[Cite as State v. Luther, 2021-Ohio-2697.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

MICHAEL JAMES LUTHER 

Defendant-Appellant 

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Appellate Case No. 28908 

Trial Court Case No. 2020-CR-865 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 6th day of August, 2021. 

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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 

45429 

 Attorney for Defendant-Appellant 

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WELBAUM, J. 
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{¶ 1} Defendant-appellant, Michael James Luther, appeals from his conviction in 

the Montgomery County Court of Common Pleas after he pled no contest to four counts 

of rape of a minor less than ten years of age and 18 counts of pandering obscenity 

involving a minor. In support of his appeal, Luther contends that the trial court erred by 

overruling his motion to suppress statements that he made to investigating officers during 

an interview. Luther claims that his statements should have been suppressed because 

they were the product of an illegal seizure of his person in violation of the Fourth 

Amendment. Luther also contends that his trial counsel provided ineffective assistance 

by failing to raise the Fourth Amendment argument during the suppression proceedings. 

For the reasons outlined below, the judgment of the trial court will be affirmed. 

Facts and Course of Proceedings 

{¶ 2} On March 25, 2020, a Montgomery County grand jury returned an indictment 

charging Luther with four counts of rape of a minor less than ten years of age in violation 

of R.C. 2907.02(A)(1)(b), a felony of the first degree. The indictment also charged Luther 

with 18 counts of pandering obscenity involving a minor in violation of R.C. 

2907.321(A)(1), a felony of the second degree. Following his indictment, Luther pled not 

guilty to the charges and moved to suppress all the statements he made to investigating 

officers during an interview on March 16, 2020. 

{¶ 3} In support of his motion to suppress, Luther argued that his interview with the 

investigating officers violated his Fifth Amendment privilege against self-incrimination and 

his Sixth Amendment right to counsel. Specifically, Luther claimed that he did not 

knowingly, intelligently, and voluntarily waive his Miranda rights. Luther claimed that 
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prior to waiving those rights, the investigating officers deceived him by leading him to 

believe that he was being questioned about a juvenile court matter as opposed to criminal 

activity. Luther therefore claimed that his statements confessing to the offenses at issue 

were involuntary and should be suppressed. Luther also claimed that he did not 

unambiguously and unequivocally waive his right to counsel during the interview. 

{¶ 4} On June 16, 2020, the trial court held a hearing on Luther’s motion to 

suppress. The only witness to testify at the hearing was Officer Joshua Spears of the 

Dayton Police Department. Off. Spears testified that he was on a task force involving 

child safety issues that worked in conjunction with the Federal Bureau of Investigation 

(“FBI”). Off. Spears testified that in early 2020, a citizen found a smartphone memory 

card in a bingo hall parking lot and turned it into police after discovering the memory card 

contained child pornography. Off. Spears testified that he examined the memory card 

and determined that it contained images and videos of a young disabled girl in a 

wheelchair being forced to perform oral sex on an adult male. Off. Spears testified that 

the face of the adult male could not be seen in the images, but that the images did reveal 

identifying marks on the adult male’s body, i.e., an arm tattoo. 

{¶ 5} In an effort to identify a suspect, Off. Spears testified that he researched the 

corresponding address of a license plate that was depicted in some of the images on the 

memory card. Off. Spears testified that he went to the street of that address and, by 

referencing a fire hydrant, he determined that it was the area where some of the images 

had been taken. Off. Spears testified that he obtained the address of the home that was 

near the fire hydrant and then went to a local school and investigated whether any names 

were registered to that address. After further investigation, Off. Spears learned that 
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Luther was tied to the address near the fire hydrant and to the young girl in the 

pornographic images. Luther then became a suspect in the investigation. 

{¶ 6} After Luther became a suspect, Off. Spears learned that Luther was 

employed at the Chewy Facility in northern Montgomery County, Ohio. Off. Spears 

testified that on the morning of March 16, 2020, he and FBI agent Andrea Kinzig made 

contact with Luther at the Chewy Facility while Luther was taking a smoke break. Off. 

Spears testified that he and Agent Kinzig were in plain clothes when they approached 

Luther. Off. Spears, however, testified that he was wearing a Dayton Police lanyard and 

his police badge on his belt. Off. Spears also testified that upon making contact with 

Luther, he informed Luther that he was with the Dayton Police Department and that Agent 

Kinzig was with the FBI. 

