State v. Thomann , 2022 Ohio 4264 ( 2022 )

[Cite as State v. Thomann, 2022-Ohio-4264.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220028
TRIAL NO. B-2105429
Plaintiff-Appellee, :
vs. : O P I N I O N.
RYAN THOMANN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: November 30, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Ryan Thomann appeals his robbery conviction, after a jury trial, for
stealing a purse from Nicole Blohm. Raising five assignments of error, Thomann
challenges the trial court’s rulings that the photo lineup was not unduly suggestive
under R.C. 2933.83 and allowing the in-court identification of Thomann by the victim.
He further argues that the conviction was against the manifest weight of the evidence,
the trial court lacked jurisdiction to sentence him, and the trial court improperly
imposed community-control sanctions after sentencing him to a term of incarceration.
For the following reasons, we affirm the trial court’s judgment in part, reverse the
judgment in part, and remand the cause to the trial court.
Pretrial Identification
{¶2} Ryan Thomann filed a motion to suppress the photo lineup
identification alleging that the administered lineup deviated from the statutory
requirements in R.C. 2933.38. Specifically, Thomann alleged that the administrator
was not blind or blinded, could see the photos as Nicole Blohm reviewed them, did not
properly document the nonidentifications, improperly allowed the witness to view the
lineup twice, and did not inform her that the suspect’s photo may not be included in
the lineup. Thomann contended that the administration of the lineup was so
suggestive, there was a substantial likelihood of misidentification.
{¶3} At the hearing on the motion, Chief Bryan Edens, the police chief for the
city of Reading, testified that he administered the lineup to Blohm. Edens had been
present at the scene after the robbery, but he had no recollection of the description of
the perpetrator or knowledge about the subsequent investigation. Edens had viewed
a surveillance video of the robbery, but the video was recorded so far from the robbery,
that it only depicted an altercation between two individuals.
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{¶4} The lineup was recorded, and the recording was admitted as an exhibit.
Before showing Blohm the lineup, Edens informed her that he would show her the
photos twice, and that some of the folders did not contain photos. Blohm told the chief
that she had gotten a good look at the man who robbed her, and that he was in his 20’s
and had pretty skin with close-cut, black hair. The first time she viewed the lineup,
she did not identify any of the individuals. The second time she viewed the photos, the
recording showed that Blohm remarked that the fifth photo looked similar, but she
excluded that individual because the man had blue eyes and the perpetrator had brown
eyes. While viewing the sixth photo, Thomann’s photo, the following exchange
occurred:
Blohm: “This is the closest one, Chief, um however, I see this guy’s hair
is gray, um.”
Edens: “Sometimes these pictures can be aged, you know, cause we have
to get what photos we can of them.”
Blohm: “This is the closest, the closest guy right there.”
Edens: “With what certainty do you feel that could be the person then?”
Blohm: “Maybe 75%. Like I said, Chief, this guy was clean-shaven, a
nice straight nose like this, and a very short haircut like this.”
{¶5} Blohm further explained that she is five feet, five inches tall, and he was
only a bit taller than that, and if she could see him in person, it would help. Blohm
asked if any of the photos were of the person whose DNA was found on the backpack
left at the scene. Edens told her that he did not know. Her final comment was that the
perpetrator was clean-shaven, and she wanted to see the man in person because the
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photographs did not depict the skin tone, and that was why she described the
perpetrator as Latino or Hispanic.
{¶6} The photo of Thomann that was shown to Blohm was taken nine days
after the robbery. Thomann had a goatee and a mustache in the photo. Edens was
presented with the first lineup shown to Blohm. The administrator of that lineup
noted that Blohm described the perpetrator as “clean-shaven” and Hispanic.
Thomann’s photo did not match that description.
{¶7} The final witness was Blohm. Blohm acknowledged that her description
of the perpetrator was a clean-shaven, male Hispanic with very dark hair and no gray,
a very short haircut, with no facial hair. The man was nicely dressed in a gray sweat
suit and gym shoes. The person who robbed her dropped a backpack at the scene.
Prior to the line-ups, Officer Lattier had informed her that DNA had been found on
the backpack, and that they had developed a suspect based on the DNA. Admittedly,
Blohm wanted to identify the person who robbed her.
