[Cite as State v. O'Leary, 2013-Ohio-5670.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-01-009 

 

 : O P I N I O N

 - vs - 12/23/2013 

 : 

BRIAN O'LEARY, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2012-08-1367 

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee 

Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant 

 RINGLAND, J.

{¶ 1} Defendant-appellant, Brian A. O'Leary, appeals his convictions for rape and 

attempted disseminating matter harmful to juveniles from the Butler County Court of 

Common Pleas. 

{¶ 2} On July 30, 2012, O'Leary was brought to the Middletown Police Department by 

his parole officer, Jane Fisher. Detective Janice Jones conducted two separate interviews 

with O'Leary at the police department. Det. Jones read O'Leary his Miranda rights prior to 
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the first interview. That interview lasted approximately 30 minutes. Det. Jones terminated 

the interview and left the room after O'Leary stated, "I need an attorney," and indicated that 

he no longer wanted to talk. 

{¶ 3} Shortly thereafter, Det. McIntosh messaged Det. Jones to inform her that 

O'Leary wished to speak with her again. After Det. Jones re-entered the interview room, 

O'Leary asked her how quickly he could be moved to the Butler County Jail if he made a 

statement. Det. Jones informed O'Leary that he had not been charged with a crime and 

indicated that the decision would be left to the parole officer who had brought him in. 

However, she stated that she did not have a problem with O'Leary being moved to the county 

jail if they would take him. O'Leary redirected his question to P.O. Fisher, who told him that 

he could be moved to the county jail. 

{¶ 4} Det. Jones again read O'Leary his Miranda rights, and he again waived those 

rights. O'Leary then admitted that he had vaginal intercourse with the minor victim five to ten 

times and had sent her a nude picture of himself. 

{¶ 5} O'Leary was indicted on five counts of rape in violation of R.C. 

2907.02(A)(1)(b), first-degree felonies involving a minor who was less than 13 years of age, 

and one count of attempted disseminating matter harmful to juveniles in violation of R.C. 

2923.02(A) and 2907.31(A)(1), a first-degree misdemeanor. 

{¶ 6} O'Leary sought to suppress the statements he made to Det. Jones on the basis 

that he was further interrogated after having requested counsel. Following a hearing, the trial 

court denied the motion. O'Leary also sought to have the grand jury testimony of the victim 

released, arguing that it was inconsistent with a statement she made to a social worker. That 

motion was also denied. 

{¶ 7} On January 14, 2013, O'Leary pled no contest to the charges as indicted. He 

was sentenced shortly thereafter. 
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{¶ 8} O'Leary now appeals his convictions, raising two assignments of error for our 

review. 

{¶ 9} Assignment of Error No. 1: 

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF [O'LEARY] BY 

OVERRULING HIS MOTION TO SUPPRESS EVIDENCE. 

{¶ 11} Within this assignment of error, O'Leary argues that the "trial court erred in 

admitting [his] statements, obtained in violation of his Federal and State Constitutional rights 

against self-incrimination." Specifically, O'Leary asserts that the trial court erred in denying 

his motion to suppress any statements made after he had invoked his right to counsel. 

{¶ 12} Appellate review of a ruling on a motion to suppress presents a mixed question 

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353. 

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and 

evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to 

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are 

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-

074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's 

legal conclusions based on those facts and determines, without deference to the trial court's 

decision, whether as a matter of law, the facts satisfy the appropriate legal standard." 

Cochran at ¶ 12. 

{¶ 13} When a suspect in custody expresses "his desire to deal with the police only 

through counsel," the suspect "is not subject to further interrogation by the authorities until 

counsel has been made available to him." State v. Voss, 12th Dist. Warren No. CA2006-11-

132, 2008-Ohio-3889, ¶ 65, citing Edwards v. Arizona, 451 U.S. 477, 485-485, 101 S.Ct. 

