State v. Gideon (Slip Opinion)

S
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Gideon, Slip Opinion No. 2020-Ohio-6961.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2020-OHIO-6961
THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. JAMES A. GIDEON,
                          APPELLEE AND CROSS-APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Gideon, Slip Opinion No. 2020-Ohio-6961.]
Medical license is a property right and threatened loss of the license is a form of
        coercion—R.C. 4731.22(B)—Coercion is not sufficient to warrant the
        suppression of statements made during a medical-board investigative
        interview unless defendant’s belief that he would lose his license if he failed
        to participate in the medical-board interview and answer questions
        truthfully is both subjectively believed and objectively reasonable—Court
        of appeals erred by finding that assignment of error relating to the
        sufficiency-of-the-evidence claim was moot under App.R. 12(A)(1)(c)—
        Court of appeals’ judgment reversed and cause remanded.
                                  SUPREME COURT OF OHIO




  (No. 2019-1104—Submitted August 4, 2020—Decided December 15, 2020—
      Reconsideration Granted and Slip Opinion Reissued December 31, 2020.1)
      APPEAL and CROSS-APPEAL from the Court of Appeals for Allen County,
                 Nos. 1-18-27, 1-18-28, and 1-18-29, 2019-Ohio-2482.
                                    __________________
         STEWART, J.
         ¶ 1 In Ohio, a medical doctor has a statutory duty to answer truthfully
questions posed by an investigator of the state medical board. The question
presented in this appeal is whether the state may use incriminating answers given
by a doctor during a medical-board investigation in a subsequent criminal
prosecution of that doctor. We conclude that a medical license is a property right
and that the threatened loss of the license is a form of coercion that can compromise
the United States Constitution’s Fifth Amendment privilege against self-
incrimination. That said, in order for coercion to be sufficient to warrant the
suppression of statements made during a medical-board investigative interview,
first, the person making the statements must subjectively believe that asserting the
privilege against self-incrimination could cause the loss of the person’s medical



1. On December 15, 2020, this court issued its judgment and original opinion in this case. Appellee
and cross-appellant, James Gideon, filed a motion for reconsideration asserting as follows:

(1)   This court incorrectly deferred to the trial court’s legal conclusion regarding both prongs of
      the Graham test (for adjudicating Garrity claims), see State v. Graham, 

136 Ohio St. 3d 125

,
      2013-Ohio-2114, 

991 N.E.2d 1116

; Garrity v. New Jersey, 

385 U.S. 493

, 

87 S. Ct. 616

, 

17 L. Ed. 2d 562

(1967); and
(2)   This court should clarify its remand order to require the Third District Court of Appeals to
      adjudicate Gideon’s other assignments of error because this court’s decision “un mooted” his
      remaining assignments of error.

         We grant Gideon’s motion to reconsider. This reissued opinion clarifies that this court
conducted an independent review when we reached the conclusion that Gideon did not satisfy the
Graham test. In addition, the opinion clarifies our previous remand language to instruct the court
of appeals to consider Gideon’s other assignments of error that were deemed moot.




                                                 2
                                January Term, 2020




license, and second, that belief must be objectively reasonable. In this case, the
doctor’s belief that he could lose his medical license if he refused to answer
truthfully questions posed by the medical-board investigator was not objectively
reasonable. Because the court of appeals reached a contrary conclusion and held
that statements made by the doctor were inadmissible at trial, we reverse.
       ¶ 2 We also conclude that the court of appeals erred by determining that
its remand order mooted an assignment of error relating to the sufficiency of the
evidence. An assignment of error challenging the sufficiency of the evidence is
potentially dispositive of a defendant’s conviction and may not be rendered moot
by a remand on any other assignment of error.
                               Factual Background
       ¶ 3 Appellee and cross-appellant, James Gideon, was licensed as a
physician by the State Medical Board of Ohio and maintained a practice in
rheumatology. In 2017, three of his patients accused him of inappropriately
touching them during office visits. Two investigations were opened: one by the
local police and one by an investigator working for the state medical board.
Although Gideon told the police that he did not inappropriately touch any patients,
the investigator told the police that Gideon admitted to misconduct.            The
investigator shared that information with the police as the medical board is
authorized to do under R.C. 4731.22(F)(5).
       ¶ 4 The state charged Gideon with three third-degree misdemeanor
counts of sexual imposition in three separate cases that were consolidated for trial.
Gideon moved to suppress the statements that he had made to the investigator as
having been illegally compelled in violation of the Fifth Amendment to the United
States Constitution. He argued that because he believed he was required to submit
to the interview by the medical board and answer the investigator’s questions or
risk losing his medical license, the medical-board investigator coerced his
admissions with the threat of losing his medical license. The trial judge denied the




                                         3
                               SUPREME COURT OF OHIO




motion to suppress, concluding that Gideon “made voluntary statements during a
noncustodial interview.” A jury found Gideon guilty in all three cases. The trial
court imposed a jail term of 60 days in each case and ordered the sentences to run
consecutively to each other.
       ¶ 5 On appeal, the Third District Court of Appeals reversed the
convictions. The court of appeals determined that the trial court should have
granted Gideon’s motion to suppress consistent with Garrity v. New Jersey, 

