State v. Flagg

[Cite as State v. Flagg, 2018-Ohio-1702.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170015
TRIAL NO. B-1502174
Plaintiff-Appellee, :
O P I N I O N.
vs. :
NIKOLE FLAGG, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 2, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Presiding Judge.
{¶1} Following a second jury trial, defendant-appellant Nikole Flagg, who
is a drug addict, was convicted of aggravated murder, aggravated robbery, tampering
with evidence and gross abuse of a corpse. Flagg repeatedly stabbed her mother to
death, doused the body and crime scene with bleach, and stole her mother’s cellular
phone. She then used the phone as currency to purchase crack cocaine from her
drug dealer, Matthew Barwick. The trial court sentenced Flagg to life without parole
for the aggravated murder, 11 years for the aggravated robbery, three years for
tampering with evidence and one year for gross abuse of a corpse. The trial court
ordered the sentences to be served consecutively, for an aggregate sentence of life
without parole, plus 15 years.
{¶2} Flagg now appeals her convictions, arguing that she was not the
perpetrator of these crimes, that her second trial violated double jeopardy
protections in the state and federal constitutions, that the trial court erroneously
admitted evidence of other weapons, that she had received ineffective assistance of
counsel and that the offenses of aggravated murder and aggravated robbery were
allied and should have been merged for purposes of sentencing. Finding no merit to
these arguments, we affirm the trial court’s judgment.
First Trial
{¶3} Prior to the first jury trial, the trial court presided over a three-day
hearing on Flagg’s motion in limine, where she sought to prevent the state from
referencing or admitting her prior conviction for voluntary manslaughter. The trial
court granted her motion.
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{¶4} During opening arguments, co-counsel for the defense told the jury
two separate times that although Flagg is a crack addict and a thief, she does not kill.
There was no objection to these comments by the state. At the close of opening
arguments, the trial court excused the jury and asked the state if they wanted to use
Flagg’s prior conviction at trial despite the fact that the court had granted Flagg’s
motion in limine. The trial judge said he believed that defense counsel’s comments
may have opened the door for the state’s use of the prior conviction, and asked the
parties to research and argue the issue. Ultimately, the trial court ruled that defense
counsel’s comments had opened the door, and, based on that ruling, defense counsel
moved for a mistrial on the grounds of ineffective assistance of counsel. The trial
judge said that he had “anticipated your motion and I expected you to make it.” The
court then took the motion under submission, and ultimately granted the mistrial the
next day.
Second Trial - Facts
{¶5} The parties do not dispute that Myrvinia Lowe, Flagg’s mother, was
murdered shortly before 3:00 p.m. on Friday, April 10, 2015, in her apartment
located in the Pleasant Ridge neighborhood of Cincinnati. Lowe failed to show up for
her second-shift job at Children’s Hospital, which was unusual for her. A month
prior to her murder, her son, Maurice Allen, had been living with her, sleeping on an
air mattress in the living room and often playing the stereo at night. Allen testified
that Lowe was concerned about Flagg’s drug problem and was scared of her.
Consequently, Lowe would hide her cash in her bible, her bra, and under the trash-
can liner. Although Allen had warned his mother against letting Flagg in her
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OHIO FIRST DISTRICT COURT OF APPEALS
apartment when he was not there, Lowe would occasionally pay Flagg to style her
hair.
{¶6} On April 9, 2015, Flagg’s alleged boyfriend refused to rent a room to
her because she already owed him money and he believed that she would spend what
money she had on drugs and not rent. Instead, he drove her to her mother’s
neighborhood, where she spent a night in the woods because she did not have access
to her mother’s apartment.
{¶7} On Friday morning, Lowe let Flagg into her apartment to style her
hair. Cellular phone records show that Flagg had contacted her drug dealer,
Matthew Barwick, several times that morning, and he eventually met her mid-
morning “out back” of her mother’s apartment and sold her $20 worth of crack
cocaine, which he testified was “more than [a] one time use.” Shortly after noon,
Allen called his mother from “the Hyde Park area” asking for directions to a health-
food store. He heard Flagg in the background, and told his mother to make Flagg
leave, but she did not. The phone call ended at 12:44 p.m. Allen later clocked into
work at 1:56 p.m. in Mason, Ohio.
{¶8} From 1:57 p.m. until 2:26 p.m., Flagg made 16 phone calls to Barwick.
