[Cite as State v. Gaffney,
2025-Ohio-4963.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRANDON V. GAFFNEY,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 25 BE 0012
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 24 CR 178
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Atty. Martin S. Hume, Martin S. Hume Co., L.P.A., for Defendant-Appellant.
Dated: October 30, 2025
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HANNI, J.
{¶1} Defendant-Appellant, Brandon V. Gaffney, appeals from a Belmont County
Common Pleas Court judgment sentencing him to a total of 17-21.5 years in prison.
Appellant was convicted of the aggravated possession of drugs resulting from a controlled
purchase on April 20, 2024 and four drug-related crimes stemming from a June 21, 2024
search of his home.
{¶2} Appellant asserts the trial court’s scheduling of a plea deadline was
unconstitutional and an abuse of discretion. He also contends the court failed to offer the
parties a chance to poll the jury after the verdict and the court failed to assure the
unanimity of the verdict. He further argues the trial court failed to suppress a photo lineup
and apply the exclusionary rule. Appellant additionally asserts the trial court erroneously
denied his motion to sever and failed to grant his motion for a new trial. He also submits
his counsel was ineffective for failing to file a motion to suppress evidence seized on June
21, 2024. Finally, Appellant contends the trial court erred by imposing consecutive
sentences and failed to accept two of his counsel’s proposed jury instructions.
{¶3} All of Appellant’s assignments of error lack merit. No legal support exists
for finding that a trial court commits a constitutional violation by imposing a plea deadline
and no plain error exists with the court’s imposition of the plea deadline here. Further, a
trial court does not commit constitutional or plain error by failing to poll the jury or by failing
to ask counsel if they wish to poll the jury. The trial court also applied the proper legal
standard in finding the photo lineup not unduly suggestive, and competent, credible
evidence supports that determination.
{¶4} In addition, joinder of the charges in this case was proper because the
evidence was simple and direct such that the jury would not have been confused by the
evidence that proved each act. The trial court also did not abuse its discretion by
excluding only the data from the GPS tracker collected beyond the 45-day deadline.
Further, counsel was not ineffective for failing to move to suppress evidence from the
search of Appellant’s house because the court was required to review the supporting
affidavit as a whole and not individual statements in isolation. In addition, the trial court’s
imposition of consecutive sentences was proper and we cannot clearly and convincingly
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find that the sentence was not supported by the record. Finally, the trial court did not
abuse its discretion by denying Appellant’s proposed jury instructions.
{¶5} On April 20, 2024, a confidential informant (CI) who previously served the
Belmont County Sheriff’s office told the Criminal Interdiction Unit he believed he could
buy methamphetamine from an individual named Brandon “Beesly,” 1 who was bringing
the drugs from Cleveland. A controlled purchase was set up with Detective Grant
stationed nearby in a vehicle, and Detective Hilderbrand and Detective Mackey in a
separate vehicle surveilling the scene. The CI was given marked “buy” money and a cell
phone to record the events. The video recorded by the CI was poor quality, but he
participated in a photo lineup due to the unclear view of the seller on the video.
{¶6} Detective Hilderbrand prepared the photo lineup and placed Appellant’s
picture in one folder, placed five other photos in five different folders, and prepared four
blank folders. Detective Hilderbrand knew the identity of the suspect. Detective Mackey
showed the photos to the CI and Detective Hilderbrand remained in the room during the
presentation. The CI did not identify a suspect in the folders on the first round of viewing.
Upon a second viewing, the CI identified Appellant as the seller.
{¶7} After the controlled purchase, officers input the license plate of the vehicle
driven by the seller into Flock, a public camera that tracks license plates of vehicles
passing by it. The vehicle was owned by Caprita Bell and was also seen in Bellaire, Ohio.
After securing a warrant, officers installed a GPS tracking device on the vehicle. The
warrant for the GPS tracking device expired after 45 days, but was left on the vehicle for
51 days. It showed trips to Cleveland back to Belmont County and to a home owned by
Cecillia Delong. Cecillia Delong was renting the home to Appellant. Officers placed a
pole camera outside of the residence and monitored Appellant leaving and returning to
the residence.
{¶8} Detective Grant then filed an affidavit in support of a search warrant for
Appellant’s residence. He indicated that the CI identified Appellant from a photo lineup
and officers had observed Appellant driving to Cleveland and then back to homes where
narcotics were found on previous occasions. The affidavit further stated that Appellant
1 “Beesly” and “Beasley” refer to the same individual. The spellings are different based on the person
referring to this individual.