385 U.S. 493

, 

87 S. Ct. 616

, 

17 L. Ed. 2d 562

(1967), which held that statements obtained
from a public employee under threat of job loss are unconstitutionally coerced and
inadmissible in subsequent criminal proceedings. The court noted that Gideon had
a statutory duty to answer truthfully all questions posed by the medical-board
investigator and that the investigator “created an impression that Gideon’s refusal
to cooperate with his investigation would result in the type of penalty prohibited
under Garrity,” 2019-Ohio-2482, 

130 N.E.3d 357

, ¶ 51.
       ¶ 6 Both the state and Gideon appealed the appellate court’s judgment.
The state offers this proposition of law:


               When a non-government employee gives a statement to an
       administrative board/licensing agency governed by the state, and
       when there is no threat of loss of employment or removal from
       office, that statement is not subject to Garrity v. New Jersey, 

385 U.S. 493

(1967).


       ¶ 7 Gideon offers two cross-propositions of law:


               (1) A licensing board investigator’s intent to assist law
       enforcement in obtaining a criminal conviction for the purpose of
       influencing the outcome of an administrative-sanction proceeding




                                            4
                               January Term, 2020




       against a licensee is a factor strongly weighing in favor of a finding
       that the licensee had an objectively reasonable belief that assertion
       of his Fifth Amendment Privilege Against Self-Incrimination would
       expose him to revocation of his license and loss of his livelihood.
               (2) Under App.R. 12(A)(C), a court of appeals has a duty to
       adjudicate any assignment of error that raises a claim of
       insufficiency of the evidence to support a criminal conviction or that
       involves a claim of error that is likely to again become an issue
       during proceedings upon remand.


                   The Privilege Against Self-Incrimination
       ¶ 8 We will first address the state’s proposition of law together with
Gideon’s first cross-proposition of law. The Fifth Amendment to the United States
Constitution provides that no person “shall be compelled in any criminal case to be
a witness against himself.” Article I, Section 10 of the Ohio Constitution provides
the same protection: “No person shall be compelled, in any criminal case, to be a
witness against himself * * *.” “The Amendment not only protects the individual
against being involuntarily called as a witness against himself in a criminal
prosecution but also privileges him not to answer official questions put to him in
any other proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 

414 U.S. 70

, 77, 

94 S. Ct. 316

, 

38 L. Ed. 2d 274

(1973).
       ¶ 9 Because a witness may voluntarily testify to matters which may be
incriminating, the privilege against self-incrimination is not self-executing. The
witness seeking the privilege must “claim it.” United States v. Monia, 

317 U.S. 424

, 427, 

63 S. Ct. 409

, 

87 L. Ed. 376

(1943). If the witness answers a question, the
answer will be considered voluntary. See Minnesota v. Murphy, 

465 U.S. 420

, 427,




                                         5
                              SUPREME COURT OF OHIO




104 S. Ct. 1136

, 

79 L. Ed. 2d 409

(1984). Gideon did not assert the privilege against
self-incrimination during his interview with the medical-board investigator.
        ¶ 10 At times, when it is necessary to “safeguard the core constitutional
right protected by the Self-incrimination Clause,” an assertion of the privilege
against self-incrimination is not required. Chavez v. Martinez, 

538 U.S. 760

, 770,

123 S. Ct. 1994

, 

155 L. Ed. 2d 984

(2003) (plurality opinion). An exception to
asserting the privilege exists for statements made during custodial interrogations in
which the state undermines the privilege by physically or psychologically coercing
a suspect. See Miranda v. Arizona, 

384 U.S. 436

, 448-450, 

86 S. Ct. 1602

, 

16 L. Ed. 2d 694

(1966).
        ¶ 11 The right to remain silent can also be infringed by coercion when
there is a penalty for asserting the right.        In Garrity, the attorney general
investigated police officers for fixing traffic tickets. Although advised of their right
to remain silent, the officers also were told that refusing to answer questions would
lead to the termination of their employment. The officers answered questions and
the state used some of their answers against them in a subsequent criminal case.
The U.S. Supreme Court observed that “[t]he option to lose their means of
livelihood or to pay the penalty of self-incrimination is the antithesis of free choice
to speak out or to remain silent.” 

Garrity, 385 U.S. at 497

, 

87 S. Ct. 616

, 

17 L. Ed. 2d 562

. The court thus held that the confessions were not voluntary but coerced and
that the Fourteenth Amendment prohibited the use of the statements in subsequent
criminal proceedings.

Id. at 497-498, 500.

        ¶ 12 Unlike the officers in Garrity, Gideon is not a public employee. He
was a medical doctor in private practice. As a practicing physician, he was subject
to licensure by the state medical board. See R.C. 4731.17(B) (state medical board
shall issue licenses to practice medicine). Gideon’s medical license constitutes a
liberty and property interest subject to due-process protections. Watts v. Burkhart,

854 F.2d 839

, 842 (6th Cir.1988) (“the freedom to pursue a career is a protected




                                           6
                                 January Term, 2020




liberty interest, and * * * state regulation of occupations through a licensing process
gives rise to protected property interests”); see also Flynn v. State Med. Bd., 2016-
Ohio-5903, 

