Because Mr. Epling was not in custody, he was not entitled to Miranda warnings.
State v. Epling
2023 – Ohio – 418
Fifth District Appellate Court
Licking County, Ohio
February 13, 2023
On January 28, 2021, the Licking County Grand Jury indicted Defendant- Appellant Gary J. Epling on one count of Gross Sexual Imposition (as to J.B.), a felony of the fourth degree in violation of O.R.C. §2907.05(A)(1), and one count of Gross Sexual Imposition (as to K.G.), a felony in the fourth degree in violation of O.R.C. §2907.05(A)(1). Mr. Epling was arraigned on February 3, 2021, where he entered a plea of not guilty to the charges.
Motion to Suppress
Mr. Epling filed a motion to suppress all evidence resulting from Mr. Epling’s June 11, 2020 interaction with the Licking County Sheriff’s Department. The first issue was whether Mr. Epling was in custody for purposes of Miranda and the second issue was whether Mr. Epling’s Stepmother, who called an attorney during Mr. Epling’s interaction with the detectives from the Licking County Sheriff’s Department, had any impact on the question of custody.
First Minor Victim JB
Count One charged Mr. Epling with gross sexual imposition based on a course of conduct involving the minor child, J.B., from August 1, 2014 through September 1, 2016. Mr. Epling was born in 1998. J.B. was born on July 27, 2002. She became friends with Mr. Epling’s stepsister (“Stepsister”) in fourth or fifth grade and she was on the softball team with Stepsister and K.G.
J.B. testified that in the summer of 2014, she was 12 years old and going into the eighth grade. Mr. Epling was in high school and was 16 or 17 years old. In August 2014, she attended Stepmother’s birthday party at Mr. Epling’s home located on Johnstown- Alexandria Road. J.B. was sitting beside Mr. Epling on the couch in the basement living room, watching television. Two younger children were in the room playing on a computer. While he was sitting beside J.B., Mr. Epling laid his hand on J.B.’s upper thigh and began rubbing her thigh. J.B. was wearing jeans with rips or holes in the upper thigh area. Mr. Epling slipped two of his fingers underneath the rip in her jeans and touched her skin. J.B. testified it felt like Mr. Epling touched her thigh for a few minutes. While Mr. Epling was touching her thigh, J.B. testified that she sat there nervously and fidgeted. She did not say anything to Mr. Epling. She believed that she nudged Mr. Epling’s hand away while he touched her thigh, but he continued to rub her thigh and she stopped nudging his hand away. J.B. felt his hand under her jeans creep towards her genital area but Mr. Epling did not touch her genitals. While his hand was on her thigh, J.B. testified that Mr. Epling went underneath her shirt and touched her breasts. J.B. was wearing a bra at the time and could not recollect if Mr. Epling went underneath her bra to touch her skin. She remembered Mr. Epling’s contact with her breasts lasted for a few minutes. J.B. did not say anything to Mr. Epling while he touched her, but she testified she felt nervous and scared because she was much tinier than him at five foot and two inches tall and weighing 105-110 pounds. Mr. Epling stopped touching J.B. when she moved away.
J.B. testified a second incident occurred with Mr. Epling approximately one year later when J.B. was 13 years old and in eighth grade and Mr. Epling was approximately 17 years old and in high school. J.B. was at Mr. Epling’s home for a sleepover with Stepsister and K.G. Stepsister and K.G. had gone to sleep, while J.B. stayed with Stepmother and Mr. Epling’s father in the living room, watching a movie. Eventually Stepmother and Mr. Epling’s father went to bed and Mr. Epling asked if J.B. wanted to come into his bedroom.
J.B. went into his room and sat on the edge of his bed. Mr. Epling sat beside her on the edge of the bed. J.B. spoke to Mr. Epling about her struggles with self-harm and she pointed to an area on her leg where she had cut herself. Mr. Epling touched her leg where she had pointed to her cuts. J.B. testified that she laid down on the bed, and then Mr. Epling came over her on the bed, hovering over her while laying fully on the bed. He was leaning on his right arm and he put his knee over her. He touched her stomach and breasts over her clothes. Mr. Epling then started rubbing his waist or pelvic area against J.B.’s pelvic area.
J.B. and Mr. Epling did not say anything to each other while Mr. Epling touched J.B. J.B. felt she could not get away from Mr. Epling while he touched her because he was in the way and she could not get around him. J.B. did not resist Mr. Epling because she was scared and he was bigger than she was. After rubbing his waist or pelvic area against J.B., Mr. Epling stopped and stared at J.B. He then told J.B. to leave, which she did.