Barwick testified that in one of the calls Flagg had told him she had a cellular phone
and credit cards to give him in exchange for drugs. Sometime after 2:26 p.m.,
Barwick met Flagg outside of her mother’s apartment. When she entered his car, she
offered him a red Verizon phone, later determined to belong to her mother, and
credit cards she said she had obtained from the laundry room in her mother’s
apartment building. Barwick took the phone, refused the credit cards, and gave her
drugs. He then drove her to Kandy Loudermilk’s house, where he sold Loudermilk
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OHIO FIRST DISTRICT COURT OF APPEALS
$40 worth of drugs. Barwick testified that on the drive to Loudermilk’s house he had
the car windows down and had not smelled bleach or seen blood on Flagg.
{¶9} An expert in historical cellular phone analysis testified, based on which
tower the cellular phones were “pinging,” that Flagg’s cellular phone had been in the
vicinity of the crime scene until 2:12 p.m. on the day Lowe was murdered. His
analysis also demonstrated that Barwick had met Flagg that afternoon and had
driven her to Loudermilk’s house.
{¶10} Loudermilk testified that Flagg had told her that her mother had not
paid her the money she had been expecting for styling her hair. Apparently, Lowe
had given Flagg the air mattress that Allen used to sleep on, and Flagg still owed her
money for it. Flagg arrived at Loudermilk’s house with a trash bag that she kept near
her.
{¶11} Eventually, Flagg ended up on the doorstep of her boyfriend’s home,
the night of April 10, 2015. He testified that she looked “rough.” He allowed her to
stay at his residence for the next few weeks, until she moved into her own apartment.
{¶12} Allen testified that he called his mother’s cell phone after his shift was
over on April 10, but the call went to voicemail. He was concerned because there was
rap music playing on her voicemail and he knew she did not like that type of music.
On Saturday night, he called her phone again and heard the same message. At this
time, he was commuting to work from Columbus, Ohio, where his girlfriend lived.
He contacted the Cincinnati Police in the early morning hours of April 12, 2015, and
asked them to check on his mother.
{¶13} Police Officer Roy responded to Lowe’s apartment and heard music
coming from the apartment. Officer Roy entered the apartment through a window,
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OHIO FIRST DISTRICT COURT OF APPEALS
because the apartment door was locked. Upon entering the apartment, he smelled a
strong odor of bleach and saw Lowe lying between the kitchen and the dining room.
There was blood splattered all over the kitchen, and it appeared as if Lowe had been
in the process of packing food for work. Lowe’s shirt and bra had been pulled up and
her pants had been pulled down. Bleach had been doused over the crime scene and
on Lowe’s body, which left post-mortem burns.
{¶14} Lowe had been stabbed 12 times in the head, neck and torso. Two of
the stab wounds had cut through Lowe’s ribs and one had pierced her aorta, resulting
in her death. Homicide detective Jenny Luke testified that it had appeared that Lowe
had put up a fight. In what the coroner described as a defensive wound, one of
Lowe’s fingers had been nearly cut off. Lowe had also been stabbed three times in the
upper back. There were four knives found in Lowe’s kitchen—one in a drawer, two in
a knife block and one on the counter, which appeared to have blood on it, but it was
later determined that it was bits of tomato. A folding knife that contained black and
white fibers was later discovered at a residence, which was of significant interest
during the investigation. And Flagg’s black socks, with what was later determined to
be bleach stains, were found in her new apartment.
{¶15} The knives from the kitchen as well as the folding knife were
introduced into evidence. The kitchen knives had no blood, fingerprints or DNA on
them. The trace-evidence expert testified that the fibers found on the folding knife
could have come from the shirt Lowe had been wearing at the time of her murder. A
report by the deputy chief coroner, which was admitted into evidence, stated that the
folding knife could have caused the wounds on Lowe’s upper back, but it could not
have caused the fatal stab wounds.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} There was no cash, credit cards, car keys or apartment key found in
Lowe’s apartment. The apartment door had been locked. On the bookshelf, by the
door, was a paper towel in the shape of a door knob, as if someone had used it when
opening the door. Flagg’s DNA was found on that paper towel.
{¶17} Allen’s DNA was found on the power button to the stereo, and his DNA
profile could not be excluded as a contributor to the DNA found on the bottle of
bleach under Lowe’s kitchen sink. Detective Luke testified that when she had told
Allen that his mother had been killed he began to cry. She verified that he had
clocked into work at 1:56 p.m. on the day of the murder.
