State v. Johnson ( 2014 )

[Cite as State v. Johnson, 2014-Ohio-4339.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-13-1032
Appellee Trial Court No. CR0201202149
v.
Steven Johnson DECISION AND JUDGMENT
Appellant Decided: September 26, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Tim A. Dugan, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas that found appellant guilty of two counts of felonious assault with attached firearm
specifications and imposed a term of imprisonment. For the following reasons, the
judgment of the trial court is affirmed.
{¶ 2} This case originated in the Lucas County Court of Common Pleas, Juvenile
Division, where appellant was charged as an alleged delinquent child in connection with
a shooting which occurred on March 18, 2012, in Toledo, Lucas County, Ohio.
Appellant was 17 years of age at the time of the incident, but turned 18 in May 2012. On
June 21, 2012, the juvenile court granted the state’s motion for relinquishment of
jurisdiction, certified appellant to be tried as an adult, and transferred the case to the
Lucas County Court of Common Pleas, General Division.
{¶ 3} In July 2012, appellant was indicted on two counts of felonious assault in
violation of R.C. 2903.11(A)(2) and one count of improperly discharging a firearm at or
into a habitation in violation of R.C. 2923.161, all of which carried firearm specifications
pursuant to R.C. 2941.145. Before trial, the third count was nolled.
{¶ 4} On September 26, 2012, appellant filed a motion to suppress his
identification by several witnesses by means of a photo array. At the conclusion of an
evidentiary hearing held on October 15, 2012, the trial court denied the motion. The case
proceeded to a jury trial.
{¶ 5} On October 16, 2012, the jury found appellant guilty of both counts of
felonious assault and both attached firearm specifications. At sentencing, the trial court
ordered appellant to serve a three-year term of imprisonment for each count of felonious
assault, with the sentences to be served concurrently. The trial court merged the two
firearm specifications and ordered appellant to serve the mandatory three-year term
consecutive to the sentence for the felonious assault convictions.
2.
{¶ 6} Appellant now files the following assignments of error:
A. The trial court erred by not suppressing the photo array because
the array violated R.C. 2933.83 and was unduly suggestive.
B. The State of Ohio failed to produce legally sufficient evidence to
sustain a conviction.
C. Appellant’s conviction fell against the manifest weight of the
evidence.
{¶ 7} In support of his first assignment of error, appellant asserts that the trial
court erred by not suppressing the photo array shown to three witnesses because the array
violated R.C. 2933.83 and was unduly suggestive.
{¶ 8} We note first that appellate review of a ruling on a motion to suppress
presents a mixed question of law and fact. When considering a motion to suppress, the
trial court assumes the role of trier of fact and is, therefore, in the best position to resolve
factual questions and evaluate witness credibility. State v. Mills, 62 Ohio St.3d 357, 366,
582 N.E.2d 972 (1992). A disputed motion to suppress judgment supported by
competent, credible evidence must not be disturbed. State v. Fanning, 1 Ohio St.3d 19,
437 N.E.2d 583 (1982).
{¶ 9} R.C. 2933.83, effective July 2010, requires any law enforcement agency that
conducts live and photo lineups to adopt “specific procedures” for conducting the
lineups. R.C. 2933.83(B). Such procedures must provide, at minimum, the use of a
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“blind or blinded” administrator for the array. Id. at 2933.83(B)(1). Blind or blinded
administrators are defined in R.C. 2933.83(A) as follows:
(2) “Blind administrator” means the administrator does not know the
identity of the suspect. “Blind administrator” includes an administrator
who conducts a photo lineup through the use of a folder system or a
substantially similar system. (3) “Blinded administrator” means the
administrator may know who the suspect is, but does not know which
lineup member is being viewed by the eyewitness. “Blinded administrator”
includes an administrator who conducts a photo lineup through the use of a
folder system or a substantially similar system.
{¶ 10} The folder system set forth in the statute provides for the suspect’s
photograph, five filler photographs and four dummy folders. The folders are shuffled and
the administrator does not know which folder the witness is viewing. R.C.
2933.83(A)(6). The statute does not require the use of the folder system.
{¶ 11} The statute provides that evidence of noncompliance with the statute shall
be considered by courts in ruling on a defendant’s motion to suppress. R.C.
2933.83(C)(1). In addition, such evidence is admissible at trial. R.C. 2933.83(C)(2). If
such evidence is admitted at trial, the court shall instruct the jury that such
noncompliance may be considered in determining the credibility of the witness
identification. R.C. 2933.83(C)(3).