62 N.E.3d 212

, ¶ 45 (10th Dist.).
       ¶ 13 The medical board has disciplinary authority over medical doctors
and may “limit, revoke, or suspend a license or certificate to practice or certificate
to recommend, refuse to issue a license or certificate, refuse to renew a license or
certificate, refuse to reinstate a license or certificate, or reprimand or place on
probation the holder of a license or certificate * * *.” R.C. 4731.22(B). Among
the reasons listed for exercising the authority to impose such sanctions is the
“[f]ailure to cooperate in an investigation” and the “failure to answer truthfully a
question presented by the board in an investigative interview * * *.”             R.C.
4731.22(B)(34).
       ¶ 14 The state’s threat to impose a legal penalty for the failure to give
truthful responses in a state-medical-board investigation is coercive. This threat
puts a medical doctor in the position of having to choose between two rights: the
property right in the medical license or the privilege against self-incrimination. See
Spevack v. Klein, 

385 U.S. 511

, 512, 

87 S. Ct. 625

, 

17 L. Ed. 2d 574

(1967) (private-
practice lawyer could not be disbarred for refusing to testify at a judicial inquiry
into professional misconduct).
       ¶ 15 A different approach is required when, as here, the person under
investigation has not been “expressly confronted * * * with the inescapable choice
of either making an incriminatory statement or being fired,” State v. Graham, 

136 Ohio St. 3d 125

, 2013-Ohio-2114, 

991 N.E.2d 1116

, ¶ 23. When incriminating
statements are not coerced by the direct threat of job termination, we apply an
“objectively reasonable” “subjective belief” test.

Id. Under that test,

statements
are compelled by threat of discharge if (1) a person subjectively believed that
asserting the privilege would lead to discharge and (2) that belief was objectively
reasonable under the circumstances.

Id. 7

                             SUPREME COURT OF OHIO




       ¶ 16 Applying the Graham test, the trial court found that while Gideon
testified that he subjectively believed that he would “be penalized” with the loss of
his medical license if he did not answer questions posed by the medical-board
investigator, his belief was not objectively reasonable.
       ¶ 17 In Graham, we explained that the objective reasonableness of a
defendant’s belief that disciplinary action will result unless the defendant
cooperates requires a showing of “some demonstrable coercive action by the state
beyond ‘[t]he general directive to cooperate.’ ” (Brackets sic.) Graham at ¶ 23,
quoting United States v. Vangates, 

287 F.3d 1315

, 1324 (11th Cir.2002). We
further explained that “ ‘ordinary job pressures, such as the possibility of discipline
or discharge for insubordination, are not sufficient to support an objectively
reasonable expectation of discharge.’ ”

Id., quoting People v.

Sapp, 

934 P.2d 1367

,
1372 (Colo.1997).
       ¶ 18 Gideon did not establish through evidence that coercive action by
the medical-board investigator had occurred. The trial court found no evidence that
the medical-board investigator informed Gideon that “he must waive his rights
against self-incrimination or subject himself to discharge or revocation of his
license.” And neither Gideon nor the investigator mentioned during the interview
anything that suggested Gideon could lose his medical license if he refused to
comply with the investigator’s questioning.
       ¶ 19 Besides the lack of evidence showing that Gideon had an objectively
reasonable basis for believing that he could lose his medical license, the trial court
correctly found that R.C. 4731.22(B), which requires a doctor’s cooperation in an
investigation, does not subject that doctor “to an automatic suspension or
revocation” of a license should the doctor exercise the right to remain silent.
Although that section speaks in mandatory terms about discipline for certain
violations (the board “shall” impose one of the listed sanctions), discipline is not
automatic. It requires the affirmative vote of “not fewer than six” medical-board




                                          8
                                January Term, 2020




members to impose discipline for one of the reasons listed in R.C. 4731.22(B). And
even when the medical board determines that a doctor has committed a violation,
revocation of a medical license is not a required sanction—it is one of several
sanctions available to the board. See R.C. 4731.22(B). In Gideon’s case, there was
no direct threat of discipline for failure to cooperate; he faced only the possibility
of discipline.
        ¶ 20 The Third District disagreed: “the trial court did not capture the
concept of [R.C. 4731.22] and, more importantly, failed to consider the totality of
the circumstances surrounding Gideon’s interview * * *.” (Emphasis sic.) 2019-
Ohio-2482, 

130 N.E.3d 357

, at ¶ 31.
        ¶ 21 Yet the trial court did consider the circumstances surrounding the
interview. In its findings of fact, the trial court observed that Gideon sounded
“eager to speak” with the investigator despite having no notice of the investigator’s
visit. Gideon declined the investigator’s offer to reschedule the interview. Because
the interview occurred in Gideon’s office, the investigator told Gideon that he
would pause the interview so that Gideon could see waiting patients. The trial court
found that Gideon “took the lead initially in the interview and described his
techniques with his patients prior to any substantive questions being posed by the
investigator.” Although Gideon testified during the suppression hearing that the
surprise nature of the interview denied him the ability to refresh his memory of the
specific patients, the trial court determined that Gideon “was able to give a very
detailed account of the treatments provided” and that only 18 minutes into the
interview, Gideon “admitted to touching certain areas on the patients and
succumbing to temptation.”
        ¶ 22 Appellate review of a suppression ruling involves a mixed question
of law and fact. State v. Burnside, 

