[Cite as State v. Flagg,
2019-Ohio-3032.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-18-43
v.
ANDREW FLAGG, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 18-CR-0327
Judgment Affirmed
Date of Decision: July 29, 2019
APPEARANCES:
Todd A. Workman for Appellant
Nathan R. Heiser for Appellee
Case No. 9-18-43
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
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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
Sheriff’s 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 Sheriff’s 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
1
The blind administrator testified at trial but not at the suppression hearing.
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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
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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
2
The trial court stated that the purpose of the use of the blank pages is so that the person doing the
identification does not know how many individuals she is about to view.
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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
3
Marie testified that Flagg was with a woman at the time.
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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 house5, 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 Sheriff’s 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
4
John Timmons testified at trial that he purchased fake money for his children in the fall of 2017 on wish.com.
He testified that he wanted his children to learn to count money and “play store.” He indicated that he
received hundreds and twenties, but they had bright pink Chinese writing on them. Timmons testified that
his children passed them out to other children in the neighborhood, including Flagg’s children. When the
police came to speak with him, Timmons turned over the fake money he had remaining in the house.
5
They also had an intern with them.
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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 had jurisdiction to hear the case
as part of an ongoing course of criminal conduct.
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{¶17} On October 19, 2018, the matter proceeded to sentencing. Flagg was
placed on twelve months of community control on each count, with a number of
specified conditions. He was notified that if he violated his community control he
would receive nine months in prison on each count. A judgment entry
memorializing Flagg’s sentence was filed October 23, 2018. It is from this
judgment that Flagg appeals, asserting the following assignment of error for our
review.
Assignment of Error
The trial court erred by failing to suppress evidence of
identification of Appellant from an improper photo lineup that
was unduly suggestive and violated the Constitutional rights of
Appellant.
{¶18} In Flagg’s assignment of error, he argues that the trial court erred in
overruling his suppression motion. Specifically, he contends that the Hardin County
photo lineup blatantly disregarded the rules for administering a photo lineup
pursuant to R.C. 2933.83, that the photo lineup was unduly suggestive, and that
given the totality of circumstances there was clear opportunity for misidentification.
Standard of Review
{¶19} “Appellate review of a decision on a motion to suppress presents a
mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–
Ohio–5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge
of the credibility of the witnesses and the weight to be given to the evidence
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presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist.2000). Therefore,
when an appellate court reviews a trial court’s ruling on a motion to suppress, it
must accept the trial court’s findings of facts so long as they are supported by
competent, credible evidence. State v. Roberts,
110 Ohio St.3d 71, 2006–Ohio–
3665, ¶ 100. The appellate court must then review the application of the law to the
facts de novo.
Burnside at ¶ 8.
{¶20} In specifically adjudicating a motion to suppress eyewitness
identifications under R.C. 2933.83(C)(1), a trial court must consider evidence of a
failure to comply with the required array procedures. However, the statute does not
provide an independent basis to suppress evidence, and a trial court errs in solely
relying on the statute in suppressing an identification. State v. Lindsey, 8th Dist.
Cuyahoga No. 106111, 2019-Ohio-782, ¶ 67. The overriding analysis remains
whether the procedure was “impermissibly suggestive.” State v. Wells, 8th Dist.
Cuyahoga No. 98388,
2013-Ohio-3722, ¶ 84, citing State v. Henry, 6th Dist. Lucas
No. L-11-1157,
2012-Ohio-5552 (failure to strictly comply with blind administrator
component does not necessarily result in reversible error).
{¶21} Regarding the admissibility of identification testimony in general,
courts have adopted a two-prong test. State v. Lindsey, 8th Dist. Cuyahoga No.
106111, 2019-Ohio-782, ¶ 68. First, the trial court must determine whether the
identification procedures were so impermissibly suggestive as to give rise to a
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substantial likelihood of misidentification. Id. citing Neil v. Biggers,
409 U.S. 188,
93 S.Ct. 375,
34 L.Ed.2d 401 (1972). Second, the trial court must determine whether
the identification itself was unreliable under the totality of the circumstances.
