author: DONOVAN, J. TUCKER, J., concurring:

text:
    STATE of Ohio, Plaintiff-Appellee v. John K. STEPHENS, Defendant-Appellant
    NO. 27235
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on December 22, 2017
    HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
    JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 W. Second Street, Suite 2150, P. O. Box 10126, Dayton, Ohio 45402, Attorneys for Defendant-Appellant
   DONOVAN, J.

{¶ 1} Defendant-appellant John K. Stephens appeals his conviction and sentence for three counts of rape (less than ten years of age), in violation of R.C. 2907.02(A)(1)(b), all felonies of the first degree. Stephens filed a timely notice of appeal with this Court on August 25, 2016.

{¶ 2} After violating the terms of his probation in Case No. 2013 CR 3550, Stephens was sentenced to prison for thirty-six months. On May 7, 2015, the trial court issued an entry granting Stephens judicial release. One of the conditions of his judicial release required Stephens to become a resident of Talbert House, a locked-down and secured rehabilitation facility where defendants receive sex offender therapy. Stephens was required to complete the sexual offender program at Talbert House. If he failed to complete the program, Stephens would be sent back to prison.

{¶ 3} Although the record is unclear regarding the specific dates, Stephens was allowed to participate in the sexual offender program at Talbert House once before in 2013 or 2014 in Case No. 2013 CR 3550, but was discharged before completing the program because of a probation violation. Thus, we note that the instant case represents the second time that the trial court permitted Stephens to participate in the sexual offender program at Talbert House.

{¶ 4} Upon arriving at Talbert House on May 14, 2015, Stephens was processed as an incoming resident by administrative specialist Patricia Stanley. Stanley testified that she was familiar with Stephens because he had been placed in the program once before and indicated that this was the second occasion upon which she had "briefed him for intake." Part of the briefing packet Stanley provided Stephens with included State's Exhibit I, the confidentiality form, which stated in pertinent part:

Federal Laws and Regulations do not protect information about suspected child abuse or neglect from being reported under State Law to appropriate State or Local authorities.

After Stanley explained and reviewed the confidentiality form with Stephens, she watched him sign the document.

{¶ 5} Once admitted, Stephens was required to participate in sexual offender treatment at Talbert House. To facilitate his treatment, Stephens was assigned to a small group which met three times a week for two hours each session. Stephens' group was moderated by Sherry Peterson, a clinical service provider for the sexual offenders at Talbert House in 2015. When beginning treatment, Peterson testified that she always initially reviews the confidentiality form with her "clients" and explains that she is a mandated reporter with a legal duty to warn, and if anyone tells her that they have caused harm to a child or elder, is going to cause harm to a child or elder, or cause harm to themselves, she has a duty to report that information to the police. Peterson further testified that due to the serious nature of their charges, she always specifically explains to sexual offender groups that "if they tell me that they've committed an [previously undisclosed] offense on a child or elder" confidentiality may be breached.

{¶ 6} Stephens had been placed in sexual offender treatment for an offense involving only one victim. However, on June 2, 2015, as part of a work assignment for Peterson's group treatment class, Stephens turned in five index cards, each containing the initials of a different victim. Peterson testified that she was surprised by Stephens' actions because in her experience, she never had a "client" admit to previously undisclosed victims as part of the assignment. Peterson further testified that she assumed Stephens would only want to discuss the victim and offense for which he had been convicted. Peterson testified that during the group meetings she tries not to guide her "clients" regarding what they want to talk about. In fact, Peterson testified that she never told Stephens that he had to provide any names or initials as part of the assignment. After Stephens turned in the index cards, the only question Peterson asked him was "do the people know about these right here?" to which Stephens responded in the negative. Peterson asked no additional questions regarding the previously undisclosed victims during the group meeting. We note that Peterson testified that there was only one other "client" for the group meeting held that day. Peterson testified that because of her duty to report, she immediately went to Linda Stout, her supervisor, for her guidance on what steps to take in light of Stephens' admissions.

{¶ 7} As an additional component of the sexual offender treatment, Peterson instructed her "clients" to keep a journal of their thoughts and feelings. Peterson testified that she did not tell her "clients" what to write in the journal, and Stephens did not write in his journal during class. Peterson testified that the "clients" were aware that she was going to review their journal entries. On June 4, 2015, Stephens submitted his journal to Peterson. In his journal, Stephens disclosed additional initials, which he had not listed on the index cards submitted to Peterson on June 2, 2015. Peterson brought the additional initials to Stout's attention, and on June 4, 2015, Stout contacted the Talbert House legal department, otherwise known as QCS. QCS directed Stout to contact the police. Stout contacted Lieutenant Cavanaugh from the Kettering Police Department. Lt. Cavanaugh then contacted Detective Gary Schomburg who had previously investigated Stephens' underlying conviction in Case No. 2013 CR 3550 for gross sexual imposition. Det. Schomburg spoke with Stout on June 4, 2015, and she informed him that Stephens had potentially disclosed additional sex offense victims in his journal and on index cards during his treatment at Talbert House. Det. Schomburg directed Stout to send him copies of the relevant documents but did not ask her to obtain any additional information from Stephens regarding his admissions. Stout then contacted QCS in order to confirm it was acceptable to transfer the documents to Det. Schomburg. QCS instructed Stout to send copies of the documents to Det. Schomburg. QCS also instructed Stout to inform Stephens that the documents were being disclosed to the police.

{¶ 8} On June 5, 2015, Stout contacted Schomburg via telephone and informed him that she could provide the documentation to him. The documents were later transmitted via fax to Det. Schomburg. After speaking with Det. Schomburg, Stout and Peterson had a meeting with Stephens in Stout's office. At the beginning of the meeting, Stout reviewed the Talbert House confidentiality agreement with Stephens. Stephens acknowledged that he first reviewed the agreement when he was processed into the program, and again when he initially met with Peterson when his treatment began. Stephens also acknowledged that he had signed the confidentiality agreement. Stout also reiterated that she and Peterson were mandatory reporters who were legally required to report sex abuse of a child to the police. Therefore, Stout informed Stephens that she was required to report to the police the additional victims he had disclosed during his treatment at Talbert House.

{¶ 9} At that point, Stephens indicated that there was one less victim than the number that Stout had indicated. Stephens stated that the initials I.A. and B.A. on the index cards were the same person, and he listed her initials twice because he "offended on her twice." Stout asked Stephens if he had anything else to tell them, and he disclosed the full name of another child that he had abused. Stout testified that Stephens informed her that he felt relieved for having disclosed the additional sex offenses. However, when Stephens reviewed the initials R.R. which he had disclosed, he became upset and requested an attorney. At that point, the meeting was concluded, and Stout made arrangements for Stephens to retain counsel.

{¶ 10} After the meeting, Stout contacted Det. Schomburg to verify that he had received the faxed documents. Stout informed Det. Schomburg of the actual names of the additional victims that Stephens provided during the earlier meeting. Stout also informed Det. Schomburg that Stephens had requested that an attorney be present during any questioning by the police.

{¶ 11} On October 8, 2015, Stephens was indicted for three counts of rape of a child under ten years of age. At his arraignment on October 15, 2015, Stephens pled not guilty to the charges in the indictment. Shortly thereafter, Stephens filed a motion to suppress on October 28, 2015. Stephens amended and supplemented his motion to suppress on November 4, 2015, and December 14, 2015. A hearing was held on said motion on February 4, 2016, after which, both parties were permitted to file post-hearing memoranda in support of their respective positions. In a decision issued on March 14, 2016, the trial court overruled Stephens' motion to suppress in its entirety.

{¶ 12} On July 22, 2016, Stephens entered a plea of no contest to each count in the indictment. On August 12, 2016, Stephens was sentenced to a mandatory term of fifteen years to life in prison on each count, the sentences to run concurrently.

{¶ 13} It is from this judgment that Stephens now appeals.

{¶ 14} Stephens' sole assignment of error is as follows:

{¶ 15} "THE CONSTITUTIONAL RIGHTS OF JOHN STEPHENS WERE VIOLATED WHEN HE WAS COMPELLED TO MAKE INCRIMINATING STATEMENTS BY HIS COURT-ORDERED TREATMENT PROVIDER, IN VIOLATION OF PROGRAM POLICIES, WHICH WERE LATER USED TO INDICT MR. STEPHENS."

{¶ 16} In his sole assignment, Stephens contends that the trial court erred when it overruled his motion to suppress the disclosures he made to Talbert House staff regarding the additional minor victims that he sexually abused. Specifically, Stephens argues that he was coerced by Talbert House staff into making incriminating statements without being first advised of his Miranda rights.

{¶ 17} In ruling on a motion to suppress, the trial court "assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994) ; State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, 2010 WL 169438, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. Retherford at 592, 639 N.E.2d 498. "Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard." Id.

{¶ 18} "The right to [ Miranda ] warnings is grounded in the Fifth Amendment's prohibition against compelled self-incrimination." State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). "The procedural safeguards prescribed by Miranda apply only when persons are subjected to 'custodial interrogation.' " State v. Thomas, 2d Dist. Montgomery No. 20643, 2005-Ohio-3064, 2005 WL 1414441, ¶ 27, citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 19} Miranda defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. "[T]he ultimate inquiry is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), citing Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

{¶ 20} "In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave." State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Therefore, "the test for custody is an objective test." State v. Chenoweth, 2d Dist. Miami No. 2010 CA 14, 2011-Ohio-1276, 2011 WL 944437, ¶ 8, citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). "The subjective views of the interviewing officer and the suspect are immaterial to the determination of whether a custodial interrogation was conducted." (Citations omitted.) State v. Earnest, 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, 2015 WL 5642917, ¶ 22. Accord State v. Gray, 2d Dist. Montgomery No. 26139, 2016-Ohio-1419, 2016 WL 1291647, ¶ 74.