{¶ 7} After identifying himself and Agent Kinzig, Off. Spears testified that he told 

Luther that he was investigating a case “concerning the safety of the children that 

[Luther’s] been around * * * including his biological son.” Trans. (June 16, 2020), p. 17. 

Although Off. Spears told Luther that he was doing a background investigation, Off. 

Spears testified that he made it clear to Luther that he was investigating “[Luther’s] past 

involving the safety of all the kids * * * in his life.” Id. at 17-18. Off. Spears testified that 

he asked Luther whether his emergency custody hearing in juvenile court was still going 

forward, and that Luther indicated it was. Off. Spears also testified that he asked Luther 

if he could check out his home and interview him, and that Luther consented to both of 

these requests. 

{¶ 8} Continuing, Off. Spears testified that Luther rode with him and Agent Kinzig 

to Luther’s residence in Dayton. Off. Spears testified that Luther was not handcuffed 
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during this time and that Luther rode in the front-passenger seat of his unmarked vehicle. 

When they arrived at Luther’s residence, Off. Spears took pictures at the residence and 

spoke to Luther’s brother. Off. Spears testified that he was at Luther’s residence for 

approximately ten minutes. Thereafter, Off. Spears testified that he drove Luther to the 

Dayton Safety Building for purposes of conducting an interview. Other than small talk 

about the weather and leisure activities, Off. Spears testified that neither he nor Agent 

Kinzig asked Luther any questions during the transport. 

{¶ 9} Luther’s interview with the officers was video recorded and admitted into 

evidence as State’s Exhibit 1. The video recording established that Off. Spears, Agent 

Kinzig, and Luther were all present during the interview. The video also established that 

before asking Luther any questions, Off. Spears presented a pre-interview form to Luther 

that set forth Luther’s Miranda rights. The pre-interview form was admitted into evidence 

as State’s Exhibit 2. The following is a summary of the events depicted in the video of 

Luther’s interview. 

{¶ 10} Initially, while explaining the pre-interview form to Luther, Off. Spears 

advised Luther that he was being interviewed regarding the crimes of child endangering, 

pandering obscenity, sexual assault, and anything regarding the safety of children. All 

of these offenses were written down on the pre-interview form that Off. Spears presented 

to Luther. See State’s Exhibit 2. Luther then asked Off. Spears whether he had been 

accused of the aforementioned offenses. Off. Spears answered affirmatively and 

explained that they were criminal allegations that would be discussed with Luther during 

the interview. Luther thereafter asked Off. Spears who was accusing him of the 

offenses. Off. Spears responded by telling Luther that he could not discuss that 
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information until he read Luther his rights. Off. Spears then went over all the Miranda

rights on the pre-interview form with Luther. Luther indicated that he understood each 

right on the pre-interview form. Luther also indicated that he understood that anything 

he said during the interview could and would be used against him in a court of law. 

{¶ 11} After Off. Spears went over all the rights on the pre-interview form, Off. 

Spears asked Luther to place his initials next to each right on the form in order to indicate 

Luther’s understanding of his rights. As Luther was initialing the pre-interview form, 

Luther asked Off. Spears whether he needed a lawyer. Off. Spears responded by saying 

that he could not answer that question and then reiterated that Luther had the right to get 

a lawyer and that whether Luther wanted a lawyer was entirely Luther’s choice. Luther 

then asked: “If I’m being accused of stuff then should I probably have one?” Off. Spears 

responded: 

Again, I can’t give you legal advice, that’s totally up to you. If you 

want one, you can ask for one. Umm, if you want to talk first and then you 

change your mind and say ‘I do want a lawyer now,’ you can always change 

your mind later. If you start talking and change your mind you can always 

go back, your rights are never taken away. So if you want one that’s totally 

fine, it’s up to you, we’ll have to stop talking now[.]” 

State’s Exhibit 1 at 11:15:51 a.m. to 11:16:50 a.m. 

{¶ 12} Following that discussion, Luther did not ask to have an attorney present at 

the interview. Luther did, however, ask Off. Spears whether he was going to be arrested. 