{¶8} On cross-examination, Blohm confirmed that the man in the
photograph was the person who stole her purse. She had viewed the person twice,
once when he walked past her, and once when they were fighting for the purse. She
was face-to-face with him and got a very good look at him.
{¶9} After Blohm’s testimony, the motion was continued for a decision to
allow the court to review the exhibits and read the relevant case law. The court found
that Chief Edens met the definition of a blind administrator. Edens advised Blohm
that the person may not be included in the lineup, that she should not feel pressured
to pick someone, and that he did not know the identity of the perpetrator. Edens
utilized the required folder system and provided appropriate instructions. The fact
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that Edens showed her the photos twice, even though Blohm did not request a second
viewing, did not make the lineup impermissibly suggestive.
{¶10} The court further found that Edens did not complete all the forms, but
he recorded the lineup which captured all of the required information. Finally, Edens
did not give Blohm any cues as to whether she identified the suspect. Considering the
totality of circumstances, the court found that the lineup was not unnecessarily
suggestive and overruled the motion to suppress.
{¶11} In his first assignment of error, Thomann argues that the trial court
erred when it denied the motion to suppress the identification because the photo
lineup procedure failed to comply with R.C. 2933.83, was unduly suggestive and failed
to result in a reliable identification.
{¶12} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. An appellate court must accept the trial court’s findings of fact if they are
supported by some competent, credible evidence. Id. Accepting those facts as true,
the appellate court must then independently determine, without deference to the trial
court’s judgment, whether the facts satisfy the applicable legal standard. Id.{¶13} “Due process requires suppression of pre-trial identification of a
suspect only if the identification procedure was so impermissibly suggestive as to give
rise to a very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S.
188, 196-197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). First, the defendant must show that
the lineup was unduly suggestive. “A lineup is unduly suggestive if it steers the witness
to one suspect, independent of the witness’s honest recollection.” (Citations omitted.)
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208. “If the
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identification procedure was not unfairly suggestive, any remaining questions as to
the identification’s reliability go to the weight of the identification, not its
admissibility, and no further inquiry into the reliability of the identification is
required.” Id. “The remedy for an alleged violation of R.C. 2933.83 is cross-
examination about the police procedures at trial–not suppression of the witness’s
identification.” State v. Stone, 1st Dist. Hamilton No. C-140028, 2014-Ohio-4444, ¶
31.
{¶14} Thomann first contends that Edens was not a blind or blinded
administrator because he was present at the initial crime scene and must have been
“aware of the suspect’s description.” However, Edens testified that he did not recall
the initial description, and the video recording confirms that he told Blohm that he
was unaware of any suspect’s identity. Next, Thomann alleges that Edens was able to
view the photos while Blohm was reviewing them due to his proximity to her during
the lineup, so he no longer qualified as a blinded administrator. Edens testified that
he did not view the photos, and the video does not contradict his testimony. Moreover,
Edens directed Blohm multiple times not to choose anyone unless she was certain and
not to guess. He emphasized the importance of not implicating an innocent person.
{¶15} Thomann asserts that Blohm did not inform Edens whether photos 1-5
was the person who robbed her, Edens did not note the nonidentifications on the form,
and Edens showed her the photos for a second time even though she did not request a
second viewing. But the video makes it clear that Blohm shook her head no after first
viewing photos 1-5. She studied the sixth photo before closing the folder and did not
shake her head no. Although Edens did not note the nonidentifications on the form,
the video recording depicts the nonidentifications. On the second viewing, Blohm
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informed Edens of the two photos that she thought looked like the man who robbed
her.
{¶16} Thomann further claims that Blohm “indicated she was aware that a
suspect’s picture was in the photo array,” but the video reflects that Blohm asked if the
lineup included the man who left DNA on the backpack. Edens responded that he did
not know. Additionally, Edens instructed her that even if the police suspected a
specific individual, the police could be wrong, and she should not feel bad if she did
not recognize anyone.
{¶17} Although Edens did not strictly comply with R.C. 2933.83, Thomann
did not establish that Eden’s deviation from the statute resulted in an unduly
suggestive lineup. Because the lineup was not unduly suggestive, it was admissible,
and the identification’s reliability was an issue for the trier of fact to decide. See State
v. Savage, 1st Dist. Hamilton No. C-180413, 2019-Ohio-4859, ¶ 36. We overrule the
first assignment of error.