Id. If
the defendant fails to meet the first part of his burden that the procedures used were
unduly suggestive, the court need not consider the totality of the circumstances
under the second prong. State v. Tate, 8th Dist. Cuyahoga No. 103446, 2016-Ohio-
5622,
70 N.E.3d 1056, ¶ 31, citing State v. Green,
117 Ohio App.3d 644,
691 N.E.2d
316 (1st Dist.1996). If the pretrial procedures were not unduly suggestive, any
remaining questions as to reliability go to the weight of the identification, not its
admissibility.
Id.
{¶22} If, on the other hand, the defendant establishes that the pretrial
identification procedure was unduly suggestive, the court must then consider
whether the identification, viewed under the totality of the circumstances, was
reliable. To determine reliability, the United States Supreme Court instructs courts
to consider the following factors: the opportunity of the witness to view the
perpetrator at the time of the offense, the witness’s degree of attention, the accuracy
of the witness’s prior description of the perpetrator, 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, 199-200,
93 S.Ct.
375 (1972).
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R.C. 2933.83
{¶23} Revised Code 2933.83(B) codifies the specific procedures that law
enforcement officers are supposed to follow when conducting a photo lineup. It
reads as follows.6
(B) Prior to conducting any live lineup or photo lineup on or
after the effective date of this section, any law enforcement agency
or criminal justice entity in this state that conducts live lineups or
photo lineups shall adopt specific procedures for conducting the
lineups. The procedures, at a minimum, shall impose the
following requirements:
(1) Unless impracticable, a blind or blinded administrator shall
conduct the live lineup or photo lineup.
(2) When it is impracticable for a blind administrator to conduct
the live lineup or photo lineup, the administrator shall state in
writing the reason for that impracticability.
(3) When it is impracticable for either a blind or blinded
administrator to conduct the live lineup or photo lineup, the
administrator shall state in writing the reason for that
impracticability.
(4) The administrator conducting the lineup shall make a
written record that includes all of the following information:
(a) All identification and nonidentification results obtained
during the lineup, signed by the eyewitnesses, including the
eyewitnesses' confidence statements made immediately at the
time of the identification;
(b) The names of all persons present at the lineup;
6
The definitions for specific words and phrases are codified in R.C. 2933.83(A).
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(c) The date and time of the lineup;
(d) Any eyewitness identification of one or more fillers in the
lineup;
(e) The names of the lineup members and other relevant
identifying information, and the sources of all photographs or
persons used in the lineup.
(5) If a blind administrator is conducting the live lineup or the
photo lineup, the administrator shall inform the eyewitness that
the suspect may or may not be in the lineup and that the
administrator does not know who the suspect is.
{¶24} Revised Code 2933.83(C) contains provisions that deal with failure to
comply with the appropriate minimal photo lineup procedures.
(C) For any photo lineup or live lineup that is administered on or
after the effective date of this section, all of the following apply:
(1) Evidence of a failure to comply with any of the provisions of
this section or with any procedure for conducting lineups that has
been adopted by a law enforcement agency or criminal justice
agency pursuant to division (B) of this section and that conforms
to any provision of divisions (B)(1) to (5) of this section shall be
considered by trial courts in adjudicating motions to suppress
eyewitness identification resulting from or related to the lineup.
(2) Evidence of a failure to comply with any of the provisions of
this section or with any procedure for conducting lineups that has
been adopted by a law enforcement agency or criminal justice
agency pursuant to division (B) of this section and that conforms
to any provision of divisions (B)(1) to (5) of this section shall be
admissible in support of any claim of eyewitness misidentification
resulting from or related to the lineup as long as that evidence
otherwise is admissible.
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(3) When evidence of a failure to comply with any of the
provisions of this section, or with any procedure for conducting
lineups that has been adopted by a law enforcement agency or
criminal justice agency pursuant to division (B) of this section and
that conforms to any provision of divisions (B)(1) to (5) of this
section, is presented at trial, the jury shall be instructed that it
may consider credible evidence of noncompliance in determining
the reliability of any eyewitness identification resulting from or
related to the lineup.