{¶ 21} On appeal, Stephens argues that the trial court erred when it denied his motion to suppress because when he revealed information regarding the previously undisclosed victims, he did so under threat of being sent back to prison. Stephens further argues that he was in custody for the purposes of Miranda , and therefore, he should have been informed of his constitutional rights before being questioned by Peterson and Stout. Additionally, Stephens contends that Peterson and Stout were acting as agents of law enforcement when they questioned him about the undisclosed victims.

{¶ 22} In support of his arguments, Stephens relies on a case from the First District Court of Appeals, State v. Evans , 144 Ohio App.3d 539, 760 N.E.2d 909 (1st Dist.2001), where it was held that some of the statements disclosed to counselors by a juvenile, who was under involuntary commitment for treatment, were not admissible against the juvenile. In Evans, the court noted that the "classic penalty situation" contemplated in Minnesota v. Murphy , 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), often arises in the context of sexual abuse treatment programs where participants are required to divulge specific criminal acts "putatively for therapeutic reasons." Id. at 557, 760 N.E.2d 909. The court also reasoned that Evans' participation in the program was not voluntary and the penalty for his failure to participate was substantial because it would result in a penalty for violating a court order. Id. at 558, 760 N.E.2d 909. Thus, according to the court, "Evans was unconstitutionally forced to choose between a substantial penalty and self-incrimination." Id. The facts in the instant case are distinguishable from those presented in Evans .

{¶ 23} As explained in Evans at 557-558, 760 N.E.2d 909, there are three issues that define the limits of a "classic penalty" situation:

But other courts have had the occasion to define the limits of the "classic penalty" situation. Where (1) the treatment program has been deemed voluntary because it is a condition of initial parole eligibility, (2) the penalty is insubstantial because the resultant facility transfer is to another medium-security prison and therefore essentially lateral, and (3) the denial of parole does not automatically follow from a refusal to speak, then although the defendant's constitutional privilege has admittedly been burdened, the burden is held to be sufficiently mitigated.

{¶ 24} In State v. Barker , 5th Dist. Richland No. 16CA49, 2017-Ohio-596, 2017 WL 679323, the court stated as follows:

Imprisonment alone is not enough to create a custodial situation within the meaning of Miranda. Howes v. Fields [565 U.S. 499], 132 S.Ct. 1181, 1190, 182 L.Ed.2d 17 (2012). When a prisoner is questioned, the determination of whether the prisoner is in custody should focus on all of the features of the interrogation. Id. at 1192. These include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. Id. An inmate who is removed from the general prison population for questioning and is subjected to treatment in connection with the interrogation "that renders him 'in custody' for practical purposes ... will be entitled to the full panoply of protections prescribed by Miranda ." Id.

Id. at ¶ 11.

{¶ 25} In the instant case, Stephens requested, and was granted, judicial release from prison for his conviction in Case No. 2013 CR 3550. Successful completion of judicial release meant that Stephens agreed to participate in sex offender treatment. While we note that Talbert House is a lock-down facility and "clients" were not free to leave, it was Stephens' choice to attend the sessions, and a decision not to attend or participate would not increase his original sentence. During the sessions, he was free to discuss his previous sex offenses, or not. Significantly, Peterson testified that although Stephens was expected to provide information regarding his underlying conviction, he was neither expected nor encouraged to provide any information regarding previously undisclosed offenses. Peterson did not directly or indirectly ask Stephens to provide information with respect to uncharged offenses in the exercise with the index cards or the personal journal he created. Stephens was not coerced into participation in the index card and journal exercise at Talbert House, and what he wanted to disclose during the treatment sessions was entirely at his discretion. On this record, Stephens' decision to disclose the additional victims was a voluntary one and not the product of coercion by Peterson or Stout. Therefore, we find that the record establishes that Stephens was not in custody for the purposes of Miranda .

{¶ 26} Additionally, neither Peterson nor Stout were law enforcement officers such that they were required to provide Stephens with Miranda warnings. Both Peterson and Stout were employees of Talbert House, not law enforcement officers. Generally, questioning by law enforcement is required to trigger the necessity for Miranda warnings. On the other hand, the United States Supreme Court has recognized the applicability of Miranda in situations not involving law enforcement. The "duty of giving ' Miranda warnings' is limited to employees of governmental agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies; it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement ." State v. Bolan , 27 Ohio St.2d 15, 18, 271 N.E.2d 839 (1971). (Emphasis added).

{¶ 27} In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), syllabus, the U.S. Supreme Court held that a psychiatrist, who performed an involuntary evaluation of the defendant, could not testify regarding information that had been gathered by questioning during the evaluation, because the defendant had not been apprised of his Fifth Amendment rights. The examining physician was not a law enforcement officer, but the Court held that the doctor went beyond a routine examination and gathered information during the evaluation to testify concerning the defendant's future dangerousness and to assist the prosecution in seeking the death penalty. "[T]hose tangentially associated with the criminal justice system, but without the requisite statutory authority, are not law enforcement officials for the purposes of Miranda. " Evans at 553, 760 N.E.2d 909.

{¶ 28} Here, neither Peterson nor Stout were acting as agents of law enforcement officials when they collected and eventually reported Stephens' admissions regarding the undisclosed victims. Unlike the treatment counselors in Evans who were employees of the juvenile court, Peterson and Stout were at all pertinent times employees of Talbert House. While it is undisputed that Peterson and Stout both had a duty to report any previously undisclosed sex offenses against children, this fact, standing alone, did not render them state actors for the purposes of Miranda . Significantly, Stephens was already on notice that Peterson and Stout were mandatory reporters prior to disclosing the additional victims. Therefore, once they became aware that Stephens had committed sexual offenses against several previously undisclosed victims, Peterson and Stout had a legal obligation to inform the proper authorities. Before Stephens' admissions came to light, Peterson and Stout worked with him for treatment purposes only. At no time was Stephens under any compulsion or threat from Peterson or Stout to make any admissions regarding the undisclosed victims. There is no evidence that Stephens was threatened with punishment for failure to admit uncharged offenses or that he was even initially questioned with respect to anything other than his involvement in the underlying offense. There is also no evidence that Peterson or Stout originally suspected that Stephens committed additional crimes and were seeking to obtain his confession.

{¶ 29} Furthermore, the meeting on June 5, 2015, attended by Stephens, Peterson, and Stout was only held to inform Stephens that they had a mandatory duty to report his disclosures to the police. The record establishes that the purpose of the meeting was not to interrogate Stephens or coerce him into providing additional admissions. Specifically, Stout began the meeting by reviewing the confidentiality agreement and the duty to report. Stephens acknowledged that he reviewed the confidentiality agreement. Stout testified that Stephens inquired as to why she had to report the undisclosed victims to the police. Stout testified that she showed Stephens the index cards and the journal and stated that he had admitted to abusing a number of previously undisclosed victims. Without encouragement of any kind, Stephens immediately corrected Stout as to the number of victims and stated that B.A. and I.A. were the same victim, and provided the child's full name and nickname. Stout then asked Stephens if there was anything else he wanted to tell them, and he provided the full name of another previously undisclosed victim. It was only when he acknowledged the initials R.R. that he became upset and asked for an attorney. At that point, Stout terminated the meeting.

{¶ 30} Upon review, we find that the record establishes that at no time was Stephens directed by Stout or Peterson to provide the full names of his additional victims. Stephens even testified that he was never asked to provide specific names. Rather, the record establishes that he provided some of the undisclosed victims' names on his own when he interrupted Stout during the meeting. Accordingly, we find that Stephens was not subject to an interrogation at the meeting on June 5, 2015, and he was therefore, not entitled to be informed of his Miranda rights.

{¶ 31} Lastly, Stephens argues that all of his statements and written admissions were involuntary and violated the Due Process clause of the United States Constitution. "The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that no person shall be 'deprived of life, liberty or property without due process of law.' Confessions that have been coerced by the state and therefore have been involuntarily given have long been held to violate this guarantee of due process." Evans at 560, 760 N.E.2d 909.

{¶ 32} In light of the foregoing analysis, we agree with the trial court and find that neither Stout nor Peterson were acting on behalf of the police when Stephens disclosed the initials and names of the additional child victims. Therefore, Miranda did not apply. Additionally, we find that Stephens was on notice prior to beginning his treatment that Stout and Peterson had a duty to report any previously undisclosed sex offenses against children to the police. Yet after being warned, Stephens still disclosed the initials and names of several additional victims. Therefore, we find that the trial court did not err when it denied Stephens' motion to suppress.

{¶ 33} Stephens' sole assignment of error is overruled.

{¶ 34} Stephens' sole assignment of error having been overruled, the judgment of the trial court is affirmed.

HALL, P.J., concurs.

TUCKER, J., concurring:

{¶ 35} I agree with the majority opinion that Stephens was not entitled to Miranda warnings and that his right against self-incrimination was not otherwise violated. I write separately to discuss the classic penalty situation and why, given the record before us, it does not require suppression of Stephens' statements.

