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State v. Flagg

Court of Appeals of Ohio, Third District, Marion

July 29, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ANDREW FLAGG, DEFENDANT-APPELLANT.

          Appeal from Marion County Common Pleas Court Trial Court No. 18-CR-0327

          Todd A. Workman for Appellant.

          Nathan R. Heiser for Appellee.

          OPINION

          SHAW, J.

         {¶1} 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 suppression motion.

         Background

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 suggestive.

         {¶5} 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.[1] 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.[2] 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.

         {¶11} 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.[3] 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.[4]

         {¶12} 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.

         {¶13} Detective Willoby testified that he went with Deputy Joe Carl to Marie's house[5], 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.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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 ...


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