[Cite as State v. Taste , 2021-Ohio-3286.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

MADISON COUNTY

STATE OF OHIO, Appellee,

- vs -

DAMRICK L. TASTE, Appellant. :

:

:

:

:

: CASE NO. CA2020-06-012

O P I N I O N

9/20/2021

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI 20190198

Nicholas A. Adkins, Madison County Prosecuting Attorney, and Ra chel M. Price, Assistant Prosecuting Attorney, for appellee. Culp, Parsons, and Murray LLC, and Joshua W. Beasley, for appel lant.

PIPER, P.J. {¶ 1} Appellant, Damrick Taste, appeals a decision of the Madison Cou nty Court of Common Pleas denying his motion to suppress evidence that led t o his conviction for failure to comply. {¶ 2} Two Ohio State Highway Patrol troopers were together in a marke d cruiser patrolling an area of Interstate 70 in Madison County. One tro oper observed a DodgeMadison CA2020-06-012

- 2 - Durango pass their location bearing a rental sticker and having extremely dark tint on the windows. The trooper became suspicious because rental vehicles do not usually have tinted windows. The troopers began to follow the Durango and o bserved its driver commit a marked lane violation. The troopers then initiated a traffic stop of the Durango. {¶ 3} The driver of the Durango pulled over to the side of the highwa y and stopped the vehicle. As one trooper approached the Durango, he observe d two silhouettes in the vehicle, but was unable to see details regarding the driver and passenger because the window tint was too dark. The other trooper approached the dri ver's side of the vehicle and knocked on the window. At that time, the driver of the Durango , later identified as Taste, sped away. {¶ 4} Other highway patrol troopers joined in the pursuit, which led the troopers onto multiple interstates, state routes, and highways. Eventua lly, the pursuit ended when the Durango hit a pickup truck. At that time, the occupants of the Durango exited the vehicle and fled on foot. Both were soon apprehended by the troopers, and Taste was given his

Miranda rights and arrested on scene by one of the troopers. Sometime later, Taste answered some questions posed by a different trooper wherein he acknowledged being the driver of the Durango during the chase. {¶ 5} Taste was indicted on one count of failure to comply, and pled not guilty. Taste filed a motion to suppress the statements he made to the trooper, which was denied by the trial court. Taste now appeals the trial court's decisi on to deny his motion to suppress, raising two assignments of error. Because the two as signments of error are interrelated, we will address them together. {¶ 6} Assignment of Error No. 1: {¶ 7} THE TRIAL COURT ERRED IN NOT FINDING THAT THE APPELLANT HAD

INVOKED HIS FIFTH AMENDMENT RIGHTS AND THAT THE AUTHORITIES FAI LED TOMadison CA2020-06-012

- 3 - SCRUPULOUSLY HONOR THOSE RIGHTS. {¶ 8} Assignment of Error No. 2: {¶ 9} THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT'S

MOTION TO SUPPRESS INCRIMINATING STATEMENTS OBTAINED IN VIOLATI ON OF

MIRANDA AND MOSLEY

. {¶ 10} Taste argues in his assignments of error that his Fifth Amendme nt rights were violated and that the trial court erred by not granting his mot ion to suppress. During the motion to suppress hearing, the trial court and parties agreed that the issue was limited to whether Taste impliedly waived his Miranda rights by telling the trooper that he was driving during the chase. While Taste now reframes the argument by arg uing that the troopers did not honor his invocation of rights, we find the issues sufficie ntly overlapping that we will address the arguments raised within Taste's brief. Either way, and regardless of how the exact argument is articulated, we find the trial court did not err in denying Taste's motion to suppress, as Taste never unambiguously invoked his rights so th at the troopers were not required to forgo questioning. {¶ 11} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility.