Case No. 25 BE 0012
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was the husband of the owner of the car. Detective Grant further indicated that he
believed Appellant to be a large-scale drug dealer, Appellant used an alias of “Beasley,”
and he observed Appellant place a case into the trunk of the car and take a trash bag into
his home. Detective Grant further attested that he observed Appellant in front of an
individual’s house, the individual entered Appellant’s car for a short time, and then they
both left. Detective Grant indicated that the individual in Appellant’s car spoke to another
individual by phone and they talked about drugs located in the house.
{¶9} The warrant was issued for Appellant’s house and Appellant was not home
when it was executed. The search yielded a Country Time Lemonade container with a
fake bottom located in a kitchen cabinet. Upon removing the bottom, officers found
fentanyl and other drugs which formed the basis of the June 21, 2024 charges in the
indictment.
{¶10} On August 8, 2024, a Belmont County Grand Jury indicted Appellant on four
counts stemming from the June 21, 2024 search of his home: first-degree felony
aggravated drug trafficking of methamphetamine in violation of R.C. 2925.03(A)(2),
(C)(1)(E) (Count 1), with two forfeiture specifications; first-degree felony aggravated
possession of methamphetamine in violation of R.C. 2925.11(A) and (C)(1)(D) (Count 2);
second-degree felony trafficking in a fentanyl-related compound in violation of R.C.
2925.03(A)(2) and (C)(9)(E) (Count 5); and second-degree felony possession of a
fentanyl-related compound in violation of R.C. 2925.11(A) and (C)(11)(D) (Count 6).
{¶11} Appellant was also indicted on two counts relating to the controlled
purchase that occurred on April 20, 2024: second-degree felony aggravated trafficking
of methamphetamine in violation of R.C. 2925.03(A) and (C)(1)(D) (Count 3); and second-degree felony aggravated possession of methamphetamine in violation of R.C.
2925.11(A) and (C)(1)(C) (Count 4). Counts 3 and 4 included forfeiture specifications.
{¶12} On October 2, 2024, the trial court issued a judgment entry indicating that it
had arraigned Appellant and appointed him counsel. Among other dates, the trial court
also scheduled a plea offer deadline for October 28, 2024 and a plea agreement deadline
for November 4, 2024.
{¶13} On October 25, 2024, Appellant filed a motion to suppress evidence seized
from his house located in Bellaire, Ohio. He also filed a motion to continue the plea
Case No. 25 BE 0012
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agreement deadline and trial. The court granted Appellant’s motion and rescheduled the
plea agreement deadline to January 6, 2025 and the trial to January 22, 2025.
{¶14} On November 14, 2024, Appellant filed a motion to suppress eyewitness
testimony from the CI who identified Appellant through a photo lineup. Appellant asserted
that admission of that testimony would violate his due process rights and R.C. 2933.83
because the police failed to appoint a blind administrator to conduct the lineup. He
submitted that Detective Mackey of the Belmont County Sheriff’s Office was present at
the controlled purchase with the CI and showed the CI the photo array.
{¶15} On November 21, 2024, the trial court held a hearing on Appellant’s
motions. On January 3, 2025, the court issued a judgment entry overruling in part and
sustaining in part the motion to suppress the search of Appellant’s residence. The court
found that the GPS tracking device should have been removed from Appellant’s car within
45 days and any evidence obtained after day 45 was excluded. The court also overruled
Appellant’s motion to suppress the photo identification. The court reminded the parties
of the January 6, 2025 plea agreement deadline and the January 22, 2025 jury trial date.
{¶16} On January 9, 2025, the trial court’s entry indicated it conducted a plea
agreement deadline hearing. The court granted the parties’ joint request to continue the
plea agreement deadline “one last time” to January 16, 2025.
{¶17} On January 10, 2025, Appellant filed a motion in limine to exclude all
evidence obtained after the GPS tracking device should have been removed, including
the evidence seized as a result of the search warrant at Appellant’s house.
{¶18} On January 16, 2025, the trial court issued an entry stating that it held the
plea agreement deadline hearing and had delayed the start of the hearing so the parties
could continue to negotiate. The court indicated that negotiations had failed and it had
denied Appellant’s oral motion to continue his trial.
{¶19} On January 21, 2025, the parties jointly requested to continue the trial due
to inclement weather. The court granted the motion and continued the trial to February
25, 2025.
{¶20} On February 12, 2025, Appellant filed a motion for misjoinder of offenses.
