[Cite as State v. Mogle , 2021-Ohio-1741.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY STATE OF OHIO Plaintiff-Appellee

v. RANDY R. MOGLE Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-2 Trial Court Case No. 2019-CR-153 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 21st day of May, 2021.

. . . . . . . . . . . JAMES D. BENNETT, Atty. Reg. No. 0022729, Assistant Prosecuting Attorney, Darke County Prosecutor’s Office, 5 04 South Broadway, Greenville, Ohi o 45331 Attorney for Plaintiff-Appellee ALEXANDER S. PENDL, Atty. Reg. No. 0093792, 121 West Third Stre et, Greenville, Ohio 45331 Attorney for Defendant-Appellant

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

TUCKER, P.J.-2- {¶ 1} Defendant-appellant Randy R. Mogle appeals from his convictions for aggravated arson and engaging in a pattern of corrupt activity, which followed his pleas of no contest after the trial court overruled Mogle’s two motio ns to suppress statements made during three custodial interrogations. For the reasons th at follow, we affirm the judgment of the trial court.

I. Factual and Procedural Background {¶ 2} According to the record before us, Mogle, who is a resident of Greenville, Darke County, Ohio, was a suspect in theft offenses which occur red in Indiana. On June 10, 2019, Mogle was arrested on a felony warrant and transporte d to the Darke County Sheriff’s Office, where he was interviewed by law enforcement o fficers from Indiana for approximately 2.5 hours. Because he was also a suspect in nume rous arson offenses in Darke County, he was subsequently interviewed by Christopher Clark, a Darke County Sheriff’s Department Detective. That interview, which occurred immediately after the interview by the Indiana authorities, lasted for approximately one hour. {¶ 3} On June 12, 2019, Clark again interviewed Mogle at Mogle’s requ est. The interview, which was conducted in the Darke County Jail, lasted approximately 87 minutes. Mogle was later transferred to a jail facility in Ind iana. On June 13, Clark interviewed Mogle a third time at the Indiana jail. The interv iew lasted approximately one hour. {¶ 4} On June 25, 2019, Mogle was indicted in Darke County on 44 coun ts of arson, 11 counts of aggravated arson, one count of engaging in a pattern of corrupt activity, and one count of conspiracy to engage i n a pattern of corrupt activity. Mogle-3- filed a motion to suppress statements made during the June 10, 2019 interview with Detective Clark. He later filed a second motion to suppress st atements made during the two subsequent interviews with Clark. A suppression hearing wa s conducted, and the trial court overruled the motions to suppress. {¶ 5} Thereafter, Mogle entered pleas of no contest to one count of a ggravated arson and one count of engaging in a pattern of corrupt activit y. The remaining counts were dismissed. Mogle was sentenced to a term of ten years in prison on each offense, with the two sentences to be served concurrently. {¶ 6} Mogle appeals.

II. Analysis {¶ 7} Mogle’s sole assignment of error states the following:THE TRIAL COURT ERRED BY OVERRULING DEFENDANTAPPELLANT’S MOTIONS TO SUPPRESS. {¶ 8} Mogle asserts that the trial court’s denial of his motions to s uppress was erroneous. In support, he claims his statements were coerced b y improper police conduct. {¶ 9} The Fifth Amendment to the United States Constitution provides that no person shall be compelled to be a witness against himself. In order to ensure that this right is protected, statements resulting from custodial interro gations are admissible only after a showing that the police have followed the procedural sa feguards described in Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thi s court has further explained this protection in State v. Porter , 178 Ohio App.3d 304, 2008-Ohio--4- 4627, 897 N.E.2d 1149 (2d Dist.), wherein we stated: In Miranda v. Arizona , * * *, the Supreme Court was concerned that the circumstances of custodial interrogation and interrogation techniques police are apt to use may be so overbearing as to render involu ntary a suspect's decision to waive his Fifth Amendment privilege again st incriminating himself in criminal activity by a confession of g uilt. To avoid that difficulty, Miranda required a prescribed warning of rights that must precede custodial interrogation, and further held that when tho se rights are waived by the suspect in custody, any subsequent statement the suspect makes is presumed to be voluntary. The Miranda presumption applies to the conditions inherent in custodial interrogation that compel the suspect to confess. It does not extend to any actual coercion police might engage in, and the D ue Process Clause continues to require an inquiry separate from custody considerations and compliance with Miranda regarding whether a suspect's will was overborne by the circumstances surrounding his confess ion. Dickerson v. United States (2000), 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405. Voluntariness of a confession and compliance with Miranda are analytically separate inquiries. State v. Petitjean (2000), 140 Ohio App.3d 517, 748 N.E.2d 133; State v. Chase (1978), 55 Ohio St.2d 237, 378 N.E.2d 1064. A confession may be involuntary even when Miranda warnings are given, or even if Miranda warnings are not required. Dickerson ; Petitjean