In-court Identification
{¶18} In his second assignment of error, Thomann contends that the trial
court erred by allowing Blohm to make an in-court identification of Thomann because
the identification was influenced by the suggestive pretrial lineup.
{¶19} Prior to trial, Thomann filed a motion in limine requesting that Blohm
be prohibited from identifying Thomann in court. The basis of the motion was the fact
that Blohm observed Thomann at the hearing on the motion to suppress, that
Thomann was the only male in court, and that Blohm did not positively identify
Thomann at the lineup. She merely stated that his photo looked the closest to the
perpetrator.
{¶20} The trial court overruled the motion finding that Blohm had previously
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that she had a good view of Thomann when he walked toward her and when
he grabbed her and they were standing face-to-face. Blohm observed him at two in
the afternoon while wearing her prescription glasses. At the time, Blohm gave a
detailed description of her attacker. Although she described the perpetrator as being
younger than Thomann, Blohm also said that he was substantially younger than she
was, which was accurate because she was 78 years old. Blohm initially thought he was
Hispanic, but further explained at the hearing on the motion to suppress that she was
unsure of his nationality and initially believed he was Hispanic because he reminded
her of someone who taught her salsa dancing, and that person was Latino. Blohm
identified his photograph and confirmed the identity at the suppression hearing.
Although the offense occurred 18 months prior, Blohm identified him in the interim
during the lineup and the suppression hearing. Under the totality of these
circumstances, the court concluded that there was not a substantial likelihood of
irreparable misidentification, and that the defense arguments focused on the
credibility of the identification, not the admissibility.
{¶21} During the trial, Blohm was asked if she saw the person who attacked
her in court. She responded, “Yes,” and identified Thomann as her attacker. Later,
she was asked why she was certain of the identification, and stated, “He looks exactly
like the picture that - - that I was shown. * * * I don’t know of any other reason.” When
asked again if she was certain that Thomann was the man who grabbed her purse, she
responded, “Yes.”
{¶22} Thomann contends that the trial court abused its discretion when it
allowed Blohm to provide an in-court identification because the identification was
based on the suggestive photo lineup procedures and not her independent
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recollection.
{¶23} In-court identifications are admissible “even where the identification
procedure is improperly conducted, if the identification comes from ‘some
independent recollection and observation of the accused by the witness’ as established
under the totality of the circumstances.” State v. Norman, 137 Ohio App.3d 184, 201,
738 N.E.2d 403 (1st Dist.1999), quoting State v. Jackson, 26 Ohio St.2d 74, 77, 269
N.E.2d 118 (1971). When considering the reliability of an in-court identification,
relevant factors to consider include “the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime and the
confrontation.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
When an identification is “the result of observations at the time of the crime,” it is
admissible. Norman at 201.
{¶24} First, we have already concluded that photo lineup was not
impermissibly suggestive. Moreover, as pointed out by the trial court, Blohm viewed
Thomann twice at the time of the robbery, testified that she was certain that he robbed
her, and the length of time between the crime and identification was not significant.
Although there were slight discrepancies between Blohm’s initial description and
Thomann’s photograph, any discrepancy would go to the weight of the testimony of
the witness, not the admissibility of the identification. Id. at 202.
{¶25} Thomann contends that Blohm’s trial testimony that she was certain of
her identification because “he look[ed] exactly like the picture,” established that she
had no independent recollection based on her observations of him. However, Blohm
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confirmed twice that Thomann was the man who robbed her, and that she was
confident of her identification. Accordingly, we overrule the assignment of error.
Manifest Weight of the Evidence
{¶26} Next, Thomann argues that the conviction was against the weight of the
evidence. When considering a challenge to the weight of the evidence, an appellate
court must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage
of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We
afford substantial deference to credibility determinations because the factfinder sees
and hears the witnesses. See State v. Glover, 1st Dist. Hamilton No. C-180572, 2019-
Ohio-5211, ¶ 30. If a reasonable juror could find the eyewitness testimony to be
credible, the testimony is sufficient to support the conviction. State v. Humberto, 196
Ohio App.3d 230, 2011-Ohio-3080, 963 N.E.2d 162, ¶ 12 (10th Dist.).
