Control Act of 1968,’ 82 Stat. 1213, 18 U.S.C. 921(a)(4), as
amended, and regulations issued under that act.” Id. The Gun Control Act specifically
excludes any device that is not designed or redesigned for use as a weapon. 18 U.S.C.
921(a)(4).
{¶30} Accordingly, to prove that appellant possessed a “dangerous ordnance,”
the state must prove three elements. The device must “(1) be comprised of an
explosive substance or agency; (2) have a means to detonate; and (3) be ‘designed or
specifically adapted’ to cause physical harm to persons or property.” In re S.R., 182
Ohio App.3d 803, 2009-Ohio-3156, ¶22 (12th Dist.), citing R.C. 2923.11(H).
{¶31} In this case, the state failed to prove that the Works Bombs in question
were “designed or specifically adapted” to cause physical harm to persons or property.
Accordingly, the finding of “true” for possession of a dangerous ordnance in violation of
R.C. 2923.17(A) is not supported by the evidence.
{¶32} Our conclusion that a Works Bomb does not constitute a dangerous
ordnance is based on the specific, undisputed facts of this case. Here, appellant and
three other juveniles discharged multiple Works Bombs; however, the evidence does
not establish that any of them were discharged in a way “designed or specifically
adapted” to cause physical harm to persons or property. At least one Works Bomb was
discharged in an open field, while two others were discharged in residential
neighborhoods mere feet off the road. No individuals or structures were in close
proximity to the locations where the Works Bombs were discharged. Had the Works
Bombs been discharged in a manner that caused or created a substantial risk of
9 causing harm to persons or property, the court may have concluded it was consistent
with use as a weapon. However, there is no such evidence in the record of this case.
{¶33} Our conclusion that a Works Bomb does not constitute a dangerous
ordnance when it is discharged in an area devoid of people or structures is consistent
with that reached by the Twelfth Appellate District when deciding the issue under very
similar facts. The Twelfth District stated a Works Bomb is not a dangerous ordnance
when it is “neither used as a weapon nor ‘designed or specifically adapted’ to cause
damage to persons or property.” In re S.R., supra, at ¶35. In that case, the “[a]ppellant
went to a remote location, constructing the device on a grassy area near the parking lot
at a vacant pool complex. Moreover, no actual damage resulted from the detonation of
the bomb.” Id. Similarly in this case, the group of juveniles discharged the Works
Bombs in areas away from where they could cause any physical harm to persons or
property.
{¶34} The conclusion reached by this court and the Twelfth District departs from
the one reached by the Tenth Appellate District. The Tenth District held that a Works
Bomb constituted a “dangerous ordnance” when it was discharged in a public park
because it “can cause physical harm to persons or property.” In re Travis, 110 Ohio
App.3d 684, 690 (10th Dist.1996). The Twelfth District, in distinguishing In re S.R. from
In re Travis, stated that “the Tenth Appellate District disregarded the actual elements of
the offense. Instead, the court focused upon the capability of bottle bombs, the general
notion that detonating a bottle bomb is ‘wrong,’ * * * rather than examine whether the
bomb was ‘designed or specifically adapted’ to cause damage[.]” In re S.R., supra, at
¶38. Specifically, in In re Travis, the court did not consider whether the device in
10 question was “designed or specifically adapted” to cause physical harm to persons or
{¶35} We agree with the conclusion reached by the Twelfth District in In re S.R.,
that when a Works Bomb is not designed or specifically adapted to cause damage, it
does not fit within the statutory definition of “dangerous ordnance.” As statutory
definitions and penalties must be “strictly construed against the state, and liberally
construed in favor of the accused,” pursuant to R.C. 2901.04(A), this is the only
reasonable conclusion. Accordingly, the trial court’s finding of “true” on Count One is
not supported by sufficient evidence.
{¶36} Under Count Two, appellant was charged with illegal manufacture or
processing of explosives in violation of R.C. 2923.17(B). R.C. 2923.17(B) states, “[n]o
person shall manufacture or process an explosive at any location in this state * * *.”