J.B. did not speak to anyone about Mr. Epling’s actions immediately after the two incidents. She testified that when she was in high school, she told K.G. about the incidents.
Stepsister testified that J.B. told her she had a crush on Mr. Epling. J.B. denied having any romantic feelings for Mr. Epling.
Mr. Epling testified on his own behalf. He stated he was 15 or 16 years old and J.B. was 12 or 13 years old at the time of the first incident. He testified that he believed J.B. wanted him to touch her because she told him that she had a crush on him. He agreed that he touched her breasts but he did not go underneath her jeans through the rip in the jeans; he only touched her skin over the rip in her jeans. He recollected that J.B. did not say anything while he touched her, but she did not push his hand away when he touched her. As to the second incident, he testified that he believed J.B. had a crush on him and she wanted him to touch her. J.B. voluntarily came into his room, laid on his bed, and asked him to cuddle with her. While they were laying on the bed, his groin area was against her hip. They stopped cuddling when he told her he wanted to go to bed and J.B. left the room.
Second Minor Victim KG
Count Two charged Mr. Epling with gross sexual imposition based on conduct on or about May 1, 2016 through September 30, 2016 with K.G. K.G. was born on April 25, 2003. She was friends with Stepsister because of school and the softball team, through which, her family became friends with Mr. Epling’s family.
In 2016, during the summer before she started eighth grade, K.G. was 13 years old, four foot and eleven inches tall, and 100 pounds. Mr. Epling was 17 years old and K.G. testified he was the size of a full-grown adult. K.G. was at a sleepover at Stepsister’s home located on Johnstown-Alexandria Road. Mr. Epling was at the home with his friend, M.K. M.K. testified that earlier in the evening, he and Mr. Epling smoked marijuana. K.G. testified that Stepsister’s bedroom was under construction, so the four teenagers chose to sleep in Mr. Epling’s bedroom. Mr. Epling’s bed was two bunkbeds pushed together. The four teenagers laid in Mr. Epling’s bed together, where K.G. laid on her left side with her back to Mr. Epling. She was wearing a hoodie and leggings. K.G. testified that Stepsister and M.K. fell asleep while she was trying to fall asleep. She heard Mr. Epling say her name and then felt him shake her a little bit, but she did not respond because she wanted to fall asleep. She then felt Mr. Epling put his hand between her legs and move his hand towards her pubic area. She moved, hoping that Mr. Epling would remove his hand, which he did. She felt him return and remove his hand between her legs four times. K.G. stayed silent and did not tell him to stop. When she felt his hand touch her genital area, K.G. got up, grabbed Stepsister, and left the room. Stepsister and K.G. went to Stepsister’s room, where K.G. told Stepsister what happened with Mr. Epling. K.G. said Stepsister told her not to tell anyone what happened.
K.G. did not tell anyone else what happened with Mr. Epling until April 2020, when her parents asked her. Stepmother contacted K.G.’s mother to tell her that K.G. was allegedly telling people that Mr. Epling was a rapist. K.G. denied saying that about Mr. Epling, but told her parents what happened to her with Mr. Epling. She did not say anything before because she was scared and wanted to forget about it.
K.G. denied having any romantic interest in Mr. Epling. Stepsister testified that K.G. flirted with Mr. Epling. When she and K.G. were in bed with Mr. Epling, Stepsister said she heard K.G. giggling and laughing, and then they left the room. M.K. testified he was asleep and did not see anything happen between Mr. Epling and K.G. in bed.
Mr. Epling’s counsel introduced Defense Exhibit 1, a paper containing images of alleged texts between Mr. Epling and K.G. from June 3, 2016. One text stated, “when we get back we’ll fuck.” (T. 39). K.G. denied sending the texts in Defense Exhibit 1 to Mr. Epling. On redirect examination by the State, K.G. testified there were no phone numbers, account names, or profile names on Defense Exhibit 1. During Mr. Epling’s testimony, Mr. Epling testified that Defense Exhibit 1 was a text exchange through the Kik app between him and K.G. on the date of the incident. He screenshotted the exchange because no one had texted him something like that before. Mr. Epling said K.G. texted him, “When we get back we’ll fuck.” Mr. Epling replied, “Promise.” K.G. replied, “Yes, of course.” Mr. Epling replied, “Today is going to be best date.” K.G. replied, “Well tonight.” Mr. Epling replied, “Oh, yeah, you’re right.” The last message said, “Better in the dark.”. Mr. Epling attempted to introduce his cell phone as evidence to show the screenshot on his phone, but the trial court sustained the State’s objection that Mr. Epling did not provide the cell phone in discovery. Mr. Epling did not move to have Defense Exhibit 1 admitted into evidence.
