In re B.D. , 2020 Ohio 361 ( 2020 )

[Cite as In re B.D., 2020-Ohio-361.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In Re: :
No. 18AP-993
B.D., : (C.P.C. No. 17JU-13389)
Appellant. : (REGULAR CALENDAR)
D E C I S I O N
Rendered on February 4, 2020
On brief: Victoria E. Ullmann, for appellant. Argued:
Victoria E. Ullmann.
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for the State of Ohio. Argued:
Kimberly M. Bond.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BRUNNER, J.
{¶ 1} Appellant-minor, B.D., appeals from a judgment entered on December 3,
2018, adjudging him to be a delinquent minor for having committed the offense of burglary
in violation of R.C. 2911.12(A)(2), and placing him on probation. Specifically, B.D.
challenges the trial court's decision to admit his confession into evidence at trial and the
ensuing conviction based on the confession. Because B.D.'s counsel conceded that the
interview involving the confession was non-custodial, we do not find B.D.'s confession
resulted from a violation of Miranda1 or that it was otherwise involuntary. Because B.D.'s
counsel failed to raise argument about the element of the offense regarding whether a
person was "present or likely to be present" in the house, we cannot address that issue, and
B.D.'s confession was otherwise sufficient evidence of B.D.'s guilt. R.C. 2911.12(A)(2).
Finally, we find any error in allowing the State of Ohio to reference cases in oral argument
1 Miranda v. Arizona, 384 U.S. 436 (1966).
No. 18AP-993 2
that it did not cite in written briefing to have been harmless. We overrule each of B.D.'s
assignments of error and affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 2, 2017, B.D. was awakened in his home by his grandmother
(who had temporary custody of him) and two police detectives.2 (Tr. at 11-12, 14, 37, filed
Aug. 9, 2018.) It is apparently undisputed that B.D. was on probation. (Tr. at 28.) After
introducing themselves, the lead detective, Mark Ryan, told B.D. to sit down. (Tr. at 18;
State's Ex. G at 2:41-53.) Ryan said that a suspect in a burglary, A.W., had confessed and
also implicated B.D. in the burglary. (Tr. at 18; State's Ex. G at 2:50-3:25.) The detective
represented that he had the "whole ball of wax," including fingerprints, and explained that
it was not an "if" situation, it was more of a "why you did it" situation; in essence he was
just there to "verify" with B.D. what had happened. (Tr. at 18-19; State's Ex. G at 2:50-
4:22.) Ryan assured B.D. that he was not under arrest and would not be handcuffed. (Tr.
at 18; State's Ex. G at 3:25-33.) After repeatedly indicating that the conversation between
them should only take five minutes, he amended that such an estimate was dependent on
B.D.'s cooperation, "as long as you talk is the long it's gonna take." (Tr. at 19; State's Ex. G
at 4:20-4:26.)
{¶ 3} At this juncture, B.D.'s grandmother interrupted to cut off B.D.'s nascent
denials and remonstrated B.D. that he better tell the truth because he could be sent to jail
for telling lies. (Tr. at 19-20; State's Ex. G at 4:25-40.) Ryan then asked B.D. what B.D.
would say if he had B.D.'s fingerprints in the burglarized house. (Tr. at 20; State's Ex. G at
4:35-50.) B.D. responded that that would be a different story, but again denied having gone
into the house. (Tr. at 20; State's Ex. G at 4:35-50.) At this point, the detective represented
to B.D. that he had prints of both B.D. and A.W.; whereupon B.D.'s grandmother piped up
again, scolding B.D. that "this [wa]s no game. No game. * * * No game whatsoever. Tell
the truth." (Tr. at 20; State's Ex. G at 4:50-5:10.) Ryan again assured B.D. this was not an
"if" situation in which there was some doubt about his guilt. (Tr. at 21; State's Ex. G at 5:05-
25.) The detective hypothesized that B.D. knew that the neighbor who owned the
2The detectives testified that they thought they remembered that the grandmother did the awakening but
B.D.'s grandmother testified that the police detectives woke up B.D. Compare Tr. at 14, 63 with Tr. at 37.
No. 18AP-993 3
burglarized house was out of town, and that B.D., his girlfriend, and A.W., had gone into
the house together. (Tr. at 21; State's Ex. G at 5:05-25.)
