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State v. Flagg

Court of Appeals of Ohio, First District, Hamilton

May 2, 2018

STATE OF OHIO, Plaintiff-Appellee,
NIKOLE FLAGG, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1502174

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee

          Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellant.



         {¶1} Following a second jury trial, defendant-appellant Nikole Flagg, who is a drug addict, was convicted of aggravated murder, aggravated robbery, tampering with evidence and gross abuse of a corpse. Flagg repeatedly stabbed her mother to death, doused the body and crime scene with bleach, and stole her mother's cellular phone. She then used the phone as currency to purchase crack cocaine from her drug dealer, Matthew Barwick. The trial court sentenced Flagg to life without parole for the aggravated murder, 11 years for the aggravated robbery, three years for tampering with evidence and one year for gross abuse of a corpse. The trial court ordered the sentences to be served consecutively, for an aggregate sentence of life without parole, plus 15 years.

         {¶2} Flagg now appeals her convictions, arguing that she was not the perpetrator of these crimes, that her second trial violated double jeopardy protections in the state and federal constitutions, that the trial court erroneously admitted evidence of other weapons, that she had received ineffective assistance of counsel and that the offenses of aggravated murder and aggravated robbery were allied and should have been merged for purposes of sentencing. Finding no merit to these arguments, we affirm the trial court's judgment.

         First Trial

         {¶3} Prior to the first jury trial, the trial court presided over a three-day hearing on Flagg's motion in limine, where she sought to prevent the state from referencing or admitting her prior conviction for voluntary manslaughter. The trial court granted her motion.

         {¶4} During opening arguments, co-counsel for the defense told the jury two separate times that although Flagg is a crack addict and a thief, she does not kill. There was no objection to these comments by the state. At the close of opening arguments, the trial court excused the jury and asked the state if they wanted to use Flagg's prior conviction at trial despite the fact that the court had granted Flagg's motion in limine. The trial judge said he believed that defense counsel's comments may have opened the door for the state's use of the prior conviction, and asked the parties to research and argue the issue. Ultimately, the trial court ruled that defense counsel's comments had opened the door, and, based on that ruling, defense counsel moved for a mistrial on the grounds of ineffective assistance of counsel. The trial judge said that he had "anticipated your motion and I expected you to make it." The court then took the motion under submission, and ultimately granted the mistrial the next day.

         Second Trial - Facts

         {¶5} The parties do not dispute that Myrvinia Lowe, Flagg's mother, was murdered shortly before 3:00 p.m. on Friday, April 10, 2015, in her apartment located in the Pleasant Ridge neighborhood of Cincinnati. Lowe failed to show up for her second-shift job at Children's Hospital, which was unusual for her. A month prior to her murder, her son, Maurice Allen, had been living with her, sleeping on an air mattress in the living room and often playing the stereo at night. Allen testified that Lowe was concerned about Flagg's drug problem and was scared of her. Consequently, Lowe would hide her cash in her bible, her bra, and under the trash-can liner. Although Allen had warned his mother against letting Flagg in her apartment when he was not there, Lowe would occasionally pay Flagg to style her hair.

         {¶6} On April 9, 2015, Flagg's alleged boyfriend refused to rent a room to her because she already owed him money and he believed that she would spend what money she had on drugs and not rent. Instead, he drove her to her mother's neighborhood, where she spent a night in the woods because she did not have access to her mother's apartment.

         {¶7} On Friday morning, Lowe let Flagg into her apartment to style her hair. Cellular phone records show that Flagg had contacted her drug dealer, Matthew Barwick, several times that morning, and he eventually met her mid-morning "out back" of her mother's apartment and sold her $20 worth of crack cocaine, which he testified was "more than [a] one time use." Shortly after noon, Allen called his mother from "the Hyde Park area" asking for directions to a health-food store. He heard Flagg in the background, and told his mother to make Flagg leave, but she did not. The phone call ended at 12:44 p.m. Allen later clocked into work at 1:56 p.m. in Mason, Ohio.

         {¶8} From 1:57 p.m. until 2:26 p.m., Flagg made 16 phone calls to Barwick. Barwick testified that in one of the calls Flagg had told him she had a cellular phone and credit cards to give him in exchange for drugs. Sometime after 2:26 p.m., Barwick met Flagg outside of her mother's apartment. When she entered his car, she offered him a red Verizon phone, later determined to belong to her mother, and credit cards she said she had obtained from the laundry room in her mother's apartment building. Barwick took the phone, refused the credit cards, and gave her drugs. He then drove her to Kandy Loudermilk's house, where he sold Loudermilk $40 worth of drugs. Barwick testified that on the drive to Loudermilk's house he had the car windows down and had not smelled bleach or seen blood on Flagg.

         {¶9} An expert in historical cellular phone analysis testified, based on which tower the cellular phones were "pinging, " that Flagg's cellular phone had been in the vicinity of the crime scene until 2:12 p.m. on the day Lowe was murdered. His analysis also demonstrated that Barwick had met Flagg that afternoon and had driven her to Loudermilk's house.

         {¶10} Loudermilk testified that Flagg had told her that her mother had not paid her the money she had been expecting for styling her hair. Apparently, Lowe had given Flagg the air mattress that Allen used to sleep on, and Flagg still owed her money for it. ...

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