1880 (1981). To invoke the right to have an attorney present during interrogation, a suspect 

must unambiguously request counsel such that a reasonable officer in the circumstances 
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could understand the statement to be a request for an attorney. Voss at ¶ 66, quoting Davis 

v. United States, 512 U.S. 452, 459, 101 S.Ct. 2350 (1994). However, if the statement is not 

clear that the person is requesting an attorney, then the officers are not required to stop 

questioning the suspect. Id. Statements such as "I think I need a lawyer" have been found 

not to be an unambiguous and unequivocal request for an attorney. See, e.g., Voss at ¶ 69; 

State v. Henness, 79 Ohio St.3d 53, 63 (1997). 

First Interview

{¶ 14} O'Leary first argues that he requested counsel numerous times during the first 

interview with Det. Jones before that interview was finally terminated. At the 11:18 mark of 

the interview, O'Leary stated, "if that's what this is about, I've, I've gotta shut down, because I 

can't, I can't answer questions with that without an attorney." O'Leary was referencing a prior 

investigation conducted by his former parole officer. Det. Jones then indicated to O'Leary 

that her interview with him was not related to any prior investigations involving his former 

parole officer. 

{¶ 15} Det. Jones then told O'Leary that there were allegations of inappropriate 

behavior between him and a minor. She stated that she needed to ask him about it because 

she only had one side of the story. O'Leary told her that because he was on parole and a 

sex offender, he "can't answer those questions without an attorney present." However, 

O'Leary continued to speak without being questioned. Eventually, O'Leary asked Det. Jones 

if she needed to ask him more questions, stating that, "I'll do my best to answer them." Det. 

Jones then asked O'Leary if he was willing to answer more questions. In so doing, she 

expressed concern that she did not want to violate his rights. O'Leary again told Det. Jones 

that, "if you want to ask me questions I'll do my best to answer them, but if it gets too close I 

have to shut down. I have to get an attorney." 

{¶ 16} O'Leary argues that these statements were unambiguous requests for counsel. 
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We disagree. O'Leary's first mention of counsel was a qualified request for counsel, "if that's 

what this is about." The issue O'Leary was referring to, a prior investigation by a former 

parole officer, was not the subject of the interview with Det. Jones. Therefore, there was no 

unambiguous request for counsel based on that statement. O'Leary's second "request" for 

counsel was directly related to the questions being asked by Det. Jones, whereby O'Leary 

stated that he "can't answer those questions without an attorney present." However, O'Leary 

continued to speak of his own volition and expressed a desire to know specifically what the 

interview was about. Without being asked any further questions, O'Leary voluntary offered to 

continue answering questions. He again made a qualified "request" for an attorney, stating 

that "if it gets too close I have to shut down. I have to get an attorney." Once again, this 

"request" was not an unequivocal and unambiguous request for an attorney. While he states 

that he can't answer certain questions without an attorney, he makes this request ambiguous 

and equivocal by continuing to speak and expressing a willingness to continue answering 

more questions. His qualified "request" for an attorney further illustrates that he was not 

making a present, unambiguous and unequivocal request for counsel, but rather was setting 

a red line that would cause him to invoke his right to counsel in the future. 

{¶ 17} The first interview concluded when O'Leary unequivocally and unambiguously 

requested counsel, stating, "ok, let's just shut it down. * * * I need an attorney." 

Second Interview

{¶ 18} The second interview commenced after Det. Jones was contacted by Det. 

McIntosh to inform her that O'Leary had requested to speak to her again. Det. McIntosh 

testified that she entered the interview room and asked O'Leary if he needed anything. 

According to the testimony, O'Leary asked for water and stated that he wished to speak with 

Det. Jones again. Det. Jones returned to the interview room and confirmed that O'Leary had 

asked for her. He then asked how quickly he could be moved to the county jail if he made a 
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statement. 

{¶ 19} As stated supra, Det. Jones informed O'Leary that he had not been charged 

with a crime. However, she stated that she did not have a problem with O'Leary being 

moved to the county jail if they would take him. P.O. Fisher told O'Leary that he would be 

moved to the county jail. 

