[Cite as State v. Williams,
2019-Ohio-5144.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-18-024
Appellee Trial Court No. 2016 CR 0349
v.
Dwayne Williams DECISION AND JUDGMENT
Appellant Decided: December 13, 2019
…
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Anthony A. Battista III, for appellee.
Ronnie L. Wingate, for appellant.
…
SINGER, J.
{¶ 1} Appellant, Dwayne Williams, appeals the August 3, 2017 judgment of the
Erie County Court of Common Pleas denying his motion to suppress the identification of
appellant by the victim, D.C. We affirm because the identification of appellant was not
impermissibly suggestive and was otherwise reliable.
{¶ 2} Appellant brings one assignment of error:
The trial court erred to the prejudice of Mr. Williams when it denied
his motion to suppress, and renewed motion to suppress, the pretrial
identification of Mr. Williams by D.C.
Facts
{¶ 3} On June 1, 2016, at about 2:00 a.m., two men entered the home of D.C. and
held him and four others at gunpoint for approximately 20 minutes while the home was
burglarized. The men had masks on that covered the lower half of their faces. The two
men obtained cash and a cellular phone from the victims. When the suspects demanded
more money, D.C. indicated there was additional money in another apartment. When the
men and D.C. got onto the back porch, D.C. was able to jump back into the house and
quickly close the door, leaving the men outside. D.C. then contacted the police.
{¶ 4} When the police arrived, D.C. was deeply upset after the robbery and was
unable to make a statement to the police. The other victims, including D.C.’s wife, were
able to make statements to the police about what they witnessed and gave a description of
the suspects. Two days later, Sandusky Police Detective Ken Nixon returned to the home
and interviewed D.C. and his wife. D.C. then gave a detailed description of the night, the
suspects, and the weapons used in the crime.
{¶ 5} At that time, D.C. indicated that he believed appellant was one of the men
who held him at gunpoint during the robbery. D.C. stated that he knew appellant from a
party on the Fourth of July. He stated that he knew appellant’s voice from this party as
2.
well. D.C. also told the detective that he was told by a third party that appellant may
have been involved with the crime. D.C. then showed the detective a photograph from
Facebook and stated he believed the photograph showed both men who burglarized his
home.
{¶ 6} Detective Nixon did not indicate to D.C. that the man in the photograph was
appellant or that the detective suspected appellant in a separate robbery. Nixon then had
a photo lineup created and administered to D.C. by a blind administrator. The photo used
in the lineup was not the same photo that was shown by the detective on Facebook. The
photo lineup was created by a computer program called the Ohio Law Enforcement
Gateway and placed five photos of men of similar characteristics of appellant into the
photo array. After viewing the photo lineup, D.C. indicated that he was positive
appellant was one of the men in the photo lineup. D.C.’s wife identified the other suspect
in a separate lineup.
{¶ 7} Appellant was then charged with five counts of aggravated burglary in
violation of R.C. 2911.11(A)(2), five counts of aggravated robbery in violation of R.C.
2911.01(A)(1), five counts of felonious assault in violation of R.C. 2903.11(A)(2), and
three counts of complicity to commit theft in violation of R.C. 2923.03(A)(2). The
fifteen counts of aggravated burglary, aggravated robbery, and felonious assault had
firearm specifications under R.C. 2941.145 attached to each count.
{¶ 8} Appellant filed a motion to suppress seeking to suppress the identification of
appellant. Appellant also sought to suppress evidence gained from a warrant issued for
3.
his cell phone. Appellant did not appeal that portion of the decision. At the suppression
hearing, Detective Nixon testified about the creation of the lineup and the process that
occurred prior to the identification of appellant. He also testified about the events of the
night and any factors concerning D.C.’s ability to identify appellant.
{¶ 9} The trial court denied appellant’s motion to suppress. The trial court found
that the identification procedure was not unnecessarily suggestive because the photo
lineup was obtained through a computer program and was administered by a blind
administrator. The trial court also found that the identification was reliable because
appellant’s mask did not hide his entire face, appellant was in the house for more than 20
minutes, D.C.’s description of appellant was consistent, and he indicated that he was
positive of the identification.