{¶18} Detective Luke interviewed Flagg on April 12, 2015. Flagg told the
detective that she had spent Thursday night at her boyfriend’s home, and then went
to her mother’s apartment the next morning to style her mother’s hair. She said that
during her visit her mother had spoken to Allen on the phone. Flagg said she stayed
until 1:00 p.m., and had made plans with her mother to see a movie the next day.
Flagg said that she had asked her mother for a ride, but her mother refused because
she had to get ready for work. Flagg said she took the bus when she left her mother’s
house, but had spotted Barwick at a Sunoco station, and had exited from the bus to
ask him for a ride to her friend’s house. She said that she had spent Friday night
with her boyfriend, and had called her mother the next day to go to a movie, but her
mother had not picked up the phone. She indicated that her mother’s voicemail had
rap music on it, which she thought was strange.
{¶19} Detective Luke testified that she had reviewed videos from the Metro
bus and had determined that Flagg had never been on it. She had also reviewed the
security camera footage from the Sunoco station and had determined that Flagg and
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OHIO FIRST DISTRICT COURT OF APPEALS
Barwick were never there. Luke further testified that there was no record, from
either Flagg’s cellular phone or her boyfriend’s home and cellular phones, that Flagg
had called her mother’s phone the day after the murder. Luke testified that the day
after she had interviewed Flagg, Flagg had left an angry voicemail telling Luke to
stop talking to other people about her mother and that Luke should only speak to
her.
{¶20} As part of the investigation, Luke texted Lowe’s cellular phone,
indicating that she was a homicide detective and that she was looking for the phone.
Barwick agreed to leave the cellular phone at a specific location for Luke to retrieve.
Barwick ultimately appeared at trial, testifying that on Saturday, April 11, 2015, Flagg
had called him and told him to get rid of the red cell phone because her “mother was
tracing it.” She then called him on Sunday, upset, saying that her mother had been
robbed and was taken away in an ambulance.
{¶21} After a second interview with police, where Flagg defensively asked
police where they had found her mother’s cellular phone, she was arrested for the
charged offenses.
Double Jeopardy
{¶22} In her first assignment of error, Flagg contends that her second jury
trial violated the constitutional prohibition against double jeopardy. Initially, we
note that Flagg did not object to the second trial or raise the issue of double jeopardy
to the trial court. A reviewing court may, but is not required to, consider a
constitutional issue raised for the first time on appeal where the rights and interests
involved may warrant it. In re M.D., 38 Ohio St. 3d 149, 527 N.E.2d 286 (1988); see
State v. Jones, 12th Dist. Clermont No. CA2001-07-061, 2003-Ohio-815, ¶ 5.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Where a defendant in a criminal trial successfully moves for a mistrial,
he may invoke the bar of double jeopardy in a second effort to try him only if the
conduct giving rise to the successful motion for a mistrial was prosecutorial or
judicial conduct intended to provoke the defendant into moving for a mistrial.
Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982).
{¶24} Flagg argues that her second trial should have been barred because the
trial court’s conduct—announcing to the parties that defense counsel may have
opened the door to the admission of a prior conviction—was intentionally calculated
to cause a mistrial. But this is not supported in the record. The trial court was
unclear as to whether defense counsel’s comments in opening argument opened the
door to the admission of the prior conviction and asked for research on the issue.
After determining that the prior conviction could be admitted, the trial judge stated
that he anticipated that the defense would move for a mistrial if he ruled a certain
way. He also stated, prior to making his ruling, “I wish I wasn’t in this situation
frankly.” The record does not demonstrate that the court was intentionally trying to
cause a mistrial. At most, the record shows that the court recognized a possible
future problem. Given the amount of litigation that occurred prior to the first trial
over the issue of whether the prior conviction should have been allowed in, and given
the fact that a ruling was made in favor of the defense on that issue, the trial court
had cause to address defense counsel’s comments in opening argument.
{¶25} Because the trial court’s actions were not intentionally calculated to
cause Flagg to request a mistrial, we overrule the first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Other Weapons Evidence
{¶26} In the second assignment of error, Flagg argues that the trial court
erred in admitting other weapons evidence in violation of Evid.R. 404(B) and the
Due Process Clause of the state and federal constitutions.