{¶ 4} The detective then offered B.D. some advice—that he should "cooperate" and
"go in this thing with a smiley face," like A.W. (Tr. at 21; State's Ex. G at 5:23-30.) Ryan
said he typed (impliedly in a report) that A.W. had cooperated in the investigation, was
getting on with his life, was getting better, and went to drug treatment. (Tr. at 21; State's
Ex. G at 5:30-37.) He then represented to B.D. that A.W. had come clean and, as a result,
the detective had "walked away." (Tr. at 21; State's Ex. G at 5:40-45 ("[H]e came clean and,
you know what, I walked away.").) He again represented that he had "all this evidence."
(Tr. at 21; State's Ex. G. at 5:45-50.) The only difference between B.D. and A.W., opined
Ryan, was that A.W. had made the decision to come clean and suggested B.D. should "go
into this the same way" because the "whole idea here is not to lock you up and throw away
the key, just gotta make sure you don't do it again." (Tr. at 21-22; State's Ex. G at 5:38-
6:00.) At this point, when Ryan again asked if B.D. had gone into the burglarized house
and taken change (coins), B.D. admitted that he had. (Tr. at 22; State's Ex. G at 6:02-10.)
At no time was B.D. read the Miranda warnings to inform him of his right to remain silent
and have an attorney present during questioning.
{¶ 5} The next day, on November 3, 2017, Ryan filed a complaint and affidavit of
probable cause leveling a charge of burglary against B.D. (Nov. 3, 2017 Compl.; Nov. 3,
2017 Ryan Aff.) The only evidence included in the affidavit that implicated B.D. was his
confession and the only prints mentioned belonged to A.W. (Nov. 3, 2017 Ryan Aff.)
{¶ 6} On May 13, 2018, the defense filed a motion to suppress challenging the
voluntariness of the statement and the validity of B.D.'s waiver of the Fifth Amendment
privilege against self-incrimination. (May 13, 2018 Mot. to Suppress.) The State opposed
the motion. (May 17, 2018 Memo. in Opp.) On May 30, a magistrate of the trial court held
a combination motion hearing and trial.
{¶ 7} At the motion hearing phase of proceedings, Ryan and B.D.'s grandmother
testified to the facts surrounding the interview as we have recounted them above and a
recording of the interview was played and transcribed. (Tr. at 10-38.) Following oral
argument by both sides, the magistrate indicated that the court would decline to suppress
B.D.'s confession. (Tr. at 38-43.)
No. 18AP-993 4
{¶ 8} For the trial phase of the hearing, to avoid repetition, the parties agreed to
incorporate the testimony that had been introduced during the suppression phase of the
hearing. (Tr. at 44.) The parties presented further testimony from Ryan and B.D.'s
grandmother; the owner of the burglarized house took the stand; the other detective who
was present during the interview testified, and so did a Columbus police evidence
technician. Most of the testimony can be summarized briefly.
{¶ 9} The evidence technician testified that she collected photographs and
fingerprints from the scene. (Tr. at 67-68, 71.)
{¶ 10} The detective (other than Ryan) who was present for the interview of B.D.
testified that he said nothing during the interview, that it was conducted in B.D.'s
grandmother's kitchen, and that it was B.D.'s grandmother who actually awakened B.D.
(Tr. at 63-64.)
{¶ 11} Ryan reiterated that A.W. confessed and implicated B.D. and that B.D.
subsequently confirmed A.W.'s story by confessing himself. (Tr. at 55-57.) Ryan admitted
that, despite representations to B.D. to the contrary, the only prints recovered from the
burglary scene belonged to A.W. (Tr. at 59.)
{¶ 12} The homeowner testified that he knew B.D. as a neighbor who sometimes cut
his grass. (Tr. at 46-47.) He said he told B.D. he was going to be out of town and that B.D.
did not have permission to be in his home. (Tr. at 47-51.)