.-5- Id. at ¶ 13-14. {¶ 10} The Ohio Supreme Court has declared that, “[i]n deciding whethe r a defendant's confession is involuntarily induced, the court shou ld consider the totality of the circumstances, including the age, mentality, and prior crim inal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or ind ucement.” State v. Edwards , 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of th e syllabus, overruled on other grounds , 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978); State v. Hall , 2018-Ohio-2321, 114 N.E.3d 730, ¶ 36 (2d Dist.). {¶ 11} We begin by noting that there is no dispute that Mogle was prop erly advised of his Miranda rights prior to each of the three interviews with Detective Cl ark. Thus, the only issue before us is whether the trial court erred in its co nclusion that there was no police misconduct that occurred during the interviews that caus ed Mogle to make incriminating statements. {¶ 12} The first interview, which was audio- and video-recorded, laste d slightly more than three hours when considered in conjunction with the i nterview by Indiana law enforcement officers. Clark was involved in the last hour of t he interview. Mogle’s hands were handcuffed behind his back for the last two hours of the interview. He was seated on a couch and did not make any complaints of discomfort until the end of the interview, at which point he indicated the handcuffs were causi ng his hands to fall asleep. He also asked to use the restroom, and he was permitted to do s o within one minute of making the request. The interview ended at that time. {¶ 13} After reviewing the entirety of the interview, we cannot conclu de that the-6- circumstances were overly coerci ve. While this interview was l engthy and conducted with Mogle in handcuffs, he did not express any discomfort or r equest a break until the end of Clark’s portion of the interview. We further conclude t he trial court did not err in finding no basis for Mogle’s claim that Clark made improper pro mises of leniency in exchange for his cooperation. Importantly, Mogle did not make any admissions during the interview regarding the arson offenses. Thus, we cannot co nclude this interview was tainted by improper conduct. {¶ 14} The record indicates that the second interview was conducted at Mogle’s request. It took place in the Darke County jail, and we have o nly an audio-recording of this interview, which lasted 87 minutes. Mogle does not claim that he was subjected to any physical deprivations during this interview. However, he d oes take exception to statements made by Clark throughout the interview. Specificall y, Clark made statements indicating the prosecutor would give Mogle more favorable treat ment if Mogle made a confession. Clark also indicated that the judge was “light on sentencing,” because he did not believe that prison sentences resulted in rehabilitatio n. Clark also repeatedly threatened to arrest Mogle’s girlfriend for obstruction of just ice, which he claimed would cause Children’s Services to take custody of the couples’ child . Finally, Clark stated that the arson offenses would be misdemeanors because the buildings involved were abandoned and were valued at less than $150,000 each. {¶ 15} Mogle did make possibly inculpatory statements during this inte rview when he stated that he was in the area with another suspect when tha t suspect set fire to a barn and a home. However, Mogle asserted that he did not go on to the subject properties, and he denied knowing the other suspect was setting fires. Mogle claimed-7- he did not learn of the fires until the other suspect later inf ormed him that the structures had been set on fire. Throughout the interview, Mogle insisted that he did not burn any
structures. {¶ 16} We begin with Clark’s statements in which he claimed the prosec utor would be inclined to treat Mogle more favorably were he to “tell the truth” and that the judge tended to be lenient in sentencing. This court has previously held that statements indicating a defendant’s cooperation will be considered and may result in more lenient treatment do not constitute undue influence or coercion. State v. Stringham , 2d Dist. Miami No. 2002-CA-9, 2003-Ohio-1100, ¶ 16. Further, Clark did not claim the judge would be lenient in sentencing Mogle. Instead, he merely noted that the judge tended to disfavor prison sentences. Nothing in the interview causes us to disagree with the trial court’s determination that Clark’s conduct did not render invol untary Mogle’s arguably inculpatory statements. {¶ 17} We next turn to Clark’s repeated threats to arrest Mogle’s girl friend for obstruction of justice based upon the girlfriend’s lying to Cla rk concerning Mogle’s whereabouts. These threats were repeated during the third inte rview. Thus, our analysis of this issue relates to both the second and third int erviews. {¶ 18} “[T]hreats to arrest members of a suspect's family may cause a confession to be involuntary.” State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 72, quoting United States v. Finch , 998 F.2d 349, 356 (6th Cir.1993). “The issue ‘turns on * * * whether the threat could have been lawfully exe cuted.’ ” Id. , quoting United States v. Johnson , 351 F.3d 254, 263 (6th Cir.2003). “If the police had probabl e cause to arrest the person in question, a threat to do so is not coer cive and thus does not render-8- a confession involuntary.” Id