R.C. 2923.11(M) defines “explosive” as:
[A]ny chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion. ‘Explosive’ includes all materials that have been classified as division 1.1, division 1.2, division 1.3, or division 1.4 explosives by the United States department of transportation in its regulations and includes, but is not limited to, dynamite, black powder, pellet powders, initiating explosives, blasting caps, electric blasting caps, safety fuses, fuse igniters, squibs, cordeau detonant fuses, instantaneous fuses, and igniter cords and igniters.
{¶37} We initially note the Ohio Legislature made changes to the Ohio Revised
Code in 2008 that greatly broadened the definition of what constitutes an explosive.
Prior to that amendment, the term “explosive” did not include any explosive that was not
subject to regulation under the rules of the fire marshal. The amended definition of
explosive seems to include, without limit, everything that may function by explosion.
11 {¶38} In this case, appellant limits his challenge to the sufficiency of the
evidence and does not challenge the breadth of the definition of explosive in R.C.
2923.11(M). Therefore, so long as the state set forth adequate evidence to sustain the
jury’s verdict as a matter of law, the trial court’s finding of “true” as to Count Two must
be upheld.
{¶39} The Works Bombs fit within the definition of explosive in R.C. 2923.11. A
Works Bomb is a mixture that, when brought together, functions to explode. Appellant
directs us to several cases where Works Bombs were held not to constitute
“explosives.” See State v. Dommer, 162 Ohio App.3d 404, 406 (5th Dist.2005); State v.
Young, 5th Dist. Stark No. 2005CA00009, 2005-Ohio-3925, ¶11. However, these cases
were decided before R.C. 2923.11(M) was amended. The prior version of the statute
contained the following provision: “‘[e]xplosive’ does not include * * * any explosive that
is not subject to regulation under the rules of the fire marshal.” That portion of the
statute was relied upon by the Fifth District when it made its decisions in Dommer and
Young; however, it was removed from the statute in 2008. Based on the new version of
the statute, the Works Bombs at issue here fall within the R.C. 2923.11(M) definition of
explosive, which essentially includes any device, “the primary or common purpose of
which is to function by explosion.”
{¶40} Furthermore, sufficient evidence was presented at trial to find that
appellant “manufacture[d] or process[ed]” an explosive. Neither term is defined in R.C.
2923.11. Undefined language must be construed according to its ordinary and common
usage. See R.C. 1.42. Here, appellant participated in the assembly and manufacture
of the Works Bombs. There was testimony by the other participants regarding
12 appellant’s involvement. In addition, appellant told Officer Gosnik that he rolled
aluminum foil and put it in the bottles. Appellant’s statements to Officer Gosnik are
sufficient to show that appellant engaged in the manufacture of the Works Bombs.
{¶41} We acknowledge that under the various definitions in R.C. 2923.11, we
are forced to the seemingly inconsistent conclusion that the Works Bombs, as used in
this case, fit within the definition of “explosive” but not within that of either “explosive
device” or “dangerous ordnance.” However, we must assume the legislature had good
reason to define each of these terms separately and differently. As a result, the trial
court’s finding of “true” on Count Two is supported on the record by sufficient evidence.
{¶42} Under Count Five, appellant is charged with complicity to unlawful
possession of a dangerous ordnance in violation of R.C. 2923.03(A)(2). R.C.
2923.03(A)(2) states that “[n]o person, acting with the kind of culpability required for the
commission of an offense, shall * * * [a]id or abet another in committing the offense[.]”
{¶43} We have previously determined insufficient evidence was presented to
find appellant committed the offense of Count One, unlawful possession of a dangerous
ordnance. Having found the evidence failed to establish that a predicate offense was
committed, the delinquency finding for complicity to the underlying offense must also be
based on insufficient evidence. See R.C. 2923.03(C).
{¶44} Appellant’s assignment of error also challenges the sufficiency of the
evidence with respect to Count Seven, disorderly conduct. However, appellant entered
a plea of no contest to this charge. A plea of no contest is an admission of the truth of
the facts alleged in the complaint. Crim.R. 11(B)(2). There is no record of the plea
13 hearing that resulted in the finding of “true” to this offense. Therefore, we have no basis
upon which to vacate the finding of “true” to Count Seven.