{¶ 20} At that point, Det. Jones again advised O'Leary of his Miranda rights, which 

O'Leary waived. Det. Jones asked O'Leary if he was making the statement of his own free 

will, to which he responded affirmatively. Det. Jones further confirmed with O'Leary that she 

was making no promises in return for his statement. O'Leary gave a statement wherein he 

admitted that he had vaginal intercourse with the minor victim "more than five, but less than 

ten times," and had sent her a nude picture of himself. 

{¶ 21} O'Leary explained his reasoning for making the confession, stating that "it 

would've came out eventually anyway," and conveyed an interest in protecting the victim and 

her mother from having to testify against him at trial. Det. Jones then verified with O'Leary 

that no one came in and "threatened you or told you you had to tell me something or made a 

promise that, that you won't be charged or that you won't go to prison?" O'Leary adamantly 

stated that this had not happened, instead asserting that "sometimes your conscience gets to 

you. You know what I mean? If you care about the girl, then you would come clean. You 

know? And the more I thought about it, it's like the more, why would I want to put her through 

that. It's already happened, it's over with, so let her move on with her life, go through 

counseling, whatever she needs." 

{¶ 22} O'Leary argues that the state did not prove he re-initiated the interview because 

there is a 22-minute portion of the time he spent in the interview room between the two 

interviews that was not recorded. He further argues that the state made promises in return 

for his statement by agreeing to have him moved to the county jail. 
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{¶ 23} If a suspect in a criminal investigation invokes his right to counsel at any time 

during a custodial interrogation, the police must cease all questioning until a lawyer has been 

made available or until the suspect reinitiates the conversation. State v. Gulley, 12th Dist. 

Clermont No. CA2005-07-066, 2006-Ohio-2023, citing Edwards v. Arizona, 451 U.S. 477, 

484-485, 101 S.Ct. 1880 (1981). In the present case, the only testimony was that O'Leary 

specifically asked to speak with Det. Jones again between the first and second interview. 

While a portion of O'Leary's time spent in the interview room was unrecorded, there is 

nothing in the record to indicate that he was threatened or coerced during this time. In fact, 

O'Leary is quite clear in his statement that he was not threatened or promised anything in 

return for his statement, but rather gave a well-reasoned explanation for his choice to make a 

confession. Accordingly, we cannot find error in the trial court's denial of the motion to 

suppress those statements made during the second interview where O'Leary voluntarily 

reinitiated the conversation. 

{¶ 24} We also cannot find error with the trial court's finding that Det. Jones did not 

make any promises to O'Leary. Det. Jones made clear in the interview that she was not 

promising anything to O'Leary, and he indicated that he understood that. On the other hand, 

P.O. Fisher did tell O'Leary that she would move him to the Butler County Jail. "However, a 

promise made by a police officer is merely one factor to be considered along with other 

circumstances in determining whether a defendant's statement was voluntary. It does not 

matter that the accused confessed in response to the promise so long as the promise did not 

overwhelm his will." State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, ¶ 28 (internal 

citations omitted). Given the circumstances, we cannot find that P.O. Fisher's promise to 

have O'Leary held in a different jail overwhelmed his will. 

{¶ 25} Finally, O'Leary asserts that some sort of nefarious insinuations should be 

drawn from the movement of the confession form from one side of the table to a position 
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directly in front of him during the period which the recording was turned off. Each of the 

state's witnesses testified that they did not put the confession form in front of O'Leary. The 

video indicates that nothing had been written on the form until after O'Leary gave his 

confession and Det. Jones advised him to write it down on said form. Absent any further 

evidence, we cannot find that an unexplained movement of the form during the unrecorded 

portion of his time in the interview room indicates that O'Leary's rights were in any way 

violated. 

{¶ 26} In light of the foregoing, having found that there is competent, credible evidence 

to support he trial court's findings that (1) the first interview was halted upon O'Leary's clear 

and unambiguous invocation of his right to counsel, and (2) that O'Leary reinitiated contact 

with Detective Jones and again waived his right to counsel, O'Leary's first assignment of error 

is overruled. 

