[Cite as State v. Swopes , 2011-Ohio-2072.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 24044 Plaintiff-Appellee : : Trial Court Ca se No. 09-CR-3310 v. : : (Criminal Appeal from WILLIAM A. SWOPES : ( Common Pleas Court) : Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 29 th day of April, 2011.

. . . . . . . . . . . MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee KENT J. DEPOORTER, Atty. Reg. #0058487, 7501 Paragon Road, Lower Level, Dayton, Ohio 45459 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} William Swopes appeals his conviction on two counts of felonious assault, arguing that the trial court e rred by overruling his motion to suppress and arguing that his conviction is against the manifest weig ht of the evidence. We will affirm. 2

 I {¶ 2} Sometime between 1 a.m. and 2 a.m. on October 6, 2009, Swopes was in Glenn Williams’s room at the Good-Nite Inn. They had met previously, a nd Swopes had been to Williams’s room eight or nine times since then. During a struggle between the two men, Swopes hit Williams over the head several times with a glass bottle, which shattered and cut Williams. {¶ 3} On October 29, 2009, Swopes was indicted on one count of fe lonious assault (serious physical harm), R.C. 2903.11(A)(1); one count of felonious a ssault (deadly weapon), R.C. 2903.11(A)(2); one count of aggravated robbery (deadly weapon), R.C. 2911.01(A)(1); and one count of aggravated robbery (seri ous physical harm), R.C. 2911.01(A)(3). Swopes filed a motion to suppress statements that he ma de during a police interview. After a hearing, on December 15, 2009, the trial court overruled the motion. {¶ 4} In late April 2010, the case went to jury trial. At trial, Sw opes admitted that he hit Williams with the bottles, but he said that he did so to protect himself when Williams came at him with a knife. According to Swopes, Williams wanted drugs from him. When he refused to give him any and reached for the motel r oom door, Williams stabbe d him with the knife. Swopes backed away, and Williams stood in front of the motel room door, threatening him with the knife. When Williams came after him, swinging the knife, Swopes hit him with a bottle. Williams also testified at the trial. He said that Swopes pulled a bottle of whiskey out of the refrigerator and hit him over the head. Williams said that Swopes then began searching the room, demanding money. When Swope s found Williams’s wa llet, Swopes left. {¶ 5} Detective Matt Gallagher picked Swope s up at the latter’s home and, shortly 3

 after 6:00 a.m., began an interview with Swope s at the police station. Detective Gallagher testified at trial about what Swopes told him during the inte rview. Swopes admitted to being in the room when Williams was assaulted: “‘Okay. I was there. And I was in the room with Black, myself and the victim. And there was an argument over crack cocaine.’” (Tr. 675). {¶ 6} “Q Did he tell you who was arguing? {¶ 7} “A It was an argument with Black, Glenn Williams and himself. They were all arguing over the crack cocaine. {¶ 8} “Q And then did he tell you what happened after this argument? {¶ 9} “A Well, right after he got done saying that, that’s when I noticed the cut on his right hand. That’s when I kind of, you know , asked him about that. ‘Tell me about the cut on your hand.’ {¶ 10} “Q Did you ask him if that cut was from this incident at the Good-Nite Inn? {¶ 11} “A I asked what happened to his hand. {¶ 12} “Q All right. What did he say? {¶ 13} “A He said his dog had bit him.” {¶ 14} (Tr. 675-676). Detective Gallagher then te stified that, based on his experience, dog bites leave a puncture wound, but Sw opes’s wound, which Ga llagher photographed, looked like a laceration. The prosecu ting attorney asked Gallagher: {¶ 15} “Q Did the Defendant ever change th at story to you about his injury? {¶ 16} “A No, he did not. {¶ 17} “Q Did he ever tell you that Glenn Williams did that? {¶ 18} “A No. 4

 {¶ 19} “Q During your interview, did he ever tell you that Glenn Williams had a knife? {¶ 20} “A Never came up. {¶ 21} “Q Did he ever tell you that Glenn Williams cut him with a knife? {¶ 22} “A Never told me that.” {¶ 23} (Tr. 677). Detective Gallagher also tes tified that Swopes ne ver told him that Glenn Williams had threatened him. {¶ 24} At the end of the interview, Swopes t ook the opportunity that Gallagher gave him to write down his version of the events th at night. Alone in the interview room, Swopes wrote, “‘I hit he. But I did not do anything else. William John. Take hi s money and only give me a hit of crack. I only hit him two time becau se he–was come at me. That’s why had him two time.’” (Tr. 681). {¶ 25} A jury acquitted Swopes on the aggravat ed robbery counts but found him guilty on both counts of felonious assa ult. The trial court sentenced Swopes to 3 years in prison. {¶ 26} Swopes appealed.