State v. Nelson , 12th Dist. Clermont No. CA2017-08-042, 2018-Ohio-2819, ¶ 17. Thus, we are bound to accept the trial court's findings of fact if they are supported by competent,

credible evidence. Id. {¶ 12} An appellate court, however, independently reviews the trial co urt's legal conclusions based on those facts and determines, without defere nce to the trial court's decision, whether as a matter of law, the facts satisfy the app ropriate legal standard. StateMadison CA2020-06-012

- 4 - v. Reedijk , 12th Dist. Warren No. CA2020-12-086, 2021-Ohio-2879. {¶ 13} It is well established that before law enforcement officials in terrogate a suspect in custody, the suspect must be advised of his or her Miranda rights and make a knowing and intelligent waiver of those rights before any state ments obtained during the interrogation will be admissible as evidence. State v. Hernandez-Martinez , 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-3754. If a defendant later challe nges a confession as involuntary, the state must prove a knowing, intelligent, and v oluntary waiver by a preponderance of evidence. State v. Vunda , 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449. {¶ 14} To determine whether a valid waiver occurred, we "consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the exis tence of physical deprivation or mistreatment; and the existence of threat or inducement." Id . at ¶ 15, quoting State v.

Edwards , 49 Ohio St.2d 31 (1976), paragraph two of the syllabus. {¶ 15} A Miranda waiver need not be in writing to be valid. North Carolina v. Butler , 441 U.S. 369, 373, 99 S.Ct. 1755 (1979). Nor must the accused specifically state that he or she waives such rights. State v. Myers , 154 Ohio St.3d 405, 2018-Ohio-1903. "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implie d waiver of the right to

remain silent." Berghuis v. Thompkins , 560 U.S. 370, 384, 130 S.Ct. 2250 (2010); State v.

Martin , 151 Ohio St.3d 470, 2017-Ohio-7556, ¶ 100-101. A court may infer a waiver from the suspect's behavior, viewed in light of all the surrounding circumstances. State v. Lather , 110 Ohio St.3d 270, 2006-Ohio-4477, ¶ 11. {¶ 16} Conversely, a suspect must articulate his desire to remain sile nt or to cut off questioning in a sufficiently clear manner such that a reasonab le officer in theMadison CA2020-06-012

- 5 - circumstances would understand the statement to be an invocatio n of the right to remain

silent. State v. Murphy , 91 Ohio St.3d 516, 520, 2001-Ohio-112. ("I'm ready to quit t alking and I'm ready to go home, too," was not an unequivocal assertio n of defendant's right to remain silent). If the suspect's words or conduct is equivocal , police may continue to question the suspect and need not attempt to clear up the ambig uity. State v. Bird , 12th Dist. Butler No. CA2002-05-106, 2003-Ohio-2541, ¶ 24. {¶ 17} After reviewing the record, we find that the trial court did no t err in finding that Taste had impliedly waived his Miranda rights by answering questions once he had been advised of his rights. The record indicates that Taste was app rehended quickly at the end of the chase. He was immediately read his rights and the troop er who administered such rights asked Taste whether he understood the rights as read. T aste acknowledged that he understood his rights. However, Taste did nothing to affirmati vely or unambiguously assert that he was invoking his right to remain silent. Instead, Tast e simply chose not to answer the trooper's initial questions. {¶ 18} Rather than continue to question Taste, the trooper began to qu estion Taste's passenger to try and ascertain his identity and whether the men had thrown anything from the car during the chase that the troopers needed to collect. Taste suggests that the trooper stopped questioning him because of his silence and that such si lence was a clear invocation of his rights as demonstrated by the trooper moving on to quest ion his passenger. However, the trooper testified at the motion to suppress hearing that he stopped asking Taste questions and only questioned Taste's passenger in order to asc ertain whether something had been discarded during the chase. Moreover, the trooper tes tified that he did not continue to ask Taste questions because he was aware that other investigators would be questioning Taste in the near future. The trooper testified th at his limited role involved only the arrest, advising Taste of h is rights, and transporting Tast e to the Highway Patrol post.Madison CA2020-06-012

