[Cite as State v. Baker, 2013-Ohio-1737.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-12-51 

 v. 

TRAVIS JAY BAKER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 12-CR-102 

Judgment Reversed and Cause Remanded 

Date of Decision: April 29, 2013 

 

APPEARANCES: 

 

Jeff Ratliff for Appellant 

Brent W. Yager for Appellee 
Case No. 9-12-51 

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WILLAMOWSKI, J.

{¶1} Defendant-appellant Travis Jay Baker (“Baker”) brings this appeal 

from the judgment of the Court of Common Pleas of Marion County finding him 

guilty of four felonies and sentencing him to a total of seven years in prison. For 

the reasons set forth below, the judgment is reversed and the matter is remanded. 

{¶2} On March 8, 2012, Baker was arrested and charged with a robbery 

that occurred on March 7, 2012. Detective Jason Dutton (“Dutton”) began to 

question Baker concerning the robbery. Baker invoked his right to counsel at the 

initial interview and the interview was immediately terminated. On March 15, 

2012, the Marion County Grand Jury indicted Baker on four counts: 1) 

Aggravated Robbery in violation of R.C. 2911.01(A)(3), a felony of the first 

degree; 2) Felonious Assault in violation of R.C. 2903.11(A)(2), a felony of the 

second degree; 3) Felonious Assault in violation of R.C. 2903.11(A)(1), a felony 

of the second degree; and 4) Theft in violation of R.C. 2913.02(A)(1), a felony of 

the fourth degree. Baker was arraigned on March 19, 2012, and counsel was 

appointed for him. Unable to make bail, Baker was incarcerated at the MultiCounty Jail pending trial. 

{¶3} On March 26, 2012, Dutton went to the Multi-County Jail to interview 

Baker. Baker was brought to the locked conference room. Baker advised Dutton 

that he did not wish to speak without counsel seven to nine times. Dutton then 
Case No. 9-12-51 

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turned off the tape recorder, but continued to converse with Baker while they 

waited for a guard. Eventually, Baker made incriminating statements in response 

to the conversation. 

{¶4} On May 14, 2012, Baker filed a motion to suppress his statements. A 

hearing was held on the matter on May 24, 2012. On July 18, 2012, the trial court 

denied Baker’s motion to suppress. Baker changed his pleas to ones of no contest 

on July 24, 2012. The trial court held the sentencing hearing that same day. The 

trial court ordered that Baker serve seven years in prison on each of the first three 

counts and seventeen months in prison for the theft conviction. All sentences 

were ordered to be served concurrently for a total prison term of seven years. 

Baker appeals from this judgment and raises the following assignments of error. 

First Assignment of Error 

The trial court erred and abused its discretion in denying 

[Baker’s] motion to dismiss and/or suppress as statements 

obtained from [Baker] were obtained in violation of [Baker’s] 

Fifth Amendment right against self-incrimination. 

Second Assignment of Error 

The trial court erred and abused its discretion in denying 

[Baker’s] motion to dismiss and/or suppress as statements 

obtained from [Baker] were obtained in violation of [Baker’s] 

Sixth Amendment right to counsel.

{¶5} Both of the assignments of error allege that the motion to suppress 

Baker’s statements at the Multi-County Jail should have been excluded. 
Case No. 9-12-51 

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Appellate review of a motion to suppress presents a mixed 

question of law and fact. When considering a motion to 

suppress, the trial court assumes the role of trier of fact and is 

therefore in the best position to resolve factual *155 questions 

and evaluate the credibility of witnesses. State v. Mills (1992), 62 

Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate 

court must accept the trial court's findings of fact if they are 

supported by competent, credible evidence. State v. Fanning 

(1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting 

these facts as true, the appellate court must then independently 

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

whether the facts satisfy the applicable legal standard. State v. 

McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539. 

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. Thus, this court must 

accept the factual findings of the trial court, but determine whether, considering 

the facts and applying the law de novo, the facts satisfy the legal standards for 

admissibility. 