Off. Spears responded by telling Luther that he needed to finish going over the preinterview form in order to ensure that Luther understood his rights. Off. Spears then 
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began to review the waiver of rights portion of the pre-interview form, which Luther stated 

he understood. Off. Spears then asked Luther if he wanted to talk to him. Luther 

responded by saying that his answer to that question depended on whether he was 

actually in any sort of trouble. Luther also said that he did not want to waive his rights 

until he knew what he was facing. To this, Off. Spears told Luther that Luther was going 

to be arrested for the offenses of pandering obscenity involving a minor and sexual 

assault. Off. Spears testified that he knew he was going to arrest Luther for these 

offenses when Luther removed his jacket at the Safety Building and revealed an arm 

tattoo that matched the arm tattoo of the adult male in the pornographic images at issue. 

{¶ 13} After learning that he was going to be arrested, Luther inquired about the 

identity of the victim. Off. Spears responded by saying that he could not provide that 

information unless Luther agreed to speak with him. Luther then confirmed with Off. 

Spears that if he agreed to speak with him that he could stop talking at any point in order 

to get a lawyer, if necessary. Following that confirmation, Luther agreed to speak with 

Off. Spears and signed the waiver of rights, which states as follows: 

The above statement of rights has been read to me. I understand 

what my rights are. I am willing to make a statement and answer 

questions. I do not want a lawyer at this time. I understand and know 

what I am doing. No promises or threats have been made to me and no 

pressure or coercion of any kind has been used against me. I have 

completed twelve (12) years of schooling. Belmont High School.

State’s Exhibit 2. 

{¶ 14} Once the pre-interview form was signed, Off. Spears and Agent Kinzig 
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questioned Luther for approximately 55 minutes. The interview was calm with no threats 

or promises made. During the interview, the officers explored Luther’s relationships with 

women and obtained information about Luther’s children. The officers also explored 

Luther’s interactions with the children of the women he had had relationships with over 

the past six years. When Off. Spears presented Luther with the child pornography at 

issue, Luther confessed to being the adult male shown in the images and to producing 

the images. Luther also admitted to visiting child pornography websites and to 

downloading pornographic images depicting children. At the end of the interview, Luther 

was handcuffed and taken into custody. 

{¶ 15} After considering Off. Spears’ suppression hearing testimony, the video 

recording of Luther’s interview, and the pre-interview form, the trial court issued a decision 

overruling Luther’s motion to suppress. Concerning Luther’s Fifth Amendment claim, the 

trial court found that Off. Spears Mirandized Luther prior to the interview and that Luther 

understood his rights. The trial court also found that Luther knowingly, intelligently, and 

voluntarily waived his rights and made voluntary statements to the officers during the 

interview. 

{¶ 16} The trial court found that although Off. Spears was initially vague about the 

investigation, Off. Spears nevertheless advised Luther, before Luther waived his rights, 

that Luther was being accused of child endangering, pandering obscenity, and sexual 

assault, and that Luther was going to be questioned regarding those offenses. The trial 

court additionally found that because the officers did not threaten Luther, provide false 

statements to Luther, overbear Luther’s will, impair Luther’s capacity for selfdetermination, or make promises in exchange for Luther’s statements, there was no 
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coercive police conduct that rendered Luther’s statements to the officers involuntary. 

{¶ 17} With regard to Luther’s Sixth Amendment claim, the trial court found that 

Off. Spears advised Luther of his right to counsel and that Luther indicated his 

understanding of that right. The trial court further found that Luther’s act of simply asking 

Off. Spears whether he needed an attorney was not an unequivocal, unambiguous 

invocation of his right to counsel. The trial court therefore determined that Luther was 

not denied his Sixth Amendment right to counsel. 

{¶ 18} After the trial court overruled Luther’s motion to suppress, Luther entered a 

no contest plea to all the charges in the indictment. The trial court accepted Luther’s no 

contest plea and found Luther guilty as charged. The trial court then sentenced Luther 

to an aggregate term of 26 years to life in prison. Luther now appeals from his conviction, 

raising two assignments of error for review. 