{¶ 10} Appellant was found guilty of all charges by a jury. Appellant was then
sentenced to an aggregate term of 37 years.
Law
{¶ 11} “An appellate review of a ruling on a motion to suppress presents mixed
questions of law and fact.” State v. Heflin, 6th Dist. Lucas No. L-10-1268, 2011-Ohio-
4134, ¶ 16, citing United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir.1992). The
trial court assumes the role of trier of fact and is in the best position to resolve questions
of fact and evaluate witness credibility at the suppression hearing.
Id., citing State v.
Mills,
62 Ohio St.3d 357, 366,
582 N.E.2d 972 (1992). “As a result, an appellate court
must accept a trial court’s factual findings if they are supported by competent and
4.
credible evidence.”
Id., citing State v. Guysinger,
86 Ohio App.3d 592, 594,
621 N.E.2d
726 (4th Dist.1993). We review the trial court’s application of law de novo.
Id., citing
State v. Russell,
127 Ohio App.3d 414, 416,
713 N.E.2d 56 (9th Dist.1998).
Photo array evidence is suppressed only if the identification, or method of
identification, is unduly suggestive and unreliable. The defendant has the
burden to show that the identification procedure was unduly suggestive. If
the pretrial confrontation procedure was not unduly suggestive, any
remaining questions as to reliability go to the weight of the identification,
not its admissibility, and no further inquiry into the reliability of the
identification is required. If the defendant meets his or her burden, the
court must then consider whether the identification, viewed under the
totality of the circumstances, is reliable despite its suggestive character.
Factors to be considered in determining the reliability and suggestiveness of
a challenged identification include: (1) the victim’s opportunity to view the
defendant during the crime, (2) the victim’s degree of attention, (3) the
accuracy of the victim’s prior description, if any, of the defendant, (4) the
victim’s certainty, and (5) the amount of time that has elapsed between the
offense and the identification.” (Citations omitted). Id. at ¶ 17.
Analysis
{¶ 12} We do not find that the procedure used in this case was unduly suggestive.
Appellant argues that because D.C. had already viewed a photo of him, the procedure of a
5.
photo lineup was suggestive. However, at no time did Detective Nixon identify appellant
to D.C. Nixon returned to the police station to create a photo lineup with computer
software that provides five other pictures of men with similar stature, age, hair, eye color,
and race as appellant to put into the photo lineup. Appellant was not placed into the first
slot for the express purpose of removing any possible suggestion he was the suspect who
committed the crime. The photo lineup was administered by another officer who did not
know who the suspect was or if a suspect was even present in the photo lineup. Detective
Nixon was not present when the photo lineup was administered to D.C. No evidence in
the record demonstrates that any officer influenced D.C.’s identification of appellant.
Therefore, the identification procedure was not suggestive.
{¶ 13} Even if the procedure were suggestive, the identification is reliable under
the totality of the circumstances. D.C. had ample opportunity to view the suspect as the
men were holding him and the other victims at gunpoint for more than 20 minutes. D.C.
recognized appellant’s voice and was able to accurately describe the weapon used during
the robbery. Both men only had the bottom half of their faces covered by masks and
therefore the victims were able to see the top half of the faces in order to identify them.
Only two days passed between the crime and D.C.’s identification of appellant. D.C. also
indicated that he was very positive when he identified appellant.
{¶ 14} D.C.’s identification of appellant is bolstered by his previous knowledge of
appellant. D.C. and appellant had attended a Fourth of July party together and D.C. used
this information in his identification of appellant. The mere fact that appellant identified
6.
appellant before a photo lineup was presented to him does not make his identification
unreliable, but rather strengthens its reliability.
{¶ 15} We find appellant’s sole assignment of error not well-taken. Judgment of
the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the
costs of this action 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.
Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, 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.supremecourt.ohio.gov/ROD/docs/.
7.