II {¶ 27} In the first assignment of error, Swopes argues that the trial court erred by overruling his motion to suppress the statements th at he made to police during an interview. He argues in the second assignment of error that his conviction is against the manifest weight of the evidence. We will consider the second assignment first. 5

 Second Assignment of Error {¶ 28} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO SUPPRESS STATEMENTS BECAUSE THE APPELLANT’S WAIVER OF HIS RIGHTS WAS NOT MADE VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY.” {¶ 29} Swopes argues that he did not knowingl y, intelligently, and voluntarily waive his Miranda rights. Swopes contends that he did not sufficiently comprehend what he was doing when he waived these rights because he had difficulty reading, had earlier used drugs and alcohol, and had not slept that night. {¶ 30} The law we applied in State v. Phillips (Aug. 11, 2000), Montgomery App. No. 18049, also applies here, and its exp lication bears quoting at length: {¶ 31} “The trial court assumes the role of the trier of fact in a hearing on a motion to
suppress. State v. Thompson (1995), 103 Ohio App.3d 498, 502, 659 N.E.2d 1297; State v.
Rossiter (1993), 88 Ohio App.3d 162, 166, 623 N.E.2d 645. Th e trial court must determine the credibility of the witnesses and weigh the evidence presented at the hearing. Rossiter , supra at 166, 623 N.E.2d 645. A reviewing court will not distur b the trial court’s findings of fact so long as they are supported by competent, credible evidence. Thompson , supra at 502, 659 N.E.2d 1297; Rossiter , supra at 166, 623 N.E.2d 645. Accepting the trial court’s findings of fact as true, an appellate c ourt must independently determine as a matter of law, without deference to the trial court's c onclusion, whether the facts meet the appropriate legal standard. Thompson , supra at 502, 659 N.E.2d 1297; Rossiter , supra at 166, 623 N.E.2d 645. {¶ 32} “* * * The burden is on the prosecuti on to prove by a preponderance of evidence that a defendant waived his Miranda rights voluntarily, knowingly, and intelligently. 6

 Colorado v. Connelly (1986), 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 485. * *
* {¶ 33} “* * * The test is whether the [waiver] [is] voluntary under the totality of the circumstances, ‘including the age, mentality, and prior crimin al experience of the accused; the length, intensity and fre quency of interrogation; the existe nce of physical deprivation or mistreatment; and the existence of threat or inducement.’ State v. Smith (1991), 61 Ohio St.3d 284, 288, 574 N.E.2d 510 quoting State v. Barker (1978), 53 Ohio St.2d 135, 372 N.E.2d 1324, paragraph two of the syllabus; [ State v. Clark (1988), 38 Ohio St.3d 252], 261, 527 N.E.2d 844. {¶ 34} “The totality of the circumstances analysis is triggered by evidence of police coercion. Clark , supra at 261, 527 N.E.2d 844. ‘[C]oercive police activity is a necessary predicate to the findi ng’ that a suspect involuntarily waived his Miranda rights and involuntarily confessed. Connelly , 479 U.S. at 167, 107 S.Ct. at 522, 93 L.Ed.2d at 484. A suspect’s decision to waive his Mi randa rights * * * [is] made voluntarily absent evidence that ‘his will was overborne and his capacity for self-determina tion was critically impaired because of coercive police conduct.’ Colorado v. Spring (1987), 479 U.S. 564, 574, 107 S.Ct. 851, 857, 93 L.Ed.2d 954, 966; [ State v. Moore (1998), 81 Ohio St.3d 22,] 32, 689 N.E.2d 1; State v. Dailey (1990), 53 Ohio St.3d 88, 91, 559 N.E.2d 459. {¶ 35} “The suspect’s impaired mental condition at the time of the waiver and the confession has some bearing on the issue of th e voluntariness but only as to whether police officers deliberately exploit the suspect’s mental condition to coerce the waiver and confession. Connelly , 479 U.S. at 164, 93 L.Ed.3d at 486; State v. Nobles (1995) 106 Ohio 7