{¶ 36} The Fifth Amendment states, in pertinent part, that no person "shall be compelled in any criminal case to be a witness against himself." The prohibition against compelled self-incrimination allows a person "not to answer official questions put to him in any * * * 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). An individual subject to such self-incrimination may refuse to answer questions and may continue such refusal until his answers are protected from use against him in any future criminal case in which he is a defendant. If the person is compelled to answer without such protection, his answers may not be used against him in a later criminal case. Lefkowitz v. Turley , at 78, 94 S.Ct. at 322.

{¶ 37} In most circumstances an individual must assert the privilege or it is lost. The failure to assert the privilege is often referred to as a waiver, but the Supreme Court has commented that a person who fails to assert the privilege may be deprived of its "benefit... without making a knowing and intelligent waiver." Minnesota v. Murphy , 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), quoting Garner v. United States , 424 U.S. 648, 654, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976), fn.9. In short, "in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not 'compelled' him to incriminate himself." Minnesota v. Murphy , at 427, 104 S.Ct. at 1142, quoting Garner v. United States at 654, 96 S.Ct. at 1182.

{¶ 38} This being said, there are certain situations where the self-incrimination privilege is triggered in the absence of its invocation. These situations occur when a person is deprived of a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S. , at 657, 96 S.Ct. 1178, quoting Lisenba v. California , 314 U.S. 219, 241, 62 S.Ct. 280, 86 L.Ed. 166 (1941). Custodial interrogation is the best known example of the privilege being triggered without its invocation being required, with the Miranda decision requiring suppression of a defendant's custodial statements unless the defendant has been advised, among other things, of his right against self-incrimination, the consequences of the failure to assert the privilege, and the defendant's knowing and voluntary waiver of the right against self-incrimination. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 39} A second circumstance where the right against self-incrimination is self-executing is the so called classic penalty scenario. Garrity v. New Jersey , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Garrity involved a situation where Garrity, a police officer, was asked investigative questions about a traffic ticket fixing scheme. Garrity was informed that if he did not answer the questions his employment would be terminated. Garrity was further informed that if he answered the questions his responses could be used against him in a future criminal prosecution.

{¶ 40} Garrity, having been placed between the indicated "rock and a hard place," answered the inquiries. Garrity's answers were then used against him in a subsequent prosecution for conspiracy. The Supreme Court ruled that in the context of "threat[s] of removal from office" the act of responding to interrogation was not voluntary. Garrity at 500, 87 S.Ct. 616. Garrity, that is, was compelled to be a witness against himself, and, thus, his statements, though he did not invoke his right against self-incrimination, could not be used against him in any criminal prosecution involving the traffic ticket fixing scheme.

{¶ 41} In Minnesota v. Murphy , the Supreme Court concluded, despite a probationer's requirement to meet with and be truthful with his probation officer or face revocation, that Murphy's admissions to his probation officer about criminal conduct unrelated to his probation status were not suppressible in a subsequent criminal prosecution based upon a classic penalty rationale. The court indicated that the inquiry was "whether Murphy's probation conditions merely required him to appear and give testimony about matters relevant to his probationary status or whether they went farther and required him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent." Minnesota v. Murphy at 436, 104 S.Ct. at 1147. The Court concluded that "Minnesota did not attempt to take the extra, impermissible, step," and, as such, "Murphy's Fifth Amendment privilege was not self-executing." Id.

{¶ 42} The Court, in reaching this conclusion, noted that it had not been advised of any situation in which Minnesota "attempted to revoke probation merely because a probationer refused to make nonimmunized disclosures concerning his own criminal conduct; and, in light of our decisions proscribing threats or penalties for the exercise of Fifth Amendment rights, Murphy could not reasonably have feared that the assertion of the privilege would have led to revocation." Id. at 439, 104 S.Ct. at 1148. The Court, in summary, concluded that Murphy was not "deterred from claiming the privilege by a reasonably perceived threat of revocation." Id.

{¶ 43} The Murphy Court, before reaching the discussed conclusion, did state "[t]here is... a substantial basis in our cases for concluding that if the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." Id. at 435, 104 S.Ct. at 1146.

{¶ 44} This gets us to State v. Evans , 144 Ohio App.3d 539, 760 N.E.2d 909 (1st Dist. 2001), which Stephens asserts supports a suppression conclusion in his case. The Evans court, using a classic penalty analysis, suppressed statements Evans, a juvenile offender, made during the course of court ordered treatment.

{¶ 45} Evans, when he was fifteen, was charged with assault, with the charge ultimately being dismissed because the victim died and Evans could not otherwise be identified as the attacker. Evans, thereafter, was adjudicated delinquent for an unrelated assault offense. The juvenile court ordered that Evans be confined at, and receive treatment from, a residential treatment center.

{¶ 46} Evans, without dispute, was required to engage in therapy. Evans' failure to do so would have resulted in an inability to engage in group activities, cancellation of weekend home visits, and, ultimately, a transfer to a significantly more restrictive juvenile facility. The record indicated that while some residents were initially resistant to the therapy, "all juvenile residents eventually succumbed to the pressure and participated." Evans at 547, 760 N.E.2d at 915.

{¶ 47} Evans, as part of his indoctrination into therapy, was required to complete what was referred to as a "commitment offense paper," which required Evans to describe "all the crimes he had committed" whether they related to his current juvenile detention or not. Id. It seems that in the typical case, the "commitment offense paper" instructions included a statement that the recounting of unrelated offenses was for therapeutic, not prosecutorial, purposes. This statement, for unexplained reasons, was not included in the instructions provided Evans and no one informed him of his right against self-incrimination.

{¶ 48} Evans' initial attempt to complete the "commitment offense paper" was found deficient because it was not a sufficient recounting of his past criminal conduct. A counselor, in an attempt to assist Evans, gave him a list of past charges he had faced which included the assault which had evolved into a murder. Evans was specifically instructed to provide the details of each charge.

{¶ 49} Evans complied and what he wrote about the assault/murder was "essentially a confession to murder." Evans at 547, 760 N.E.2d at 916. Evans, thereafter and as a required condition of the program, made an oral confession to the murder during a group therapy session.

{¶ 50} A residential treatment supervisor, a week or so later, became aware of Evans' confession. It was ultimately decided that the confession should be reported to the police. Not surprisingly, a murder indictment followed soon thereafter.

{¶ 51} The First District ruled that Evans' confession contained in the "commitment offense paper" and the oral confession made during the group therapy session were subject to suppression under a classic penalty analysis. The court, it is noted, rejected an argument that Miranda warnings were required. The court further allowed a third confession that did not implicate Evans' court ordered therapy. The rationale for the suppression conclusion was based upon three factors: (1) Evans' therapy participation was not voluntary; (2) the penalties Evans faced if he failed to participate were significant; and (3) the penalties, imposed in an escalating fashion, were automatic. The court, based upon these reasons, held that "Evans was unconstitutionally forced to choose between a substantial penalty and self-incrimination." Id. at 558, 760 N.E.2d at 924. Evans, accordingly, was "excused from failing to raise his privilege... " Id.

{¶ 52} The present situation, assuming Evans was correctly decided, is distinguishable. Stephens' treatment plan did call for him to admit past uncharged conduct, the treatment plan manual (Hrg. Ex. 2) did mention the prospect of a polygraph examination to monitor truthfulness, and successful completion of the Talbert House program was a condition of Stephens' judicial release. However, Stephens, in contrast to Evans, was informed that an admission regarding a child would be reported to the police. Further, the treatment plan manual informed treatment participants that "there are certain circumstances in which your counselor is required to report offenses. You need to understand these circumstances." Hrg. Ex. 2, pg.17. Treatment participants were also told that if there was a "fear" about being "re-arrested", "talk to your counselor... [and] [a]sk for clarification of the confidentiality law." Id. There is nothing in the record to suggest that if Stephens had sought confidentiality clarification that he would have been compelled to report past sexual offenses or face a treatment failure conclusion, expulsion from Talbert House and judicial release revocation.

{¶ 53} Stephens was not pressed to admit past offenses. Peterson, in fact, was quite surprised by Stephens' admissions. Additionally, Peterson testified that Stephens faced adverse program consequences only if he was not forthcoming about the offense that led to his Talbert House commitment.

{¶ 54} The record simply does not support a conclusion that Stephens was forced to make a choice between making incriminating statements about past uncharged conduct or jeopardizing his judicial release status by remaining silent. Since Stephens was not forced to make such a choice, a classic penalty situation was not created, and Stephens' privilege against self-incrimination did not become self-executing. The trial court, under a classic penalty analysis, correctly overruled Stephens' motion to suppress.

      A portion of Stephens' motion related to the suppression of a search warrant issued in the instant case. On appeal, however, Stephens does not challenge the trial court's denial of his motion to suppress as it pertained to the search warrant.


source: Caselaw Access Project

author: WILLAMOWSKI, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Cory D. MCDONALD, Defendant-Appellant.
    NO. 13-17-27
    Court of Appeals of Ohio, Third District, Seneca County.
    Date of Decision: December 26, 2017
    Danielle C. Kulik, for Appellant
    Stephanie J. Kiser, for Appellee
   WILLAMOWSKI, J.

{¶ 1} Defendant-appellant Cory D. McDonald ("McDonald") appeals the judgment of the Seneca County Court of Common Pleas for denying his motion to suppress. For the reasons set forth below, the judgment of the lower court is affirmed.