{¶ 13} B.D.'s grandmother testified that she had custody of B.D. as a result of a
children's services case. (Tr. at 83-84.) On the night of the burglary, B.D. and his girlfriend
were playing a game or watching a movie on the television when B.D.'s grandmother
decided to go out on the porch to drink a beer and smoke a cigarette. (Tr. at 78-79.) She
went to the corner store to obtain the necessaries and, when she returned, she believed B.D.
and his girlfriend were still engaged in the same pursuit because she could hear the
television. Id. As she sat on the porch, she saw shadows moving in the neighbor's house
and became suspicious because she knew he was on vacation. (Tr. at 79-80.) She
approached to knock on his door to see if he had changed his mind about leaving, but
became scared when she heard noises inside; she retreated and telephoned the police. Id.By the time the police arrived (which was no more than five minutes later in her
estimation), B.D. and his girlfriend had joined her on the porch. (Tr. at 81-82.) When the
No. 18AP-993 5
police called to interview B.D., she assented but did not think she had a choice in the matter.
(Tr. at 82-83.)
{¶ 14} After hearing the evidence, the magistrate found beyond a reasonable doubt
that B.D. had committed the offense of burglary. (Tr. at 98-99.) Accordingly, the
magistrate also found him to be a delinquent minor. Id.; June 18, 2018 Jgmt. Entry. The
magistrate's decision was immediately adopted by the trial court contemporaneously with
its issuance. (June 18, 2018 Jgmt. Entry.)
{¶ 15} The defense filed an objection on June 28, observing that there was little
evidence against B.D. apart from the confession given in a "strange" interview and that this
was permitted into evidence despite a motion to suppress. (June 28, 2018 Objs.) Once the
transcript of the hearing and trial was prepared, the defense supplemented the objections,
arguing in greater detail that the confession should have been suppressed, that the evidence
against B.D. was otherwise non-existent, and that the prosecution had failed to give
appropriate notice of the caselaw on which it relied. (Aug. 24, 2018 Objs.)
{¶ 16} In a decision issued on November 8, 2018, the trial court denied each of the
three objections. (Nov. 8, 2018 Decision & Jgmt. Entry.) The trial court reasoned that the
interview with the police was not custodial (and thus, the Miranda safeguards were not
triggered) and that it was not otherwise coercive. Id. at 6-9. It found that B.D.'s confession
was sufficient evidence of his guilt. Id. at 9-10. It finally concluded that although motions
before the court are required to cite authority, nothing precluded the prosecution from
citing additional authorities in oral argument. Id. at 10-11.
{¶ 17} Following a hearing on November 19, 2018, the trial court placed B.D. on
probation for the burglary offense. (Dec. 3, 2018 Jgmt. Entry.) B.D. now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 18} B.D. presents three assignments of error for review:
[1.] The trial court erred in failing to suppress the statements
this juvenile made to police in a non-custodial interview.
[2.] The trial court erred in finding that the prosecution proved
its case beyond a reasonable doubt.
[3.] The trial court erred in determining that Juvenile Rule 19
allows the prosecution to withhold legal authorities it plans to
rely upon in a motion to suppress hearing until closing
argument for the trial.
No. 18AP-993 6
III. DISCUSSION
A. First Assignment of Error – Whether the Trial Court Erred in Failing to
Suppress the Statement B.D. made to the Police
{¶ 19} In reviewing a decision on a motion to suppress, we afford deference to the
trial court's factual determinations and review its recitation of historical facts for "clear
error" but we review statements of law and the application of law to facts de novo. See, e.g.,
Ornelas v. United States, 517 U.S. 690, 699 (1996); In re A.J.S., 120 Ohio St.3d 185, 2008-
Ohio-5307, ¶ 50; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶ 20} Generally speaking:
The Fifth and Fourteenth Amendments require that a person
be notified of his or her right to remain silent and the right to
the presence of an attorney prior to a custodial interrogation.
Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966). "Where a suspect speaks freely to police
after acknowledging that he understands his rights, a court
may infer that the suspect implicitly waived his rights."
(Emphasis sic.) State v. Murphy, 91 Ohio St.3d 516, 519, 2001
Ohio 112, 747 N.E.2d 765 (2001). "The determination of
whether there has been an intelligent waiver of [the] right to
counsel must depend, in each case, upon the particular facts
and circumstances surrounding that case, including the
background, experience, and conduct of the accused." Johnson
v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461(1938).
State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 35. Due process also protects
juveniles such that Miranda warnings must also be given to juveniles. In re Gault, 387 U.S.
1, 55 (1967).
