[Cite as State v. Gard, 2014-Ohio-531.]

 

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 25727 

Plaintiff-Appellee : 

: Trial Court Case No. JC 2012-7203 

v. : 

: 

DUSTIN GARD : (Juvenile Appeal from Common Pleas 

: (Court, Juvenile Division) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 14th day of February, 2014. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 

972, 301 West Third Street, Dayton, Ohio 45422 

Attorneys for Plaintiff-Appellee 

 

WILLIAM O. CASS, JR., Atty. Reg. #0034517, 135 West Dorothy Lane, Suite 209, Kettering, 

Ohio 45429 

Attorney for Defendant-Appellant 

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

 

FAIN, J. 

{¶ 1} Defendant-appellant Dustin Gard appeals from his conviction, following a 

no-contest plea, for Child Endangering, in violation of R.C. 2919.22(A), a first-degree 
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misdemeanor. Gard contends that the trial court erred when it accepted his no-contest plea to the 

charge without first deciding his pending motion to suppress statements he had made to an 

investigating police officer. 

{¶ 2} We conclude that the trial court did not err when it failed to rule on Gard’s 

motion to suppress before accepting his no-contest plea. The issue of the admissibility of this 

evidence became moot, since the no-contest plea obviated the need to take any evidence on the 

issue of guilt. Crim.R. 12(I) only permits, as an exception to this general rule, the assertion on 

an appeal from a conviction based on a no-contest plea of error in a ruling on a pretrial motion to 

suppress. Accordingly, the judgment of the trial court is Affirmed. 

I. The Course of Proceedings

{¶ 3} On Wednesday, June 27, 2012, Gard’s two-month old infant son, who was in 

Gard’s care at the time, was rushed to the hospital after he had apparently stopped breathing. 

Two days later, Gard was interviewed by Dayton Police Detectives Theresa Lawson and William 

Swisher. Lawson primarily conducted the interview, although Swisher also participated, asking 

some questions. An audiovisual recording of this interview, on two digital video disks, is in our 

record. When we reviewed the second of these two disks, the computer program used to play it 

consistently stopped responding about ten minutes before the end of the 

hour-and-twenty-seven-minute recording, so we have been unable to play the last ten minutes. 

In view of our disposition of this appeal, that inability is immaterial. An audiovisual recording 

of a subsequent interview, two days after the first, is also in our record. These recordings were 

admitted in evidence at the suppression hearing. No testimony was taken at the suppression 

hearing. 
[Cite as State v. Gard, 2014-Ohio-531.]

{¶ 4} Gard was charged with Endangering Children, in violation of R.C. 2919.22(A), a 

misdemeanor of the first degree. He moved to suppress all the statements he made to police 

officers during his two interviews at the police station, contending that the statements were 

obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 

L.Ed.2d 694 (1966). 

{¶ 5} Gard’s motion to suppress came on for a hearing. No testimony was taken, but 

the audiovisual recordings of the interviews, and the signed pre-interview forms, were admitted 

in evidence by stipulation of the parties. The trial court heard argument, but did not render a 

decision. 

{¶ 6} While his motion to suppress remained pending, Gard pled no contest to the 

charge. For its part, the State agreed not to charge Gard with a homicide offense in connection 

with the death of his son, unless additional evidence should come to light. 

{¶ 7} The trial court accepted Gard’s plea, found him guilty as charged, and sentenced 

him to 90 days imprisonment in jail, ordered “both a Mental Health and AoD Assessment,” a 

psychiatric evaluation, compliance with the recommendations of the assessments and evaluation, 

no contact between Gard and two named individuals, and Gard’s submission “to random urine 

tests no less than every fifteen days upon release from jail.” It appears from the transcript of the 

sentencing hearing that the trial court intended to sentence Gard to 180 days in jail, with 90 of 

those days conditionally suspended, but the trial court’s judgment entry specifies imprisonment in 

jail for 90 days. 

{¶ 8} Gard appeals from his conviction and sentence. He raises three assignments of 

error: 
[Cite as State v. Gard, 2014-Ohio-531.]