{¶27} Because Flagg did not object to the admission of the four kitchen
knives found at the crime scene or the admission of the folding knife found at a
different residence, we review the admission of the knives for plain error. To
constitute plain error, the error must be obvious and outcome determinative; i.e., it
must have affected the outcome of the trial. State v. Lewis, 1st Dist. Hamilton Nos.
C-050989 and C-060010, 2007-Ohio-1485, ¶ 39; State v. Barnes, 94 Ohio St. 3d 21,
2002-Ohio-678, 759 N.E.2d 1240.
{¶28} Flagg argues that admitting the kitchen knives into evidence, where it
was undisputed that none were the murder weapon, was prejudicial error. She cites
to State v. Thomas, 152 Ohio St. 3d 15, 2017-Ohio-8011, 92 N.E.3d 821, in support.
In Thomas, the defendant was found guilty of stabbing to death a woman outside of
the bar where she had been employed and disposing of her body in the woods behind
the bar. The Ohio Supreme Court held that the admission of the set of knives that
had been found in the defendant’s home contravened Evid.R. 404(B) and amounted
to plain error where the state knew that the knives had not been used in connection
with the murder and where the prosecutor had relied on the knives to “describe
Thomas as an owner of ‘full Rambo combat knives’ with the intent to have the jury
infer that Thomas is a dangerous person of violent character.” Id. at ¶ 45.
{¶29} This case is distinguishable from Thomas. First, the four kitchen
knives were found at the crime scene, and not in an unrelated location as the knives
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OHIO FIRST DISTRICT COURT OF APPEALS
had been in Thomas. Second, the prosecutor in the instant case told the jury during
closing that the knives had been admitted to show the extent of the police
investigation, and acknowledged that the knives did not have any blood or DNA on
them. Thus, unlike in Thomas, the knives had not been introduced to show that
Flagg was a violent person. Because the knives were found at the scene and admitted
to show the extent of the investigation, we hold that the trial court did not err in
admitting the knives into evidence.
{¶30} With respect to the folding knife, we also cannot say that it was error
for the trial court to admit it into evidence where that knife contained fibers that the
trace-evidence expert testified could have come from the shirt Lowe had been
wearing the day she was murdered, and where the coroner’s report indicated that the
folding knife could have made the three stab wounds on Lowe’s upper back that
would have had to have gone through her shirt.
{¶31} Based on the foregoing, we overrule Flagg’s second assignment of
error. We address the remaining assignments of error out of order for purposes of
clarity.
Sufficiency and Weight
{¶32} In her fifth assignment of error, Flagg contests the sufficiency and
weight of the evidence underlying her convictions. When reviewing a challenge to
the sufficiency of the evidence, we must determine, after viewing the evidence in a
light most favorable to the prosecution, whether any rational trier of fact could have
found the essential elements of the offenses proved beyond a reasonable doubt. See
State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. To reverse a conviction on the manifest weight of the evidence, this court
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must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether the trier of fact
clearly lost its way and created a manifest miscarriage of justice in finding the
defendant guilty. See State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d
541 (1997).
{¶33} Under this assignment, Flagg does not contest that an aggravated
murder, which requires proof of a specific intent to kill, and an aggravated robbery
occurred, and she does not contest that the scene was tampered with or that Lowe’s
body was desecrated. The only contested issue is whether the state proved she was
the perpetrator of those crimes. Viewing the evidence in a light most favorable to the
state, we hold there was sufficient evidence to find Flagg guilty of the charged
offenses. Flagg concedes that the evidence shows that her mother was killed prior to
3:00 p.m. on Friday, April 10, 2015. By Flagg’s own admission, she was at her
mother’s apartment until shortly after 1:00 p.m. Starting around 1:30 p.m., Flagg
called Barwick at least 16 times in a half-hour period. Barwick testified that he met
Flagg outside of her mother’s apartment between 2:00 p.m. and 2:30 p.m. on April
10, 2015, where she gave him her mother’s cellular phone in exchange for drugs. The
paper towel most likely used to open the door of the apartment had Flagg’s DNA on
it.