He asserted that the court should separate the charges emanating from the June 21,
2024 house search and from the April 20, 2024 controlled-buy charges because two
Case No. 25 BE 0012
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months elapsed between the incidents and he would suffer prejudice if they were tried
together. The court overruled Appellant’s motion on February 19, 2025.
{¶21} On February 21, 2025, Appellant filed proposed jury instructions, including
photo lineup instructions relating to a blind administrator and procedures relating to the
jury’s determination of an informant’s credibility.
{¶22} On February 24, 2025, the trial court repeated its prior ruling that no
evidence gained after the expiration date for the GPS tracking warrant could be used at
trial. The court overruled Appellant’s motion in limine, finding he failed to provide the
court with a copy of the affidavit for the search of his house. Further, the court held that
the evidence from the search warrant of his house was not excluded due to the expiration
of the GPS warrant.
{¶23} On February 25, 2025, the case proceeded to trial. On February 27, 2025,
the jury found Appellant guilty on all counts, except Count 4, which had been withdrawn
by the State during trial.
{¶24} Before sentencing, Appellant filed a motion for a new trial based on
ineffectiveness of counsel. He asserted counsel failed to file a motion to suppress
evidence obtained from the search of his house when the affidavit supporting the search
warrant lacked probable cause to believe the search would reveal items identified in the
warrant. The court overruled the motion. (Sent. Tr., 2-5).
{¶25} The court held a sentencing hearing and sentenced Appellant to a total term
of 17 to 21.5 years in prison. On March 14, 2025, the court filed its sentencing entry,
noting Appellant’s prior juvenile adjudications, his seven prior felony convictions, his five
prior prison sentences, and his misdemeanor convictions. The court also cited
Appellant’s pending charges in federal court, his 25-year criminal history, and facts
showing Appellant showed no remorse and had not been amenable to prior sanctions.
{¶26} The court sentenced Appellant to: 8-12 years in prison on Count 1; merged
Count 2 into Count 1 as allied offenses; 7-10.5 years in prison on Count 3; 2-3 years in
prison on Count 5; and merged Count 6 into Count 5 as allied offenses. The court
indicated that the aggregate sentence was 17-21 years in prison, three years of driver
license suspension, forfeitures of a vehicle and currency and $350 in restitution.
Case No. 25 BE 0012
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{¶27} On April 9, 2025, Appellant filed a notice of appeal. He presents eight
assignments of error. In his first assignment of error, Appellant asserts:
THE TRIAL COURT ERRED BY SETTING A PLEA DEADLINE.
{¶28} Appellant contends the trial court violated the separation of powers doctrine
and his due process rights by imposing a plea deadline. He submits that the Ohio Rules
of Criminal Procedure provide no authority for imposing a plea deadline and doing so
allows the judiciary to usurp the role of the prosecution.
{¶29} Appellant equates Arizona Crim.R. 17.4 to Ohio Crim. Rule 11(F) and notes
that Arizona cases forbid trial court limitations on plea bargaining that is not authorized
under its rule. Appellant also compares the 17-21.5-year sentence he received after
going to trial to the 4-year prison sentence he was offered if he pled guilty. He contends
this establishes he was severely punished for asserting his right to a jury trial. He submits
that imposing an arbitrary plea deadline negatively impacts plea negotiations because
parties may learn additional information that may change their negotiating positions later
in discovery and motion practice. He requests we find the trial court’s imposition of a plea
deadline unconstitutional and not permitted under the Ohio Rules of Criminal Procedure.
{¶30} The trial court did not violate the Constitution, abuse its discretion, or
commit plain error by imposing a plea deadline. Appellant did not object when the trial
court set plea offer and plea agreement deadlines at Appellant’s arraignment. Further,
Appellant filed a motion to continue the plea agreement hearing deadline and failed to
object to the deadline as unconstitutional or an abuse of discretion at that time. The court
granted his motion and extended the deadline, and also continued the plea agreement
hearing at the parties’ joint request. The court additionally allowed the parties additional
time at the plea agreement hearing to negotiate a plea. After no resolution occurred, the
trial court refused Appellant’s request for additional time after his counsel suggested they
may reach an agreement if they had more time.