100 Ohio St. 3d 152

, 2003-Ohio-5372, 

797 N.E.2d 71

, ¶ 8. “An appellate court must accept the trial court’s findings of fact if
they are supported by competent, credible evidence.” State v. Hawkins, 

158 Ohio 9

                             SUPREME COURT OF OHIO




St.3d 94, 2019-Ohio-4210, 

140 N.E.3d 577

, ¶ 16. “[T]he appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.” Burnside at ¶ 8, citing State
v. McNamara, 

124 Ohio App. 3d 706

, 

707 N.E.2d 539

(4th Dist.1997).
       ¶ 23 The court of appeals did not dispute the trial court’s factual findings.
It believed, however, that the investigator acted as a “straw man” for the state.
2019-Ohio-2482, 

130 N.E.3d 357

, at ¶ 42. While the board may share with law-
enforcement agencies any information it receives in an investigation, see R.C.
4731.22(F)(5), cooperation with law-enforcement officials does not necessarily
convert a medical-board investigation into a law-enforcement mission. See State
v. Jackson, 

154 Ohio St. 3d 542

, 2018-Ohio-2169, 

116 N.E.3d 1240

, ¶ 21, citing
Ohio v. Clark, 

576 U.S. 237

, 249, 

135 S. Ct. 2173

, 

192 L. Ed. 2d 306

(2015). The
investigator admitted that he agreed to share information with the police, but that
does not mean that he acted for the primary purpose of furthering a criminal
prosecution by the state. The investigator interviewed Gideon for the primary
purpose of determining whether Gideon was subject to disciplinary action by the
medical board for engaging in the misconduct alleged by his patients.
       ¶ 24 We conclude that Gideon’s medical license is a property right and
that the threatened loss of the license is a form of coercion that can compromise the
United States Constitution’s Fifth Amendment privilege against self-incrimination.
That said, in order for coercion to be sufficient to warrant the suppression of
statements Gideon made during a medical-board investigative interview, his belief
that he would lose his license if he failed to participate in the medical-board
interview and answer questions truthfully must be both subjectively believed and
objectively reasonable. In this case, based on our independent, de novo review of
the facts and circumstances under which the investigator interviewed Gideon, we
conclude that Gideon’s belief that a refusal to answer truthfully questions posed by
the medical-board investigator could lead to the loss of his medical license was not




                                          10
                                 January Term, 2020




objectively reasonable. We find, therefore, that Gideon has failed to satisfy the
legal standard established in Graham.
                    Duty to Adjudicate Assignments of Error
        ¶ 25 In his second cross-proposition of law, Gideon claims that the court
of appeals erred by finding that his assignment of error relating to the sufficiency
of the evidence on one count of sexual imposition was moot. He argues that the
appellate court’s remand on the suppression issue did not moot this assignment of
error. We agree.
        ¶ 26 App.R. 12(A)(1)(c) states that “[u]nless an assignment of error is
made moot by a ruling on another assignment of error,” a court of appeals shall
“decide each assignment of error and give reasons in writing for its decision.” An
assignment of error is moot when it cannot have “ ‘any practical legal effect upon
a then-existing controversy.’ ” Culver v. Warren, 

84 Ohio App. 373

, 393, 

83 N.E.2d 82

(7th Dist.1948), quoting Ex parte Steele, 

162 F. 694

, 701
(N.D.Ala.1908). Put differently, an assignment of error is moot when an appellant
presents issues that are no longer live as a result of some other decision rendered
by the appellate court.
        ¶ 27 An assignment of error going to the sufficiency of the evidence
supporting a criminal count is always potentially dispositive of that count. While
a reversal based on weight of the evidence does not preclude a retrial, a reversal
based on insufficient evidence leads to an acquittal that bars a retrial. See State v.
Thompkins, 

78 Ohio St. 3d 380

, 387, 

678 N.E.2d 541

(1997), citing Tibbs v. Florida,

457 U.S. 31

, 47, 

102 S. Ct. 2211

, 

72 L. Ed. 2d 652

(1982). “Because ‘the state is not
entitled to retry a criminal defendant after reversal for trial court error if the state
failed in the first instance to present sufficient evidence * * * a defendant’s assigned
error that the conviction is based on insufficient evidence is not moot under these
circumstances.’ ” (Ellipsis added in Mathis.) State v. Mathis, 6th Dist. Lucas No.
L-18-1192, 2020-Ohio-3068, ¶ 78, quoting State v. Vanni, 

182 Ohio App. 3d 505

,




                                          11
                             SUPREME COURT OF OHIO




2009-Ohio-2295, 

913 N.E.2d 985

, ¶ 15 (9th Dist.); see also State v. Croskey, 8th
Dist. Cuyahoga No. 107772, 2019-Ohio-2444, ¶ 9 (errors which could result in an
acquittal must be separately addressed).
       ¶ 28 In State v. Brewer, 

113 Ohio St. 3d 375

, 2007-Ohio-2079, 

865 N.E.2d 900

, we determined that the court of appeals erred by refusing to consider
an assignment of error challenging the sufficiency of the evidence after it had
determined trial error warranted reversal of the defendant’s conviction. A jury had
found Brewer guilty of gross sexual imposition. On direct appeal, he raised nine
assignments of error, including that hearsay testimony was improperly allowed by
the court and that the state failed to offer sufficient evidence. State v. Brewer, 8th
Dist. Cuyahoga No. 87701, 2006-Ohio-6029, ¶ 1. The court of appeals determined
that the trial court erred by allowing hearsay testimony into evidence and ordered a
new trial.