 App.3d 246, 279, 665 N.E.2d 1137. In Nobles , the defendant had ta ken the prescription narcotic Xanax nearly twelve hours before admitting to police she had drowned her son and claimed she was still under the influence of the drug when she confessed. Id. at 278, 665 N.E.2d 1137. We held, as a matter of law, that her confession was voluntary when there was no evidence to show the police officers deliber ately took advantage of her alleged impaired state to coerce her into confessing. Id. at 278, 665 N.E.2d 1137. {¶ 36} “In the present case, like Nobles , there is nothing in the record to support the conclusion that the police officers deliberately exploited Appellant’s alleged impaired state to coerce him into waiving his Miranda rights * * *. Appellant was clearly in an impaired state when the Dayton police officers arrested him [] at three in the morning. However, there is no evidence to indicate he was still impaired during the 10:30 a.m. interview with [the detective], when he waived his Miranda rights * * *. Assuming arguendo , Appellant was still under the influence of drugs and alcohol at the time of th e interview, there is no evidence to show that [the detective] took advantage of Appellant’s impaired mental st ate to coerce him into waiving his Miranda rights and making a self-incriminating statement.” {¶ 37} While we did not find evidence in Phillips that showed the detective exploited the appellant’s alleged impaired state to coerce him into waiving his Miranda rights, we did find “evidence to support the conclusion th at Appellant voluntarily waived his Miranda rights.” Phillips . “Appellant signed the waiver form,” we said, “which is strong proof that the waiver was valid.” Phillips , citing North Carolina v. Butler (1979), 441 U.S. 369, 274-275, 99 S.Ct. 1755, 60 L.Ed.2d 286; and Moore , at 32. {¶ 38} Here the situation is the same. Th e incident between Swopes and Glenn 8

 Williams occurred between 1 a.m. and 2 a.m. Th e trial court found that there was no evidence that Swopes was impaired during his 6:00 a.m. interview with Detective Gallagher. Swopes did not smell of alcohol; he did not slur his speech; he appeared to understand the rights as they were read. In sum, Swopes acted normally, he did not appear to be under the influence of alcohol or drugs. The trial c ourt further found a lack of speci ficity regarding the times and quantity of alcohol and drug use. The evidence did not reveal when Swopes was drinking or how much he drank. Nor did the evidence reveal when Swopes ingested crack cocaine or how much he ingested. Moreover, assuming that Swopes was still under the influence of alcohol and drugs at the time of the interview, there is no evidence to show that Detective Gallagher took advantage of his impaired stat e to coerce him into waiving his Miranda rights. The trial court expressly found no evidence of coercion by Detective Gallagher. He made no threats or promises to Swopes. The court found no evid ence of mistreatment, specifically, no evidence of physical deprivation–Swopes was given water and did not as k for food or anything else. {¶ 39} There is however evidence that Swopes voluntarily waived his Miranda rights. The court found that Detective Gallagher advised Swopes of each of his constitutional rights, including the right against self incrimination a nd the right to counsel, by reading to Swopes a pre-interview waiver form. Sw opes acknowledged that he unde rstood each right by initialing the form beside it. Swopes then signed the waiv er form. It was only after he had signed the form that Swopes made his statements. {¶ 40} We conclude here, as we did in Nobles and Phillips , that the state sustained its burden to prove that the defe ndant voluntarily waived his Miranda rights. {¶ 41} The second assignment of error is overruled. 9



First Assignment of Error {¶ 42} “THE JURY’S VERDICT IN FINDING THE APPELLANT GUILTY ON BOTH COUNTS OF FELONIOUS ASSAULT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE, BECAUSE THE APPELLANT WAS ACTING IN SELF DEFENSE.” {¶ 43} The manifest-weight test is this: “‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the convi ction must be reversed and a new trial ordered.’” State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, at ¶ 44, quoting State v. Thompkins (1997), 78 Ohio St.3d 380, 387. “‘The discreti onary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’” Id., quoting Thompkins , at 387. {¶ 44} Swopes argues that the weight of eviden ce supports his claim that he acted in self defense. We disagree. Rather, Swopes’s verbal and written statements made during his interview with Detective Gallagh er (quoted above) weigh heavily in favor of the jury’s verdicts. We cannot say that the jury clearly lo st its way in believing Detective Gallagher’s testimony over Swopes’s. There is no reason that the jury should have disregarded Gallagher’s testimony. The weight of the evidence does not lie heavily against conviction. {¶ 45} The first assignment of error is overruled. {¶ 46} The judgment of the tria l court is Affirmed. 10



. . . . . . . . . . . . . FAIN and BROGAN, JJ., concur.
(Hon. James A. Brogan, retired from the Sec ond District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to: Mathias H. Heck, Jr. R. Lynn Nothstine Kent J. Depoorter Hon. Timothy N. O’Connell