. {¶ 19} Mogle does not claim that Clark lacked probable cause to arrest his girlfriend. Indeed, Clark cited evidence the girlfriend lied t o him when he asked her about Mogle’s location. Thus, we cannot say the threat to arrest the girlfriend constituted coercive conduct which made Mogle’s arguably inculpatory statem ents involuntary. {¶ 20} Perhaps more problematic was Clark’s assertion that, upon Mogle ’s girlfriend’s arrest, Children’s Services would take custody of their child. But Clark’s threat did not cause Mogle to change his version of events or to other wise further inculpate himself. Thus the threat, even if coercive, did not trigger an y admission or other statement to suppress. {¶ 21} Finally, we turn to Mogle’s claim that Clark misstated the law when he indicated that the arsons at issue would constitute misdemeanor s, rather than felonies, based upon his belief that the subject buildings had been aband oned and were valued at less than $150,000. 1 “[A] police officer's misstatement of the law may render a confession involuntary.” (Citation omitted.) State v. Western , 2015-Ohio-627, 29 N.E.3d 245, ¶ 38 (2d Dist.). {¶ 22} We note that, immediately after Clark made the above-cited stat ement, Mogle said, “How do you figure that? I never heard of that.” Exh. 2. Mogle then cited to the arson statute, R.C. 2909.03, at which point he and Clark reviewed the correct statutory language. Clark then noted that he had incorrectly s tated the relevant monetary amount. Thus, it appears that Mogle was well-acquaint ed with the relevant

1 The portion of the statute referenced by Clark, R.C. 2909.03(D )(2)(b), actually elevates certain arson offenses from misdemeanors to felonies provided t he properties are valued at $1,000 or more.-9- arson provisions and that any misstatement by Clark had no undu e influence on Mogle. Therefore, we conclude th is claim lacks merit. {¶ 23} During the third interview, Mogle continued to assert he was in the area with the actual arsonist, but, otherwise, he made no inculpatory sta tements. While Clark continued to assert that he would charge Mogle’s girlfriend, Mo gle continued to deny involvement in any arsons. We find nothing in the third interv iew upon which to conclude the trial court erred in denying the motions to suppress. {¶ 24} In ruling on a motion to suppress, the trial court “assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.” State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court's findings of fact if they are supported by competent, cr edible evidence. Retherford at 592. “Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard.” Id. {¶ 25} The interviews demonstrate that Mogle was well-acquainted with the legal system and the law. He did not appear to be in discomfort duri ng any of the interviews, and there was no evidence of physical deprivation or threats. Mogle also did not appear to be intimidated by the length or frequency of the interviews. While he did make statements that placed him near the relevant crime scenes, Mogl e adamantly denied involvement with the arsons. {¶ 26} Based upon this record, we cannot conclude the trial court erre d in-10- overruling Mogle’s motions to suppress. Accordingly, the sole assignment of error is overruled.

III. Conclusion {¶ 27} The judgment of the trial court is affirmed.

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DONOVAN, J. and HALL, J., concur.

Copies sent to: James D. Bennett Alexander S. Pendl Hon. Jonathan P. Hein