4.
{¶ 12} The trial court in this case found that the administration of the arrays was
substantially in conformance with R.C. 2933.83 and that the testimony of the three
eyewitnesses was “absolutely reliable.” At the October 15, 2012 suppression hearing,
Toledo Police Detective Steve Applin testified as to the lengths to which he went to
create a photo array that portrayed individuals with the same characteristics and
approximate age, that was not in any way suggestive. Further, Applin testified that
although he assembled the photo array, it was administered by Detective Gene Kutz, who
did not know the identity of the suspect. Therefore, Detective Kutz was a “blind
administrator” as defined by R.C. 2933.83.
{¶ 13} Assuming arguendo that the identification procedures herein did not
comply with the statute, such non-compliance does not provide an independent basis for
suppression. See State v. Henry, 6th Dist. Lucas No. L-11-1157, 2012-Ohio-5522, ¶ 46.
As will be discussed below, while non-compliance is to be taken into consideration by
the trial court when ruling on a motion to suppress, it does not necessitate that the court
suppress the identification. Id. The overriding analysis remains whether the
identification procedure was “impermissibly suggestive.” Neil v. Biggers, 409 U.S. 188,
93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
{¶ 14} Appellant argues that the array was unduly suggestive because the photo of
his face was substantially larger than the other photos, that Detective Applin
acknowledged “purposely blurring” the filler photos, and because in the BMV photo used
he is wearing glasses although none of the witnesses described him as wearing glasses.
5.
These minor variations, which primarily related to details of appearance that may be
readily changed, do not require a finding that the array was impermissibly suggestive.
The array in this case depicted five Caucasian men of approximately the same age. Each
was wearing glasses of a similar type, with similar hair styles and facial hair. Because
the array included individuals “showing no significant variations in hair length,
complexion, age, features, or dress,” the array was not unduly suggestive. See State v.
Thomas, 8th Dist. Cuyahoga No. 88548, 2007-Ohio-3522, ¶ 14.
{¶ 15} Denying the motion to suppress, the trial court found that appellant failed
to meet his burden to demonstrate that the procedure used in compiling and showing the
array to the victims was unduly suggestive. Upon review of the trial court’s finding, we
find that no error occurred. Accordingly, appellant’s first assignment of error is not well-
taken.
{¶ 16} In support of his second assignment of error, appellant asserts that the state
failed to produce legally sufficient evidence as to each element of the offense of felonious
assault. In support of his third assignment of error, appellant asserts that his conviction
was against the manifest weight of the evidence. These arguments will be considered
together as both can be resolved by examining the evidence presented at trial.
{¶ 17} The term “sufficiency” of the evidence presents a question of law as to
whether the evidence is legally adequate to support a jury verdict as to all elements of the
crime. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541(1997). The relevant
inquiry in such cases is “whether, after viewing the evidence in a light most favorable to
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the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus.
{¶ 18} “In contrast, a manifest weight challenge questions whether the state has
met its burden of persuasion.” State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-
Ohio-1394, ¶ 17, citing Thompkins, supra, at 387. In making this determination, the
court of appeals sits as a “thirteenth juror” and, after “reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether, in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” Thompkins, supra, at 386.
{¶ 19} Appellant was convicted of two counts of felonious assault in violation of
R.C. 2903.11(A)(2), which states: “No person shall knowingly * * * cause or attempt to
cause physical harm to another * * * by means of a deadly weapon or dangerous
ordinance.”
{¶ 20} The jury in this case heard testimony on behalf of the state from three
witnesses to the crime, the responding officer and two detectives. The defense presented
one alibi witness.
{¶ 21} Detectives Applin and Kutz each testified at length as to assembling and
presenting the photo array to the witnesses, as summarized above. Next, the state
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presented the testimony of victims Mark Bollinger and Mia Biggert, as well as witness
Kaleigh Rains.
{¶ 22} Biggert testified as to the events of the early morning hours on March 18,
2012. Biggert was staying at the home of her friend Kaleigh Rains and Rains’ brother
Mark Bollinger. At approximately 4:00 a.m., after Bollinger returned to the duplex,
Biggert and Rains went outside to have a cigarette. While the two women were on the
porch, they observed three males walk by the house and then turn around. One of the
males said something the women did not hear. Rains asked them what they had said and
one of the males asked her what she was looking at. At that point, Biggert testified, the
men approached them and it became clear “they were going to beat our asses.” Rains
then went inside to get her boyfriend, who in turn got Bollinger to go outside. Bollinger
walked toward the three males and one of them shot him with pepper spray. Biggert
identified appellant as the individual with the pepper spray. After the male pepper-
sprayed Bollinger, he fired two gunshots in the air and then immediately fired five times
at Bollinger.