Mr. Epling testified that he was under the impression that his conduct with K.G.
was consensual. At the point where he felt like it was not consensual, he stopped touching her because he felt embarrassed.
Evidence Presented at Hearing
Deputy Wayne Moore testified he was assigned to the detective bureau of the Licking County Sheriff’s Department on June 11, 2020. While a detective, he wore plain clothes and a police badge either around his neck or at his waist near his firearm. He drove an unmarked police vehicle. On June 11, 2020, Deputy Moore and Licking County Sheriff’s Detective Adam Beach were investigating Mr. Epling and allegations of his sexual misconduct with two minors. The detectives reported to a residence located on Johnstown-Alexandria Road in Licking County to have a conversation with Mr. Epling. At the time of the interview, Mr. Epling was 21 years old. He had graduated high school, was working full time, and enrolled in college where he studied computer sciences.
Deputy Moore recorded the detectives’ conversation with Mr. Epling, which the State introduced as State’s Exhibit No. 1 and was admitted without objection. The recording was played for the trial court. In the recording, Mr. Epling greets the detectives at the front door, and they ask to speak with him out by their cars. Det. Moore testified that Mr. Epling was only wearing shorts when he came to the door. The detectives ask Mr. Epling if he would like to put on some flip flops or pants. Mr. Epling says no because he was going to go back to bed. A detective tells Mr. Epling that he does not have to speak with them. Mr. Epling interrupts the detectives to tell someone in the house that a person has arrived for them.
Mr. Epling leaves the house and walks with the detectives outside. Det. Moore asks Mr. Epling if that is his mother, and a woman is heard greeting the detectives. The detectives inform Mr. Epling’s stepmother (“Stepmother”) that her son’s name came up during an investigation. She inquires further, but the detectives tell her that because Mr. Epling is an adult, they want to maintain his privacy and speak with him alone. Stepmother tells them she will be right inside the home.
A detective tells Mr. Epling that they are investigating allegations from two women about sexual encounters that occurred some time ago. Mr. Epling responds that he knows exactly who they are talking about. Mr. Epling tells the detectives that it happened when he was in high school and he thinks it involved K.G., his stepsister’s friend who spent the night at their house. Mr. Epling describes his memory of the incident where he tried to make a move on K.G. Mr. Epling then volunteers the name of the other girl, J.B. and describes their interaction when J.B. was in fifth or sixth grade and Mr. Epling was 15 or 16 years old.
Stepmother interrupts and asks if Mr. Epling can put some pants on. The detectives respond that they asked Mr. Epling to put pants on. Stepmother responds that he was nervous, and he was going to put some pants on. No one speaks on the recording for a few seconds. Mr. Epling comes back on the audio, apologizing to the detectives for putting on pants. The detectives ask Mr. Epling if he is still comfortable because they don’t want to make him feel uncomfortable. Mr. Epling says yes.
The detectives then describe to Mr. Epling the women’s allegations against him. Mr. Epling tells the detectives his recollection of the encounters. The detectives question Mr. Epling regarding the details of his encounters with the women. After Mr. Epling describes the encounters, one of the detectives tells Mr. Epling that they are just there to talk to him now. They don’t want to later learn there are more allegations against him.
A detective directs Mr. Epling to sit on the porch while the detectives speak, and then they would be back to speak with him. A detective asks if that is alright with Mr. Epling. Mr. Epling asks if he is supposed to sit on the porch. A detective responds that they are not holding him here, they just may have some follow-up questions. He says if Mr. Epling doesn’t mind, they would appreciate it. Mr. Epling responds that he understands.
The detectives return and tell Mr. Epling that they are going to file their report, that Mr. Epling was honest, and they will give the report to the prosecutors for their review. Stepmother asks the detectives whether she needs to get her son an attorney. She asks the detectives whether they are charging her son with something. The detectives respond that the prosecutor’s office will make that decision, but they have probable cause to arrest Mr. Epling for gross sexual imposition.
Mr. Epling’s Stepmother testified at the motion to suppress hearing that when the detectives arrived at the home, Mr. Epling asked her if he needed an attorney. Stepmother testified that she asked the detectives if Mr. Epling needed an attorney. The detectives told her no. While Mr. Epling was speaking with the detectives, she called her family attorney and spoke with him during Mr. Epling’s interview. She stated the attorney told her to go outside, but the detectives told her no, she was not allowed out there.
