[Cite as In re D.K. , 2020-Ohio-4156.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: D.K. : : : : : : : : : : Appellate Case No. 28728

Trial Court Case No. 2019-2172(Appeal from Common Pleas CourtJuvenile Division)

. . . . . . . . . . . O P I N I O N Rendered on the 21st day of August, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Appellee, State of Ohio CRISTY N. OAKES, Atty. Reg. No . 0081401, 2312 Far Hills Avenue, Suite 143, Dayton, Ohio 45419 Attorney for Appellant, D.K.

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

TUCKER, P.J.-2- {¶ 1} Appellant, D.K., appeals from the trial court’s adjudication of his guilt on two counts of illegal use of a minor in nudity-oriented material or performance. Raising two assignments of error, D.K. argues that the trial court erred by overruling his motion to suppress evidence obtained as the result of a purportedly custo dial interrogation for which

he was not advised of his Miranda rights, and by failing to merge the two counts for purposes of disposition. We hold that the trial court did not err by overruling D.K.’s motion because the evidence in question would inevitably have b een discovered during a routine search of his person incident to his arrest, and we h old further that the trial court did not err by failing to merge the two counts for which he was adjudicated. Therefore, D.K.’s adjudication is affirmed. I. Facts and Procedural History {¶ 2} On April 28, 2019, officers with the Dayton Police Department i nvestigated allegations that D.K., a minor, had raped another minor. Trans cript of Hearing on Motion to Suppress 9:24-11:25 and 49:20-55:1, July 10, 2019. The accu ser indicated that D.K. might have captured video of the incident with his cellular tel ephone. Id. at 12:5-12:13. Later that evening, the officers responded to D.K.’s residence, apparently with the intention of formally arresting him; the officers found D.K. at home and placed him in

handcuffs. See id. at 55:2-58:8. The officers did not inform D.K. of his Miranda rights

at that time. Id. at 64:2-64:23. {¶ 3} After they had handcuffed D.K., the officers patted him down an d asked whether he had any belongings on his person—specifically asking whether he had his cellular telephone. Id. at 57:17-58:16 and 64:12-64:15. D.K. initially told the offic ers that he left his telephone in the basement of the residence, bu t once that statement proved-3- to be incorrect, D.K. told the officers that the telephone was in or near the waistband of his pants, which proved to be accurate. 1 See id. at 58:9-58:24. The officers then transported D.K. to the City of Dayton Safety Building. Id. at 64:2-65:10. Several hours later, officers informed D.K. of his Miranda rights, and he executed a written waiver. See

id. at 27:3-28:18. An interview followed. {¶ 4} On May 14, 2019, the State filed an amended complaint against D .K. in the Montgomery County Court of Common Pleas, Juvenile Division, cha rging him with two counts of rape, in violation of R.C. 2152.02 and 2907.02(A)(2); one count of attempted rape, in violation of R.C. 2152.02 and 2923.02(A); and two coun ts of illegal use of a minor in nudity-oriented material or performance, in violation of R.C . 2152.02 and 2907.323(A)(1). D.K. moved to suppress all statements and othe r evidence, and after holding a hearing, the trial court overruled the motion in its decision of July 17, 2019. {¶ 5} On January 21, 2020, D.K. entered admissions of guilt to the tw o counts of illegal use of a minor in nudity-oriented material or performan ce, and the State dismissed the remaining counts. The trial court ordered that D.K. be com mitted to the Department of Youth Services for one year on each count, with the terms to be served consecutively. D.K. timely filed a notice of appeal on February 26, 2020. II. Analysis {¶ 6} For his first assignment of error, D.K. contends that: THE TRIAL COURT ERRED BY R[E]FUSING TO SUPPRESS

1 The telephone seemed to have slipped from the waistband of D.K .’s pants but was suspended between a pant leg and D.K.’s thigh, perhaps by the t ension of the fabric or, conversely, caught in a fold of slack fabric. See Transcript of Hearing on Motion to Suppress 58:9-58:24.-4- JUVENILE-APPELLANT’S STATEMENTS (AND CELLPHONE) MADE