First Assignment of Error 

{¶ 19} Under his first assignment of error, Luther claims that the trial court’s 

decision overruling his motion to suppress was erroneous because the trial court failed to 

conduct a Fourth Amendment illegal seizure analysis. Specifically, Luther claims that 

his consent to be transported to the Safety Building for purposes of being interviewed was 

invalid due to Off. Spears initially misrepresenting the nature of the investigation as one 

concerning a juvenile court matter as opposed to a criminal investigation. In light of the 

alleged misrepresentation, Luther contends that his transport to the Safety Building 

constituted an illegal seizure of his person under the Fourth Amendment. Luther claims 

that pursuant to the fruit of the poisonous tree doctrine, his illegal seizure tainted the 
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subsequent interview and rendered the statements derived from the interview 

inadmissible. Luther’s claim fails for the following reasons. 

{¶ 20} A motion to suppress must “state with particularity the grounds upon which 

it is made.” Crim.R. 47; State v. Shindler, 70 Ohio St.3d 54, 56, 636 N.E.2d 319 (1994); 

State v. Tyner, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶ 13. “The prosecutor 

must know the grounds of the challenge in order to prepare his case, and the court must 

know the grounds of the challenge in order to rule on evidentiary issues at the hearing 

and properly dispose of the merits.” Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 

N.E.2d 889 (1988). “By requiring the defendant to state with particularity the legal and 

factual issues to be resolved, the prosecutor and court are placed on notice of those 

issues to be heard and decided by the court and, by omission, those issues which are 

otherwise being waived.” Shindler at 58. Therefore, “[t]he defendant must ‘raise the 

grounds upon which the validity of the search or seizure is challenged in such a manner 

as to give the prosecutor notice of the basis for the challenge.’ ” Columbus v. Ridley, 

10th Dist. Franklin No. 15AP-84, 2015-Ohio-4968, 50 N.E.3d 934, ¶ 22, quoting Xenia at 

paragraph one of the syllabus. The failure to do so results in the waiver of that issue on 

appeal. Id.; State v. Geiger, 10th Dist. Franklin No. 15AP-1120, 2016-Ohio-7571, ¶ 8. 

{¶ 21} In this case, the arguments Luther raised in support of his motion to 

suppress were confined to whether his Fifth and Sixth Amendment rights were violated 

during the interview with Off. Spears so as to render Luther’s statements inadmissible. 

Whether Luther was illegally seized in violation of the Fourth Amendment when he was 

transported to the Safety Building and whether the alleged illegal seizure rendered 

Luther’s statements during the interview inadmissible were not argued before the trial 
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court. By failing to argue these issues in support of his motion to suppress, Luther has 

waived them for appeal. “It is settled law that issues raised for the first time on appeal 

and not having been raised in the trial court are not properly before this court and will not 

be addressed.” (Citations omitted.) State v. Schneider, 2d Dist. Greene No. 95-CA-18, 

1995 WL 737910, *1 (Dec. 13, 1995). 

{¶ 22} That said, even if Luther had raised his Fourth Amendment argument during 

the suppression proceedings, the argument would have still failed. “The Fourth 

Amendment to the U.S. Constitution does not permit police officers to arbitrarily search 

and seize a person at will.” State v. Curry, 2d Dist. Montgomery No. 11138, 1989 WL 

35890, *2 (Apr. 10, 1989), citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 

L.Ed.2d 576 (1967). One exception to this rule is when the individual provides voluntary 

consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 

(1973). To rely on the consent exception, “the state must show by ‘clear and positive’ 

evidence that the consent was ‘freely and voluntarily’ given.” State v. Posey, 40 Ohio 

St.3d 420, 427, 534 N.E.2d 61 (1988), quoting Bumper v. North Carolina, 391 U.S. 543, 

548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “[C]onsent obtained through deception 

cannot be said to have been given freely and voluntarily[.]” State v. Pi Kappa Alpha 

Fraternity, 23 Ohio St.3d 141, 144, 491 N.E.2d 1129 (1986). For example, the Supreme 

Court of Ohio held that liquor agents who fabricated their identities and the true purpose 

of their visit to a fraternity house for purposes of receiving consent to enter the fraternity 

house committed deception that rendered the consent not freely and voluntarily given. 

Id. 

{¶ 23} Here, Luther claims that his consent to be transported to the Safety Building 
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for an interview was not freely and voluntarily given due to Off. Spears deceiving him 

about the nature of the interview/investigation. Specifically, Luther claims that Off. 

Spears misled him into believing that he was going to be questioned about a juvenile 

court matter. The record, however, does not support Luther’s claim. 