{¶6} The U.S. Supreme Court has addressed the issue of what must happen 

when a defendant invokes his or her right to counsel during a custodial 

interrogation. 

[A]lthough we have held that after initially being advised of his 

Miranda rights, the accused may himself validly waive his rights 

and respond to interrogation, see North Carolina v. Butler, [441 

U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), at 372–376], the 

Court has strongly indicated that additional safeguards are 

necessary when the accused asks for counsel; and we now hold 

that when an accused has invoked his right to have counsel 

present during custodial interrogation, a valid waiver of that 

right cannot be established by showing only that he responded to 

further police-initiated custodial interrogation even if he has 

been advised of his rights.FN8 We further hold that an accused, 

such as Edwards, having expressed his desire to deal with the 
Case No. 9-12-51 

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police only through counsel, is not subject to further 

interrogation by the authorities until counsel has been made 

available to him, unless the accused himself initiates further 

communication, exchanges, or conversations with the police. 

FN8. In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 

L.Ed.2d 423 (1977), where, as in Massiah v. United States, 377 

U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Sixth 

Amendment right to counsel had accrued, the Court held that a 

valid waiver of counsel rights should not be inferred from the 

mere response by the accused to overt or more subtle forms of 

interrogation or other efforts to elicit incriminating information. 

In Massiah and Brewer, counsel had been engaged or appointed 

and the admissions in question were elicited in his absence. But 

in McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 

(1965), we summarily reversed a decision that the police could 

elicit information after indictment even though counsel had not 

yet been appointed. 

Miranda itself indicated that the assertion of the right to counsel 

was a significant event and that once exercised by the accused, 

“the interrogation must cease until an attorney is present.” 

[State v. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966) at 474]. Our later cases have not abandoned that view. 

In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 

(1975), the Court noted that Miranda had distinguished between 

the procedural safeguards triggered by a request to remain 

silent and a request for an attorney and had required that 

interrogation cease until an attorney was present only if the 

individual stated that he wanted counsel. 423 U.S., at 104, n. 10, 

96 S.Ct., at 326, n. 10; see also id., at 109–111, 96 S.Ct., at 329–

330 (White, J., concurring). In Fare v. Michael C., [442 U.S.707, 

99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) at 719], the Court referred 

to Miranda's “rigid rule that an accused's request for an 

attorney is per se an invocation of his Fifth Amendment rights, 

requiring that all interrogation cease.” And just last Term, in a 

case where a suspect in custody had invoked his Miranda right to 

counsel, the Court again referred to the “undisputed right” 

under Miranda to remain silent and to be free of interrogation 

“until he had consulted with a lawyer.” Rhode Island v. Innis, 
Case No. 9-12-51 

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446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). 

We reconfirm these views and, to lend them substance, 

emphasize that it is inconsistent with Miranda and its progeny 

for the authorities, at their instance, to reinterrogate an accused 

in custody if he has clearly asserted his right to counsel. 

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), at 484-

485. 

{¶7} Once a defendant has been indicted, the Sixth Amendment of the U.S. 

Constitution guarantees a defendant the right to have counsel present at all critical 

stages, including interrogation by the State. Montejo v. Louisiana, 556 U.S. 778, 

129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). A defendant may later waive this right, 

though, after being readvised of his or her Miranda rights in a subsequent 

interrogation. Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 

1045 (2010). If upon being advised of his or her rights, a defendant again invokes 

his or her right to counsel, the interrogation must cease. Id. 

{¶8} Interrogation refers not only to express questions asked by officers, 

but also to any words or actions that are reasonably likely to elicit a response. 

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

State v. Knuckles, 65 Ohio St.3d 497 (1992), the Ohio Supreme Court determined 

that a statement that the officer only wanted to talk to the defendant about a third 

party was still an interrogation because it invited a response. In Knuckles, the 

court reversed the lower court holding that by making a statement about wanting 
Case No. 9-12-51 

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to know about a third party, the police were continuing the interrogation after the 

right to counsel had been invoked. The court then set forth a bright line rule for 

interrogation after the right to counsel has been invoked. 