DURING CUSTODIAL INTERROGATION AND WITHOUT MIRANDA WARNINGS[.] {¶ 7} D.K. posits that officers of the Dayton Police Department inapp ropriately conducted a custodial interrogation by asking him, before he ha d been advised of his

Miranda rights, where his cellular telephone was. Appellant’s Brief 8 -9. Based on this proposition, D.K. argues that any statements he made thereafter , along with the telephone itself and any other evidence, should have been suppr essed as fruits of a poisonous tree. Id. at 9. {¶ 8} Appellate “review of a [trial court’s ruling on a] motion to su ppress presents a mixed question of law and fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, the trial cour t “is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] wi tness[es],” so the “appellate court must accept the trial court’s findings of fact if they ar e supported by competent,

credible evidence.” Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982);

State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, c iting State v. Cruz , 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. A ccepting the trial court’s findings of fact as true, “the appellate cour t must then independently determine, without deference to the [trial court’s legal] concl usion[s],” whether the “facts satisfy the applicable * * * standard.” (Citations omitted.) Burnside at ¶ 8. {¶ 9} Here, D.K. argues that the trial court should have sustained hi s motion to suppress because he was improperly subjected to a custodial int errogation without a

Miranda warning. Appellant’s Brief 8-9. The prosecution “may not use statements, * * *,-5- stemming from [police officers’] custodial interrogation of [an accused] unless it demonstrates the use of procedural safeguards effective to secu re the [accused’s] privilege against self-incrimination.” See Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Nevertheless, “[p]olice are not r equired to administer

Miranda warnings to everyone whom they question.” State v. Biros , 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Only “custodial interrogation[s] [ implicate] the need for

Miranda warnings.” (Emphasis omitted.) Id. , citing Mathiason at 494. Police questioning is “custodial” where the person being questioned “h as [expressly] been taken into custody or otherwise deprived of his freedom to the degree associated with a formal arrest,” and asking questions of the person constitutes an “int errogation” where the “the police should know” that the questions themselves, as well as “ any words or actions on the part of the police,” other than “those [words or actions] n ormally attendant to arrest and custody,” are “reasonably likely to elicit an incriminating response.” Rhode Island v.

Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Vineyard , 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 32. {¶ 10} The State, in this case, concedes that D.K. was in custody when officers asked him where they could find his cellular telephone, meaning that the officers’ inquiry would have been improper if the officers knew, or should have k nown, that D.K.’s response would likely be incriminating. Appellee’s Brief 5; see Transcript of Hearing on Motion to Suppress 11:8-13:4 and 57:12-60:23. D.K. maintains t hat the question about his telephone was likely to elicit an incriminating response be cause “the phone was the evidence the police needed to prove” the accusation against him , and that the question-6- “was not a routine booking question because [the officers were] specifically looking for the phone as evidence of a possible rape.” Appellant’s Brief 9 -10. {¶ 11} D.K.’s argument is unavailing because he had his cellular telep hone on his person at the time the officers took him into custody. Regardl ess of whether the officers

should have delivered a Miranda warning before asking D.K. where the telephone was, the officers would inevitably have discovered the telephone onc e they transported him to the City of Dayton Safety Building and completed a routine inve ntory and collection of items on his person. See, e.g. , State v. Smith , 2019-Ohio-4706, 149 N.E.3d 184, ¶ 5 (2d Dist.) (noting that evidence obtained unconstitutionally is adm issible if it would inevitably have been discovered during the course of a lawful investigatio n); see Transcript of Hearing on Motion to Suppress 60:8-60:14. D.K.’s first assignm ent of error is overruled. {¶ 12} Additionally, we reject the State’s argument that D.K. waived h is right to challenge the trial court’s ruling on his motion to suppress by entering an admission of guilt. We acknolwedge that other districts have held otherwise , but unlike adult criminal proceedings, in a juvenile proceeding, D.K. did not have the op tion of entering a plea of no contest to preserve his right to appeal the trial court’s ru ling. {¶ 13} For his second assignment of error, D.K. contends that:

