Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No.
0093945, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Attorney for
LERMAN, Atty. Reg. No. 0029975 Attorney for
1} Defendant-appellant Lastarza Burns appeals from
his conviction and sentence for aggravated robbery,
kidnapping and two counts of abduction. He contends that the
trial court erred by failing to suppress evidence of a
pre-trial identification. He further contends that the trial
court erred in sentencing.
2} We conclude that the trial court did not err by
denying Burns' motion to suppress or by denying his
request for merger at sentencing. Accordingly, the judgment
of the trial court is affirmed.
Facts and Procedural History
3} Hope Doss was employed at Moraine Auto Sales
located on North Dixie Drive in Montgomery County. As part of
her duties, Doss was involved with car sales as well as
taking in payments on cars. On February 1, 2016, Doss was the
only employee working when a man entered the building and
asked her about a car. As Doss was preparing to escort the
man to the assembled cars, she observed him look out to the
parking lot at another man. The first man pulled a gun and
the second man, later identified as Burns, entered the
4} Burns asked where money could be found while his
accomplice forced Doss into a car seat located in the corner
of the business's front room. While Doss was in the
chair, the gunman used his knee to hit her several times in
the chest resulting in a bruise to her chest. The gunman also
hit Doss on her head with the gun several times causing a
bruising and lump over her left eyebrow. After Burns found an
envelope containing $400, the men took Doss down a hallway to
the back room of the business. Once in the back, they told
her to sit down on the floor and to give them her purse. The
men subsequently told her to lie on the floor on her stomach.
While on her stomach, Doss heard the men rummaging around the
room. They subsequently tied her up, and she heard them
continue to rummage around. The men took her purse, told her
to remain still and left the building. After the men left,
Doss was able to remove her restraints, and, upon doing so,
called 911. When the police arrived, she gave them a folder
containing information on a Chevy Trailblazer she claimed was
associated with Burns. Following an investigation, Burns was
5} On March 8, 2016, Burns was indicted on one count
of aggravated robbery (deadly weapon) with a firearm
specification, one count of kidnapping (felony or flight),
one count of abduction (restrain) and one count of abduction
(remove). He filed a motion to suppress all pre-trial
6} At the suppression hearing, Montgomery County
Sheriffs Detective Kent Saunders testified that he has
performed over three hundred photographic array lineups
during his more than 20-year career. He testified that he
used the JusticeWeb computer program to gather photographs
for the purpose of creating a photographic lineup for Doss to
view. Saunders testified that he prefers JusticeWeb over
another available system because it uses similar backgrounds
for the photographs and because it uses booking photographs
with the individuals in street clothes rather than
7} Saunders testified he used Burns' physical
characteristics, such as height, weight, eye color, race,
sex, age and facial hair to generate photographs of men with
similar appearances. Saunders testified that it was difficult
to create an array because Burns has a unique tattoo by his
left eye. He testified that once pictures were generated and
selected, the computer program randomly arranged five photos
onto a page along with the photo of Burns. He arranged for
another detective, Robert Schumacher, to administer the photo
8} Schumacher testified that he did not have any
knowledge of the case or the suspect, and that Saunders did
not inform him which photograph depicted Burns. He testified
that he met with Doss outside of Saunders' presence.
Schumacher testified that he read, verbatim, the instructions
concerning Doss' review of the photographic lineup.
According to Schumacher, Doss identified Burns within a
matter of seconds. Doss indicated that she was 80% certain
that the person she identified was the perpetrator.
9} Following the hearing, the trial court found that
the all of the men depicted in the array are African-American
with medium to light complexions. Each man is wearing street
clothes. The trial court noted that they all are
"broad-shouldered and thick chested, " and that
each man has facial hair on the top lip and along the chin.
The court also found that while none of the tattoos are exact
matches, they are not so noticeably different as to be
considered unduly suggestive. The trial court overruled the
10} The case proceeded to trial in September 2016.
However, the jury was unable to reach a verdict. The matter
was re-tried in November 2016.
11} Doss testified that she recognized Burns as a
customer who had been in the business approximately 15 to 18
times in the past to make payments on a maroon Chevrolet
Trailblazer. She testified that the vehicle was repossessed
by Moraine Auto Sales in September of 2015. At the time it
was repossessed, Doss had observed Burns in the parking lot
of the business. She testified that he was "really
angry" and yelling at the business manager, as well as
at police who had been called to ...