from Marion County Common Pleas Court Trial Court No.
A. Workman for Appellant.
R. Heiser for Appellee.
Defendant-appellant, Andrew A. Flagg ("Flagg"),
brings this appeal from the October 23, 2018, judgment of the
Marion County Common Pleas Court sentencing him to twelve
months of community control after Flagg was convicted in a
jury trial of two counts of Forgery in violation of R.C.
2913.31(A)(3), both felonies of the fifth degree. On appeal,
Flagg argues that the trial court erred by overruling his
On June 27, 2018, Flagg was indicted for two counts of
Forgery in violation of R.C. 2913.31(A)(3), both felonies of
the fifth degree. It was alleged that Flagg presented a
counterfeit $100 bill as payment at a minimart in Marion
County on January 14, 2018, and that Flagg presented a
counterfeit $100 bill as payment at an Amish store in Hardin
County on January 18, 2018. In both instances, the bills were
accepted as payment. The charges were indicted together in
Marion County as part of an ongoing course of criminal
conduct. Flagg pled not guilty to the charges.
Prior to trial, Flagg filed a suppression motion contending
that officers in Marion County conducted a photo lineup with
the cashier who accepted the $100 bill at the minimart, and
that the lineup was not in compliance with the statutory
procedures for photo lineups codified in R.C. 2933.83. In
addition, Flagg argued that different officers in Hardin
County conducted a photo lineup with the cashier who accepted
the $100 bill at the Amish store, and that lineup even more
egregiously failed to comply with the statutory procedures
codified in R.C. 2933.83.
The State filed a memorandum in opposition to Flagg's
suppression motion, arguing that the statutory procedures
were largely complied with, particularly in the Marion County
lineup, and that even if the photo lineups were not in
compliance with the statute, the lineups were not unduly
suggestive such that they warranted suppression. The State
contended that a jury instruction as mentioned in R.C.
2933.83 was the appropriate remedy for failure to comply with
R.C. 2933.83 when the photo lineups were not unduly
On September 21, 2018, a suppression hearing was held. At the
hearing, the State presented the testimony of officers from
the Hardin County Sheriffs Office who conducted a photo
lineup with Marie H., the 17-year old girl from the Amish
store who had accepted the $100 bill on January 18, 2018, and
an officer from the Marion County Sheriffs Office who
prepared the photo lineup for Sharon W., the woman from the
minimart in Marion County who accepted the $100 bill on
January 14, 2018. Unlike the Hardin County photo lineup, the
Marion County lineup was given by a blind administrator, who
did not know the identity of the purported
suspect. The State also presented the testimony of
Marie and Sharon regarding the lineups themselves. Both
indicated that the officers did not attempt to influence
them, and that they were extremely confident in their
selection of Flagg's photograph.
At the conclusion of the hearing, the trial court overruled
the suppression motion. In its entry on the matter, the trial
court stated as follows.
Based on the evidence presented, the Court finds that two
photo lineups were presented in this case, neither of which
fully complied with the procedures required by R.C. 2933.83.
However, there was no evidence that either identification
procedure was unduly suggestive. It is therefore ORDERED that
the Defendant's motion to suppress is denied.
However, the trial court did determine that Flagg would be
permitted to present evidence at trial of law
enforcement's failure to comply with the statutory
procedures, and that failure to follow the procedures could
be considered by the jury in determining the reliability of
the identification testimony pursuant to R.C. 2933.83(C). The
trial court also indicated that the jury would receive an
instruction on the matter.
Flagg's case proceeded to trial on September 25-26, 2018.
Regarding the incident in Marion County, the State presented
the testimony of Sharon W., who worked at the LaRue minimart
in Marion County and accepted the $100 bill from Flagg on
January 14, 2018. She testified that she did not know
Flagg's name, but he had been in the store multiple times
in the past so she recognized him. She testified that the
$100 bill he presented had questionable pink writing on it,
and that she thought it seemed like it had been
"laundered several times." (Tr. at 213). Sharon
testified that she asked Flagg where he got it, and he said
he had received it from "one of the cash places."
(Id.) Sharon testified that while she usually used a
special pen to mark the bills to see if they were legitimate,
the pen was not readily nearby and she ultimately accepted
the bill. Sharon identified Flagg in court as the man who
provided the bill to her.