{¶ 21} A full Miranda analysis is only triggered, however, where the suspect is in
"custody." In re D.B., 10th Dist. No. 17AP-83, 2018-Ohio-1247, ¶ 17, citing State v. Hoffner,
102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 26. We have recognized that "custody" is a
situation in which "a reasonable person would have felt he was not at liberty to terminate
the interrogation and leave." D.B at ¶ 17, citing Howes v. Fields, 565 U.S. 499, 509 (2012);
see also Yarborough v. Alvarado, 541 U.S. 652, 661 (2004). In this case, a juvenile (who
was already on probation) was awakened, taken from his bed, and confronted in his home
by the police and a non-parent adult who had legal custody of him. (Tr. at 14, 37, 83-84,
111.) He was not given the option of leaving or of discontinuing questioning–in fact the
No. 18AP-993 7
officer questioning him strongly implied that questioning would only terminate when and
if he cooperated. (Tr. at 19; State's Ex. G at 4:20-26 ("as long as you talk is the long it's
gonna take").) Furthermore, B.D. was subjected to deceptive interrogation tactics and was
not given the support of any adult advocate (his grandmother, far from informing him of
his right to remain silent, repeatedly urged him to confess and accused him of lying when
he denied the accusations). (Tr. at 18-22; State's Ex. G at 2:50-6:00.) Notwithstanding the
lack of classic custody indicators such as physical restraint, lengthy duration, or transport
to a holding facility, it may be tempting to find that this situation was one in which a
reasonable person of B.D.'s age and experience, would not have felt at liberty to terminate
the interrogation and leave. But that conclusion is foreclosed by B.D.'s attorney's decision
to concede that the interview was "non-custodial." (B.D.'s Brief at 5; see also id. at 17
(commenting that "the defendant's motion to suppress focused entirely on coercion and did
not address Miranda issues as it was clearly not a custodial interview"); Nov. 8, 2018
Decision & Entry at 2 (noting that the parties had agreed that the encounter "was a non-
custodial interview").)
{¶ 22} Even when Miranda warnings are not required or have validly been waived,
a confession must still be voluntary. Dickerson v. United States, 530 U.S. 428, 444 (2000).
The burden of establishing the voluntariness of the confession is on the State and " 'the
greatest care must be taken to assure that the admission was voluntary, in the sense not
only that it was not coerced or suggested, but also that it was not the product of ignorance
of rights or of adolescent fantasy, fright or despair.' " State v. Barker, 149 Ohio St.3d 1,
2016-Ohio-2708, ¶ 41-43, quoting Gault, 387 U.S. at 55. In that context, the Supreme Court
of Ohio has also explained:
In deciding whether a juvenile's confession is involuntarily
induced, [a] court should consider the totality of the
circumstances, including the age, mentality and prior criminal
experience of the accused; the length, intensity, and frequency
of interrogation; and the existence of physical deprivation or
inducement.
In re Watson, 47 Ohio St.3d 86 (1989), paragraph one of the syllabus. Moreover, this Court
has recognized that " '[c]oercive law enforcement tactics may include, but are not limited
to, physical abuse, threats, deprivation of food, medical treatment or sleep, use of certain
psychological techniques, exertion of improper influences or direct or implied promises,
No. 18AP-993 8
and deceit.' " In re D.F., 10th Dist. No. 14AP-683, 2015-Ohio-2922, ¶ 12, quoting In re
N.J.M., 12th Dist. No. CA2010-03-026, 2010-Ohio-5526, ¶ 20, citing State v. Getsy, 84
Ohio St.3d 180, 189 (1998); see also Fare v. Michael C., 442 U.S. 707, 727 (1979).