Id. at ¶ 13.

That finding led it to conclude that the remaining assignments
of error were moot.

Id. We summarily reversed

that decision: “[t]he judgment of
the court of appeals holding that the assignment of error in which appellant
challenged the sufficiency of the evidence was moot is reversed, and the cause is
remanded to the court of appeals for consideration of that assignment of error.”
Brewer, 

113 Ohio St. 3d 375

, 2007-Ohio-2079, 

865 N.E.2d 900

, at ¶ 2.
       ¶ 29 When a conviction is based on evidence that does not establish a
defendant’s guilt beyond a reasonable doubt, the court of appeals must vacate the
conviction and double-jeopardy protection bars the defendant’s retrial for the same
offense. An assignment of error raising the sufficiency of the evidence is thus
potentially dispositive of a particular count and cannot be moot. When evaluating
an assignment of error challenging the sufficiency of the evidence, a reviewing
court must consider all evidence admitted at trial, including the improperly
admitted evidence that was the source of the reversal for trial error. See State v.
Brewer, 

121 Ohio St. 3d 202

, 2009-Ohio-593, 

903 N.E.2d 284

, ¶ 24-26. The court




                                           12
                                 January Term, 2020




of appeals erred by finding that Gideon’s assignment of error relating to the
sufficiency-of-the-evidence claim was moot under App.R. 12(A)(1)(c).
                                      Conclusion
          ¶ 30 For the reasons stated above, we reverse the judgment of the Third
District Court of Appeals. We also remand the cause to that court to consider
Gideon’s assignment of error relating to the sufficiency of the evidence, and
because we reverse its judgment on the motion to suppress, the appellate court will
now need to consider Gideon’s other assignments of error that were deemed moot.
                                                                Judgment reversed
                                                              and cause remanded.
          O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, and DEWINE, JJ.,
concur.
          DONNELLY, J., dissents, with an opinion.
                                _________________
          DONNELLY, J., dissenting.
          ¶ 31 The majority opinion states that the medical board can “ ‘limit,
revoke, or suspend’ ” a license to practice medicine if the licensee fails to
“ ‘cooperate in an investigation’ ” or “ ‘answer truthfully a question presented by
the board in an investigative interview.’ ” Majority opinion at ¶ 13, quoting R.C.
4731.22(B). The majority opinion concludes that appellee and cross-appellant,
James Gideon, subjectively believed that he could lose his license if he failed to
cooperate or to answer questions truthfully. I agree. See R.C. 4731.22(B)(34).
Based on the language of R.C. 4731.22(B), Gideon’s subjective belief that he could
lose his license was well-founded. But the majority opinion further concludes that
Gideon’s subjective belief was not objectively reasonable because he did not
demonstrate “ ‘coercive action by the state beyond “[t]he general directive to
cooperate.” ’ (Brackets sic.) [State v. Graham, 

136 Ohio St. 3d 125

, 2013-Ohio-




                                          13
                                   SUPREME COURT OF OHIO




2114, 

991 N.E.2d 1116

,] ¶ 23, quoting United States v. Vangates, 

287 F.3d 1315

,
1324 (11th Cir.2002).” Majority opinion at ¶ 17. I disagree.
         ¶ 32 The majority concludes that the “investigator interviewed Gideon
for the primary purpose of determining whether Gideon was subject to disciplinary
action by the medical board for engaging in the misconduct alleged by his patients,”
majority opinion at ¶ 23. The well-written and unanimous opinion of the court of
appeals thoroughly explicates why the majority’s characterization of the
investigator’s interview of Gideon is untenable:


                  The evidence in the record reflects that the circumstances
         surrounding the administrative investigation at issue in this case
         show some demonstrable, coercive action by the state beyond the
         general directive to cooperate. Indeed, the combination of Gideon’s
         duty to cooperate under R.C. 4731.22(B)(34) and Investigator
         Yoakam’s process in this case exceeded an ordinary job pressure to
         cooperate.       As we have noted, R.C. 4731.22(B)(34) requires
         licensees to cooperate with investigations of the board.[2 (originally fn.8)]


2. The following language appears as footnote 8 in the court of appeals’ opinion:

                   It appears that the State contends that R.C. 4731.22(B)(34)’s duty to
         cooperate requires only that a subject answer truthfully questions posed by an
         investigator of the board during an interview. Compare United States v.
         Goodpaster, 

65 F. Supp. 3d 1016

, 1029 (D.Or.2014) (noting that “[a]n order to
         ‘cooperate’ demands more of the reasonable employee than an order merely to be
         ‘truthful’ ”), citing Minnesota v. Murphy, 

465 U.S. 420

, 434, 

104 S. Ct. 1136

, 

79 L. Ed. 2d 409

(1984) (observing that “Murphy’s probation condition [to be
         truthful] proscribed only false statements”). That is, the State argues that “[t]elling
         falsehoods * * * is different than remaining silent, and the Fifth Amendment is
         not implicated.” (Appellee’s Brief at 6). However, the text of that subsection of
         the statute states that a subject must cooperate in investigations of the board. R.C.
         4731.22(B)(34) proceeds to provide a non-exhaustive list of ways in which a
         subject must cooperate with an investigation of the board—only one of which is
         to provide truthful answers to questions presented by the board in an investigative
         interview. See In re Hartman, 