{¶45} Appellant’s second assignment of error is well taken to the extent
discussed above. As the judgment of the Lake County Court of Common Pleas,
Juvenile Division, finding appellant delinquent on Counts One and Five is not supported
by the evidence, appellant’s delinquency on those two counts is reversed and vacated.
CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.
____________________
CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.
{¶46} I agree with the majority’s disposition and rationale of appellant’s first
assignment of error. I also agree with the majority’s disposition and rationale of the
second assignment of error as they relate to Counts Two, and Five. I do not, however,
agree with the majority’s disposition of Count One. In this regard, I respectfully dissent.
{¶47} As the majority notes, the state was required to establish, beyond a
reasonable doubt, that appellant possessed a “dangerous ordnance” to adjudicate him
delinquent for violating R.C. 2923.17(A). To establish that an object is an “explosive
device” and, therefore a “dangerous ordnance,” the state must prove the device was (1)
comprised of an explosive substance; (2) was capable of detonating; and (3) “designed
or specifically adapted” to cause physical harm to persons or property. In re S.R., 182
14 Ohio App.3d 803, 2009-Ohio-3156 (12th Dist.); see also R.C. 2923.11(H). The majority
concludes the evidence failed to establish the devices were “designed or specifically
adapted” to cause harm because they were detonated at locations where no persons or
property were located. It is factually true that the devices were detonated at locations
where no persons or property could have been harmed. The inquiry, however, cannot
end with this acknowledgement. Instead, given the evidence, I would hold the record
supports the conclusion that the devices were specifically adapted to cause physical
harm.
{¶48} The third element of “explosive device” requires a factual analysis of
whether the particular device in question was “designed or specifically adapted” to
cause damage. It does not necessarily require an analysis of the specific intent or
destructive purpose of the individual(s) charged with creating or possessing the object.
An empty two-liter plastic bottle of soda will not, by itself, explode. When toilet cleaner
and aluminum foil are added and the bottle is shaken, the bottle has become specifically
adapted to explode. Furthermore, the state’s expert, David A. Green, testified that he
had created Works bombs and such bombs are capable of generating tremendous
pressure that can cause damage to person or property within a five- to six-foot range of
the explosion. Viewing the facts as a whole, therefore, the bottles that became the
vehicles for the bombs were, at the very least, specifically adapted to cause physical
harm to persons or property.
{¶49} The majority’s conclusion focuses upon the remoteness or unpopulated
nature of the location where the devices were discharged. In doing so, it appears the
majority emphasizes the element of “design.” Conceptually, the element of “design” not
15 only implicates the bomb-builder’s manner of construction, but also his or her particular
purpose; namely, whether, in constructing the device, he or she had the intent or
purpose to physically harm persons or property. In this respect, I agree that, given the
locations where the bombs were detonated in this case, it was not the builders’ “design”
to cause physical harm to persons or property.
{¶50} In this case, however, there were facts to support the conclusion that the
plastic bottles were specifically adapted in such a way to cause physical harm,
regardless of the bomb-builders’ end, purpose, or goal. Because the third element is
disjunctive, I would hold that sufficient evidence was produced to support the conclusion
that the plastic soda bottles were specifically adapted to detonate, explode and, as a
result, cause physical harm to persons or property. There was therefore adequate
evidence to support the conclusion the Works bombs in this case were dangerous
ordnances.
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring and Dissenting Opinion.
{¶51} I concur with the majority’s well-reasoned disposition of the second
assignment of error. However, as I find the interrogation of B.J. was custodial, and he
was not given Miranda warnings, I would reverse and remand based on the first
assignment of error.
{¶52} The police differentiate between an “interview,” and an “interrogation.”
The purposes of an interview are to “[o]btain relevant information about the situation or
crime”; [e]stablish rapport with the subject”; and “to gather information and determine
16 facts.” Ohio Peace Officer Training Commission, Education & Policy Section, Peace
Officer Basic Training, Interview & Interrogation, Unit 11 – Topic 15, at 10 (Jan. 1, 2014)
(hereinafter, “Peace Officer Basic Training.”) It “generally has a non-accusatory tone.”
Id.
