[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. : 

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Appellate Case No. 28728 

Trial Court Case No. 2019-2172 

(Appeal from Common Pleas CourtJuvenile Division) 

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O P I N I O N 

Rendered on the 21st day of August, 2020. 

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MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, 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. 

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TUCKER, P.J. 
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{¶ 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 custodial 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 been discovered during 

a routine search of his person incident to his arrest, and we hold 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 investigated 

allegations that D.K., a minor, had raped another minor. Transcript of Hearing on Motion 

to Suppress 9:24-11:25 and 49:20-55:1, July 10, 2019. The accuser indicated that D.K. 

might have captured video of the incident with his cellular telephone. 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 and 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 officers 

that he left his telephone in the basement of the residence, but once that statement proved 
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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, charging 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 counts 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 other 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 two counts of 

illegal use of a minor in nudity-oriented material or performance, and the State dismissed 

the remaining counts. The trial court ordered that D.K. be committed 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 tension of the fabric or, 

conversely, caught in a fold of slack fabric. See Transcript of Hearing on Motion to 

Suppress 58:9-58:24. 
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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 inappropriately 

conducted a custodial interrogation by asking him, before he had 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 suppressed as fruits of a 

poisonous tree. Id. at 9. 

{¶ 8} Appellate “review of a [trial court’s ruling on a] motion to suppress 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 court “is in the best position to 

weigh * * * evidence * * * and evaluate [the credibility of] witness[es],” so the “appellate 

court must accept the trial court’s findings of fact if they are 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, citing 

State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting 

the trial court’s findings of fact as true, “the appellate court must then independently 

determine, without deference to the [trial court’s legal] conclusion[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 his motion to 

suppress because he was improperly subjected to a custodial interrogation without a 

Miranda warning. Appellant’s Brief 8-9. The prosecution “may not use statements, * * *, 
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stemming from [police officers’] custodial interrogation of [an accused] unless it 

demonstrates the use of procedural safeguards effective to secure 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 required 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 “has [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 “interrogation” 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] normally 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 known, 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 that the question about 

his telephone was likely to elicit an incriminating response because “the phone was the 

evidence the police needed to prove” the accusation against him, and that the question 
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“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 telephone on his 

person at the time the officers took him into custody. Regardless 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 once they transported him to 

the City of Dayton Safety Building and completed a routine inventory 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 admissible if it would inevitably 

have been discovered during the course of a lawful investigation); see Transcript of 

Hearing on Motion to Suppress 60:8-60:14. D.K.’s first assignment of error is overruled. 

{¶ 12} Additionally, we reject the State’s argument that D.K. waived his 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 option of entering a plea of 

no contest to preserve his right to appeal the trial court’s ruling. 

{¶ 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 counts for which 

he was adjudicated because both of the “counts involve[d] the same victim * * * and arose 
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out of the same incident.” Appellant’s Brief 11. At the end of 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, * * *, were [associated] with one 

incident, one animus.” Transcript of Sentencing Hearing 18:5-18:10, 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 prohibition is to “prevent[ ] a 

sentencing court from prescribing greater punishment than the legislature intended.” 

(Citation omitted.) Id. at ¶ 11. Ohio’s merger statute, R.C. 2941.25, “resolves both the 

constitutional and state statutory inquiries regarding the General 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 allied 

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 import 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 novo standard of review 

[on consideration of] a trial court’s * * * merger determination.” 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 err by declining 
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to merge the two counts for which D.K. entered admissions of guilt. Notwithstanding that 

each of the two counts of illegal use of a minor in nudity-oriented material or performance 

related to video recordings of sex acts involving the same victim, we concur with the 

State’s argument that by capturing two separate video recordings, 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.” (Citations 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. This principle 

applies even if the distinct sexual acts are “part of one assaultive 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 merging 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 suppress because 

his cellular telephone would inevitably have been discovered during a routine search of 

his person incident to his arrest. In addition, the trial court did not err by declining to 

merge the two counts of illegal use of a minor in nudity-oriented material or performance 

for purposes of disposition. Therefore, the assignments of error 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