{¶ 23} In this case, the entire interview was short, consisted of a single encounter,
and was conducted in B.D.'s grandmother's kitchen. (Tr. at 14, 64; State's Ex. G.) The
detective's tone was friendly throughout, with no resort to physical force, threat, or
deprivations of any kind. (State's Ex. G in passim.) Moreover, this was approximately 2
months before B.D.'s 16th birthday. Compare Tr. at 11-12 (interview date was Nov. 2, 2017)
with Nov. 3, 2017 Compl. (B.D.'s birthdate is January 2002). He also evidently had some
significant prior experience with the court system. (Tr. at 111 (discussing probation
violations on two other juvenile cases).3)
{¶ 24} On the other hand, the detective lied to B.D. about the state of the evidence
against him when he asserted, on more than one occasion, that B.D.'s fingerprints were
found at the scene. (Tr. at 18-20, 32; State's Ex. G at 3:10-15, 4:00-10, 4:35-5:10.) The
general tenor of the interrogation was that the detective already knew B.D. to be guilty and
was just looking for an explanation or verification of the details—not an uncommon tactic
employed in interrogations. (Tr. at 18-21; State's Ex. G at 2:50-6:00.) In the final pitch the
detective made to B.D. before B.D. admitted involvement, the detective implied that if B.D.
told the truth, nothing much of consequence would come of the matter:
[T]he difference between you and [A.W.] is, is that he came
clean and, you know what, I walked away. And I'm gonna walk
away with a smile - - - you know, I'm going to walk away with a
happy face in this whole thing. So, with all this evidence that I
have, I'd rather you go into this the same way he is, 'cause the
whole idea here is not to lock you up and throw away the key,
just gotta make sure you don't do it again.
* * * So, I'm gonna ask you again, did you go in the house and
take the change? Is that a yes or a no?
("Sic" notations omitted.) (Tr. at 21-22). B.D. responded, "Yes, sir." (Tr. at 22.)
{¶ 25} While the record indicates that the detective employed deceptive statements,
psychology, and misleading implications to aid in obtaining a confession from B.D., B.D.'s
3 B.D.'s counsel did not introduce evidence regarding his mental state, intelligence, or education level to help
in rebutting the State's argument that the confession was voluntary; thus, we are unable to effectively consider
those factors.
No. 18AP-993 9
counsel's concession negates any finding that Miranda warnings were required or that this
was a custodial interview such that B.D. was not free to leave. Given this and the other
circumstances of the interview (e.g., short duration, friendly tone, no threats or
deprivations), we cannot say that the interrogation was so deceptive that B.D.'s confession
was involuntary.
{¶ 26} B.D.'s first assignment of error is overruled.
B. Second Assignment of Error – Whether the Evidence was Sufficient
{¶ 27} Sufficiency is:
"[A] term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the
evidence is legally sufficient to support the jury verdict as a
matter of law." * * * In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is
a question of law.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11, quoting State v. Thompkins,
78 Ohio St.3d 380, 386 (1997); Black's Law Dictionary 1433 (6th Ed.1990). "In reviewing
a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.' " State v. Monroe, 105
Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus.
{¶ 28} Burglary is defined in potentially relevant part as follows:
(A) No person, by force, stealth, or deception, shall do any of
the following:
***
(2) Trespass in an occupied structure * * * that is a permanent
or temporary habitation of any person when any person other
than an accomplice of the offender is present or likely to be
present, with purpose to commit in the habitation any criminal
offense;
(3) Trespass in an occupied structure * * * with purpose to
commit in the structure * * * any criminal offense.
R.C. 2911.12(A)(2). An "occupied structure" is separately defined in part relevant to this
case:
No. 18AP-993 10
(C) "Occupied structure" means any house * * * to which any of
the following applies:
(1) It is maintained as a permanent or temporary dwelling, even
though it is temporarily unoccupied and whether or not any
person is actually present.
R.C. 2909.01(C)(1).
{¶ 29} B.D.'s argument on this assignment of error rests on the assumption that the
confession was wrongfully admitted into evidence.4 (B.D.'s Brief at 15-17.) Though we
agree with B.D. that the prosecution presented essentially no evidence linking him to the
burglary at trial other than his own confession, we have already declined to reverse the
decision on suppression. B.D.'s confession was introduced into evidence and, viewing the
evidence in a light "most favorable to the prosecution," that confession was enough.
Monroe at ¶ 47.
{¶ 30} We overrule B.D.'s second assignment of error.
C. Third Assignment of Error – Whether the Trial Court Erred in
Permitting the State to Orally Reference Authorities not Included in
their Memorandum
{¶ 31} B.D.'s counsel argues that, in the course of orally arguing against suppression,
the prosecution referenced authorities that were not included in the State's memorandum
in opposition. (B.D.'s Brief at 17-20.) Defense counsel argues that she would have been
prepared to argue that those cases do not show that deception in a police interview is
appropriate had she been given notice of the cases on which the State intended to rely. Id.We agree that the rules regarding motions practice before the juvenile court require that
any written motion be supported by a memorandum "containing citations of authority."