{¶31} Since Appellant did not object at any time during the trial court proceedings,
plain error is the proper standard of review. Crim.R. 52(B) provides that “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” An appellate court is not required to correct plain error, as the Rule
Case No. 25 BE 0012
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states that the court need only “notice” plain error. State v. Barnes, 94 Ohio St.3d 21, 27
(2002). Accordingly, the Ohio Supreme Court cautions appellate courts to correct plain
error “with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Id. quoting State v. Long,
53 Ohio St.2d, 91 (1978),
paragraph three of the syllabus.
{¶32} Appellate courts must abide by three limitations under Crim.R. 52(B) to
correct an error in the absence of an objection. First, we must find an error, meaning a
deviation from a legal rule. Barnes, 94 Ohio St.3d at 27, citing State v. Hill, 92 Ohio St.3d
191, 200 (2001). Second, the error must be a plain error, meaning an “obvious” defect in
the proceedings.
Id., citing State v. Sanders,
92 Ohio St.3d 245, 257 (2001) (citations
omitted). And third, the error must have impacted “substantial rights,” meaning that the
error affected the outcome of the trial.
Id. (citations omitted).
{¶33} Here, Appellant points to no legal authority prohibiting a trial court from
imposing plea offer or plea agreement deadlines. The Ohio Rules of Criminal Procedure
do not prohibit such deadlines and no other Rule conflicts with imposing such deadlines.
Crim.R. 57(B) states, “If no procedure is specifically prescribed by rule, the court may
proceed in any lawful manner not inconsistent with these rules of criminal procedure and
shall look to the rules of civil procedure and to the applicable law if no rule of criminal
procedures exists.” Thus, the court did not err by imposing the deadlines.
{¶34} In State v. Collins, 2024-Ohio-2891, ¶ 17 (4th Dist.), the defendant asserted
the trial court’s plea deadline was arbitrarily set and gave the state a distinct advantage
in negotiating a plea. The Fourth District Court of Appeals noted the standard practice
for trial courts to impose plea deadlines.
Id. (citations omitted). The court explained valid
reasons for such deadlines, such as judicial economy, court control over its docket, and
making necessary preparations for prospective jurors.
Id.
{¶35} The Ohio cases Appellant cites as support for prohibiting plea deadlines are
distinguishable. See State v. Stafford, 2004-Ohio-3893 (1st Dist.) (court had plea
discussion with defendant and told him if he was found guilty by jury, court would be
inclined to give him maximum consecutive penalty rather than lesser sentence discussed
at prior hearing); Columbus v. Bee,
67 Ohio App.2d 65 (10th Dist. 1979) (little question
Case No. 25 BE 0012
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existed that court proposed probation for no contest plea but implied it would not be given
if defendant went to trial and was convicted).
{¶36} The Arizona cases cited by Appellant are inapplicable. In Espinoza v.
Martin, 182 Ariz. 145 (1995), the Arizona Supreme Court held that judges cannot adopt
policies rejecting all plea agreements except those that plead guilty to the indictment after
a set deadline or those that had a stipulated sentence. See also Hare v. Superior Court,
133 Ariz. 540, 541 (Ariz. App.1982) (courts cannot have blanket policy of automatically
rejecting all plea agreements after a trial date unless the agreement is to plead guilty to
all charges in the indictment). In the other cited case, State v. Darelli,
205 Ariz. 458, 462
(Ariz. App. 2003), the Arizona appellate court ruled that the trial court “inappropriately
read a “plea cut-off date” into Ariz. Crim.R. 17.4(a) that barred all plea negotiations. The
trial court informed the parties it could not accept any plea agreement besides one to a
full dismissal of charges by the prosecution or a guilty plea to all charges by the defendant
because prospective jurors were waiting for trial.
Id. No Ohio courts have held plea
deadlines impermissible.
{¶37} As Appellee correctly notes, Appellant does not assert the trial court refused
to accept a negotiated plea agreement due to the expiration of a plea deadline. Nor does
Appellant complain the court was involved in the plea negotiation process or that the court
had a blanket policy of rejecting plea agreements entered into after an imposed plea
deadline. Accordingly, Appellant’s reliance on the Arizona cases is misplaced.
{¶38} Further, even if Appellant demonstrated plain error, he fails to establish that
it affected his substantial rights. Appellant had ample time to negotiate, review, and
consider plea offers and to negotiate plea agreements in this case. The trial court set the
first plea offer deadline for October 28, 2024 and plea agreement deadline for November
4, 2024. The court continued the deadlines twice, once at Appellant’s request, and once
at the joint request of the parties. The court extended plea negotiations and proceedings
to January 16, 2025.
{¶39} Accordingly, Appellant’s first assignment of error lacks merit and is
overruled.
