[Cite as State v. Weiland, 2016-Ohio-5034.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2015CA00227 ROSS ALAN WEILAND
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2015 CR 1359
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 18, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO STEVEN A. REISCH Prosecuting Attorney, Stark County Public Defender’s Office Stark County, Ohio 201 Cleveland Avenue S.W., Suite 104 Canton, Ohio 44702 By: KRISTINE W. BEARD Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2015CA00227 2
Hoffman, P.J.
{¶1} Defendant-appellant Ross Alan Weiland appeals his conviction entered by
the Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 21, 2015, Officers from the Canton Police Department responded
to a call of an unresponsive female at 509 11 St. N.W., Canton, Ohio. Upon arrival, Officer
McIntosh entered and proceeded to the second floor of the residence. In the upstairs
bedroom, Officer McIntosh found emergency medical responders attending to an
unconscious female. The unconscious female was believed to have overdosed on heroin.
Other individuals were present outside of the bedroom; one individual was identified as
the husband of the unconscious female. That individual was later identified as Ross Alan
Weiland, Appellant herein.
{¶3} Appellant had called 911 after finding his wife, Monique, unresponsive from
a heroin overdose. Appellant and Monique had injected heroin twelve hours prior to
Appellant's call to 911. Responding emergency medical personnel attempted to
resuscitate Monique, but were unsuccessful.
{¶4} Emergency medical responders removed the woman from the residence
and transported her to the hospital, where she later passed away. Appellant asked Officer
McIntosh if he could go to the hospital with his wife. Officer McIntosh told Appellant the
best thing he could do was to cooperate in the investigation. Appellant told the officer
“that’s fine.” The entire encounter between Appellant and Officer McIntosh was captured
on Officer McIntosh's body camera. The recording was later introduced at the suppression
hearing herein. Stark County, Case No. 2015CA00227 3
{¶5} While Appellant was discouraged from accompanying his wife to the
hospital land told the best thing he could do was to cooperate in the investigation, he was
free to move about the house, with the exception of the bedroom where his wife was
found. Officers at the scene told Appellant he could be charged with a crime for aiding his
wife in obtaining heroin. As a result, Appellant told the officers where he obtained the
heroin. He explained his wife was attempting to "detox," was “cold and clammy,” and
talking "gibberish;" therefore, he injected her with heroin. When asked whether his wife
was able to inject herself with heroin, Appellant answered "no." When asked whether he
injected it for her, he replied, "yes." Following Appellant’s statements, the officers advised
Appellant of his Miranda rights.
{¶6} Later, Appellant voluntarily went with officers to the Canton Police
Department and cooperated with them in their investigation.
{¶7} On October 14, 2015, Appellant filed a motion to suppress the statements
made to officers at his residence. On November 6, 2015, the trial court conducted a
hearing on Appellant’s motion to suppress. Via Judgment Entry of November 20, 2015,
the trial court overruled the motion to suppress.
{¶8} On November 25, 2015, Appellant entered a plea of no contest to the
charges. On November 30, 2015, Appellant was convicted of the charges and the trial
court imposed a sentence of four years in prison.
{¶9} Appellant appeals, assigning as error,
{¶10} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS HIS STATEMENTS.” Stark County, Case No. 2015CA00227 4
I.
{¶11} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,
86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. State v. Williams, 86 Ohio
App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not
against the manifest weight of the evidence and it has properly identified the law to be
applied, an appellant may argue the trial court has incorrectly decided the ultimate or final
issue raised in the motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court's conclusion,
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623 (4th Dist.1993);
Guysinger.
{¶12} At the suppression hearing, it was established Appellant had contacted 911
when he found his wife unresponsive after he had injected her with heroin 12 hours
earlier. Officer McIntosh testified he responded to the emergency call of an unresponsive
female, believed to have overdosed on heroin. Appellant informed the officers of the
source of the heroin after he was told he could be charged with a crime for obtaining the Stark County, Case No. 2015CA00227 5
heroin. The officers told Appellant the best thing he could do was to cooperate with the
investigation. Appellant was discouraged from accompanying his wife to the hospital,
where she was declared dead due to the heroin overdose.