2 Ohio St. 3d 154

, 155-156, 

443 N.E.2d 516

(1983)
         (noting that the word “ ‘including’ implies that that which follows is a partial, not




                                                   14
                                      January Term, 2020




         Compare [United States v. Goodpaster, 

65 F. Supp. 3d 1016

, 1029
         (D.Or.2014)] (noting that “Goodpaster was subject to a regulation
         * * * requiring that he ‘cooperate with all audits, reviews, and
         investigations conducted by the Office of Inspector General’ ”),
         quoting 39 C.F.R. 230.3(a). R.C. 4731.22(B) puts licensees on
         notice that their failure to cooperate, amongst other reasons, will
         penalize their license (by a vote of no fewer than six members of the
         board). Compare

id. (“The same regulation

provides that ‘failing to
         cooperate [* * *] may be grounds for disciplinary or other legal
         action.’ ”), quoting 39 C.F.R. 230.3(a).
                  Further, in addition to R.C. 4731.22(B)(34)‘s directive to
         cooperate with the board’s investigation, the record reflects “some
         demonstrable action of the state” supporting Gideon’s subjective
         belief. See [People v. ]Sapp[, 

934 P.2d 1367

, 1372 (Colo.1997)];
         [United States v. ]Camacho[, 739 F.Supp 1504, 1518 (S.D.Fla.)]. In
         this case, the demonstrable action of the State lies with Investigator
         Yoakam’s conduct and his intent underlying that conduct. Compare
         

Camacho, 739 F. Supp. at 1518-1519

(construing the evidence in the
         record reflecting the “actions of the investigators” to determine
         whether there was “demonstrable state conduct” and, thus, whether
         the defendants’ beliefs that they would penalized for asserting their
         Fifth Amendment rights were objectively reasonable).
                  At the suppression hearing, Investigator Yoakam testified to
         the extent that he collaborated with law enforcement as part of his



         an exhaustive listing of all that is subsumed within the stated category.
         ‘Including’ is a word of expansion rather than one of limitation or restriction.”).

(Emphases, brackets, and ellipses sic.)




                                                 15
                     SUPREME COURT OF OHIO




investigation—that is, he specifically stated that the investigation of
Gideon “turned into a joint investigation.” (Aug. 22, 2017 Tr. at 4);
(Oct. 13, 2017 Tr. at 7, 20-21).       Indeed, Sergeant Hochstetler
concurred that he and Investigator Yoakam agreed “to cooperate
with each other” during the course of their investigations. (Oct. 13,
2017 Tr. at 51-52). By cooperating, Sergeant Hochstetler clarified
that meant that he and Investigator Yoakam would share
information. Investigator Yoakam elaborated that the Revised Code
permits him to share information obtained as part of his
investigations with law enforcement and that he will share such
information if there is “a shared interest.”          (Id. at 19-20).
Investigator Yoakam further testified that he shared the information
he collected (regarding Gideon) with the Bluffton Police
Department.
       Undeniably, R.C. 4731.22(F) provides, in relevant part, the
following:
       “(3) In investigating a possible violation of this chapter or
any rule adopted under this chapter, * * * the board may question
witnesses, conduct interviews, administer oaths, order the taking of
depositions, inspect and copy any books, accounts, papers, records,
or documents, issue subpoenas, and compel the attendance of
witnesses and production of books, accounts, papers, records,
documents, and testimony, except that a subpoena for patient record
information shall not be issued without consultation with the
attorney general’s office and approval of the secretary and
supervising member of the board.
       “* * *




                                  16
                                      January Term, 2020




                  “(4) All * * * investigations * * * of the board shall be
         considered civil actions for the purposes of section 2305.252 of the
         Revised Code.
                  “(5) * * *
                  The board may share any information it receives pursuant to
         an investigation * * * with law enforcement agencies, other
         licensing boards, and other governmental agencies that are
         prosecuting, adjudicating, or investigating alleged violations of
         statutes or administrative rules.”
         R.C. 4731.22(F)(3)-(5) (Apr. 6, 2017) (current version at R.C.
         4731.22(F)(3)-(5) (Mar. 20, 2019)).[3 (originally fn.9)]
                  Thus, while there is nothing inherently wrong with
         Investigator Yoakam and law enforcement’s agreement to share
         information, the evidence in the record reveals that Investigator
         Yoakam exceeded statutorily permissible collaboration by taking
         demonstrable steps to coerce Gideon to provide him an
         incriminating, oral and written statement in reliance on Gideon’s
         duty to cooperate. In other words, Investigator Yoakam was posing


3. The following language appears as footnote 9 in the court of appeals’ opinion:

                   R.C. 2305.252 applies to peer-review privilege. See, e.g., Cousino v.
         Mercy St. Vincent Med. Ctr., 6th Dist. Lucas, 2018-Ohio-1550, 

111 N.E.3d 529

,
         ¶ 15 (“The purpose of this statute is to protect the integrity and confidentiality of
         the peer review process so that health care entities have the freedom to
         meaningfully review and critique—and thereby improve—the overall quality of
         the healthcare services they provide.”). The statute also applies the peer-review
         privilege to only the Bureau of Workers’ Compensation (“BWC”); however, the
         statute excepts the BWC to “share proceedings and records within the scope of
         the peer review committee * * * with law enforcement agencies, licensing boards,
         and other governmental agencies that are prosecuting, adjudicating, or
         investigating alleged violations of applicable statutes or administrative rules.”
         R.C. 2305.252(B).