Facts and Procedural History

{¶ 2} Patrolman Brett Bethel ("Bethel") has worked for the Fostoria Police Department since 2007. Tr. 4. On January 19, 2017, he was preparing to go on his patrol when a detective reported to him that McDonald was suspected of transporting narcotics. Tr. 6. Bethel was familiar with McDonald and had cited him in the past for driving while his license was suspended. Tr. 14. The officers who had been on the afternoon patrol shift also told Bethel that McDonald had been spotted driving around town earlier that day in his regular vehicle. Tr. 10. In response to this information, Bethel had dispatch check McDonald's driving status in the Law Enforcement Automated Data System ("LEADS"). Tr. 6. Bethel consequently discovered that McDonald did not have a valid license at that time. Tr. 6. Later, during his shift, Bethel was parked in a lot by the side of the road. Tr. 7. In between 11:30 and 11:45 p.m., Bethel saw McDonald drive past him in a blue sedan. Tr. 14, 15. McDonald was the sole occupant of the vehicle. Tr. 6.

{¶ 3} Bethel testified that he was able to identify McDonald without difficulty because he had encountered McDonald "numerous times throughout [his] career in Fostoria, specifically [McDonald] driving that specific vehicle." Tr. 7. McDonald also wore "distinctive eyeglasses," which Bethel could see from his vantage point on the side of the road. Tr. 7. Knowing that McDonald did not have a valid driver's license, Bethel decided to initiate a stop of McDonald's vehicle. Tr. 8. As the result of this stop, McDonald was found to be in possession of contraband and was arrested. Doc. 2.

{¶ 4} On February 22, 2017, McDonald was charged with failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(B), (C)(5)(a)(ii) and with possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a). Doc. 2. On March 1, 2017, McDonald filed a motion to suppress. Doc. 20. The trial court held a hearing on this motion on April 27, 2017. Tr. 1. Bethel testified as to his observations on the night of January 19, 2017, and stated that the basis of the stop of McDonald's vehicle was the fact that McDonald was driving without a valid driver's license. Tr. 5-8, 12.

{¶ 5} On cross examination, Bethel admitted that his police report characterized his request for dispatch to check McDonald's driver status as "random." Tr. 11. He indicated that this meant that this check was not part of work done for the drug task force. Tr. 11-12. On recross examination, the Defense again questioned Bethel about his use of the word "random" in the police report. Tr. 20. This exchange occurred as followed:

Q. Random to me means like you picked his name out of a hat. You say-you said to the prosecutor this was a random running. How did you choose him to run then?
A. Because I was informed by-I was given intel by the drug detective as well as the road units from afternoon shift, but it was not for anything specific at that time, just be on the lookout, he's driving without a license.

Tr. 20. In closing arguments, the Defense argued that this was a random check of McDonald's driving status that was conducted in violation of the Fourth Amendment. Tr. 23.

{¶ 6} On May 10, 2017, the trial court overruled McDonald's motion to suppress. Doc. 41. The trial court found that the traffic stop was based upon probable cause because Bethel knew that McDonald did not have a valid driver's license at the time that he saw McDonald driving. Doc. 41. On August 17, 2017, McDonald entered a plea of no contest to three charges against him: one count of failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(B), (C)(5)(a)(ii) ; one count of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(b) ; and one count of tampering with evidence in violation of R.C. 2921.12(A)(1), (B). Doc. 47, 48. McDonald was sentenced on September 8, 2017. Doc. 50. McDonald then filed his notice of appeal on September 14, 2017. Doc. 52.

Assignment of Error

{¶ 7} In this appeal, McDonald challenges the trial court's decision to deny his motion to suppress and raises one assignment of error, which reads as follows:

A trial court commits prejudicial error when an officer admits that he was looking for a reason to stop an individual in lieu of obtaining a search warrant.

In this assignment of error, McDonald puts forward three arguments. First, he alleges that Bethel used LEADS inappropriately to run a driver's license status check in this case. Second, he points to a portion of Bethel's police report that characterizes the driver's license status check in this case as "random." He claims that such random driver's license checks are not permitted under the Fourth Amendment. Third, McDonald argues that the stop of his car was pretextual as he believes the only purpose of stopping his vehicle was to determine whether he was transporting narcotics. For these reasons, McDonald requests that this Court reverse the trial court's decision to overrule his motion to suppress.

Legal Standard

{¶ 8} The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." Fourth Amendment, United States Constitution. The Ohio Constitution offers a parallel provision to the Fourth Amendment of the Federal Constitution that has been held to afford the same level of protection as the United States Constitution. State v. Hoffman , 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). "The primary purpose of the Fourth Amendment is to impose a standard of reasonableness upon the exercise of discretion by law enforcement officers in order to 'safeguard the privacy and security of individuals against arbitrary [governmental] invasions.' " State v. Carlson , 102 Ohio App.3d 585, 592, 657 N.E.2d 591, 592 (9th Dist.1995), quoting Delaware v. Prouse , 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno , 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), citing Katz v. United States , 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, "[t]he touchstone of the Fourth Amendment is reasonableness." Id.

{¶ 9} A reviewing court must first determine whether a search or seizure within the meaning of the Fourth Amendment occurred. "In determining whether a particular encounter constitutes a 'seizure,' and thus implicates the Fourth Amendment, the question is whether, in view of all the circumstances surrounding the encounter, a reasonable person would believe he or she was 'not free to leave,' or 'not free to decline the officers' requests or otherwise to terminate the encounter.' " State v. Westover , 2014-Ohio-1959, 10 N.E.3d 211 (10th Dist.), quoting United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) and Florida v. Bostick , 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Accordingly, a police stop of a motor vehicle and the resulting detention of its occupants has been held to be a seizure under the Fourth Amendment. Prouse at 653, 99 S.Ct. 1391, citing United States v. Martinez-Fuerte , 428 U.S. 543, 556-558, 96 S.Ct. 3074, 3082-3083, 49 L.Ed.2d 1116 (1976) ; United States v. Brignoni-Ponce , 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).

{¶ 10} Under the Fourth Amendment, law enforcement can conduct two types of constitutionally permissible traffic stops: (1) investigatory traffic stops and (2) traffic stops based on probable cause. State v. Andrews , 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991) ;

State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 22. For an investigatory traffic stop to be valid, law enforcement must have a reasonable and articulable suspicion, under the totality of the circumstances, that a crime has been or is being committed. State v. Shaffer , 2013-Ohio-3581, 4 N.E.3d 400, ¶ 18 (3d Dist.), quoting State v. Bobo , 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988), quoting Terry v. Ohio , 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For the second type of traffic stop, law enforcement must have probable cause. "Probable cause 'means less than evidence which would justify condemnation,' so that only the 'probability, and not a prima facie showing of criminal activity is the standard of probable cause.' " State v. Duvernay , 2017-Ohio-4219, 92 N.E.3d 262, ¶ 27 (3d Dist.), quoting State v. Gonzales , 3d Dist. Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, 2014 WL 636805, ¶ 18. "This Court has previously recognized that probable cause for a traffic stop is provided when an officer had probable cause to believe that a traffic violation has occurred or was occurring." State v. Blandin , 3d Dist. Allen No. 1-06-107, 2007-Ohio-6418, 2007 WL 4225492, ¶ 43, citing State v. Phillips , 3rd Dist. No. 8-04-25, 2006-Ohio-6338, 2006 WL 3477003, at ¶ 18 (rev'd on other grounds by State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 1 ).

{¶ 11} Random or pretextual traffic stops of vehicles that lack the minimum objective justification of reasonable suspicion are not permissible under the Fourth Amendment. State v. Chatton , 11 Ohio St.3d 59, 61, 463 N.E.2d 1237, 1239 (1984) (holding a random stop without reasonable suspicion is impermissible to "to check the validity of the operator's driver's license and the vehicle's registration."), citing Prouse , supra . If the officer does make a traffic stop with the required level of objective justification,

the stop is not unreasonable under the Fourth Amendment to the United States Constitution even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity.

Dayton v. Erickson , 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996).

{¶ 12} "Under appellate review, motions to suppress present 'mixed questions of law and fact.' " State v. Kerr , 3d Dist. Allen No. 1-17-01, 2017-Ohio-8516, 2017 WL 5256352, ¶ 18, quoting State v. Yeaples , 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, ¶ 20 (3d Dist.).

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. James , 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d Dist.), quoting State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Legal Analysis

{¶ 13} In this appeal, the Defense makes three key assertions. We will address each in turn. First, the Defense argues that Bethel inappropriately accessed McDonald's driver's license status in LEADS. Unauthorized use of LEADS is prohibited under Ohio law. R.C. 2913.04(C). "Police officers may only run queries and use the information for a legitimate law enforcement purpose." State v. Moning , 1st Dist. Hamilton No. C-010315, 2002-Ohio-5097, 2002 WL 31127751, ¶ 2. In this case, Bethel's testimony makes clear that his LEADS check on McDonald's driver's license status was for a "valid law enforcement purpose." State v. Garn , 2017-Ohio-2969, 91 N.E.3d 109, ¶ 43 (5th Dist.). Bethel was informed by a detective that McDonald was under investigation for drug trafficking and that McDonald had been seen driving around the area during the previous patrol shift. Tr. 6. In response, Bethel, who had cited McDonald in the past for driving while his license was suspended, investigated McDonald's driver's license status. This was a legitimate use of LEADS as Bethel was using law enforcement resources for the purpose of furthering the objective of law enforcement. For this reason, Bethel's use of LEADS was not inappropriate as the appellant alleges.