{¶13} Appellant told the officers his wife was attempting to “detox,” she was “cold
and clammy” and “talking gibberish;” therefore, he injected her. Appellant told the officers
his wife was unable to inject herself, so he had to inject her. He was then advised of his
Miranda rights. Tr. at 35. Appellant's bedroom he shared with his wife was filled with
needles. When asked by the officers to stay and answer questions, Appellant answered,
"that's fine."
{¶14} Appellant maintains, although the questioning took place in his home, he
was not free to leave and the officers did not give him permission to accompany his wife
to the hospital. Appellant maintains the questioning occurred in a custodial setting.
{¶15} The relevant inquiry is how a reasonable person in the suspect's position
would have understood the situation. Berkemer v. McCarty (1984), 468 U.S. 420, 441.
Relevant factors to consider in determining whether a custodial interrogation took place
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[Cite as State v. Weiland, 2016-Ohio-5034.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2015CA00227 ROSS ALAN WEILAND
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2015 CR 1359
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 18, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO STEVEN A. REISCH Prosecuting Attorney, Stark County Public Defender’s Office Stark County, Ohio 201 Cleveland Avenue S.W., Suite 104 Canton, Ohio 44702 By: KRISTINE W. BEARD Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2015CA00227 2
Hoffman, P.J.
{¶1} Defendant-appellant Ross Alan Weiland appeals his conviction entered by
the Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 21, 2015, Officers from the Canton Police Department responded
to a call of an unresponsive female at 509 11 St. N.W., Canton, Ohio. Upon arrival, Officer
McIntosh entered and proceeded to the second floor of the residence. In the upstairs
bedroom, Officer McIntosh found emergency medical responders attending to an
unconscious female. The unconscious female was believed to have overdosed on heroin.
Other individuals were present outside of the bedroom; one individual was identified as
the husband of the unconscious female. That individual was later identified as Ross Alan
Weiland, Appellant herein.
{¶3} Appellant had called 911 after finding his wife, Monique, unresponsive from
a heroin overdose. Appellant and Monique had injected heroin twelve hours prior to
Appellant's call to 911. Responding emergency medical personnel attempted to
resuscitate Monique, but were unsuccessful.
{¶4} Emergency medical responders removed the woman from the residence
and transported her to the hospital, where she later passed away. Appellant asked Officer
McIntosh if he could go to the hospital with his wife. Officer McIntosh told Appellant the
best thing he could do was to cooperate in the investigation. Appellant told the officer
“that’s fine.” The entire encounter between Appellant and Officer McIntosh was captured
on Officer McIntosh's body camera. The recording was later introduced at the suppression
hearing herein. Stark County, Case No. 2015CA00227 3
{¶5} While Appellant was discouraged from accompanying his wife to the
hospital land told the best thing he could do was to cooperate in the investigation, he was
free to move about the house, with the exception of the bedroom where his wife was
found. Officers at the scene told Appellant he could be charged with a crime for aiding his
wife in obtaining heroin. As a result, Appellant told the officers where he obtained the
heroin. He explained his wife was attempting to "detox," was “cold and clammy,” and
talking "gibberish;" therefore, he injected her with heroin. When asked whether his wife
was able to inject herself with heroin, Appellant answered "no." When asked whether he
injected it for her, he replied, "yes." Following Appellant’s statements, the officers advised
Appellant of his Miranda rights.
{¶6} Later, Appellant voluntarily went with officers to the Canton Police
Department and cooperated with them in their investigation.
{¶7} On October 14, 2015, Appellant filed a motion to suppress the statements
made to officers at his residence. On November 6, 2015, the trial court conducted a
hearing on Appellant’s motion to suppress. Via Judgment Entry of November 20, 2015,
the trial court overruled the motion to suppress.
{¶8} On November 25, 2015, Appellant entered a plea of no contest to the
charges. On November 30, 2015, Appellant was convicted of the charges and the trial
court imposed a sentence of four years in prison.
{¶9} Appellant appeals, assigning as error,
{¶10} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS HIS STATEMENTS.” Stark County, Case No. 2015CA00227 4
I.
{¶11} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,
86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. State v. Williams, 86 Ohio
App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not
against the manifest weight of the evidence and it has properly identified the law to be
applied, an appellant may argue the trial court has incorrectly decided the ultimate or final
issue raised in the motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court's conclusion,
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623 (4th Dist.1993);
Guysinger.