Once an accused invokes his right to counsel, all further 

custodial interrogation must cease and may not be resumed in 

the absence of counsel unless the accused thereafter effects a 

valid waiver or himself renews communication with the police. 

Id. at paragraph one of the syllabus. See also State v. Petruccelli, 11th Dist. No. 

054, 2011-Ohio-3292. The court in Knuckles then required a two part test: 1) 

Was the right to counsel invoked?; and 2) Did the defendant initiate further 

discussions or knowingly and intelligently waive his or her right to counsel? 

Knuckles at 496. 

{¶9} In this case, there is no dispute that Baker was in custody awaiting 

trial. There is also no dispute that the Dutton came to the jail to question Baker 

about the offenses for which Baker was awaiting trial. The questioning took place 

in a locked room and Baker was not free to leave. Thus, his questioning was 

custodial and the Miranda rights applied. 

{¶10} A review of the recording of the interview showed the following 

conversations occurred. Once in the interrogation room, Dutton advised Baker of 

his rights. Dutton immediately stated that he wanted his counsel present. The 

recording indicates that Baker stated a minimum of five times over a less than four 

minute span that he did not wish to speak without his attorney present. Therefore, 
Case No. 9-12-51 

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the first prong of the Knuckles test was met as there was an undisputed and clear 

invocation of the right to counsel. 

{¶11} The recording also showed that Dutton continued to speak to Baker 

after the right to counsel was invoked and told Baker how speaking with Dutton 

might “help his situation.” Dutton also informed Baker that he would be back out 

to the jail to speak with him every 14 days. After Dutton informed Baker that he 

would contact Baker’s attorney, he eventually turned off the recording. During his 

testimony, Dutton testified that after he turned off the recording, he continued to 

converse with Baker. Tr. 43. Dutton also admits on cross-examination that he 

was the one continuing the conversation. Tr. 43-44, 47. A review of the recording 

and the testimony of Dutton indicate that after Baker invoked his right to counsel, 

Dutton continued to engage him in conversation. Specifically, Dutton testified 

that on the way out of the interrogation room he made the following statement to 

Baker. 

When we got out in the hall, I told him, I said “look, you know, if 

you change your mind and you want to talk let us know, we’re 

just trying to figure out if somebody else was involved”. * * * 

* * * 

* * * At that point I told him, I said you know, “I know you feel 

bad” * * *. 

Tr. 27-28. Baker made his confession in response to the above comments by 

Dutton and the continued questioning by Dutton after Baker had repeatedly 
Case No. 9-12-51 

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invoked his right to counsel. Baker had unquestionably invoked his right to 

counsel multiple times, yet Dutton continued to converse with Baker concerning 

the case, how talking with Dutton might help Baker’s situation, and how Dutton 

knew Baker felt bad about what had happened. 

{¶12} A review of the evidence, including Dutton’s admission that he was 

the one continuing the conversation, shows that Baker did not renew the 

communication. The communication between the two had never ceased. The 

evidence also indicates that Baker made statements that he knew or should have 

known would elicit a response after the request for counsel had been made. This 

is impermissible under the holding of Knuckles. Thus, the second prong of 

Knuckles, a showing that Baker renewed the communication and voluntarily 

waived his right to counsel, is not met. Baker did not renew the communication 

and did not make a valid waiver of his right to counsel. 

{¶13} The State argues that under the holding in Shatzer, supra, Dutton had 

the right to reinterrogate Baker. The holding in Shatzer is not at issue in this case. 

Even in Shatzer, the U.S. Supreme Court recognized that the renewed 

interrogation must cease if the defendant invokes his or her right to counsel. Thus, 

we need not address the requirements of Shatzer. The trial court erred in denying 

the motion to suppress the statements from the second interrogation. The first and 

second assignments of error are sustained. 
Case No. 9-12-51 

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{¶14} Having found error prejudicial to the defendant, the judgment of the 

Court of Common Pleas of Marion County is reversed and the matter is remanded 

for further proceedings. 

Judgment Reversed 

And Remanded 

PRESTON, P.J. and ROGERS, J., concur. 

/jlr