{¶ 27} Assignment of Error No. 2: 

{¶ 28} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY 

OVERRULING HIS MOTION REQUESTING GRAND JURY TESTIMONY. 

{¶ 29} Within this assignment of error, O'Leary argues that the "trial court erred in 

failing to conduct an in camera review of the victim's grand jury testimony when [O'Leary] 

stated a particularized need, based on an exculpatory statement the same victim had made 

to a social worker at a rape kit examination." O'Leary asserts that the victim's statement to a 

social worker contradicts both her grand jury testimony and written statement made to the 

police. 

{¶ 30} The decision whether to release grand jury testimony is within the discretion of 

the trial court and will not be reversed absent an abuse of discretion. State v. Coley, 93 Ohio 

St.3d 253, 261, 2001-Ohio-1340. "The term 'abuse of discretion' connotes more than an 

error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or 
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unconscionable." State v. Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio2394, ¶ 34; State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130. 

{¶ 31} First, we address O'Leary's assertion that Crim.R. 16 affords him protections 

beyond those in Crim.R. 6. To the contrary, Crim.R. 16(J)(2) specifically enumerates that 

transcripts of grand jury testimony are not subject to disclosure under Crim.R.16, but rather 

are governed by Crim.R. 6. 

{¶ 32} Crim.R. 6(E) provides that, 

[a] prosecuting attorney * * * may disclose matters occurring 

before the grand jury, other than deliberations of a grand jury or 

the vote of a grand juror, but may disclose matters only when so 

directed by the court preliminary to or in connection with a judicial 

proceeding, or when permitted by the court at the request of the 

defendant upon a showing that grounds may exist for a motion to 

dismiss the indictment because of matters occurring before the 

grand jury. 

{¶ 33} Grand jury proceedings are secret, and a defendant has no right to inspect 

grand jury transcripts either before or during trial unless the "ends of justice require it and 

there is a showing by the defense that a particularized need for the disclosure exists which 

outweighs the need for secrecy." State v. Greer, 66 Ohio St.2d 139 (1982), paragraph two of 

the syllabus. A particularized need is established when the circumstances reveal a 

probability that "the failure to disclose the testimony will deprive the defendant of a fair 

adjudication of the allegations placed in issue by the witness' trial testimony." Id. at 

paragraph three of the syllabus. 

{¶ 34} We find that O'Leary's assertions fall short of meeting the burden for grand jury 

disclosure. While O'Leary alleges that the grand jury testimony may contradict the statement 

that the victim made to the social worker, he does not argue that the grand jury testimony 

contradicts the written statement the victim gave to the police. O'Leary already has access to 

the written statement made to police which he purports is contradictory to the statement the 
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victim made to a social worker. Therefore, we cannot find that O'Leary demonstrated a 

particularized need for the disclosure of the grand jury testimony when the allegedly 

contradictory statement contained therein is readily available in the written statement given to 

the police. 

{¶ 35} Furthermore, the record indicates that the written statement was simply more 

specific than the statement to the social worker, rather than contradictory. O'Leary is merely 

speculating that the grand jury testimony would prove contradictory rather than 

complimentary. When a defendant speculates that grand jury testimony might contain 

material evidence or might aid his cross-examination by revealing contradictions or 

inconsistencies, a trial court does not abuse its discretion by finding the defendant has not 

shown a particularized need. State v. Leach, 12th Dist. Clermont No. CA2000-05-033, 2001-

Ohio-4203, State v. Mack, 73 Ohio St.3d 502, 508 (1995); State v. Webb, 70 Ohio St.3d 325, 

337 (1994). Accordingly, we cannot find that the trial court abused its discretion in denying 

O'Leary's motion for release of grand jury testimony. 

{¶ 36} In light of the foregoing, having found that O'Leary did not demonstrate a 

particularized need for disclosure of the grand jury testimony, O'Leary's second assignment 

of error is overruled. 

{¶ 37} Judgment affirmed. 

HENDRICKSON, P.J., and M. POWELL, J., concur.