{¶27} Thomann again challenges the reliability of the identification made by
Blohm. As previously discussed, the identification procedures were not unduly
suggestive. Moreover, any discrepancies in Blohm’s description of the robber were
subject to rigorous cross-examination. The trier of fact was in the best position to
determine Blohm’s credibility, and the jury found Blohm’s testimony credible. We
cannot say that the trier of fact clearly lost its way and created such a manifest
miscarriage of justice as to warrant reversal. We overrule the third assignment of
error.
Jurisdiction to Sentence
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{¶28} In his fourth assignment of error, Thomann claims the trial court lacked
jurisdiction to sentence him because the written jury verdict was not filed and made
part of the record in accordance with Crim.R. 31(A) and R.C. 2945.78, rendering the
sentence a nullity.
{¶29} Prior to deliberations, the trial court provided the jurors with the verdict
forms. After deliberations were complete, the verdict form was given to the trial court
and read aloud in open court. The foreperson confirmed that guilty was the verdict of
the jury. Then Thomann requested that the jurors be polled. Each juror confirmed
that guilty was his or her true verdict. However, the verdict form was not filed and
entered on the docket.
{¶30} Because the verdict form was not entered on the docket, Thomann
contends that the trial court lacked jurisdiction to impose sentence. The record
reflects that the trial court reviewed the verdict form and read the verdict aloud in
open court. The jury was polled, and each juror confirmed the accuracy of the verdict.
Although the verdict form was not filed, the docket reflects that the verdict, conviction,
and sentence were properly journalized in the judgment entry filed on January 13,
2022. Because the verdict was properly journalized, the failure to file the verdict form
does not constitute error. See State v. Wright, 8th Dist. Cuyahoga No. 93068, 2011-
Ohio-3575, ¶ 64, citing State v. Clark, 2d Dist. Montgomery No. CA 9722, 1987 Ohio
App. LEXIS 5485 (Jan. 6, 1987) (Concluding that “[t]he filing of such forms is a
ministerial act and, however important, it does not affect a substantial right when the
otherwise perfect record of the proceedings at trial and the final judgment fully
disclose the delivery and acceptance without objection of valid verdicts by the jury.”).
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{¶31} Thomann argues that the failure to file the verdict form nullified the
sentencing entry. Thomann relies on an unreported decision from this court in State
v. Cosby, 1st Dist. Hamilton No. C-860508, 1987 Ohio App. LEXIS 7761 (July 1, 1987).
In Cosby, this court dismissed an appeal for lack of a final appealable order because
the verdict form had not been journalized. Id. at *2. However, that decision predates
the Ohio Supreme Court’s determination that, “A judgment of conviction is a final
order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the
conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp
indicating the entry upon the journal by the clerk.” State v. Lester, 130 Ohio St.3d
303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. Here, we have
a final order, and Cosby is not applicable. Accordingly, we overrule the assignment of
error.
Sentencing
{¶32} In his fifth assignment of error, Thomann contends that the trial court
erred by imposing a stay-away order and recommending, if possible, that Thomann
engage in drug-abuse and mental-health treatment and victim-awareness and anger-
management programming while incarcerated.
{¶33} “A no-contact order is a community control sanction. A trial court can
either impose community control or incarceration.” State v. Beauchamp, 1st Dist.
Hamilton No. C-210340, 2022-Ohio-738, ¶ 17. The trial court imposed incarceration
and was not authorized to impose a no-contact order. The state also concedes the
error.
{¶34} With respect to the various treatment recommendations, we cannot
conclude that the trial court erred in recommending that Thomann participate in the
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various programs offered by Ohio Department of Rehabilitation and Correction. See
State v. Ledford, 2d Dist. Greene No. 2018-CA-25, 2019-Ohio-4367, ¶ 30 (concluding
the imposition of a sentence of incarceration with a recommendation for a drug
treatment program was not error).
{¶35} We sustain the assignment of error in part, and overrule it in part, and
remand the cause to the trial court to vacate the no-contact order.
Conclusion
{¶36} We sustain in part Thomann’s fifth assignment of error and remand the
cause to the trial court with instructions to vacate the no-contact order. We affirm the
trial court’s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
WINKLER, and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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