{¶ 14} Second, the Defense argues that the driver's license status check was random and, therefore, impermissible under Delaware v. Prouse, supra . In support of this argument, the Defense points to Bethel's police report, which characterized the driver's status check as "random." In making this assertion, the appellant errs by equating a driver's license status check in LEADS with the traffic stop of McDonald's vehicle. Under Prouse , law enforcement is not permitted to make random traffic stops without reasonable suspicion for the purpose of checking whether the driver is properly licensed. Id. at 657, 99 S.Ct. 1391. In this case, Bethel did not make a random traffic stop. Rather, Bethel had probable cause to believe that McDonald was committing a traffic violation because, at the time of the traffic stop, Bethel had actual knowledge that McDonald was operating a motor vehicle without a valid driver's license.

{¶ 15} Third, the Defense argues that this traffic stop was a pretext for investigating whether McDonald was involved in the transportation of illegal narcotics and was, therefore, impermissible. In this case, Bethel knew who McDonald was and what type of vehicle McDonald drove. On the night of January 19, 2017, Bethel saw McDonald's car passing his patrol car and was able to identify McDonald as the driver of that vehicle. Since Bethel knew that McDonald did not have a valid driver's license, he knew that McDonald was committing a traffic violation. Bethel's stop was not, therefore, pretextual as he performed a traffic stop to investigate criminal behavior that he had witnessed. Even if Bethel suspected that McDonald was in the process of committing other crimes, these subjective beliefs do not negate the fact that Bethel was undertaking, at the time he initiated this traffic stop, an objectively valid investigation into criminal activity that he had observed firsthand. For these reasons, we find that this traffic stop was not unreasonable and was performed in compliance with the dictates of the Fourth Amendment.

Conclusion

{¶ 16} After examining the facts in the record, we find that the trial court did not err in denying McDonald's motion to suppress. Thus, McDonald's sole assignment of error is overruled. Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Court of Common Pleas of Seneca County is affirmed.

Judgment Affirmed.

PRESTON, P.J. and SHAW, J., concur.

      Bethel's testimony at the suppression hearing indicates that he characterized this driver's license status check as "random" because it was not part of a systematic examination of driver's licenses or performed by the drug task force agent who was assigned to the formal investigation into McDonald's suspected drug trafficking activities. Tr. 6, 11. Bethel, however, did not examine McDonald's driver's license status in the absence of any rationale or through a process of total coincidence.


author: BROWN, J.

text:
    Sherri MEMINGER, Plaintiff-Appellant, v. OHIO STATE UNIVERSITY, Defendant-Appellee.
    No. 17AP-489
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 28, 2017
    On brief: Rosenberg & Ball Co., LPA, and David T. Ball, Granville, for appellant. Argued: David T. Ball.
    On brief: Michael DeWine, Attorney General, Lee Ann Rabe, and Howard H. Harcha, IV, Columbus, for appellee. Argued: Lee Ann Rabe.
    DECISION
   BROWN, J.

{¶ 1} This is an appeal by plaintiff-appellant, Sherri Meminger, from a judgment of the Court of Claims of Ohio dismissing her claim for intentional infliction of emotional distress pursuant to Civ.R. 12(B)(6).

{¶ 2} On November 2, 2016, appellant filed a complaint against defendant-appellee, The Ohio State University. In the complaint, appellant alleged she had been employed by appellee as an emergency room secretary at The Ohio State University Hospital East ("OSU East"), and that appellee had wrongfully terminated her for allegedly engaging in inappropriate, threatening, and retaliatory behavior toward staff members of the hospital. The complaint alleged causes of action for wrongful termination in violation of public policy and intentional infliction of emotional distress.

{¶ 3} On December 29, 2016, appellee filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6). On January 9, 2017, appellant filed a memorandum in opposition to appellee's motion to dismiss. By entry filed April 17, 2017, the Court of Claims granted appellee's motion to dismiss as to appellant's claim for intentional infliction of emotional distress, but denied appellee's motion to dismiss appellant's claim for wrongful termination in violation of public policy.

{¶ 4} On April 20, 2017, appellee filed a motion for summary judgment, arguing appellant could not pursue a claim for wrongful termination in violation of public policy because she was not an at-will employee. On May 17, 2017, appellant filed a memorandum in opposition to appellee's motion for summary judgment, asserting there were genuine issues of material fact as to her employment status. By decision filed June 7, 2017, the Court of Claims granted summary judgment in favor of appellee, finding appellant was not an employee-at-will and, therefore, could not state a claim for wrongful termination in violation of public policy as a matter of law.

{¶ 5} On appeal, appellant sets forth the following assignment of error for this court's review:

The trial court erred in granting Appellee's Motion to Dismiss Appellant's claim for intentional infliction of emotional distress.

{¶ 6} At the outset, we note appellant does not challenge on appeal the Court of Claims' grant of summary judgment in favor of appellee as to her claim for wrongful termination in violation of public policy. Rather, appellant only challenges the Court of Claims' entry of partial dismissal, pursuant to Civ.R. 12(B)(6), of her claim for intentional infliction of emotional distress.

{¶ 7} Under Ohio law, "[a] motion to dismiss a complaint for failure to state a claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6), tests the sufficiency of a complaint." Sheldon v. Kettering Health Network , 2015-Ohio-3268, 40 N.E.3d 661, ¶ 5 (2d Dist.). In order for a defendant to prevail, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to relief." Id., citing O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). A court is required to construe the complaint "in the light most favorable to the plaintiff, presume all of the factual allegations to be true, and make all reasonable inferences in the plaintiff's favor." Id., citing Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). This court conducts a de novo review of a trial court's dismissal under Civ.R. 12(B)(6). Id. , citing Grover v. Bartsch , 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 16 (2d Dist.). Further, "[a] trial court may dismiss a claim for intentional infliction of emotional distress, pursuant to Civ.R. 12(B)(6), where the alleged conduct does not, as a matter of law, reach the level of 'extreme and outrageous' conduct." Morrow v. Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 48 (10th Dist.).

{¶ 8} In support of her argument that the Court of Claims erred in dismissing her claim for intentional infliction of emotional distress, appellant points to the following allegations in the complaint. In August or September 2014, Dr. Thomas Terndrup was working a shift at OSU East while appellant was working as the emergency room secretary. During his shift, Dr. Terndrup "repeatedly threw paperwork on [appellant's] work area rather than hand it to her." (Compl. at ¶ 7.) After several such incidents, appellant "asked Dr. Terndrup to stop throwing paperwork at her, stating it was rude." (Compl. at ¶ 8.) In response, Dr. Terndrup "became very angry at [appellant] and stormed into the office of the OSU East Nurse Manager, Ken Groves, to whom he angrily complained about [appellant]." (Compl. at ¶ 9.) Dr. Terndrup "also complained to another doctor, Dr. Michael Dick," the head of the "OSU East doctor's group." (Compl. at ¶ 10.) According to appellant, "[f]rom that time on, [appellee] was waiting for an opportunity to terminate [appellant] in retaliation for standing up to Dr. Terndrup." (Compl. at ¶ 11.)

{¶ 9} It was further alleged on September 26, 2014, appellant and "ER Social Worker Sylvia Clarkson were having a typical, casual conversation about current events in the news." On that date, appellant and Clarkson "had discussed an incident of workplace violence that had been in the news." (Compl. at ¶ 12.) Clarkson "reported [appellant] for that conversation to Nurse Manager Ken Groves," despite the fact that Clarkson "stated that she did not feel threatened by [appellant]." (Compl. at ¶ 13.) Groves reported appellant's conversation with Clarkson "to Human Resources Administrative Director Thomas Ramey and OSU Wexner Medical Center Security, Lt. Wertz." (Compl. at ¶ 14.)

{¶ 10} According to the complaint, Groves and Ramey "seized upon what Ms. Clarkson had reported as an opportunity to terminate [appellant], despite [appellant's] satisfactory job performance record at that time." (Compl. at ¶ 15.) OSU security officers interviewed appellant, "who stated that she had just been talking about the news with Ms. Clarkson, and that she preferred not to state anything further." (Compl. at ¶ 16.) Appellant "was permitted to complete her shift that day and to work the next." (Compl. at ¶ 17.) On October 6, 2014, appellant was placed on administrative leave. On October 31, 2014, appellant "was charged with engaging in inappropriate, threatening and retaliatory behavior toward staff members." (Compl. at ¶ 19.)

{¶ 11} Appellant's complaint alleged appellee "had no legitimate basis to charge [appellant] with such conduct, or to terminate her on that basis." (Compl. at ¶ 20.) Further, that "claimed safety concerns about [appellant] were a pretext for its intent to terminate her for her prior interaction with Dr. Terndrup." (Compl. at ¶ 21.)

{¶ 12} In its entry of dismissal as to the claim for intentional infliction of emotional distress, the Court of Claims held in part:

Making all reasonable inferences in favor of plaintiff, Dr. Terndrup's actions of throwing paperwork at her; his complaining about plaintiff's behavior to her supervisor; a coworker's complaints about plaintiff's conversation about workplace violence; and, termination of plaintiff's employment, does not rise to the level of extreme and outrageous conduct necessary to state a claim of intentional infliction of emotional distress. Accordingly, it appears beyond doubt that the assertions in plaintiff's complaint do not support a claim for intentional infliction of emotional distress.

{¶ 13} Appellant contends the trial court's decision omits reference to several significant allegations she made in support of her claim for intentional infliction of emotional distress, including allegations that: (1) after appellant asked Dr. Terndrup to stop throwing paperwork at her, he complained to appellant's supervisor and, from that time on, appellee was waiting for an opportunity to terminate her in retaliation for standing up to Dr. Terndrup, (2) appellant's co-worker did not feel threatened by a conversation with appellant regarding workplace violence, and (3) appellee brought baseless and pre-textual charges against appellant and used those as the basis for her termination. According to appellant, had the Court of Claims taken these allegations as true, it could not have found that the conduct alleged was insufficiently extreme and outrageous.