{¶40} In his second assignment of error, Appellant asserts:
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THE TRAL COURT ERRED BY FAILING TO OFFER THE PARTIES THE
OPPORTUNITY TO POLL THE JURY AND FAILING TO ASSURE THE
JURY VERDICT WAS CORRECT BEFORE DISCHARGING THE JURY.
{¶41} Appellant submits the jury verdict is not final because the trial court did not
“hearken” the jury verdict by inquiring if the verdicts read in open court were their
unanimous verdicts. Appellant also contends the trial court erred by failing to ask counsel
if they wanted to poll the jury. He cites Ohio caselaw and submits that the trial court
cannot reduce a verdict to a judgment if it is not read in open court and if the parties were
not offered an opportunity to poll the jury. He also cites Maryland and Kansas caselaw
holding that a verdict is not valid until it is orally announced by the court, unanimous as
affirmed by the jury, and hearkened, or polled, by asking each juror if the verdict
announced is their verdict.
{¶42} We find no merit to Appellant’s second assignment of error. Crim.R. 31(A)
provides that, “Return. The verdict shall be unanimous. It shall be in writing, signed by
all jurors concurring therein, and returned by the jury to the judge in open court.” R.C.
2945.171 requires that the jury verdict in criminal cases be in writing and signed by each
concurring juror.
{¶43} The written jury verdict forms in this case were returned by the jury foreman
to the trial court on the record. (Trial Tr., 648). The trial court read each verdict form and
indicated that the verdict forms contained “12 signatures in ink.” (Trial Tr., 649-652).
Thus, the requirements of Crim.R. 31(A) and R.C. 2945.171 were met.
{¶44} In addition, Crim.R. 31(D) provides that:
Poll of Jury. When a verdict is returned and before it is accepted the jury
shall be polled at the request of any party or upon the court's own motion.
If upon the poll there is not unanimous concurrence, the jury may be
directed to retire for further deliberation or may be discharged.
{¶45} R.C. 2945.77 provides that “the jury may be polled at the request of either
the prosecuting attorney or the defendant.”
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{¶46} The trial court afforded each party the opportunity to poll the jury. While the
court did not specifically ask each party if they wished to poll the jury, the court, after
reading the verdict forms, asked the State and Appellant’s counsel if they had “anything
more.” (Trial Tr., 652). This was the opportunity for each party to request a polling of the
jury. The trial court also could have polled the jury on its own motion. No such request
or motion was made. In State v. Hope, 2019-Ohio-2174, ¶ 151 (11th Dist.), the appellate
court rejected the assertion that the jury must be polled on their verdict without a request
by a party to do so.
Id. Quoting Crim.R. 31(D) and R.C. 2945.77, the court held that
polling was not required because nothing in the record showed that any party requested
the court to poll the jury.
Id.
{¶47} Accordingly, Appellant’s second assignment of error lacks merit and is
overruled.
{¶48} In his third assignment of error, Appellant asserts:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE PHOTO
LINEUP IDENTIFICATION WHERE POLICE FAILED TO
SUBSTANTIALLY COMPLY WITH THE STATUTORY REQUIREMENTS
THEREBY RENDERING THE IDENTIFICATON [SIC] UNRELIABLE.
{¶49} Appellant contends the trial court should have granted his motion to
suppress the CI’s identification of him in a photo lineup because two deviations from photo
lineup procedures occurred. He asserts the blind administrator requirement was violated
when Detective Hilderbrand, the investigator who prepared the photo lineup, was present
when the lineup was shown to the informant. Appellant further asserts that procedure
was violated when the informant stated “no” after viewing each photo and then identified
Appellant after Detective Mackey asked him to take a second look at the photos.
Appellant also submits that Detective Mackey was involved in the investigation and
therefore was not a blind administrator.
{¶50} Appellant maintains his due process rights were violated by the
unnecessarily suggestive procedures used in the photo lineup. He also cites R.C.
2933.83(C)(1) which requires trial courts to consider evidence that required procedures
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were not followed when determining motions to suppress eyewitness identifications
resulting from a lineup.
{¶51} Appellee counters that competent, credible evidence supported the trial
court’s denial of Appellant’s motion to suppress. Appellee contends the photo lineup was
not unduly suggestive because Detective Mackey was a “blind administrator,” which is
required by R.C. 2933.83. Appellee cites Detective Hilderbrand’s testimony that he
prepared ten folders for the lineup while Detective Mackey was on the road. Appellee
cites Detective Hilderbrand’s testimony that he then handed Detective Mackey the folders
upon Mackey’s return, Detective Mackey did not know which photos went into which
folders, and Detective Mackey conducted the lineup with the CI. Detective Hilderbrand
stated that he was present for the lineup, but he did not conduct the lineup and remained
silent throughout the procedure.
