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State v. Williams

Court of Appeals of Ohio, Sixth District, Erie

December 13, 2019

State of Ohio Appellee
v.
Dwayne Williams Appellant

          Trial Court No. 2016 CR 0349

          Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, for appellee.

          Ronnie L. Wingate, for appellant.

          DECISION AND JUDGMENT

          SINGER, J.

         {¶ 1} Appellant, Dwayne Williams, appeals the August 3, 2017 judgment of the Erie County Court of Common Pleas denying his motion to suppress the identification of appellant by the victim, D.C. We affirm because the identification of appellant was not impermissibly suggestive and was otherwise reliable.

         {¶ 2} Appellant brings one assignment of error:

The trial court erred to the prejudice of Mr. Williams when it denied his motion to suppress, and renewed motion to suppress, the pretrial identification of Mr. Williams by D.C.

         Facts

         {¶ 3} On June 1, 2016, at about 2:00 a.m., two men entered the home of D.C. and held him and four others at gunpoint for approximately 20 minutes while the home was burglarized. The men had masks on that covered the lower half of their faces. The two men obtained cash and a cellular phone from the victims. When the suspects demanded more money, D.C. indicated there was additional money in another apartment. When the men and D.C. got onto the back porch, D.C. was able to jump back into the house and quickly close the door, leaving the men outside. D.C. then contacted the police.

         {¶ 4} When the police arrived, D.C. was deeply upset after the robbery and was unable to make a statement to the police. The other victims, including D.C.'s wife, were able to make statements to the police about what they witnessed and gave a description of the suspects. Two days later, Sandusky Police Detective Ken Nixon returned to the home and interviewed D.C. and his wife. D.C. then gave a detailed description of the night, the suspects, and the weapons used in the crime.

         {¶ 5} At that time, D.C. indicated that he believed appellant was one of the men who held him at gunpoint during the robbery. D.C. stated that he knew appellant from a party on the Fourth of July. He stated that he knew appellant's voice from this party as well. D.C. also told the detective that he was told by a third party that appellant may have been involved with the crime. D.C. then showed the detective a photograph from Facebook and stated he believed the photograph showed both men who burglarized his home.

         {¶ 6} Detective Nixon did not indicate to D.C. that the man in the photograph was appellant or that the detective suspected appellant in a separate robbery. Nixon then had a photo lineup created and administered to D.C. by a blind administrator. The photo used in the lineup was not the same photo that was shown by the detective on Facebook. The photo lineup was created by a computer program called the Ohio Law Enforcement Gateway and placed five photos of men of similar characteristics of appellant into the photo array. After viewing the photo lineup, D.C. indicated that he was positive appellant was one of the men in the photo lineup. D.C.'s wife identified the other suspect in a separate lineup.

         {¶ 7} Appellant was then charged with five counts of aggravated burglary in violation of R.C. 2911.11(A)(2), five counts of aggravated robbery in violation of R.C. 2911.01(A)(1), five counts of felonious assault in violation of R.C. 2903.11(A)(2), and three counts of complicity to commit theft in violation of R.C. 2923.03(A)(2). The fifteen counts of aggravated burglary, aggravated robbery, and felonious assault had firearm specifications under R.C. 2941.145 attached to each count.

         {¶ 8} Appellant filed a motion to suppress seeking to suppress the identification of appellant. Appellant also sought to suppress evidence gained from a warrant issued for his cell phone. Appellant did not appeal that portion of the decision. At the suppression hearing, Detective Nixon testified about the creation of the lineup and the process that occurred prior to the identification of appellant. He ...


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