State v. Gideon (Slip Opinion)

[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.

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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

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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

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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,

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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

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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.

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{¶ 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

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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

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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

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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,

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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

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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-

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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

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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.)

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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.

“* * *

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“(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.)

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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

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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

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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.

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{¶ 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).

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(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

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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.

_________________

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