{¶ 14} In order to establish a claim for intentional infliction of emotional distress, a plaintiff must prove "(1) that the defendant intended to cause the plaintiff serious emotional distress, (2) that the defendant's conduct was extreme and outrageous, and (3) that the defendant's conduct was the proximate cause of plaintiff's serious emotional distress." Phung v. Waste Mgt. , 71 Ohio St.3d 408, 410, 644 N.E.2d 286 (1994). The issue of whether conduct "rises to the level of 'extreme and outrageous' conduct constitutes a question of law." Jones v. Wheelersburg Local School Dist., 4th Dist. No. 12CA3513, 2013-Ohio-3685, 2013 WL 4647645, ¶ 41.

{¶ 15} In order to recover for a claim of intentional infliction of emotional distress under Ohio law, "it is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort." Mendlovic v. Life Line Screening of Am., Ltd., 173 Ohio App.3d 46, 2007-Ohio-4674, 877 N.E.2d 377, ¶ 47 (8th Dist.). Rather, "[l]iability is found only where the conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id., citing Yeager v. Local Union 20, Teamsters, 6 Ohio St.3d 369, 374-75, 453 N.E.2d 666 (1983). In general, "it must be conduct that would lead an average member of the community to exclaim, 'Outrageous!' " Perkins v. Lavin, 98 Ohio App.3d 378, 383, 648 N.E.2d 839 (9th Dist.1994), citing Yeager at 374-75, 453 N.E.2d 666, citing Restatement of the Law 2d, Torts, Section 46(1) (1965).

{¶ 16} An employer's termination of employment, "without more, does not constitute the outrageous conduct required to establish a claim of intentional infliction of emotional distress, even when the employer knew that the decision was likely to upset the employee." Craddock v. Flood Co. , 9th Dist. No. 23882, 2008-Ohio-112, 2008 WL 142443, ¶ 20. Further, "an employer is not liable for a plaintiff's emotional distress if the employer does no more than 'insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.' " Wheelersburg Local School Dist. at ¶ 42, quoting Foster v. McDevitt, 31 Ohio App.3d 237, 239, 511 N.E.2d 403 (2d Dist.1986).

{¶ 17} Ohio courts, including this court, have reviewed claims for intentional infliction of emotional distress in the context of an employee's termination following an investigation into purported workplace wrongdoing. In Branan v. Mac Tools , 10th Dist. No. 03AP-1096, 2004-Ohio-5574, 2004 WL 2361568, the appellant was terminated by his employer following an investigation into confidential information leaks. The appellant brought an action against his employer alleging various claims, including wrongful discharge and intentional infliction of emotional distress. In asserting his claim for intentional infliction of emotional distress, the appellant presented evidence that: (1) his employer "interrogated [him] for several hours," (2) that his employer "twice refused" his requests to leave, (3) that the employer's "Asset Protection Team members exhibited some degree of physical intimidation, and repeatedly called him a liar and a corporate spy," (4) that the employer "threatened appellant by telling him that he would never get another job in the industry and would be unable to feed his child," and that (5) the employer or the Asset Protection Team "went through appellant's personal belongings in his office and briefcase, and observed appellant's home and took pictures of the home and vehicles parked in front of the home." Id. at ¶ 30.

{¶ 18} In considering the evidence alleged, this court held in part: "Without characterizing these actions with respect to the other torts that they may constitute, while they are perhaps reprehensible if believed, they are not 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency' and be regarded as 'atrocious' or 'utterly intolerable in a civilized community.' " Id. at ¶ 31. This court further noted that "[a] lawfully conducted investigation where wrongdoing is suspected, even if vigorously or oppressively undertaken, will not be characterized as extreme or outrageous." Id.

{¶ 19} In Wheelersburg Local School Dist. , the appellant, a school teacher, was terminated due to allegations of misappropriated funds associated with a school latchkey program. The appellant brought an action against the board of education, superintendent, and treasurer of the school district alleging in part appellees had interfered with contractual relations and caused her severe emotional distress. In asserting a claim for intentional infliction of emotional distress, the appellant alleged: (1) the appellees failed to act in a professional manner when terminating her; (2) the conduct of the appellees was " 'designed to embarrass, humiliate and degrade [her] and/or to make [her] a 'scapegoat' for their own misfeasance and/or malfeasance'; (3) appellees 'badgered [her] for over four hours'; (4) appellees denied her request for an attorney and 'sarcastically' informed her that she 'did not need a lawyer if [she] was innocent'; (5) appellees denied appellant's request to permit her husband to be present during the four-hour questioning; and (6) appellees falsely accused her of theft." Id. at ¶ 49.

{¶ 20} In addressing the appellant's claim, the reviewing court held that, even if appellees' "conduct was inconsiderate, unkind, unjustified or unprofessional, their conduct was not so extreme and outrageous as to be utterly intolerable in a civilized society." Id. The court concluded: "We cannot state, as a matter of law that [appellees'] conduct when investigating the discrepancy in funds would make one exclaim, 'Outrageous.' Indeed, appellees' actions show, at most, that they subjected appellant to 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,' which are not sufficient to establish a claim for intentional infliction of emotional distress." Id.

{¶ 21} In the Wheelersburg Local School Dist. decision, the court discussed this court's decision in Branan, as well as two other decisions, Shepard v. Griffin Servs., Inc., 2d Dist. No. 19032, 2002-Ohio-2283, 2002 WL 940110, and Smith v. Lebanon City Schools, 12th Dist. No. CA99-02-024, 1999 WL 1016185 (Nov. 8, 1999), in which those courts evaluated claims for intentional infliction of emotional distress resulting from conduct arising from an employment relationship. In reviewing those latter two decisions, the court in Wheelersburg Local School Dist. , at ¶ 46-47, observed the following:

In Shepard v. Griffin Services, Inc. , * * * the court determined that the following conduct was not extreme and outrageous: (1) purposefully discriminating against the employee based on her sex by treating her less favorably than other similarly situated male employees and denying her the opportunity to upgrade her position and increase her pay level; (2) maliciously and recklessly defaming the employee's reputation and character by accusing her of fraud, falsification of records and deception, without properly ascertaining the truth of the accusations; (3) publishing private and confidential information about the employee; (4) retaliating against the employee for making complaints of discrimination; (5) terminating the employee's employment based upon false accusations and an incomplete investigation of events; and (6) breaching the contract with the employee. The court did not believe that any of the foregoing conduct would "caus[e] an average member of society to exclaim, 'Outrageous!' "
In Smith v. Lebanon City Schools , * * * the court concluded that the following conduct failed to rise to the level of extreme and outrageous conduct: (1) the employer screamed and yelled at the employee; (2) the employer falsely accused the employee of causing problems in the treasurer's office and of stealing money; (3) the employer "repeatedly" berated the employee in front of other people; (4) the employer called the employee "moronic and uneducated"; and (5) the employer berated the employee for being a woman.

{¶ 22} In the instant case, taking as true all the allegations in the complaint, including facts pertaining to the investigation and eventual termination of appellant's employment, the conduct alleged is simply not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Mendlovic at ¶ 47. Based on this court's de novo review, we agree with the Court of Claims that the conduct alleged in the complaint does not, as a matter of law, rise to the level of extreme and outrageous necessary for a prima facie case of intentional infliction of emotional distress. Accordingly, the Court of Claims did not err in granting appellee's motion to dismiss appellant's claim for intentional infliction of emotional distress.

{¶ 23} Based on the foregoing, appellant's single assignment of error is overruled, and the judgment of the Court of Claims of Ohio is affirmed.

Judgment affirmed.

TYACK, P.J., and LUPER SCHUSTER, J., concur.


author: HORTON, J.

text:
    Gregory T. AKERS, Plaintiff-Appellant, v. Xuchen AKERS, Defendant-Appellee.
    No. 16AP-184
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 28, 2017
    On brief: Jeffrey P. Nunnari, Toledo, for appellant. Argued: Jeffrey P. Nunnari
    On brief: Mohammad Slaimon Ayoubi, and Mark S. Froehlich, Columbus, for appellee. Argued: Mohammad Slaimon Ayoubi and Mark S. Froehlich.
    DECISION
   HORTON, J.

{¶ 1} Plaintiff-appellant, Gregory T. Akers, appeals from the decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, ordering him to pay defendant-appellee, Xuchen Akers, $14,937 based on a contractual obligation of support arising under federal law as a condition of sponsoring her permanent residency application. For the reasons set forth below, we affirm the enforceability of the obligation, but reverse and remand the trial court's determination of the period during which it accrued and, as a result, the amount of damages that Xuchen is entitled to recover.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Gregory and Xuchen were married in Beijing, China on March 15, 2005. (Nov. 16, 2015 Stipulation.) Xuchen moved to the United States in July 2006. (July 28, 2015 Pl.'s Aff. at ¶ 3, Ex. A attached to Pl.'s Reply to Def.'s Mot. in Opp.) To sponsor Xuchen's permanent residency application, Gregory signed the United States Citizenship and Immigration Services Form I-864, an Affidavit of Support ("AOS"), on June 1, 2007. (Ex. A-1 to Pl.'s Aff.)

