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State v. Burns

Court of Appeals of Ohio, Second District, Montgomery

October 20, 2017

STATE OF OHIO Plaintiff-Appellee
LASTARZA A. BURNS Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-484

          MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          HILARY LERMAN, Atty. Reg. No. 0029975 Attorney for Defendant-Appellant


          TUCKER, J.

         {¶ 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.

         I. 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 building.

         {¶ 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 arrested.[1]

         {¶ 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 identification evidence.

         {¶ 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 jail-issued clothing.

         {¶ 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 lineup.

         {¶ 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 motion.

         {¶ 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 ...

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