{¶ 24} The record indicates that when encountering Luther at his place of 

employment, Off. Spears was wearing a Dayton Police lanyard and police badge and 

identified himself and Agent Kinzig as law enforcement officers. Off. Spears informed 

Luther that he and Agent Kinzig were investigating a case “concerning the safety of the 

children that [Luther’s] been around * * * including his biological son.” Trans. (June 16, 

2020), p. 17. Although Off. Spears asked Luther whether his emergency custody 

hearing in juvenile court was still going forward and advised Luther that he was doing a 

background investigation, Off. Spears nevertheless made it clear to Luther that he was 

investigating “[Luther’s] past involving the safety of all the kids * * * in his life.” Id. at 18. 

When Off. Spears was asked on cross-examination whether he wanted to leave the 

impression that he was from the juvenile court, Off. Spears responded that he “made it 

really clear” that he was with the Dayton Police Department. Id. The record also 

indicates that Off. Spears made it clear to Luther that Agent Kinzig was with the FBI. Id. 

at 17. 

{¶ 25} Based on the evidence presented at the suppression hearing, there is no 

indication that Off. Spears affirmatively deceived Luther regarding his identity or the 

nature of the investigation. Although the trial court found that Off. Spears possibly 

allowed for some confusion to exist during his initial contact with Luther, the fact remains 

that Luther knew at all times that he was dealing with law enforcement officers from the 
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Dayton Police Department and the FBI and that the officers were investigating the safety 

of the children that Luther had been in contact with. Therefore, unlike the situation in Pi 

Kappa Alpha Fraternity where the officers completely fabricated their identities and their 

reason for visiting, we do not find that Off. Spears deceived Luther so as to render his 

consent less than free and voluntary. Accordingly, based on the circumstances here, 

there is no evidence of an illegal seizure of Luther’s person and thus no Fourth 

Amendment violation. 

{¶ 26} Luther’s first assignment of error is overruled. 

Second Assignment of Error 

{¶ 27} Under his second assignment of error, Luther contends that his trial counsel 

provided ineffective assistance by failing to raise the aforementioned Fourth Amendment 

argument in support of his motion to suppress. We disagree. 

{¶ 28} In order to succeed on an ineffective assistance claim, a defendant must 

establish: (1) his trial counsel’s performance was deficient; and (2) the deficient 

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 

80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 

136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a 

showing of either deficient performance or prejudice defeats a claim of ineffective 

assistance of counsel. Strickland at 697. 

{¶ 29} “Where the basis of an ineffective assistance of counsel claim is counsel’s 

failure to file a motion to suppress evidence, the defendant making that claim must prove 

that the basis of the suggested suppression claim is meritorious.” In re D.D., 2d Dist. 
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Montgomery No. 22740, 2009-Ohio-808, ¶ 3, citing Kimmelman v. Morrison, 477 U.S. 

365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) and State v. Pillow, 2d Dist. Greene No. 

2007-CA-95, 2008-Ohio-6046, ¶ 59. “Trial counsel’s failure to file a motion to suppress 

constitutes ineffective assistance of counsel only if the failure to file the motion caused 

[d]efendant prejudice; that is, when there is a reasonable probability that had the motion 

to suppress been filed, it would have been granted.” (Citations omitted.) Pillow at ¶ 59; 

State v. Williams, 2d Dist. Montgomery No. 28299, 2019-Ohio-5142, ¶ 20. 

{¶ 30} In this case, we have already determined under Luther’s first assignment of 

error that Luther’s Fourth Amendment argument would not have succeeded even if the 

argument had been raised during the suppression proceedings. Therefore, because 

Luther cannot establish that his motion to suppress would have been granted, Luther 

cannot establish that counsel’s failure to raise the Fourth Amendment argument 

prejudiced him. Accordingly, Luther’s ineffective assistance claim fails. 

{¶ 31} Luther’s second assignment of error is overruled. 

Conclusion 

{¶ 32} Having overruled both assignments of error raised by Luther, the judgment 

of the trial court is affirmed. 

. . . . . . . . . . . . . 

DONOVAN, J. and HALL, J., concur. 
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Copies sent to: 

Mathias H. Heck, Jr. 

Andrew T. French 

Charles M. Blue 

Hon. Timothy N. O’Connell