{¶34} We also hold that the jury did not create a manifest miscarriage of
justice by finding Flagg guilty of these crimes. Although Flagg argues that Allen, her
half-brother, was most likely the killer, we note that police had verified that he had
clocked into work at 1:56 p.m. The jury could have reasonably believed that it was
not possible for Allen to have had time kill his mother a little after 1:00 p.m., douse
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OHIO FIRST DISTRICT COURT OF APPEALS
the apartment with bleach, and then arrive at his job in Mason, Ohio, at 1:56 p.m;
especially in light of the fact that the evidence showed that Flagg’s cellular phone was
still near the crime scene at 2:12 p.m. that day. Flagg also argues that Allen’s DNA
and not hers was found on the stereo button, but he had lived there up until a month
prior to the murder, and it is reasonable that his DNA would still be present in the
home. Finally, Flagg argues that Barwick’s testimony was unreliable as he was a
drug dealer who had pending felony charges against him. But the historical-analysis-
of-cellular-phones expert’s testimony confirmed Barwick’s testimony regarding the
location of each person’s cellular phones on Friday, April 10th. Further, the jury was
in the best position to judge the credibility of witnesses and determine the weight to
be given to the evidence. State v. Blakenburg, 197 Ohio App. 3d 201, 2012-Ohio-
1289, 966 N.E.2d 958, ¶ 114 (12th Dist.). Therefore, we will not overturn a
conviction on the manifest weight of the evidence unless the evidence weighs heavily
against the conviction, which it does not here.
{¶35} The fifth assignment of error is overruled.
Allied Offenses
{¶36} In her third assignment of error, Flagg contends that the offenses of
aggravated murder and aggravated robbery were allied under R.C. 2941.25, and that
the trial court erred by not merging the offenses at sentencing. We disagree.
{¶37} This court reviews the trial court’s R.C. 2941.25 determination de
novo. State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.
Flagg did not object at the sentencing hearing to the imposition of multiple sentences
for these offenses. She has therefore forfeited this issue absent a showing of plain
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error. See State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶
31; Crim.R. 52(B).
{¶38} Under R.C. 2941.25, a trial court must merge offenses if the conduct of
the defendant can be construed to constitute two or more allied offenses of similar
import, and this conduct shows that the offenses were not committed separately or
with a separate animus. State v. Sanders, 1st Dist. Hamilton Nos. C-140579 and C-
140580, 2015-Ohio-5232, ¶ 46. Thus, separate convictions are permitted for allied
offenses if the offenses were (1) dissimilar in import or significance, (2) committed
separately, or (3) committed with a separate animus or motivation. Id. A reviewing
court may end its analysis upon finding that any one of the three applies. State v.
Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 83.
{¶39} In Sanders, and State v. Tibbs, 1st Dist. Hamilton No. C-100378, 2011-
Ohio-6716, this court held that where an offender’s conduct demonstrated a purpose,
or specific intent, to kill while in the course of committing an aggravated robbery, the
two offenses were committed with a separate animus and thus were separately
punishable under R.C. 2941.25(B). Sanders at ¶ 51; Tibbs at ¶ 48. As in Sanders and
Tibbs, the jury here returned a guilty verdict for aggravated murder in violation of
R.C. 2903.01(B), after being instructed that “[a]person acts purposely when it is her
specific intention to cause a certain result. It must be established in this case that at
the time in question there was present in the mind of the defendant a specific
intention to cause the death of [Lowe].” Because the jury determined that Flagg had
a specific intent to kill Lowe by finding her guilty of aggravated murder, and because
we ratified that finding by rejecting Flagg’s weight-and-sufficiency-of-the-evidence
assignments of error, the aggravated-murder offense was committed with a separate
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animus or motivation from the aggravated-robbery offense, and thus the two
offenses did not merge under R.C. 2941.25(B). Id.; see State v. Ruff, 143 Ohio St. 3d
114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of the syllabus.
{¶40} Because the trial court did not err in failing to merge the offenses at
sentencing, the third assignment of error is overruled.
Counsel
{¶41} In her fourth assignment of error, Flagg contends she was deprived of
her right to effective representation of counsel at trial.
{¶42} Flagg argues that she received ineffective assistance of counsel because
her counsel failed to (1) move to dismiss the second trial on double jeopardy
grounds, (2) object to the admission of the knives, and (3) raise the issue of allied
offenses at sentencing. But, based on our resolution of those assignments of error
dealing with those issues, Flagg cannot demonstrate that trial counsel’s performance
fell below a reasonable standard of representation or that she was prejudiced. See
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Accordingly, the fourth assignment of error is overruled.
{¶43} We, therefore, affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM and ZAYAS, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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