Juv.R. 19. We also agree that it is reasonable to conclude that Juv.R. 19 is intended to allow
parties to argue to the court from a common understanding of the law that applies to the
4 A third-degree felony burglary under R.C. 2911.12(A)(3) can be perpetrated in an empty house because all
that is required is "[t]respass in an occupied structure * * * with purpose to commit * * * any criminal offense"
therein. R.C. 2911.12(A)(3). But B.D. was only charged with the second-degree felony under division (A)(2)
of R.C. 2911.12, which requires proof that, at the time of the offense, a "person other than an accomplice of the
offender is present or likely to be present." R.C. 2911.12(A)(2). Thus, B.D. could have argued that the
undisputed fact that the occupant of the home was known to have been on vacation should have precluded
conviction for the second-degree felony because no person other than his accomplices were "present or likely
to be present." R.C. 2911.12(A)(2). But, B.D.'s counsel did not argue that in either the trial court or in this
Court on appeal. Here again, our analysis is cut short by the limitations created by B.D.'s counsel's
problematic representation.
No. 18AP-993 11
case, rather than employing surprise to gain the upper hand. As an explicit example of this
general principle, the Supreme Court of Ohio Rules of Practice require litigants who intend
to present oral argument regarding authorities not cited in their written submissions, to
present a list of additional authorities no later than seven days before the oral argument.
S.Ct.Prac.R. 17.08(A). Thus, as a matter of fairness we agree that the State should not have
been permitted to rely on authorities during oral argument that it had not presented in its
written submissions.
{¶ 32} Yet, though the defense commented on the additional authorities, defense
counsel did not formally object or request a recess to review and respond to the authorities
raised orally by the State. (Tr. at 41-43.) Moreover, whether deception was a permissible
tactic for the police to employ was one of the central issues in the case; thus, defense counsel
should have been prepared to argue that point, regardless of what the State chose to cite or
not cite. A number of cases from the United States and Ohio Supreme Courts stand for the
proposition that deception is a factor to consider in weighing whether an interrogation was
coercive, but that deception, on its own, will not necessarily render a confession
involuntary. Oregon v. Elstad, 470 U.S. 298, 317 (1985); Fare, 442 U.S. at 727; Frazier v.
Cupp, 394 U.S. 731, 739 (1969); State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, ¶ 22;
State v. Wiles, 59 Ohio St.3d 71, 81 (1991).
{¶ 33} Thus, while we agree that a litigant should not be permitted to blindside
opposing counsel with additional authorities in an oral argument that were not cited in
briefing related to the topic of the argument, in this case, where the issues were clear, and
where defense counsel did not formally object or seek a recess to address the orally
referenced caselaw, we find this anomaly to have been harmless. We overrule B.D.'s third
assignment of error.
IV. CONCLUSION
{¶ 34} Because of B.D.'s counsel's concession about the nature of the police
interview by which B.D. confessed to the crime(s) he was accused of, we cannot find that
B.D.'s confession to have been in violation of Miranda. Accepting the concession that the
interview was non-custodial, we do not find, on the factual record in this case, that the
confession was otherwise involuntary. On the question of evidentiary sufficiency, because
B.D.'s counsel failed to raise an argument about whether a person was "present or likely to
be present" in the house, we cannot address that issue. As his confession was admitted at
No. 18AP-993 12
trial, there was otherwise sufficient evidence of B.D.'s guilt. Finally, though we agree that
courts should not permit argument by ambush and should generally refrain from allowing
parties to rely in oral argument on authorities not cited in briefing, we find any such error
to be harmless on the facts of this case. Therefore, we affirm the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BEATTY BLUNT and NELSON, JJ., concur.
NELSON, J., concurring.
{¶ 35} I join in the judgment of the court and agree with the principal rationales
expressed in overruling B.D.'s first and second assignments or error. With regard to the
third assignment of error, relating to an issue that I agree was not preserved, I would not
want to suggest that the scope of permissible discussion of case law during oral argument
on a suppression motion lies other than within the sound discretion of the trial court.