{¶ 3} The AOS states that signing the form on behalf of an immigrant and submitting it with the immigrant's permanent residency application has the legal effect of creating a contract between the sponsor and the United States Government. (Ex. A-1 at 6.) "The intending immigrant's becoming a permanent resident is the 'consideration' for the contract." Id. The AOS creates an obligation on the part of the sponsor to "[p]rovide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size" until one of five conditions is fulfilled. (Ex. A-1 at 6.) The obligation ends if the immigrant (1) becomes a United States citizen; (2) has worked, or can be credited with working, 40 quarters of coverage under the Social Security Act; (3) no longer is a permanent resident and leaves the United States; (4) is subject to removal proceedings and obtains a new AOS; or (5) dies. (Ex. A-1 at 7.) The AOS form expressly warns the sponsor that "[i]f you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864, that person may sue you for this support." Id.

{¶ 4} Gregory filed for divorce on October 3, 2014. (Oct. 3, 2014 Compl.) Xuchen filed an answer on December 8, 2014, and asserted a counterclaim alleging that Gregory had breached his obligation of support under the AOS. (Dec. 8, 2014 Answer at ¶ 8.)

{¶ 5} After reviewing the parties' stipulations, tax returns, and other evidence, the trial court determined that Xuchen could be credited with 40 quarters of coverage under the Social Security Act at the end of 2012, at which time Gregory's obligation under the AOS terminated. However, because Xuchen had been unemployed in 2012, the trial court concluded that the AOS required Gregory to pay her $14,937 for that year, an amount that corresponded to 125 percent of the federal poverty guidelines. (Feb. 16, 2016 Am. Decision and Jgmt. Entry Decree of Divorce, hereinafter "Decree" at 5-7, 13-14.)

{¶ 6} Gregory filed a timely notice of appeal and asserts the following assignments of error:

[I.] THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ENFORCING AN AFFIDAVIT OF SUPPORT AFTER ITS EXPIRATION BY OPERATION OF LAW AND WHERE THERE WAS NO BREACH.
[II.] ASSUMING THE AFFIDAVIT OF SUPPORT WAS ENFORCEABLE AND BREACHED FOR ANY REASON, THE TRIAL COURT NEVERTHELESS ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO PROPERLY CALCULATE QUALIFYING QUARTERS EARNED BY, AND CREDITED TO, APPELLANT AND APPELLEE FOR THE YEAR 2007.

II. STANDARD OF REVIEW

{¶ 7} The I-864 AOS is a contract. 8 U.S.C. 1183a(a)(1) ; Erler v. Erler , 824 F.3d 1173, 1175 (9th Cir.2016) Contract interpretation and constructions are matters of law. Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the syllabus. As such, appellate courts apply a de novo standard to a trial court's interpretation or construction of a written contract. McKeny v. Ohio Univ. , 2017-Ohio-8589, 99 N.E.3d 1244, ¶ 19 (10th Dist.), citing Alexander . Thus, our standard of review of the trial court's interpretation of the AOS is de novo. Furthermore, when "the issue is a question of contract law, Ohio appellate courts must determine whether the trial court's order is based on an erroneous standard or a misconstruction of the law. The standard of review is whether or not the trial court erred." Continental W. Condo. Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996).

III. FIRST ASSIGNMENT OF ERROR

{¶ 8} In support of his first assignment of error, Gregory cites 8 U.S.C. 1183a(a)(3)(A), which provides that "[a]n affidavit of support is not enforceable after such time as the alien * * * has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act or can be credited with such qualifying quarters." Gregory argues that the trial court erred by enforcing the AOS in 2016 because, by the trial court's own calculations, Xuchen could be credited with 40 qualifying quarters of work under the Social Security Act by the end of 2012. Thus, he believes that the AOS was rendered "unenforceable" by operation of law at the end of 2012. (Appellant's Brief at 20.)

{¶ 9} Gregory's argument conflates two distinct concepts: the statutory definition of the period a sponsor has an active obligation to support the immigrant and the time period during which an immigrant may sue to enforce the obligation. Although the term "period of enforceability" in 8 U.S.C. 1183a(a)(3) is suggestive of both readings, a close examination of the statute, the implementing regulations, and the language of the AOS do not support reading this phrase as a statute of limitations, which is essentially what Gregory suggests.

{¶ 10} Under 8 U.S.C. 1183a, the "period of enforceability" is the time during which a sponsor has the active obligation to support the immigrant beneficiary. The statute describes the AOS as a contract "in which the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable ." (Emphasis added.) 8 U.S.C. 1183a(a)(1)(A). When describing what "means-tested public benefit[s]" a government agency may recover from a sponsor who breaches the obligation, the statute states: "An affidavit of support shall be enforceable with respect to benefits provided for an alien before the date the alien is naturalized as a citizen of the United States, or, if earlier, the termination date provided under paragraph (3)." (Emphasis added.) 8 U.S.C. 1183a(a)(2). Paragraph 3 describes the termination of the "period of enforceability" due to attainment of, or credit for 40 qualifying quarters of coverage under the Social Security Act. 8 U.S.C. 1183a(a)(3). In both sections of the statute, the "period" in question is that during which a sponsor has the active obligation to support the immigrant.

{¶ 11} This reading is further supported by the fact that the statute expressly provides a limitation period for actions brought by government agencies to recover means-tested public benefits from a sponsor. 8 U.S.C. 1183a(b)(2)(C) states: "Limitation on actions. No cause of action may be brought under this paragraph later than 10 years after the date on which the sponsored alien last received any means-tested public benefit to which the affidavit of support applies." If, as Gregory argues, the "period of enforceability" encompassed not only a period of a sponsor's support obligation, but the time for filing an action as well, the distinct limitations period would be surplusage, "a result that violates the rules of statutory construction." Huntington Natl. Bank v. 199 S. Fifth St. Co., LLC , 10th Dist. No. 10AP-1082, 2011-Ohio-3707, 2011 WL 3210289, ¶ 18.

{¶ 12} Furthermore, although the statute provides a limitation period of ten years for government agencies seeking to recover benefits, it provides no similar limitations period for an immigrant seeking to file an action arising from a sponsor's breach of the support obligation. Yet, the statute gives both the government or the immigrant the right to file such an action. See 8 U.S.C. 1183a(e) (stating that "[a]n action to enforce an affidavit of support * * * may be brought against the sponsor in any appropriate court-(1) by a sponsored alien, with respect to financial support; or (2) by the appropriate entity of the Federal Government, a State or any political subdivision of a State * * * with respect to reimbursement"). The omission of any such limitation period for an immigrant seeking to sue a sponsor for financial support suggests that Congress did not intent to impose one.

{¶ 13} Finally, the implementing regulations and the AOS form itself only refer to the attainment or credit of the 40 qualifying quarters of Social Security coverage as a condition terminating the sponsor's support obligation, with no reference to the term "period of enforceability" upon which Gregory's argument relies. 8 C.F.R. 213a.2(e) describes the "[c]ommencement and termination of [the] support obligation," and identifies the attainment or credit of 40 qualifying quarters of Social Security coverage as one of the conditions that terminates a sponsor's obligation "by operation of law." 8 C.F.R. 213a.2(e)(2)(i). In addition, the AOS form informs the sponsor that "[y]our obligations * * * will end if the person who becomes a permanent resident based on a Form I-864 that you signed * * * [h]as worked, or can be credited with, 40 quarters of coverage under the Social Security Act." (Ex. A-1 at 7.) The foregoing provisions only address the duration of the sponsor's "obligation." They do not suggest that attainment of 40 qualifying quarters of Social Security coverage terminates an immigrant's right to sue for breach of the sponsor's support obligation. Following the logic of Gregory's argument, an immigrant would not be able to exercise the right to sue for financial support provided by 8 U.S.C. 1183a(e) even one day after the termination of the sponsor's financial obligation, even if the sponsor had accrued a substantial obligation during the period. We find no support in the statute, regulation, or the disclosures on the AOS form for so limiting an immigrant's right to sue for a breach of the sponsor's financial obligation.

{¶ 14} Gregory also argues that he did not breach his financial support obligation because he made almost $38,000 during 2012, a figure in excess of the 125 percent of the federal poverty guidelines, and Xuchen never applied for or received any government benefit during that time. However, the trial court found that the support obligation had been breached because Xuchen and Gregory had not lived together since 2010 and she had no income in 2012. Thus, there is no evidence in the record that Gregory provided the support required by the AOS during that year. Furthermore, there is no requirement under the statute that an immigrant must apply for or receive any public assistance as a prerequisite to suing a sponsor for breach of his financial obligation. As mentioned previously, the statute provides a separate cause of action for a governmental agency seeking compensation for a sponsor for benefits provided to an immigrant. 8 U.S.C. 1183a(e)(2).

{¶ 15} For the foregoing reasons, we conclude that Gregory has provided no basis for reversing the trial court's decision to enforce the AOS. Accordingly, the first assignment of error is overruled.

IV. SECOND ASSIGNMENT OF ERROR

{¶ 16} In support of the second assignment of error, Gregory argues that the trial court failed to credit Xuchen for the proper number of Social Security credits in 2007, resulting in an erroneous determination that his obligation terminated at the end of 2012 and an incorrect calculation of damages owed under the AOS. He cites to a number of federal statutes and regulations to support his argument, which are discussed below. (Appellant's Brief at 22-27.) Xuchen contends that the trial court did not abuse its discretion in making its determination, but does not otherwise address the authority cited by Gregory. (Appellee's Brief at 14-16).

{¶ 17} Gregory's argument raises two questions. First, what is the precise duration of the time period during which his obligation to Xuchen accrued under the AOS? Second, what is the proper amount of damages incurred by that obligation? We consider each in turn.