Custody under Miranda – A term of Art
Pursuant to Miranda, therefore, statements stemming from custodial interrogations are admissible only after a showing that the procedural safeguards have been followed. “Custody” is when a defendant is taken into custody “or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” Miranda at 478. The relevant inquiry is whether a reasonable person under those circumstances would have felt they were under arrest. The United States Supreme Court has explained: “As used in our Miranda case law, “custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of “the objective circumstances of the interrogation,” Stansbury v. California, 511 U.S. 318, 322–323, 325 (1994)
Police are not required to administer Miranda warnings to everyone whom they question. Oregon v. Mathiason, 429 U.S. 492, 495, (1977).
Interview of Mr. Gary Epling
On June 11, 2020, when the deputies spoke with Mr. Epling at his home, he was 21 years old, a high school graduate, employed, and attending college. When the officers first made contact with Mr. Epling at the front door of his home, Mr. Epling was only wearing shorts. The deputies clearly informed Mr. Epling that he did not have to speak with them. Mr. Epling interrupted the officers to speak to someone inside the home. Before asking any questions, the officers asked Mr. Epling if he would like to put on pants or flip flops, which Mr. Epling declined. They next asked Mr. Epling to come to their car to speak with them and the audio reflects Mr. Epling and the officers went outside the home to speak, but not near the officers’ car. Det. Adam Beach testified he was driving an unmarked police vehicle and the officers were wearing plain clothes, which Stepmother mentioned in the audio recording.
Mr. Epling was within shouting distance of Stepmother, who was inside the home during the interview. Stepmother called from the home to ask if Mr. Epling could put on pants. The interview stopped while Mr. Epling put on pants. After he put on his pants, the officers ask Mr. Epling if he is comfortable, to which Mr. Epling affirmatively responds.
After the interview, the detectives direct Mr. Epling to sit on the porch while they spoke. A detective asks if that is alright with Mr. Epling. Mr. Epling asks if he is supposed to sit on the porch. A detective responds that they were not holding him here, they just might have some follow-up questions. A detective says that if Mr. Epling doesn’t mind, they would appreciate it. Mr. Epling responds that he understood. The detectives returned to the porch and inform Mr. Epling and Stepmother that Mr. Epling was not under arrest.
The trial court found Mr. Epling’s June 11, 2020 interview with the detectives did not constitute a custodial interrogation.
We consider the circumstances surrounding the interrogation where the detectives told Mr. Epling that he did not have to speak with them, Mr. Epling was interviewed outside his home, the detectives were wearing plain clothes and driving unmarked vehicles, Mr. Epling was not physically restrained while he was interviewed, the detectives permitted Stepmother to stop the interview so Mr. Epling could put on pants, and Mr. Epling was released at the end of the questioning. Under these circumstances, we find a reasonable person would have felt he was at liberty to terminate the interrogation and leave.
Because Mr. Epling was not in custody, he was not entitled to Miranda warnings. The trial court properly denied the motion to suppress.
Information for this article was obtained from State v. Epling, 2023 – Ohio – 418.
This case was issued by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
- For a suspect to require a Miranda warning, two prongs must be met; (1) The suspect must be in custody – either actual or constructive and (2) The suspect must be interrogated see Miranda v. Arizona, 384 U.S. 436 (1966) and Miranda – Both a Noun and a Verb. In this case Mr. Epling was not in custody for purposes of Miranda – either actual [physical] or constructive. Epling was interviewed on the front porch of his home, was not handcuffed and was told he did not have to talk to the detectives. Based on all of these factors, the trial court and the Fifth District Appellate Court determined that Mr. Epling was not in custody.
- At one point during the interaction between the deputies and the stepmother, she inquired “Stepmother asks the detectives whether she needs to get her son an attorney.”. This is a common occurrence where a family member will ask law enforcement if an attorney is needed. Law enforcement should not give the suspect or a family legal advice and telling someone that they need an attorney is legal advice. Also, a competent adult is the only person who may invoke the right to counsel. The right cannot be transferred to a family member, friend or co-conspirator. The Sixth Amendment states in pertinent part “In all criminal prosecutions, the accused … have the Assistance of Counsel for his defence.” [emphasis added] The right is that of the individual and no one else was confirmed in 1966 whe the U.S. Supreme Court affirmed that the right is the suspect’s and no one else when it held “After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.”. [emphasis added]Miranda v. Arizona, 384 U.S. 436, 479 (1966) Because Mr. Epling did not request an attorney, the question posed by his stepmother had not legal bearing on Mr. Epling’s confession.
- Both Licking County Deputy Wayne Moore and Deputy Adam Beach should be highly commended for their legal acumen and application of the nuances of custodial interrogation. Well done deputies!
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