{¶ 23} Mark Bollinger testified that, after spending the evening of March 17,
2012, with friends and family, he returned to his apartment at about 4:00 a.m. Shortly
thereafter, he heard commotion and pounding on his door. He looked outside and saw
three men approaching his sister and her friend and screaming at them. Bollinger ran
outside and saw the three men standing on the grass in front of the house. When
Bollinger told the individuals to leave, one of them pulled out a can of pepper spray and
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shot him in the face from about six feet away. Bollinger turned around and backed up,
wiping his face and eyes. He testified that although the pepper spray caused the skin on
his face to burn, it did not hurt his eyes. He then heard shots fired and turned around and
saw an individual he identified in court as appellant shooting a gun in the air. Appellant
then started shooting toward Bollinger and Biggert. Bollinger turned away and was
struck in the foot by a bullet. He received medical attention for his wound. Bollinger
further testified that when he viewed the photo array he was “110 percent” sure the
picture of appellant was the same man that shot him.
{¶ 24} Kaleigh Rains testified that Bollinger returned home in the early morning
hours of March 18, 2012, and woke her up because she had locked the door. At that
point, Rains and Biggert went outside to have a cigarette on the front porch. Rains
testified that three males walked past the house once, turned around and walked by a
second time, calling out to the women and asking what they were looking at. Words
were exchanged and the women told them to leave. When Bollinger went outside, he
also told the individuals to leave. As Bollinger stood there, one of the males sprayed
pepper spray in his face and then “almost immediately” fired gunshots in the air. Rains
testified that when Bollinger turned to walk into the house one of the males started
shooting in Bollinger’s direction. As Rains called the police on her cell phone, the three
men fled down the street and out of sight. Finally, Rains testified that she was “[one]
[h]undred and fifty percent sure” appellant was the person who fired the gun that night.
9.
{¶ 25} The defense presented the testimony of Beronica Lopez, who stated that
appellant was a friend of her daughter’s and was living at her house at the time of the
shooting. Lopez testified that appellant was with her and several other individuals during
the afternoon and evening of March 17, 2012. She testified that she did not go to bed
until about 5:30 or 6:00 a.m. the following morning, and that appellant went to bed
sometime between 1:00 and 2:00 a.m. She reported that she woke appellant up around
4:00 a.m. and made him move to the living room because he had fallen asleep in her
daughter’s bedroom, which was not allowed.
{¶ 26} This court has thoroughly considered the entire record of proceedings in the
trial court and the testimony as summarized above. Bollinger, Biggert and Rains all
identified appellant in court as the individual who pepper sprayed Bollinger and fired
shots at Bollinger and Biggert. They also verified that on March 22, 2012, they identified
appellant in a photo array. All three testified that they were certain of their identifications
and confirmed that the detective who presented the array told them the suspect’s photo
might or might not be included in the array. Additionally, all three witnesses testified
that although the confrontation occurred in the early morning hours the area was lighted
by streetlights and other outdoor lights.
{¶ 27} We find that the state presented sufficient evidence from which, when
viewed in a light most favorable to the state, a rational trier of fact could have found
appellant guilty beyond a reasonable doubt of felonious assault in violation of R.C.
10.
2903.11(A)(2) and the attached firearm specifications. See Jenks, 61 Ohio St.3d 259 at
syllabus, 574 N.E.2d 492.
{¶ 28} As this court has consistently affirmed, the trier of fact is vested with the
discretion to weigh and evaluate the credibility of conflicting evidence in reaching its
determination. It is not within the proper scope of the appellate court’s responsibility to
judge witness credibility. State v. Hill, 6th Dist. Ottawa No. OT-04-035, 2005-Ohio-
5028, ¶ 42. Further, based on the testimony summarized above and the law, this court
cannot say that the jury clearly lost its way or created a manifest miscarriage of justice by
finding appellant guilty of the two charges of felonious assault with firearm
specifications. Thompkins, supra, 78 Ohio St.3d 380 at 387, 678 N.E.2d 541, quoting
State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1983). Accordingly, we find that
appellant’s second and third assignments of error are not well-taken.
{¶ 29} Upon consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
11.
State v. Johnson
C.A. No. L-13-1032
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
12.