- 6 - {¶ 19} A different trooper testified that while at the post, he spoke with Taste about an hour or two after Taste was arrested. The trooper testified that he was aware that Taste had been given his rights and that Taste had not invoked his ri ght to remain silent. At that time, the trooper engaged in a conversation with Taste and aske d why Taste had chosen to slow down at one point during the chase. Taste responded to the trooper's question and told the trooper that his passenger had been frightened during the chase and worried that Taste's driving was "goi ng to get us killed." {¶ 20} The evidence established at the suppression hearing demonstrate s that Taste had not unambiguously invoked his right to remain silent, and t hat his statements made to the trooper during their discussion were not coerced in any man ner. The evidence also clearly establishes that Taste was advised of his rights and ac knowledged his understanding of them prior to answering the trooper's question s. This is especially true where Taste declined to answer some questions, but voluntarily chose to answer others. Despite Taste's initial silence, simply declining to answer a q uestion does not imply an invocation of the right to remain silent. Taste's behavior dem onstrates an uncooperative attitude initially and a voluntary decision to answer some ques tions and not answer others. {¶ 21} We also note that despite Taste's argument to the contrary, the troopers were not required to readvise Taste of his rights before speaking wi th him. In support of his argument that he was entitled to a restatement of his rights, T aste relies upon Michigan v. Mosley , 423 U.S. 93, 96 S.Ct. 321 (1975). In Mosley , the United States Supreme Court determined that police had not violated the appellant's Fifth A mendment rights where they gave the appellant a "fresh set of warnings" after a "significa nt period of time" had passed since officers first advised the appellant of his Miranda rights. {¶ 22} When an individual who is properly given Miranda warnings is subsequently interrogated without being re-advised of his Miranda rights, the critical issue is whether thatMadison CA2020-06-012

- 7 - individual remained aware of his or her rights at the time of t he subsequent interrogation.

State v. Roberts , 32 Ohio St. 3d 225, 232 (1987). When making that determinati on, courts must consider the totality of the circumstances, including: (1 ) the length of time between the giving of the first warnings and subsequent interrogation, (2) whether the warnings and the subsequent interrogation were given in the same or differen t places, (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers, (4) the extent to which the subsequent statement diff ered from any previous statements, and (5) the apparent intellectual and emotional sta te of the suspect. Id

. {¶ 23} We find that the troopers did not need to issue Taste "fresh" w arnings before engaging in a conversation with him. Instead, approximately tw o hours had passed between the arrest and the trooper's conversation with Taste an d there is no indication that anything occurred during this brief time that would have made T aste forget his rights or not understand the warnings that had been previously acknowledged. See State v. Rader , 12th Dist. Butler No. CA2010-11-310, 2011-Ohio-5084, ¶ 13 (affirming denial of motion to suppress where approximately four hours passed between initial warnings and the appellant's statements); and State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577 ¶ 120 (finding no violation of rights even though more than 30 hours elapsed between the

initial Miranda warnings and the appellant's second interview). {¶ 24} While the first trooper issued warnings at a different location from where the subsequent conversation occurred with a different trooper, the record is undisputed that Taste remained in custody the entire time and that only approxi mately two hours passed. Taste had been specifically told that he had the right to remai n silent, acknowledged his understanding of such rights, and had chosen to not answer some questions. However, at no time did Taste make an unequivocal invocation of rights as i s required by the law. Instead, Taste chose to speak with the second trooper and ackno wledged being the driver.Madison CA2020-06-012

- 8 - However, Taste's choice to answer the trooper's question did no t require the trooper to readminister any warnings before speaking with Taste. {¶ 25} After reviewing the record, we find that the trial court proper ly denied Taste's motion to suppress. As such, Taste's two assignments of error are overruled. {¶ 26} Judgment affirmed.

M. POWELL and BYRNE, JJ., concur.