{¶53} By contrast, an interrogation is used not merely to gather information
relevant to an investigation, but to “establish innocence,” or to obtain information leading
“to a confession or an admission.” Peace Officer Basic Training at 13. (Emphasis
added.) In this case, five boys were suspects. B.J was the fourth interviewed – Officer
Gosnik already knew the course of events from the prior interrogations. The only and
obvious purpose of speaking to B.J. was to elicit a confession, and his part in the
offenses.
{¶54} There are numerous recommended techniques for the police to use in
conducting interrogations. Peace Officer Basic Training at 22-28. Several appear in
this case. For “[m]ultiple subject interrogations,” the manual recommends: (1) splitting
“the subjects into separate rooms”; (2) advising “one suspect the other is blaming
him/her for everything”; and (3) using “each suspect’s statement against each other as
discrepancies are discovered.” Id. at 26. Here, each boy was interviewed separately;
Officer Gosnik specifically advised B.J. that he did not want to be the only boy not giving
his version of the events; and, each boy was questioned regarding differences in their
versions of events. The last advice given for interrogations in Police Officer Basic
Training is for the interrogator to “[p]oint out advantages of confessing/giving relevant
information and disadvantages of not.” Id. at 28. Again, the statement that B.J. did not
want to be the only boy not giving his version of events served this purpose.
17 {¶55} B.J. was clearly subjected to an interrogation, meant to elicit a confession,
using recommended techniques for achieving this result. The only question remaining
is whether the interrogation was custodial – i.e., whether a reasonable person would
feel free to stop the interrogation, and leave. Thompson, supra, at 112. For purposes
of Miranda, “A court must look at the totality of the circumstances in order to determine
whether an individual is in custody at any given time.” State v. Tate, 7th Dist. Mahoning
No. 07 MA 130, 2008-Ohio-3245, ¶44, citing California v. Beheler, 463 U.S. 1121, 1125
(1983).
{¶56} Having reviewed the interrogation of B.J., I conclude, under the totality of
the circumstances, he would not have felt free to leave, or discontinue it. As the
majority notes, the fact it was conducted at the police station, and that Officer Gosnik
told B.J. he did not want to be the only boy involved who did not confess, tend to show
the interview was custodial.
{¶57} The majority observes the interrogation was conducted with B.J.’s father
present, and that the courts of Ohio have said this militates against a finding that an
interrogation of a juvenile was custodial. I agree. However, as the majority further
notes, B.J.’s father was insistent his son tell Officer Gosnik exactly what had occurred,
essentially compelling B.J. to confess. Further, B.J’s father was his son’s transportation
to and from the police station. In effect, B.J.’s father was used to reinforce his son’s
feeling that he could not stop the interrogation, and leave.
{¶58} It seems clear B.J.’s father did not realize that his son’s statements could
be used as a confession, and that he was a suspect. Even though he was told he could
leave, the carefully engineered environment demonstrated otherwise. Police Officer
18 Basic Training warns that “psychological coercion” will invalidate a confession. Id. at
19. I agree. The entire purpose of Miranda is to place the parties – the state and the
suspect – in a position where suspects know and understand their rights, and their
statements are truly voluntary.
{¶59} It is morally admirable that parents advise their children to be honest
about potentially bad acts those children have committed. However, a juvenile’s right to
counsel, and to refuse to speak to police when under investigation, are constitutional
rights pertaining to the juvenile, not his or her parents. The juvenile must be the one to
waive these rights, not a parent. While well-intentioned, B.J.’s father was instrumental
in the boy’s decision to confess. In order to maintain the public trust, the police must be
especially mindful that a juvenile and his or her parents make knowing and voluntary
decisions when under interrogation, with full knowledge of the juvenile’s rights, and the
potential consequences. And while in this case, B.J.’s father told Officer Gosnik he
doubted the boy had considered the collateral consequences flowing from his actions, I
am somewhat dubious anyone other than a lawyer experienced in the juvenile justice
system would understand how serious these collateral effects on a child’s future
opportunities for schooling, job training, and employment can be. Parents are generally
not cognizant of these liabilities. Indeed, I must assume that B.J. and his family have
finally come to realize this, since there is an appeal at all.
{¶60} A reasonable juvenile in B.J.’s position would not have felt free to leave
the interrogation, or terminate it. He was in custody, and should have received his
Miranda warnings. I respectfully concur and dissent.