Analysis
{¶25} In this case, Flagg argues that the photo lineup in Hardin County was
not in compliance with R.C. 2933.83, and that the trial court erred by denying his
suppression motion. Notably, despite the broad statement of his assignment of error
contending that the trial court should have suppressed both of the photo lineups in
this matter, Flagg actually concedes in his brief that the Marion county lineup was
“administered for the most part, in compliance with ORC 2933.83.” (Appt.’s Br. at
9). Thus he focuses his argument on contending that the Hardin County photo
lineup administration was deeply flawed and that the statute was “knowingly
disregarded.” (Id.)
{¶26} Flagg catalogues numerous ways that the statutory procedure was not
followed in the Hardin County lineup: the lineup was not administered by a blind
administrator; no written statement was provided to establish why a blind
administrator was not used; the lineup administrator did not state that the suspect
may or may not be in the lineup; the lineup administrator and another officer present
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Case No. 9-18-43
knew who the suspect was; the administrator said “this may not be his first time, he
may have done this before” while conducting the lineup; the administrator instructed
Marie to look through the photographs twice at the outset, though under the statute
she was only supposed to look a second time at the photo lineup if she requested to
do so; Marie was accompanied by her father, mother, two deputies and an intern
while the test was being given.
{¶27} In addition, Flagg contends that the photos in the lineup itself were
unduly suggestive as some men had facial hair and some had differently defined
hairlines drastically different from Flagg’s photograph. Further, Flagg argues that
there was potential for misidentification in this case as there was some testimony
that another individual, Jimmy Skaggs, attempted to pass fake bills at the minimart
in Marion after Flagg had, and that Skaggs said the fake bill he was attempting to
use had come from a man named Andy Greenwood.
{¶28} At the outset of our analysis, we emphasize that the trial court itself
did not find that the photo lineup conducted in Hardin County was compliant with
R.C. 2933.83; rather, the trial court stated that the photo lineup was not in
compliance with the statute, but it was not unduly suggestive, which is what is
required before suppressing a photo lineup identification. State v. Ruff, 1st Dist.
Hamilton No. C-110250, 2012-Ohio-1910, ¶ 8 (“noncompliance with R.C.
2933.83(B) alone is insufficient to warrant suppression.”)
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{¶29} In our own review, we agree with the trial court that the Hardin County
lineup was not compliant with R.C. 2933.83. The lineup was conducted by
Detective Willoby and Deputy Carl of the Hardin County Sheriff’s Office. Portions
of the statute were complied with, such as using the folder system, showing the
photographs one at a time, and getting Marie to sign and rate her confidence in the
identification. Moreover, Detective Willoby did offer some explanation as to why
a blind administrator was not used, stating that their office was small and short-
staffed, that it would have been difficult (but not impossible) to get a blind
administrator to assist that day, and that they wanted to do the lineup as close in
time to the incident as possible. See State v. Moon, 2d Dist. Montgomery No. 25061,
2013-Ohio-395, ¶ 28 (finding that while being short-staffed did not make obtaining
a blind administrator impractical, the absence of a blind administrator or written
reasons why one was not used does not warrant suppression.) Nevertheless, there
was no blind administrator per the statute, Detective Willoby did not inform the
eyewitness that the suspect may or may not be in the lineup, and Detective Willoby
ordered Marie to look at all the photographs twice, instead of waiting to see if she
would request to do so.
{¶30} However, similar to the trial court, despite numerous failures to
comply with the statutory procedure, we cannot find that the Hardin County lineup
was unduly suggestive in this matter. “A lineup is unduly suggestive if it steers the
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witness to one suspect, independent of the witness’s honest recollection.” State v.
Adams, 144 Ohio St.3d 429,
2015-Ohio-3954, ¶ 208, citing Wilson v. Mitchell,
250
F.3d 388, 397 (6th Cir.2001). Although it is a suppression matter, the defendant
actually “ ‘bears the burden of showing that the identification procedure was ‘so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification’ and that the identification itself was unreliable under
the totality of the circumstances.’ ” State v. Wilcoxin, 2d Dist. Clark No. 2017-CA-
58,
2018-Ohio-1322, ¶ 7, quoting State v. Sherls, 2d Dist. Montgomery No. 18599,
2002 WL 254144, *2 (Feb. 22, 2002), quoting Neil v. Biggers,
409 U.S. 188, 199,
93 S.Ct. 375,
34 L.Ed.2d 401 (1972).
{¶31} Here, there is no indication that Detective Willoby or Deputy Carl
“steered” Marie toward Flagg’s photograph. In fact, Marie testified that when she
looked through the photographs the first time, she was confident that Flagg was the
right individual. She testified that she only looked at the photographs a second time
because she was instructed to by Detective Willoby. Marie specifically testified
that the officers did not influence her decision in any manner, and that her
recollection was entirely independent. Marie also testified that she did not recall
Detective Willoby stating that the suspect’s photograph was in the lineup, or that
the suspect was wanted for other similar crimes.