(Emphasis and ellipsis sic.)




                                                  17
                         SUPREME COURT OF OHIO




as a “straw man” to effectuate law enforcement’s criminal
investigation. See State v. Gradisher, 9th Dist. Summit No. 24716,
2009-Ohio-6433, 

2009 WL 4647378

, ¶ 23 (Belfance, J., dissenting)
(approving the “concern that government agents should not pose as
‘straw men’ in order to effectuate police investigations”).
Specifically, Investigator Yoakam contacted Sergeant Hochstetler
prior to interviewing Gideon, and “discussed that [he] was going to
hold off on the administrative investigation until [law enforcement
determined] that [Investigator Yoakam] could interview [Gideon].”
(Oct. 13, 2017 Tr. at 7-8). Investigator Yoakam’s intention for
sharing his investigative plan with law enforcement was to
“determine how [law enforcement] was going to proceed with the
criminal case” because proving an administrative-sanction case is
easier “from a criminal conviction” as opposed to “through witness
testimony.” (Id. at 15-16). That is, he elaborated that his method is
“what they call a bootstrap on a criminal case that’s where a
physician * * * is criminally charged, and the Board takes action on
that criminal disposition, and the other [is] based on information
gathered in the course of an investigation. Action that’s taken based
on that.” (Id. at 15).
        Prior to Investigator Yoakam’s interview of Gideon,
Sergeant Hochstetler told Investigator Yoakam that Gideon “denied
any improprieties during [law enforcement’s] interview” of Gideon.
(Oct. 13, 2017 Tr. at 21, 55). And, after discussing Gideon’s denials
to law enforcement with Sergeant Hochstetler, Investigator Yoakam
informed Sergeant Hochstetler that it would not be “appropriate” for
law enforcement to jointly interview Gideon with Investigator




                                  18
                          January Term, 2020




Yoakam. (Id. at 28, 55-56). Specifically, Investigator Yoakam
testified that
“doctor’s [sic] are obligated to cooperate in our investigation. So
[he] did not want that to * * * impede in * * * any of the criminal
proceedings...And [he] didn’t want * * * there to be an issue that the
doctor provided a statement with law enforcement present because
the provider is obligated to cooperate in our investigations.”
(Emphasis added.) (Id. at 29). (See also Oct. 13, 2017 Tr. at 55);
(Defendant’s Ex. 4). In other words, Investigator Yoakam’s method
was to avoid a scenario in which his interview (of Gideon) could not
be used as part of the criminal case because (as indicated by
Investigator Yoakam) the lack of a criminal conviction would make
his administrative-sanction case more cumbersome.             Compare
Gradisher at ¶ 23 (Belfance, J., dissenting) (expressing concern that
“government overreaching could easily occur by pushing off
criminal investigations to state agents so as to bypass protection
against the abridgement of an individual’s Fifth Amendment
rights”); 

Camacho, 739 F. Supp. at 1519

(noting that the
investigator’s action in purposely omitting “his preamble regarding
voluntariness and compulsion * * * in order to avoid flagging the
issue of voluntariness” “speaks louder” than any belief that the
statements were voluntary and concluding that “the investigators’
central aim was to take a statement first and litigate its admissibility
later”).
           Moreover, based on our review of the record, Investigator
Yoakam’s intent for the investigation reflects the demonstrable state
action necessary to support Gideon’s subjective belief that his
medical license would be penalized if he failed to cooperate with




                                  19
                              SUPREME COURT OF OHIO




       Investigator Yoakam’s investigation.      Specifically, Investigator
       Yoakam’s interview of Gideon reflects his intent to assist law
       enforcement in obtaining a criminal conviction of Gideon for
       purposes of influencing the outcome the administrative-sanction
       case against Gideon.
              Even though he is not a law enforcement officer, Investigator
       Yoakam testified that he had law enforcement training and is
       familiar with the elements of offenses under the Revised Code,
       including sexual imposition.      Keeping his training in mind,
       Investigator Yoakam arrived unannounced to Gideon’s medical
       office to conduct his interview to catch him “off guard” “to get the
       truth out of [him].” (Oct. 13, 2017 Tr. at 5, 32-33). Despite Gideon
       having patient appointments at the time of the visit, Investigator
       Yoakam did not advise Gideon that he did not have to speak with
       him that day or otherwise offer to reschedule—he merely asked
       Gideon “if he would have a few minutes to chat with” him. (Id. at
       5). (See also State’s Ex. A). In other words, Investigator Yoakam
       did nothing to dissuade Gideon’s belief that he was statutorily
       obligated to cooperate with his investigation, which included
       consenting to Investigator Yoakam’s request to “chat.” Compare
       Camacho at 1511 (“At no time during the interview or after did
       either Sergeant Green or Assistant State Attorney DiGregory make
       any effort to dissuade Sinclair of his view that he was compelled to
       give a statement or answer his question.”).