THE TRIAL COURT ERRED IN FAILING TO MERGE THE TWO

CHARGES FOR THE PURPOSES OF SENTENCING BECAUSE THE OFFENSES WERE ALLIED OFFENSES OF SIMILAR IMPORT[,] THUS SUBJECT TO MERGER UNDER R.C. 2941.25[.] {¶ 14} D.K. argues that the trial court should have merged the two cou nts for which he was adjudicated because both of the “counts involve[d] the s ame victim * * * and arose-7- out of the same incident.” Appellant’s Brief 11. At the end o f his sentecing hearing, D.K. “place[d] on record an objection to the consecutive [terms of committment to the Department of Youth Services because] the two videos, * * *, we re [associated] with one incident, one animus.” Transcript of Sentencing Hearing 18:5-1 8:10, Mar. 31, 2020. D.K. did not elaborate on this argument, cite to the record or offer any evidence in support.

See id. at 17:23-18:15. {¶ 15} The “Double Jeopardy Clause of the United States Constitution,” along with Section 10, Article I of the Ohio Constitution, “prohibits * * * multiple punishments for the same offense.” (Citation omitted.) State v. Brown , 119 Ohio St.3d 447, 2008-Ohio4569, 895 N.E.2d 149, ¶ 10. In practice, the import of the pro hibition is to “prevent[ ] a sentencing court from prescribing greater punishment than the l egislature intended.” (Citation omitted.) Id. at ¶ 11. Ohio’s merger statute, R.C. 2941.25, “resolves both the constitutional and state statutory inquiries regarding the Gene ral Assembly’s intent to permit cumulative punishments for the same conduct.” (Citation omitted.) State v.

Freeders , 2d Dist. Montgomery No. 23952, 2011-Ohio-4871, ¶ 13. {¶ 16} As a “practical matter, when determining whether offenses are a llied offenses of similar import within the meaning of R.C. 2941.25,” a court must consider whether: (1) “the offenses [were or were not] dissimilar in imp ort or significance”; (2) the offenses were committed separately; and (3) the offenses were “ committed with separate animus or motivation.” An “appellate court should apply a de n ovo standard of review [on consideration of] a trial court’s * * * merger determinatio n.” State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. {¶ 17} On the record before us, we hold that the trial court did not e rr by declining-8- to merge the two counts for which D.K. entered admissions of gu ilt. Notwithstanding that each of the two counts of illegal use of a minor in nudity-orie nted material or performance related to video recordings of sex acts involving the same vict im, we concur with the State’s argument that by capturing two separate video recording s, D.K. committed two separate violations of R.C. 2907.323(A)(1). See Appellee’s Brief 8-9. For example, with respect to “[o]ffenses involving distinct [acts] of sexual activity[,] each [act] constitute[s] a separate crime with a separate animus.” (Citat ions omitted.) State v. Washington , 10th Dist. Franklin No. 01AP-727, 2002-Ohio-2086, ¶ 12; see also State v. McLoughlin , 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426, ¶ 44. Thi s principle applies even if the distinct sexual acts are “part of one assau ltive event.” State v. Jordan , 2d Dist. Champaign No. 2016-CA-17, 2017-Ohio-5827, ¶ 10-11. D. K. did not develop the record below such that, for purposes of the instant appeal, this court has a sufficient factual basis to conclude that the trial court erred by not mer ging the two counts for purposes of disposition. D.K.’s second assignment of error is overruled.

III. Conclusion {¶ 18} The trial court did not err by overruling D.K.’s motion to supp ress because his cellular telephone would inevitably have been discovered du ring a routine search of his person incident to his arrest. In addition, the trial cour t did not err by declining to merge the two counts of illegal use of a minor in nudity-orient ed material or performance for purposes of disposition. Therefore, the assignments of err or are overruled, and D.K.’s adjudication is affirmed.

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DONOVAN, J. and WELBAUM, J., concur.

Copies sent to: Mathias H. Heck, Jr. Sarah E. Hutnik Cristy N. Oakes Serah Siemann D.A. Hon. Anthony Capizzi