A. The Duration of Gregory's Obligation under the AOS

{¶ 18} The trial court determined that the support obligation commenced on June 1, 2007, the date that Gregory signed the AOS. Neither party disputes this determination. Rather, they dispute the date by which Xuchen could be credited with the requisite number of qualifying quarters of Social Security coverage, thereby terminating Gregory's obligation. Relying on Davis v. Davis , 2012-Ohio-2088, 970 N.E.2d 1151 (6th Dist.), the trial court calculated that Xuchen could be credited with 40 qualifying quarters of Social Security coverage "as of the close of 2012," and thus Gregory's support obligation "concluded as of the end of the 2012 calendar year." (Decree at 7.) The trial court laid out its calculations in a table attached to its decision. (Decree at Ex. 2.)

{¶ 19} At issue in Davis was whether the immigrant spouse could be credited with the qualifying quarters of Social Security coverage based on both her earnings and that of her ex-spouse. Davis at ¶ 23. The Sixth District Court of Appeals held that, based on the plain language of 8 U.S.C. 1183a(a)(3)(A) and the instructions on the I-864 Form incorporated into the governing regulations, an immigrant could "obtain credit both for their own work and for work performed by a spouse during the marriage; they do not require the immigrant to choose one or the other." Id. at ¶ 24. Here, however, the parties do not dispute that Xuchen may be credited with a combination of qualifying Social Security credits based on the earnings of both parties. Davis did not address the precise issue of determining the endpoint of the sponsor's support obligation based on a calculation of qualifying quarters of Social Security credit.

{¶ 20} To make this determination, we once again turn to the statute and the regulations implementing it. 8 U.S.C. 1183a(a)(3)(A) states: "An affidavit of support is not enforceable after such time as the alien * * * has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act or can be credited with such qualifying quarters as provided under subparagraph (B)." The provision regarding qualifying quarters, subparagraph B, states the following: "For purposes of this section, in determining the number of qualifying quarters of coverage under title II of the Social Security Act an alien shall be credited with * * * all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased." 8 U.S.C. 1183a(a)(3)(B).

{¶ 21} The Social Security Act defines a "quarter of coverage" as:

[E]ach portion of the total of the wages paid * * * to an individual in a calendar year which equals the amount required for a quarter of coverage in that calendar year * * *, with such quarter of coverage being assigned to a specific calendar quarter in such calendar year only if necessary in the case of any individual who has attained age 62 or died or is under a disability and the requirements for insured status * * * would not otherwise be met.

42 U.S.C. 413(a)(2)(ii).

{¶ 22} In addition, the Social Security regulations state the following:

Crediting quarters of coverage (QCs). For calendar years after 1977, we credit you with a QC for each part of the total wages paid and self-employment income credited (under § 404.144) to you in a calendar year that equals the amount required for a QC in that year. For example, if the total of your wages and self-employment income for a calendar year is more than twice, but less than 3 times, the amount required for a QC in that year, we credit you with only 2 QCs for the year.

20 CFR 404.143(a).

{¶ 23} An individual may earn a maximum of four quarters of Social Security coverage in one calendar year. 42 U.S.C. 413(a)(2)(B)(vii). The amount required to earn a quarter of coverage varies, and is determined annually by Social Security. 42 U.S.C. 413(d).

{¶ 24} In 2007, a worker earned one qualifying quarter of Social Security credit for each $1,000 of earnings. 71 Fed.Reg. 62636. Gregory's taxable earnings for 2007 were $33,565, entitling him to four quarters of Social Security coverage. Xuchen's earnings were $3,118, entitling her to three quarters. (Ex. A-2 to Pl.'s Aff.) Under 8 U.S.C. 1183a(a)(3)(B), Xuchen may be credited with the four quarters Gregory earned in 2007. Thus, Xuchen earned, or could be credited with seven credits by the end of 2007.

{¶ 25} The trial court only credited Xuchen with four qualifying quarters of coverage in 2007, based on its calculation that she and Gregory had only earned two credits each that year. The trial court did not explain its rationale for the calculation, but may have believed that the parties could only earn one-half the yearly maximum of four quarters of coverage because Gregory signed the AOS form on June 1, 2007, halfway through the calendar year. However, the date that Gregory's obligation accrued under the AOS does not determine how qualifying quarters of coverage are earned or credited. Rather, as set forth in 42 U.S.C. 413(a)(2)(ii) and 20 C.F.R. 404.143(a), Social Security credits an individual with quarters of coverage based on his or her annual earnings. See also 20 C.F.R. 404.140(c) (noting that, under Section 404.143, Social Security will "generally credit you with a QC for each part of your total covered earnings in a calendar year that equals the amount required for a QC in that year"). Furthermore, even if Gregory's earnings for one-half of the year were only taken into account, they still would have surpassed the $4,000 required to earn four quarters of coverage for the year. For these reasons, the trial court erred insofar as it only calculated Xuchen with having earned, or being credited with, four quarters of coverage for 2007.

{¶ 26} The effect of crediting three additional quarters of coverage in 2007 advances the termination date of Gregory's obligation under 8 U.S.C. 1183a(a)(3). Once the immigrant "has worked 40 qualifying quarters of coverage * * * or can be credited with such qualifying quarters" that have been "worked by a spouse of such alien during their marriage," the obligation ends. Id. Because each party earned four qualifying quarters in 2008, 2009, 2010, and 2011, Xuchen could be credited with another 32 qualifying quarters after the seven from 2007. Thus, by the end of 2011, Xuchen had worked, or could be credited with, 39 qualifying quarters. Although Xuchen had no earnings in 2012, Gregory earned $37,986 that year. In 2012, the amount of earnings required to be credited with a quarter of coverage was $1,130. 76 Fed.Reg. 66111. Gregory had undoubtedly earned that amount by the end of the first quarter of 2012. Accordingly, his support obligation under the AOS ceased to accrue, and ended "by operation of law" at that time. 8 C.F.R. 213a(e)(2)(i).

B. The Amount of Damages Xuchen is Entitled to under the AOS

{¶ 27} The trial court compared 125 percent of the federal poverty level against Xuchen's income for each of the years in question and concluded that the only year that her income fell below the threshold was 2012, when she earned no income. Accordingly, the trial court awarded Xuchen $14,937, the entire amount of the 125 percent of the federal poverty threshold for the year. (Decree at 7, 13-14.)

{¶ 28} Because Gregory's obligation terminated at the end of the first quarter of 2012, a recalculation of Xuchen's damages is required. "To determine the appropriate damages, courts should compare the sponsored immigrant's annual income for the particular years at issue against the 125% poverty threshold for each particular year." Hrachova v. Cook , M.D.Fla. No. 5:09-cv-95-OC-GRJ, 2009 WL 3674851 (Nov. 3, 2009). See also Shumye v. Felleke , 555 F.Supp.2d 1020, 1024 (N.D.Cal.2008) ("To be placed in as good a position as she would have been had Defendant performed his support obligation on an annual basis, this Court must compare Plaintiff's income against the 125% poverty threshold for each individual year in question"). Because Gregory's support obligation terminated at the end of the first quarter of 2012, Xuchen is only entitled to damages equal to one fourth of the 125 percent poverty threshold for 2012, or one-fourth of $14,937. This prorated amount equals $3,734.25.

{¶ 29} Because the trial court erred in its calculation of the quarters of coverage of Social Security credit earned or creditable to Xuchen and, as a consequence, the amount of Gregory's support obligation under the AOS, we sustain the second assignment of error.

V. CONCLUSION

{¶ 30} The first assignment of error is overruled and the second assignment of error is sustained. This cause is remanded to the Franklin County Court of Common Pleas, Division of Domestic Relations, with instructions to modify the amount of damages awarded to Xuchen under the AOS in the Decree to $3,734.25.

Judgment reversed; cause remanded with instructions.

KLATT and BRUNNER, JJ., concur.

      Xuchen argues that an abuse of discretion standard applies, but provides no citation to support the application of this standard to appellate review of a contract. (Appellee's Brief at 8.) Xuchen expressly pleaded the breach of the AOS as a counterclaim sounding in contract. (Dec. 8, 2014 Answer.) The facts in this case are undisputed, and " 'when the facts presented in a case are undisputed, whether they constitute performance or a breach of the contract, is question of law for the court.' " Interstate Gas Supply, Inc. v. Calex Corp. , 10th Dist No. 04AP-980, 2006-Ohio-638, 2006 WL 328679, ¶ 35, quoting Luntz v. Stern , 135 Ohio St. 225, 237, 20 N.E.2d 241 (1939). The trial court's orders concerning spousal support and the division of marital assets, both of which would have been subject to an abuse of discretion standard of review, were not appealed by either party. See, e.g. , Gallo v. Gallo , 10th Dist. No. 14AP-179, 2015-Ohio-982, 2015 WL 1197666, ¶ 42, 49 (applying abuse of discretion standard to the allocation of marital assets and an award of spousal support).

      Under 8 C.F.R. 103.2(A)(1), the instructions on the AOS form are "incorporated" into the governing regulations.

      Xuchen and Gregory stipulated that they had lived separately for five months in 2008, when her annual income was $10,375, $3,626 below $14,001, 125 percent of the 2008 poverty threshold. The trial court declined to award Xuchen additional damages for breach of the AOS during 2008 because no evidence demonstrated "whether [she] was able to maintain herself above the requisite 125% threshold for that time period." (Decree at 6.) Xuchen did not file a cross-appeal asserting error in this finding.