{¶12} At the suppression hearing, it was established Appellant had contacted 911
when he found his wife unresponsive after he had injected her with heroin 12 hours
earlier. Officer McIntosh testified he responded to the emergency call of an unresponsive
female, believed to have overdosed on heroin. Appellant informed the officers of the
source of the heroin after he was told he could be charged with a crime for obtaining the Stark County, Case No. 2015CA00227 5
heroin. The officers told Appellant the best thing he could do was to cooperate with the
investigation. Appellant was discouraged from accompanying his wife to the hospital,
where she was declared dead due to the heroin overdose.
{¶13} Appellant told the officers his wife was attempting to “detox,” she was “cold
and clammy” and “talking gibberish;” therefore, he injected her. Appellant told the officers
his wife was unable to inject herself, so he had to inject her. He was then advised of his
Miranda rights. Tr. at 35. Appellant's bedroom he shared with his wife was filled with
needles. When asked by the officers to stay and answer questions, Appellant answered,
"that's fine."
{¶14} Appellant maintains, although the questioning took place in his home, he
was not free to leave and the officers did not give him permission to accompany his wife
to the hospital. Appellant maintains the questioning occurred in a custodial setting.
{¶15} The relevant inquiry is how a reasonable person in the suspect's position
would have understood the situation. Berkemer v. McCarty (1984), 468 U.S. 420, 441.
Relevant factors to consider in determining whether a custodial interrogation took place
are: (1) the mentality and prior criminal experience of the accused; (2) the location of the
questioning; (3) the duration of the questioning; (4) the intensity and frequency of
interrogation; (5) statements made during the interview; (6) the presence or absence of
physical restraints; (7) the existence of physical deprivation or mistreatment; (8) the
existence of threat or inducement; and (9) whether the interviewee was released at the
end of the interview. Howes v. Fields (2012), 132 U.S. 1181, 132 S.Ct. 1181, 1189, 182
L.Ed. 2d 17. Miranda warnings are required if the person is deprived of their freedom in Stark County, Case No. 2015CA00227 6
a significant way, which can be demonstrated by a "police-dominated atmosphere" in the
home. United States v. Craghead, 539 F.3d 1073 (CA 9 2008).
{¶16} The requirement police officers administer Miranda warning applies only
when a suspect is subjected to both custody and interrogation. State v. Guysinger, 12th
Dist. No. 11CA3251, 2012-Ohio-4169, citing State v. Dunn, 131 Ohio St.3d 325, 2012-
Ohio-1008. Miranda rights only attach when both custody and interrogation coincide. Id.
An individual has a right to counsel only when he is in custodial interrogation, as a
suspect, or once adversary proceedings have commenced and he becomes a defendant.
Id.
{¶17} The courts of this state have generally found an individual is not in custody
when questioning takes place in the individual's home and the individual is free to move
about and is questioned by an officer over a brief period of time. State v. Chenoweth, 2nd
Dist. No. 2010CA14, 2011-Ohio-1276.
{¶18} Here, we find Appellant was not in custody at the time he was questioned,
as the questioning took place in his home, in response to a call for assistance. The officers
did not consider Appellant a suspect or the focus of the investigation initially. He was not
handcuffed during the investigation and no threats, intimidation or coercion occurred by
the officers while they were speaking with Appellant. Appellant's movement throughout
the house was not restricted. Despite his being discouraged from accompanying his wife
to the hospital or his inability to enter the bedroom (which was determined to be a crime
scene), we find he was not in custody. Neutral parties were present during the
investigation. Appellant voluntarily participated in the questioning, answering “that’s fine”
upon being asked to stay and cooperate with the investigation. Immediately upon Stark County, Case No. 2015CA00227 7
Appellant’s making the incriminating statements, the officers advised Appellant of his
rights.
{¶19} We find the testimony presented at the suppression hearing establishes a
reasonable person would not have believed he was in custody at the time Appellant made
the statements. Accordingly, we find the trial court did not err in denying Appellant's
motion to suppress herein.
{¶20} The sole assignment of error is overruled.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur