[Cite as In re S.W., 2022-Ohio-854.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: S.W. : 

: 

: 

APPEAL NO. C-210350 

TRIAL NO. 20-1857X 

 

 

 O P I N I O N.

 

Appeal From: Hamilton County Juvenile Court 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: March 18, 2022 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant 

Prosecuting Attorney, for Plaintiff-Appellant, 

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, 

Assistant Public Defender, for Defendant-Appellee. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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MYERS, Presiding Judge. 

{¶1} Thirteen-year-old S.W. was arrested and charged with aggravated 

robbery, a felony of the first degree if committed by an adult, and accompanying 

firearm specifications. He filed a motion to suppress statements he made to police at 

the time of his arrest. Following a hearing, a magistrate granted the motion to 

suppress S.W.’s statements, which included statements made to two different police 

officers. The state objected only to the magistrate’s suppression of S.W.’s statement 

to the second officer, asserting that it was not made in response to an interrogation. 

The juvenile court overruled the objection and adopted the magistrate’s decision. 

The state now appeals.

{¶2} Because the juvenile court erred by finding that S.W.’s statement to 

police was made during a custodial interrogation, we reverse the juvenile court’s 

judgment. 

Background Facts and Procedure 

{¶3} At the suppression hearing, Cincinnati Police Sergeant Michael Roth 

testified that he responded to a radio run for an aggravated robbery that occurred in 

the area of 601 Maple Avenue. Another officer radioed that he saw three individuals 

running to the back of an apartment building on Maple Avenue, which was close to 

where the robbery had occurred. As Sergeant Roth entered the front door of the 

three-story apartment building, he heard what he described as “some wrestling going 

on up on the top floors.”

{¶4} Sergeant Roth walked up the stairs toward the third floor, where he 

saw three juveniles, one of whom matched the description given in the police 

dispatch. Sergeant Roth testified that he “had all three at gunpoint” as a matter of 

officer safety because a handgun had been used in the robbery. 
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{¶5} Video from Sergeant Roth’s body-worn camera was admitted into 

evidence. It showed that S.W. was the first of the three juveniles that Sergeant Roth 

ordered to come down the stairs to the landing where he stood. He placed S.W. in 

handcuffs, asked S.W. if he had “anything else” on him, and asked, “Where’s the 

gun?” After S.W. replied that he did not have a gun, Sergeant Roth again asked, 

“Where’s the gun?” When S.W. responded that he threw it, the sergeant asked him 

where, and S.W. responded that he threw it in the woods. The sergeant then 

informed S.W. of his Miranda rights and asked S.W. if he understood. S.W. replied, 

“Yes, sir.” Sergeant Roth testified that he believed that S.W. understood what his 

rights were. 

{¶6} Sergeant Roth asked S.W. his age, where he had gotten the gun, and 

where in the woods he had thrown the gun. He told S.W. that they had better find 

the gun before someone found it and shot themselves, and told him that he had 

better start talking about where the gun could be found. As he walked S.W. down the 

stairs to the building’s first floor, he said, “I want to know where you threw it, buddy. 

‘Cause if not you’re in a whole heap of trouble.”

{¶7} When they went outside, S.W. indicated that he had thrown the gun 

behind the building. So Sergeant Roth walked him around the back of the apartment 

building toward some woods adjacent to the building’s rear parking lot. The 

sergeant continued to ask questions as they walked. Once there, S.W. pointed to an 

area of the woods, indicating where he had thrown the gun. 

{¶8} Sergeant Roth asked S.W. the type and color of the gun, and S.W. 

replied that it was “a nine” and was silver and black. The sergeant asked S.W. if he 

was positive that the gun was in the woods because he would only ask him that once. 

He told S.W. that he was “not going to play games on this,” and that “if this is where 

it is and it’s truthful, then then [sic] it’s going to go a lot easier on you.” S.W. said, 

“This is where I threw it.” After ascertaining the location identified by S.W., the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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sergeant asked, “You threw it from this parking lot?” S.W. replied, “Yes.” Sergeant 

Roth concluded his interaction with S.W. by telling him, “All right, [S.W.], I’ll come 

back and talk to you in a minute.” Sergeant Roth handed S.W. off to Officer 

Wermuth who was to take S.W. to his cruiser.

{¶9} Officer Wermuth did not testify at the suppression hearing, but video 

from his body-worn camera was introduced into evidence. The video showed that 

Officer Wermuth walked S.W. down the driveway from the parking lot behind the 

apartment building to the sidewalk in front of the building. He did not ask S.W. any 

questions or engage him in conversation.

{¶10} The officer told S.W., “Right this way,” and walked S.W. out into the 

road near two officers and a civilian for an apparent identification procedure. 

Neither Officer Wermuth nor either of the other officers asked S.W. anything.

{¶11} Then Officer Wermuth turned and walked S.W. back in the direction of 

the apartment building and away from the other officers, and he radioed, “14, 

positive ID.” S.W. asked Officer Wermuth what would happen to the stuff in his 

pockets, and the officer replied, “That’s got to stay on you. It’ll all go with you and 

you can pick it up when you get released.” They walked back past the apartment 

building, and the officer asked S.W., “You stay here, sir? Is this a good address for 

you?,” to which S.W. replied no.1 They continued walking to the officer’s cruiser, 

which was parked several car lengths past the apartment building.

{¶12} Officer Wermuth stopped S.W. at the cruiser and began to pat S.W. 

down. He pulled what appeared to be a paper packet and a thin cord from S.W.’s left 

front pants pocket and asked him if it was just a phone charger. The officer put the 

1 S.W. does not argue, and the juvenile court did not find, that Officer Wermuth’s question about 

the apartment constituted interrogation. An officer’s request for routine information necessary 

for basic identification purposes is not interrogation unless the officer should have known that it 

was reasonably likely to elicit an incriminating response. See United States v. Tapia-Rodriguez, 

958 F.3d 891, 894 (8th Cir.2020) (asking suspect whether he lived in the apartment was a request 

for routine information and did not constitute interrogation under Miranda). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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items back in the pocket. Then the officer began to pat down S.W.’s right leg, when 

S.W. suddenly said, “Can you release them? Like, they weren’t really like -- I did it, 

like.” Officer Wermuth immediately told S.W. to say nothing and placed him in the 

cruiser. 

{¶13} After the state presented its evidence, S.W. introduced the testimony 

and report of clinical psychologist Richard Rothenberg, Psy.D., who had conducted 

an evaluation to determine S.W.’s competency to waive his Miranda rights. Dr. 

Rothenberg opined that, because of age-related, intellectual, and academic 

limitations, S.W. was not competent to waive his Miranda rights. He did not testify 

that S.W. was incompetent for any other purpose. 

{¶14} According to Dr. Rothenberg’s report, at the time S.W. waived his 

Miranda rights, he was “chronologically” 13 years and four months old and in the 

seventh grade. Dr. Rothenberg stated that S.W.’s “language skills and abilities are 

consistent with those of younger individual [sic], approximately 4 years old and with 

a grade equivalent of that of an individual in pre-kindergarten.” 

{¶15} The magistrate granted S.W.’s motion to suppress statements that he 

made to police, finding that he did not knowingly, intelligently, and voluntarily waive 

his Miranda rights. The magistrate agreed with the state that S.W.’s “I did it” 

statement to Officer Wermuth was a voluntary statement made without any 

prompting by police. Nonetheless, the magistrate concluded that S.W. did not fully 

understand that he had the right to remain silent when Sergeant Roth advised him of 

his Miranda rights. The magistrate suppressed all of S.W.’s statements, which 

included those made in response to Sergeant Roth’s questions and the statement 

volunteered to Officer Wermuth.

{¶16} The state objected to the magistrate’s decision. In its objection, the 

state did not challenge the decision with respect to S.W.’s waiver of his Miranda
OHIO FIRST DISTRICT COURT OF APPEALS 

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rights. The state challenged only the suppression of S.W.’s volunteered statement to 

Officer Wermuth. 

{¶17} The juvenile court found that the magistrate properly suppressed 

S.W.’s statement to Officer Wermuth, but “clarifie[d] the reasoning.” The court 

determined that S.W. had made the statement involuntarily as part of the prior 

questioning by Sergeant Roth. The court overruled the state’s objection to the 

magistrate’s decision and adopted the decision as its judgment. This appeal 

followed.

S.W.’s Volunteered Statement 

{¶18} In its sole assignment of error, the state argues that the juvenile court 

erred when it granted the motion to suppress S.W.’s volunteered statement to Officer 

Wermuth because volunteered statements are not subject to exclusion under 

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state 

asserts that the court improperly equated S.W.’s spontaneous statement with a 

waiver of his right to remain silent. 

{¶19} 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. The reviewing court must accept the trial court’s findings of fact if they are 

supported by competent, credible evidence, but “must then independently 

determine, without deference to the conclusion of the trial court, whether the facts 

satisfy the applicable legal standard.” Id. Before we review the juvenile court’s 

factual findings, we set forth the appropriate legal standard.

{¶20} The Fifth Amendment to the United States Constitution provides that 

no person “shall be compelled in any criminal case to be a witness against himself.” 

To protect a person’s Fifth Amendment privilege against self-incrimination, the 

United States Supreme Court announced in Miranda that the prosecution may not 

use statements stemming from a custodial interrogation of the defendant unless it 
OHIO FIRST DISTRICT COURT OF APPEALS 

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demonstrates the use of procedural safeguards. Miranda at 444. The court 

explained that its decision did not impact a suspect’s volunteered statements:

The fundamental import of the privilege while an individual is in 

custody is not whether he is allowed to talk to the police without the 

benefit of warnings and counsel, but whether he can be interrogated. * 

* * Volunteered statements of any kind are not barred by the Fifth 

Amendment and their admissibility is not affected by our holding 

today. 

Id. at 478.

{¶21} The Miranda safeguards “are not required where a suspect is simply 

taken into custody, but rather where a suspect in custody is subjected to 

interrogation.” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 

297 (1980); State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 

119 (the requirement of Miranda warnings “applies only when a suspect is subjected 

to both custody and interrogation”). In other words, interrogation “must reflect a 

measure of compulsion above and beyond that inherent in custody itself.” Innis at 

300.

{¶22} In Innis, the United States Supreme Court explained that the Miranda 

safeguards apply when a person in custody is subject to either express questioning or 

its functional equivalent. Id. at 300-301. “[T]he term ‘interrogation’ under Miranda

refers not only to express questioning, but also to any words or actions on the part of 

the police (other than those normally attendant to arrest and custody) that the police 

should know are reasonably likely to elicit an incriminating response from the 

suspect.” Id. at 301. The court explained that the functional-equivalent portion of its 

definition “focuses primarily upon the perceptions of the suspect,” as a reflection of 

“the fact that the Miranda safeguards were designed to vest a suspect in custody with 

an added measure of protection against coercive police practices[.]” Id. The court 
OHIO FIRST DISTRICT COURT OF APPEALS 

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emphasized that “the police surely cannot be held accountable for the unforeseeable 

results of their words or actions[.]” Id. at 301-302. So the court set forth a test to 

determine what constitutes interrogation: “the definition of interrogation can extend 

only to words or actions on the part of police officers that they should have known 

were reasonably likely to elicit an incriminating response.” (Emphasis sic.) Id. at 

302.

{¶23} The test of whether an interrogation has occurred is an objective one. 

United States v. Sanchez, 13 F.4th 1063, 1074 (10th Cir.2021); United States v. 

Tapia-Rodriguez, 968 F.3d 891, 894 (8th Cir.2020); United States v. Knope, 655 

F.3d 647, 652 (7th Cir.2011); United States v. Washington, 462 F.3d 1124, 1132 (9th 

Cir.2006); Rosa v. McCray, 396 F.3d 210, 222 (2d Cir.2005). Although a police 

officer’s intent may be relevant, the ultimate inquiry is whether the officer should 

have known that the suspect “would suddenly be moved to make a self-incriminating 

response.” Innis at 303; Sanchez at 1075, quoting United States v. Rambo, 365 F.3d 

906, 910 (10th Cir.2004) (“it is the objectively measured tendency of an action to 

elicit an incriminating response which is ultimately determinative”). 

{¶24} In Innis, the Supreme Court applied its definition to the facts of the 

case and concluded that the defendant was not “interrogated” within the meaning of 

Miranda. Innis, 446 U.S. at 302, 100 S.Ct. 1682, 64 L.Ed.2d 297. In that case, the 

defendant was arrested on suspicion of killing a man with a shotgun. Id. at 294. 

After the defendant was advised of his Miranda rights, he said he wanted to talk to a 

lawyer. Id. Then, as the defendant rode with officers in a police car, two of the 

officers spoke to each other about the missing shotgun and said that they hoped none 

of the children at the nearby school for handicapped children found the shotgun and 

hurt themselves. Id. at 294-295. The defendant interrupted the officers and told 

them that he could show them where the shotgun was located. Id. at 295. The 

Supreme Court held that no interrogation occurred. Id. at 302. The conversation 
OHIO FIRST DISTRICT COURT OF APPEALS 

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between the officers included no express questioning of the defendant, nor its 

functional equivalent because “[i]t cannot be said, in short, that [the officers] should 

have known that their conversation was reasonably likely to elicit an incriminating 

response” from the defendant. Id. 

{¶25} The Supreme Court rejected the Rhode Island Supreme Court’s 

equating “subtle compulsion” with interrogation because “that is not the end of the 

inquiry.” Id. at 303. The defendant’s incriminating response must have been “the 

product of words or actions on the part of the police that they should have known 

were reasonably likely to elicit an incriminating response.” Id. 

{¶26} In State v. Tucker, 81 Ohio St.3d 431, 438, 692 N.E.2d 171 (1998), the 

Supreme Court of Ohio applied Innis’s functional-equivalent test in holding that a 

prisoner was not subject to interrogation by corrections officers when he implicated 

himself in a murder. The officers moved the prisoner, who had been watching a 

newscast about his codefendant’s trial, away from other prisoners, because they 

noticed that he was nervous and not himself. Id. at 434. Officers gave the prisoner a 

cigarette and a soda, and asked him if he wanted them to have a mental-health 

professional come to the jail, because they knew he had undergone some mentalhealth counseling while he was in jail. Id. The prisoner declined and began talking 

about his codefendant’s trial, saying he wished “this would just get over” so he could 

“start [his] time.” Id. at 434-435. He said he would plead guilty unless his codefendant got the death penalty. Id. at 435. One of the officers remarked that “when 

this is all said and done, I’d like to hear about what happened that day.” Id. The 

prisoner said he would tell him “right now,” and an officer said that he did not have 

to, but the prisoner continued to describe the crimes he had committed. Id. 

{¶27} The Supreme Court held that the prisoner was not subjected to 

interrogation because “the officers reasonably should not have anticipated that their 

actions or words would be likely to evoke an incriminating response.” Id. at 437. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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The court held that the prisoner voluntarily turned the conversation toward the 

subject of the murder, and that any further interaction with the officers was a 

continuation of the conversation and flowed from his initial volunteered 

incriminating statement. Id.; see State v. Martin, 151 Ohio St.3d 470, 2017-Ohio7556, 90 N.E.3d 857, ¶ 89-92 (Miranda did not require suppression of statements 

made by defendant in custody before he was advised of his rights, because he was not 

subjected to interrogation and his statements were “unsolicited, spontaneous, and 

‘not in response to any inquiries of law enforcement.’ ”).

{¶28} Here, it is undisputed that S.W. was in custody at the time he made the 

statement. The question is whether the statement was made in response to an 

interrogation. In determining that S.W. was subject to interrogation at the time he 

made the statement to Officer Wermuth, the juvenile court made the following 

factual findings: the statement was made within minutes of the original questioning 

by Sergeant Roth; S.W. was in handcuffs; he was in the same physical location and 

had not yet been placed in a cruiser; he had been subjected to an identification 

procedure; and no intervening conversation or action had occurred between the 

Miranda warning, the questioning by Sergeant Roth, and the statement. The court 

concluded that S.W. was subject to interrogation when he made the statement to 

Officer Wermuth because it was made “as part of the prior questioning by [Sergeant] 

Roth,” and “[i]t was one continuous experience, especially for a child with limited 

functioning and language skills.”

{¶29} However, like the officers in Innis who had no reason to know whether 

the suspect was “peculiarly susceptible to an appeal to his conscience concerning the 

safety of handicapped children,” Innis, 446 U.S. at 302, 100 S.Ct. 1682, 64 L.Ed.2d 

297, nothing in the record before us suggests that the police were aware that the 13-

year-old S.W. had either limited reasoning skills or was low functioning. To the 

contrary, when the prosecutor asked Sergeant Roth whether S.W.’s responses “were 
OHIO FIRST DISTRICT COURT OF APPEALS 

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appropriate for the questions you were asking,” the sergeant responded, “Yes. He 

gave the same description of the gun that the victim had given.” In addition, nothing 

in S.W.’s interaction with Officer Wermuth, which included S.W.’s question about 

the items in his pocket and his response to the officer’s question about whether he 

stayed at the apartment building, suggested that the officer should have known that 

S.W. had any cognitive deficits.

{¶30} We hold that the facts of this case demonstrate that S.W. was not 

interrogated by Officer Wermuth within the meaning of Miranda. There was a clear 

break after Sergeant Roth’s questioning, where S.W. was walked by Officer Wermuth 

to an identification procedure and then to his cruiser. Sergeant Roth was not 

present, and Officer Wermuth did not ask S.W. any questions. More than two 

minutes passed with no interrogation, before S.W. made his admission to Officer 

Wermuth. 

{¶31} It is clear that neither prong of the definition of “interrogation” 

announced in Innis was satisfied, because S.W.’s statement to Officer Wermuth was 

not triggered by an express question or by its functional equivalent. S.W. was not 

subjected by Officer Wermuth to words or actions that the officer should have known 

were reasonably likely to elicit an incriminating response from S.W. See Innis at 

303. Nothing in the record suggests that Officer Wermuth should have known that 

S.W. “would suddenly be moved to make a self-incriminating statement.” See id. 

Rather, S.W.’s statement was “unsolicited, spontaneous, and ‘not in response to any 

inquiries of law enforcement.’ ” See Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 

N.E.3d 857, at ¶ 89. When S.W. made the statement to Officer Wermuth, he was in 

custody but he was not subjected to interrogation. “Therefore, ‘Miranda does not 

apply.’ ” Id. at ¶ 92, quoting State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 

N.E.2d 1037, ¶ 24. Consequently, the juvenile court erred by suppressing the 

statement. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Conclusion 

{¶32} Therefore, we sustain the state’s assignment of error, reverse the 

juvenile court’s judgment granting the motion to suppress S.W.’s statement to 

Officer Wermuth, and remand the matter for further proceedings consistent with the 

law and this opinion.

Judgment reversed and cause remanded. 

WINKLER, J., concurs. 

BERGERON, J., dissents. 

BERGERON, J., dissenting. 

{¶33} The majority essentially frames the inquiry in this case as a legal one 

designed to ascertain “whether an interrogation has occurred.” Majority opinion at 

¶ 23. Here, however, there is no question that a custodial interrogation occurred—

rather, the question presented is whether that interrogation was on-going at the 

point of S.W.’s statement. On that point, I submit, this implicates a factual question, 

which we must review with deference to the factfinder. See State v. Banks-Harvey, 

152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 14 (“Appellate review of a 

ruling on a motion to suppress presents a mixed question of law and fact. * * * An 

appellate court must accept the trial court’s findings of fact if they are supported by 

competent, credible evidence.”). As federal courts have recognized, “when it is 

determined that officers engaged in interrogation, whether the suspect’s statement 

was spontaneous (or instead made as a result of the interrogation) is a factual finding 

that we review for clear error.” United States v. Yepa, 862 F.3d 1252, 1258 (10th 

Cir.2017). The trial court here provided a thorough analysis as to why it believed that 

S.W.’s statement was part and parcel of his custodial interrogation. In light of the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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record support for this point, we should not quibble with the trial court’s factual 

findings, and therefore I respectfully dissent. 

{¶34} Before embarking on the analysis, I pause to consider Dr. 

Rothenberg’s evaluation of S.W. so that the reader may fully appreciate S.W.’s 

limitations. Dr. Rothenberg, the clinical psychologist who examined S.W., witnessed 

deficiencies across the board in S.W.’s mental capacity. In his assessment, Dr. 

Rothenberg utilized a set of four Miranda Rights Comprehensive Instruments to 

evaluate S.W.’s understanding and appreciation of his Miranda rights. The first 

instrument measured S.W.’s ability to paraphrase each Miranda right after 

providing them to him orally and in writing. In paraphrasing his right to remain 

silent, S.W. thought “right” referred to writing with his hand. When asked about his 

understanding of the right to have a lawyer present, S.W. thought “present” meant a 

gift. S.W. scored zero points on the first instrument. Dr. Rothenberg didn’t bother 

administering the second instrument because S.W. could not even understand the 

directions. On the third instrument, measuring S.W.’s appreciation of his Miranda 

rights, S.W. scored 11 out of 30 points, placing him in the bottom 0.6th percentile of 

the juvenile sample. The last instrument asked S.W. to define 16 Miranda-related 

words. He scored 2 points out of a possible 32, defining “right” by saying “we write 

in class but I don’t have a pen” and “present” by referring to Christmas. Overall, Dr. 

Rothenberg found S.W. to be illiterate and in significant need of educational 

intervention, with an extremely low average intellectual functioning that may meet 

the criteria for an intellectual disability. Dr. Rothenberg further concluded that, 

during his encounter with the officers, S.W. “does not appear to exhibit an 

appreciation of the fact that he is not obligated to help the police in this situation as 
OHIO FIRST DISTRICT COURT OF APPEALS 

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it may be self-incriminating and detrimental to him and his legal defense.” No 

evidence contradicted any of these conclusions. 

{¶35} We thus have a juvenile with the intellectual functioning of a fouryear-old, according to Dr. Rothenberg. Apprehended by multiple officers at 

gunpoint and immediately placed in handcuffs, S.W. relayed being “scared” by that 

experience and equated it with a “kidnapping.” And when the officer administered 

the Miranda warnings in that environment, he did so in such a mumbled, rushed 

fashion that even the most astute juvenile probably had little chance of 

understanding it. These facts form the underpinning for the Miranda violation 

conclusion that the state does not challenge on appeal. The state, however, 

endeavors to forge a distinction between the aspect of the interrogation tainted by 

the Miranda violation with that surrounding the “I did it” statement, a premise that 

the majority accepts. 

{¶36} To understand the crux of my disagreement with the majority’s 

opinion, it is helpful to consider the caselaw featured in their opinion. Innis involved 

a defendant who invoked his Miranda right to an attorney before any custodial 

interrogation occurred, and while the officers respected that invocation, as they were 

discussing the crime amongst themselves, the defendant chimed in and confessed. 

Rhode Island v. Innis, 446 U.S. 291, 294, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In 

other words, no interrogation occurred. Likewise, the defendant in Tucker was never 

subject to any interrogation, and no Miranda warnings were given, rendering his 

entire statement voluntary. State v. Tucker, 81 Ohio St.3d 431, 435, 692 N.E.2d 171 

(1998). The defendants in Knope, Washington, and Tapia-Rodriguez all objected to 

routine biographical information given pre-Miranda warnings and before the 

commencement of any custodial interrogation. United States v. Knope, 655 F.3d 647 
OHIO FIRST DISTRICT COURT OF APPEALS 

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(7th Cir.2011), United States v. Washington, 462 F.3d 1124 (9th Cir.2006), United 

States v. Tapia-Rodriguez, 968 F.3d 891 (8th Cir.2020). The Rosa and Sanchez 

defendants were never provided Miranda warnings because they were never subject 

to custodial interrogation. Rosa v. McCray, 396 F.3d 210 (2d Cir.2005), United 

States v. Sanchez, 13 F.4th 1063 (10th Cir.2021). The cases cited by the majority 

generally contemplate voluntary statements made in the absence of interrogation or 

before an interrogation. They do not evaluate a defendant already being interrogated 

for purposes of Miranda in conjunction with whether, based on the totality of the 

circumstances, the defendant would have understood that the interrogation was ongoing. See State v. Johnson, 2d Dist. Greene No. 86-CA-0084, 1987 Ohio App. 

LEXIS 7677, *11 (June 25, 1987) (“The determination of whether interrogation is 

‘custodial interrogation’ is a factual determination that depends upon the totality of 

the circumstances.”). These cases certainly do not suggest that we should parse 

S.W.’s brief walk to the car with Officer Wermuth into something entirely separate 

from the custodial interrogation that Sgt. Roth commenced. 

{¶37} And while the majority describes the test as an objective one, majority 

opinion at ¶ 23, it must be evaluated from the suspect’s perspective: “The suspect’s 

state of mind is the key.” State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 

N.E.2d 985, ¶ 35. That point is reinforced by the caselaw cited by the majority. 

Sanchez at 1074 (“This inquiry is objective, focusing ‘on the perceptions of a 

reasonable person in the suspect’s position rather than the intent of the investigating 

officer.’ ”); Tapia-Rodriguez at 891 (“The ‘should have known’ standard is objective 

and ‘focuses primarily upon the perceptions of the suspect, rather than the intent of 

the police.’ ”), quoting Innis at 894; Rambo at 906 (“The focus is on the perceptions 
OHIO FIRST DISTRICT COURT OF APPEALS 

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of a reasonable person in the suspect’s position rather than the intent of the 

investigating officer.”). 

{¶38} Consistent with this caselaw, the question we should be asking is 

whether a 13-year-old juvenile with the mental functioning of a four-year-old should 

have understood that the interrogation had concluded when Sgt. Roth handed him 

over to Officer Wermuth. “ ‘Because voluntariness is a matter of the suspect’s state 

of mind, we focus our analysis on the way in which [S.W.] experience[d] 

interrogation.’ ” See Farris at ¶ 34, quoting Missouri v. Seibert, 542 U.S. 600, 624, 

124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (O’Connor, J., dissenting). The juvenile 

court, in my view, conducted the correct analysis and made factual findings 

supported by the record. Id. at ¶ 21, quoting Seibert, at 612, fn. 4 (Where virtually 

identical inculpatory statements are given before and after an officer’s recitation of 

Miranda rights, “the postwarning statements are inadmissible because ‘the earlier 

and later statements are realistically seen as parts of a single, unwarned sequence of 

questioning.’ ”). 

{¶39} The trial court found, as a factual matter, that the interrogation did not 

end with Sgt. Roth’s handoff of S.W. to Officer Wermuth, and factual determinations 

surrounding the circumstances of an interrogation are “entitled to a presumption of 

correctness.” State v. Pudelski, 8th Dist. Cuyahoga No. 77172, 2001 Ohio App. 

LEXIS 1150, *21 (Mar. 15, 2001). The state and majority opinion both suggest that a 

clear break occurred between Sgt. Roth’s and Officer Wermuth’s interactions with 

S.W., and reasonable minds could disagree on this interpretation of this evidence, 

which is exactly why I would defer to the trial court. Consistent with the body-worn 

camera footage and the trial court’s findings, the video documents a series of 

questions by Sgt. Roth to S.W. about the gun, including an interrogation question 
OHIO FIRST DISTRICT COURT OF APPEALS 

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asked in the midst of Officer Wermuth tightening the handcuffs on S.W.—lending 

further credence to the notion that S.W. would have no reason to believe his 

interrogation was over. And Officer Wermuth kept questioning S.W. as they walked, 

albeit not questions designed to elicit inculpatory responses. Most critically, the last 

thing Sgt. Roth said to S.W. before Officer Wermuth walked him towards yet another 

group of officers waiting in the street was, “All right, [S.W.], I’ll come back and talk 

to you in a minute.” That statement on its own would lead any reasonable person to 

conclude that the custodial interrogation was not over, particularly a 13-year-old 

with limited reasoning skills. The line the majority attempts to draw “cannot be said 

to be bright or sharply defined,” Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 

N.E.2d 985, at ¶ 22, all the more reason we should defer to the fact-finder. 

{¶40} We also must consider S.W.’s statement—“I did it.” Although the state 

charged S.W. with aggravated robbery, at no point in time did Sgt. Roth or any other 

officer question S.W. about a robbery. All of Sgt. Roth’s questions, from start to 

finish, revolved around whether S.W. had a gun and the whereabouts of the weapon. 

These questions were designed to “evoke an incriminatory response,” Tucker, 81 

Ohio St.3d at 437, 692 N.E.2d 171, and they succeeded—S.W. repeatedly made 

inculpatory comments in response to the questioning, as the majority details. The 

subsequent statement “I did it” thus only relates logically to what S.W. had already 

confessed—he had a gun and tossed the weapon away. And after determining that 

those inculpatory statements to Sgt. Roth must be suppressed according to Miranda

and its progeny, I have difficulty understanding how the subsequent statement 

(coming moments after the earlier confession) merits a different fate. Even to the 

extent that we consider S.W.’s interactions with Sgt. Roth and Officer Wermuth 

separately, “[i]t would have been reasonable to regard the two sessions as parts of a 
OHIO FIRST DISTRICT COURT OF APPEALS 

18

continuum”—precisely as the trial court concluded. Seibert, 542 U.S. at 616-617, 124 

S.Ct. 2601, 159 L.Ed.2d 643. 

{¶41} On this record, the trier of fact determined S.W. to still be subject to 

interrogation, and competent and credible evidence supports that conclusion. I 

accordingly respectfully dissent and would affirm the trial court’s judgment. 

Please note: 

 The court has recorded its own entry this date.