THE COURT ERRED WHEN IT DID NOT SUPPRESS THE 

STATEMENTS THE APPELLANT MADE PRIOR TO BEING ADVISED OF 

HIS MIRANDA RIGHTS. 

THE APPELLANT DID NOT MAKE A VOLUNTARY, KNOWING 

AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS DURING THE 

FIRST INTERVIEW. 

ALL STATEMENTS THE APPELLANT MADE AFTER HE 

REQUESTED AN ATTORNEY SHOULD HAVE BEEN SUPPRESSED. 

II. Gard’s Suppression Issues Have Not Been Preserved for Appellate Review 

{¶ 9} In general any errors by a trial court concerning the admission or exclusion of 

evidence are necessarily harmless when a criminal defendant subsequently pleads guilty or no 

contest, since the defendant’s conviction, being derived from the plea, has not been affected by 

the trial court’s error. Crim.R. 12(I) creates an exception to this general rule: 

The plea of no contest does not preclude a defendant from asserting upon 

appeal that the trial court prejudicially erred in ruling on a pretrial motion, 

including a pretrial motion to suppress evidence. (Emphasis added.) 

{¶ 10} One might suppose that a ruling on an evidentiary motion could not be 

prejudicial error when a defendant subsequently pleads no contest, since the conviction does not 

depend upon the evidence, but the rule, at least as it specifically refers to a pretrial motion to 

suppress evidence, would be meaningless if a defendant had to show prejudicial error in that 

sense. Therefore, it is generally accepted that the trial court’s error in overruling a motion to 

suppress evidence will survive a plea of no contest if the error would have been prejudicial if the 
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defendant had gone to trial rather than plead no contest. 

{¶ 11} But the exception to the general rule created by Crim.R. 12(I) is expressly limited 

to erroneous rulings on pre-trial motions; an unruled-upon motion does not create error that can 

be preserved for appellate review. State v. Mendell, 191 Ohio App.3d 325, 2010-Ohio-6107, 

945 N.E.2d 1130, ¶ 22 (2d Dist.). In the case before us, the trial court never ruled upon Gard’s 

motion to suppress. It would be presumptuous of us to assume that the trial court would have 

committed error if it had ruled on the motion. The trial court had no need to rule upon the 

motion once Gard pled no contest, because Gard’s conviction was based upon the plea, not upon 

any evidence. The unruled-upon motion to suppress became moot, because there was not going 

to be any evidentiary hearing on the issue of Gard’s guilt or innocence of the offense with which 

he was charged. 

{¶ 12} The situation of a no-contest plea accepted with a motion to suppress pending is 

different from a situation in which a trial court’s proceeding to trial and judgment is inconsistent 

with granting relief on a pending motion. Where, for example, a defendant moves for the 

disclosure to him of the alleged victim’s diaries, but the trial court proceeds to trial and a 

judgment of conviction without ever ruling on the defendant’s motion, it may safely be presumed 

that the trial court found the motion to be without merit, and effectively overruled it; the 

defendant was forced to proceed to trial without the diaries having been disclosed to him. State 

v. Hebdon, 12th Dist. Butler Nos. CA2012-03-052, and CA2012-03-62, 2013-Ohio-1729, ¶ 4. 

{¶ 13} There is nothing in the record of the case before us to indicate that Gard objected 

to the trial court’s accepting his no-contest plea without first ruling on the suppression motion. 

And if Gard had withheld tendering his plea until after the trial court had ruled on his motion to 
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suppress, he would have run the risk that the trial court would overrule his motion to suppress, 

and the State would then offer less consideration, or no consideration at all, for his plea. 

{¶ 14} All of Gard’s assignments of error are overruled. 

III. Conclusion

{¶ 15} All of Gard’s assignments of error having been overruled, the judgment of the 

trial court is Affirmed. 

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

HALL and WELBAUM, JJ., concur. 

Copies mailed to: 

Mathis H. Heck, Jr. 

Michele D. Phipps 

William O. Cass, Jr. 

Hon. Nick Kuntz