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State v. Partin

Court of Appeals of Ohio, Twelfth District

July 1, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JOHN EDWARD PARTIN, Defendant-Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-12-2100

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, for plaintiff-appellee

Scott N. Blauvelt, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, John Edward Partin, appeals his convictions and sentence in the Butler County Court of Common Pleas for single counts of having weapons under disability and obstructing official business.

{¶ 2} In the early morning hours of December 10, 2011, the Hamilton, Ohio 911 call center received several complaints about shots being fired in a residential neighborhood. One such call was made by Ferdinand Sneed, who stated that he heard and saw an individual in his neighbor's house shooting a gun. Sneed gave the 911 dispatcher his information, and directed police to the house in back of his own. Hamilton police responded to the area, and also saw and heard gunfire coming from the house of Sneed's neighbor. Hamilton police surrounded the house and directed the occupants of the house to exit. Partin, who had been inside the house, came out the front door, but went back into the house when police ordered him to show his hands and walk toward the officers. Partin and the other individuals inside the home refused to exit, and stayed inside for approximately two hours.

{¶ 3} Hamilton police cordoned off the neighborhood until the SWAT team appeared on the scene. After SWAT's arrival, Partin and the other occupants exited the house and were arrested. Upon questioning, Partin denied having heard or seen any gun fire, and claimed that he was not aware that police were surrounding the house until he exited once SWAT was on the scene. Police conducted a gunshot residue test and determined that Partin's test was positive for the existence of gunshot residue on his hands.

{¶ 4} Partin was indicted for single counts of having weapons while under disability and obstructing official business. The having weapons while under disability charge was predicated upon Partin's past adjudication as a juvenile delinquent for having committed felonious assault on a police officer. Partin pled not-guilty to his current charges, and the matter proceeded to a two-day jury trial.

{¶ 5} During the state's case-in-chief, Sneed testified that on the night of the incident, he was preparing for bed when he heard shots being fired and saw "a gentleman firing a firearm out of his-out of the kitchen window." Sneed then testified that the kitchen light was on in his neighbor's house and that he could see that "two gentlemen, one being the defendant and then another gentleman who was standing slightly, a little back and to his side" were in the location where the shots had just been fired. Sneed then made an in-court identification of Partin as the man he saw shooting the gun in the kitchen on the night of the incident. When asked where exactly he saw Partin that night, Sneed stated, "standing inside the window with a little bit of his body and his arm hanging out the window firing the firearm." The state also asked Sneed to explain how he was able to differentiate between the two gentlemen to know that it was Partin that fired the gun. Sneed testified, "most of it was body size. The other gentleman's quite a bit skinnier. Not too much shorter, but quite a bit skinnier." Sneed also testified that he had seen a "red emblem" on the shooter's shirt that night, and that he told police about the emblem when they took his statement.

{¶ 6} On cross-examination, defense counsel asked Sneed to read a portion of his police statement, which stated "I could not make out faces. They both had short hair and looked scruffy, but I could not make out features. I called 911."[1] Defense counsel then asked Sneed whether he had seen a photograph of Partin after he made his statement, and Sneed confirmed that he had been shown photographs of the individuals who were in the house by a police officer. At that point, defense counsel requested a bar conference, and moved the trial court for a mistrial because the state had not divulged during discovery that Sneed was shown photographs of the individuals who were in the house on the night of the incident.

{¶ 7} The trial court, outside the presence of the jury, considered Partin's motion for a mistrial. The state explained that police never told the state about the use of photographs, and that the prosecutor had no idea that Sneed was shown photographs prior to his identification of Partin as the shooter. The trial court then held a hearing, during which the officer who showed the photographs to Sneed was called as a witness and questioned. Detective James Calhoun testified that he took Sneed's statement soon after the incident, and confirmed that during that time, he showed Sneed photographs of the individuals from the house. The photographs shown to Sneed had been taken by Detective Calhoun soon after the standoff ended, and once the individuals had been secured at the police station.

{¶ 8} Detective Calhoun testified that he only showed the photographs so that Sneed could identify the emblem on the shirt worn by the shooter. Detective Calhoun testified that because Sneed had told him that he was unable to identify faces, the photographs were being shown "just to see if the logo that he was describing was the one on the shirt." Detective Calhoun stated that he did not ask Sneed to identify the shooter's face, only the logo from the shirt the shooter was wearing. Therefore, Detective Calhoun did not consider the showing of photographs to Sneed to be a photographic line-up that needed to be shared with the prosecutor.

{¶ 9} On cross-examination, Detective Calhoun admitted that he had not used a blind administrator to help show the photographs to Sneed, did not include any photographs of non-suspects, and that he did not put the pictures in any type of folder before showing them to Sneed. Defense counsel then argued to the trial court that the photographic identification process used by Detective Calhoun was in violation of Ohio's statute that sets forth proper identification procedures.

{¶ 10} The trial court overruled the motion for a mistrial, and instead gave defense counsel the opportunity to call Detective Calhoun in the presence of the jury so that the jury could hear more details specific as to how Sneed was able to identify Partin as the shooter. Defense counsel declined to call Detective Calhoun, and did not otherwise request a continuance or a separate hearing on a motion to suppress Sneed's identification, and instead continued with the trial after noting his objection to the trial court's ruling.

{¶ 11} The jury found Partin guilty of both counts, and the trial court sentenced Partin to five years of community control on the having weapons while under disability charge, and a 90-day suspended sentence for the obstructing official business charge. Partin now appeals his convictions and sentence, raising the following assignments of error. For ease of discussion, we ...


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