Sharon testified that she was shown a photo lineup a few days
after the incident and that she was "100 percent"
certain that she had identified the correct person in the
photo lineup. She testified she was not influenced by the
detective who showed her the photographs.
The Marion County Officers who were involved with the photo
lineup testified at trial. Detective Craig Layne testified as
to how he put the photo lineup together. A database called
OLEG was used to generate photographs of males with a similar
height, weight, and hair color to Flagg. Flagg's
photograph was then placed alone in one folder, then the five
other photographs of different individuals were placed in
separate individual folders. Four folders with blank pages in
them were also included in the stack of folders, so that
there were ten folders total that would be provided to
Sharon. The folders were then given to a blind
administrator who did not know the identity of the suspect,
and the blind administrator conducted the photo lineup with
Sharon. There was some ambiguity about whether the blind
administrator handed all of the folders to Sharon at once in
contravention of the statute, or handed them to her one at a
time, and as to whether Sharon viewed the photographs in the
administrator's presence or a few feet away. Regardless,
the administrator did not know the alleged perpetrator, and
Sharon identified Flagg, stating that she was 100 hundred
percent certain it was him.
As to the Hardin County incident, the State presented the
testimony of Marie H., whose Amish family owned and operated
a small grocery store on their property. Marie testified that
a man came into the store on January 18, 2018, and asked if
she could make change for $100. Marie indicated that it depended
on how much he bought, and that the man then purchased
roughly $50 worth of goods. Marie affirmatively identified
Flagg at trial as that man. Marie testified that Flagg
produced a $100 bill that she felt was suspicious so she got
his license plate number when he left and wrote it on her
hand. She then showed her brother the $100 bill, and he told
her it was fake, so the police were informed. Marie also made
a list of things that Flagg had purchased from the store, and
gave it to law enforcement. A number of the items were found
in Flagg's home when it was subsequently searched, along
with a fake $100 bill and a fake $20 bill. The fake $100 bill
that was found was consistent with the ones that had been
used in his prior purchases.
Hardin County officers administered their own photo lineup to
Marie, and they testified regarding that lineup at trial.
Detective Scott Willoby indicated that he put the lineup
together by pulling photographs of males with a similar
height, weight, and hair color to Flagg from the OLEG
database. He indicated that he placed Flagg's photograph
in one folder, then placed five other photographs of
different individuals in separate folders. Four folders with
blank pages in them were also used, so that there were ten
folders total that would be given to Marie.
Detective Willoby testified that he went with Deputy Joe Carl
to Marie's house, and that the photo lineup was
administered at the kitchen table. Detective Willoby admitted
that a blind administrator was not used pursuant to statute,
stating that their Sheriffs Office was small and
short-staffed, and that while it was possible that they could
have gotten a blind administrator, he preferred to get the
lineup done as soon as possible.
Detective Willoby's testimony revealed that there were
multiple areas where the Hardin County photo lineup was not
compliant with the statute. He indicated that Marie's
parents were present at the time of the lineup, that he never
said that the suspect may not be in the lineup, that he
explained how the photographs were generated before
presenting the lineup to Marie, and that he told Marie at the
outset to go through the lineup twice even though she was
only supposed to do it once unless she requested to do so
again. Marie identified Flagg's photo and stated that she
was almost positive that it was him. She testified that the
officers did not do anything to assist her identification.
The trial court gave an instruction to the jury during the
trial indicating that it could consider the police
officers' noncompliance with the law when evaluating the
credibility of the photo lineup identification. At that time,
the trial court actually stated all of the statutory
requirements of R.C. 2933.83 to the jury. In fact, at one
point during a witness's testimony regarding the photo
lineup, the trial court questioned the procedure and asked
the witness if the procedure was inconsistent with the
statute. The witness admitted that it was, thus the trial
court helped emphasize the officer's noncompliance.
After the parties rested their cases, the trial court again
provided a lengthy jury instruction regarding the photo
lineup procedures. Nevertheless, the jury returned guilty
verdicts on both Forgery counts, specifically finding with
regard to the Hardin County incident that Marion County ...