(Emphases and ellipses sic; brackets added in citations and footnote numbers;
remaining brackets sic.) 2019-Ohio-2482, 

130 N.E.3d 357

, at ¶ 38-45.




                                        20
                                January Term, 2020




       ¶ 33 This analysis amply supports a conclusion that Yoakam’s
investigation was improperly coercive under Garrity v. New Jersey, 

385 U.S. 493

,

87 S. Ct. 616

, 

17 L. Ed. 2d 562

(1967). Although there is nothing wrong with
Yoakam and the Bluffton Police Department sharing information, their approach
suggests that Yoakam was strategically attempting to elicit information to benefit
the Bluffton Police Department investigation.              This is tantamount to
collaborating—not merely sharing information that was collected independently.
If Yoakam had appeared at Gideon’s office with an officer from the Bluffton Police
Department, the coercive nature of the investigation would have been manifest. It
is no less so here. Yoakam was all but deputized to act for the benefit of the
Bluffton Police Department. Moreover, the court of appeals examined another way
in which the interview demonstrates that Gideon had an objectively reasonable
belief that his medical license was at risk if he did not cooperate:


       Investigator Yoakam advised Gideon at multiple points to “to go
       back to [law enforcement] and change his statement” to avoid facing
       possible falsification charges. (Oct. 13, 2017 Tr. at 22). Investigator
       Yoakam’s insistence that Gideon return to law enforcement to
       change his statement is also evidence supporting Gideon’s belief
       that a refusal to give a statement will be met with a licensure penalty.
       That is, Investigator Yoakam’s insistence that Gideon provide law
       enforcement with a statement reflects an intent to coerce Gideon to
       cooperate with the investigation. Indeed, (as raised during cross-
       examination) if Investigator Yoakam was “just concerned about
       [the] medical investigation there would be no need to tell [Gideon]
       to go back to the police department and change his statement * * *.”
       (Id. at 22).




                                          21
                            SUPREME COURT OF OHIO




(Brackets and ellipsis sic.) 2019-Ohio-2482, 

130 N.E.3d 357

, at ¶ 48.
       ¶ 34 The court of appeals also had appropriate concern that Yoakam’s
conduct after the interview reflects his understanding that he and the Bluffton
Police were engaged in a joint investigation, not a mere sharing of information:


               At the conclusion of the interview, instead of reporting back
       to the board, Investigator Yoakam immediately went to the Bluffton
       Police Department to report Gideon’s confessions to law
       enforcement. (See Defendant’s Ex. 2). Despite his employment
       responsibilities with the State Medical Board, Investigator Yoakam
       chose to immediately share Gideon’s confessions with law
       enforcement “because the doctor had [ ] an interview with [law
       enforcement] where he denied any impropriety so [he] wanted to tell
       [law enforcement] what happened during [his] interview.” (Oct. 13,
       2017 Tr. at 26-27). Moreover, Investigator Yoakam agreed that he
       “wanted to assist [law enforcement] in that criminal investigation by
       providing [law enforcement] with statements made by Dr. Gideon
       during an interview that same day * * *[.]” (Id. at 27).


(Emphasis, brackets, and ellipsis sic.) 2019-Ohio-2482, 

130 N.E.3d 357

, at ¶ 50.
       ¶ 35 I agree with the court of appeals’ conclusion that


       based on the facts and circumstances presented by this case,
       Investigator Yoakam’s actions created an impression that Gideon’s
       refusal to cooperate with his investigation would result in the type
       of penalty prohibited under Garrity.        See Camacho at 1520
       (concluding “that the actions of the State were directly implicated in
       creating [the] belief” that the defendants’ subjective belief “that




                                        22
                                January Term, 2020




        failure to answer would result in termination”). Therefore, Gideon’s
        belief that his medical license would be penalized if he did not
        cooperate with Investigator Yoakam’s investigation was objectively
        reasonable. See

id. Thus, Gideon’s statements

were not voluntary
        within the meaning of Garrity. Accord Graham, 

136 Ohio St. 3d 125

, 2013-Ohio-2114, 

991 N.E.2d 1116

, at ¶ 30 (“Statements
        extracted under these circumstances cannot be considered voluntary
        within the meaning of Garrity.”)


2019-Ohio-2482, 

130 N.E.3d 357

, at ¶ 51.
        ¶ 36 The circumstances of Yoakum’s interview demonstrate that it was
coercive and therefore that Gideon’s subjective belief that he could lose his medical
license if he did not answer was objectively reasonable. Accordingly, I conclude
that the trial court erred when it denied Gideon’s motion to suppress statements he
made to Yoakam. I would affirm the well-reasoned decision of the court of appeals.
I dissent.
                               _________________
        Nicole M. Smith, Lima Assistant City Prosecuting Attorney, and Anthony
M. DiPietro, Deputy Law Director, for appellant and cross-appellee.
        Dennis C. Belli, for appellee and cross-appellant.
                               _________________




                                         23

This review has been syndicated from NO SCAM

To read the full review, go to –
www.no-scam.com/review/state-v-gideon-slip-opinion-204127/

Add comment