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{¶32} Detective Willoby and Deputy Carl also testified individually that they
did nothing to influence Marie’s identification. They indicated that the procedure
was explained and that small talk was made with Marie’s father during the lineup,
but they explicitly did not attempt to aid Marie in any manner.
{¶33} In addition, as to the lineup itself, Detective Willoby testified that he
compiled the lineup by putting Flagg’s height, eye color, hair color, weight, and
race into the OLEG database, and that the database compiled five other individuals
for comparison. There is no indication that Detective Willoby selected individuals
different from Flagg, and in fact, the opposite is true. See State v. Wilcoxin, 2d Dist.
Clark No. 2017-CA-58, 2018-Ohio-1322 (where defendant was only photo in lineup
with a facial tattoo, specifically a teardrop, lineup still was not so impermissibly
suggestive that it warranted suppression). At the very least, Flagg did not meet his
burden to establish that the lineup was unduly suggestive.
{¶34} Nevertheless, even assuming arguendo that we found the lineup to be
unduly suggestive, the next issue we would have to analyze before determining that
suppression was appropriate was whether there were indications that the
identification was reliable. In this case, Marie identified Flagg in the photo lineup
very soon after seeing him in the store—the same day. She also testified that she
remembered his eyes and lack of smile from seeing him in the store, and that she
was suspicious of him because of the look of the $100 bill he provided. When Marie
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first saw his photo in the lineup, she stated that she was “almost positive she
recognized him.” (Tr. at 278).
{¶35} Further establishing Marie’s good memory, she recalled the items
Flagg bought in the store, she recalled that Flagg had a woman with him, and she
recalled the brief conversation she had with Flagg wherein he asked if she could
make change for $100, and she said it depended on how much he bought. A
significant number of the items Marie listed as having been “purchased” by Flagg
were found in his house in a subsequent search. Based on Marie’s testimony, her
identification would appear to have some reliability.
{¶36} Finally, we would note that the trial court emphasized the officers’
failure to comply with the statutory procedures to the jury in a lengthy
admonishment, stating that the jury was entitled to consider that as part of evaluating
the reliability of the photo lineup identification. The trial court also gave an
instruction to the jury on the matter, which spanned five pages of the transcript. The
jury was thus very aware of the issues regarding the photo lineup, which is precisely
what R.C. 2933.83 requires when procedures were not complied with. State v.
Moon, 2d Dist. Montgomery No. 25061, 2013-Ohio-395, ¶ 28 (“Significantly,
although R.C. 2933.83(C)(1) provides that the trial court must consider non-
compliance with the provisions of the statute in adjudicating a motion to suppress
eyewitness identification testimony, it does not provide that non-compliance, by
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itself, requires suppression of the testimony. In dictum, we have said that the
“penalty” for failure to comply with the statute is not suppression, but the other
remedies provided for in the statute.”) (Emphasis sic.)
{¶37} For all of these reasons, we cannot find that the trial court erred in
denying Flagg’s suppression motion.7 Therefore, his assignment of error is
overruled.
Conclusion
{¶38} For the foregoing reasons Flagg’s assignment of error is overruled and
the judgment of the Marion County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
7
As stated previously, Flagg conceded in his brief that the Marion County photo lineup was mostly in
compliance with the statute. Even if he did challenge this issue on appeal, there is no evidence of undue
influence and Sharon was familiar with Flagg from prior dealings making her identification more reliable.
Nevertheless, the officer administering the Marion County photo lineup did not even know who the suspect
was. The photo lineup was also put together the same way through OLEG, thus we could find no prejudicial
error here.
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