{¶52} Appellee further asserts that Detective Hilderbrand testified that the CI did
not say “no” after each photo and actually said nothing after his first review of the array.
Appellee cites Detective Hilderbrand’s testimony that the CI looked through the photos
the first time, placed the photos in a pile, and Detective Mackey then asked him if he
needed to take a second look. Appellee submits that the 14-point procedure for
conducting a lineup allows a second look and the procedure was followed.
{¶53} In reviewing a ruling on a motion to suppress, we must determine whether
competent, credible evidence supports the trial court's findings. State v. Williams, 2024-
Ohio-943, ¶ 43 (7th Dist.). This standard of review is appropriate as, “[i]n a hearing on a
motion to suppress evidence, the trial court assumes the role of trier of fact and is in the
best position to resolve questions of fact and evaluate the credibility of witnesses.” Id.,
quoting State v. Venham,
96 Ohio App.3d 649, 653 (4th Dist. 1994). An appellate court
accepts the trial court's factual findings and relies upon its ability to assess witness
credibility, but we independently determine, without deference to the trial court, whether
the trial court applied the appropriate legal standard. Williams at ¶ 43, citing State v. Rice,
129 Ohio App.3d 91, 94, (7th Dist. 1998). We will not disturb a trial court's decision on a
motion to suppress when supported by substantial credible evidence.
Id.
{¶54} R.C. 2933.83 sets forth the minimum requirements for photographic lineup
procedures. It includes a folder system, filler photographs that resemble the suspect’s
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description, blank photographs, a blind or blinded administrator, and documentation. R.C.
2933.83(C)(1) provides that evidence of a law enforcement agency’s failure to comply
with the procedure may be considered by the court in adjudicating a motion to suppress
eyewitness identification resulting from that lineup.
{¶55} R.C. 2933.83(B)(1) provides that “a blind or blinded administrator shall
conduct the live lineup or photo lineup.” R.C. 2933.83(A) contains the following definitions
of words used in the minimum requirements for lineup procedures:
(1) “Administrator” means the person conducting a photo lineup or live lineup.
(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.
{¶56} When determining the admissibility of eyewitness identification, the trial
court uses a two-step test: the court first determines whether the identification procedure
was unduly suggestive. State v. Royal, 2014-Ohio-1175, ¶ 27 (7th Dist.), citing Neil v.
Biggers,
409 U.S. 188, 196-197. A photo lineup is unduly suggestive if it “steers the
witness to one suspect, independent of the witnesses’ honest recollection.” State v.
Adams,
2015-Ohio-3954, ¶ 208. If the procedure was unduly suggestive, the court then
determines if the identification is reliable under all of the circumstances, even if it was
suggestive. Id. If the procedure is not unduly suggestive, the court need not proceed to
the second prong. State v. Hopkins,
2021-Ohio-4632, ¶ 29 (7th. Dist.) citing State v.
McCrary,
2014-Ohio-1468, ¶ 53 (7th Dist.) (citing State v. Gross,
2002-Ohio-5524, ¶ 19,
State v. Murphy,
91 Ohio St.3d 516, 534 (2001)).
{¶57} Appellant first asserts that this procedure was violated when Detective
Hilderbrand prepared the photo array and remained present when the lineup was
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conducted. He concludes this violated the requirement to use a blind or blinded
administrator.
{¶58} However, it was not Detective Hilderbrand who administered the lineup.
Detective Hilderbrand testified to the steps he took to create the folders. (Supp. Hg., Tr.,
81-82, 89-90, 95-99). He testified that after he prepared the folders, he handed them to
Detective Mackey, who was called in from the road to conduct the lineup. (Supp. Hg. Tr.,
92). Detective Mackey then showed the photos to the CI. (Supp. Hg. Tr., 90, 99). Both
Detective Hilderbrand and Detective Grant testified that Detective Mackey performed the
lineup. (Supp. Hg. Tr., 15, 90, 99). Detective Mackey is the individual who showed the
folders to the CI. Under R.C. 2933.83(A), Detective Mackey is therefore the administrator.
Thus, it is Detective Mackey who had to be the “blind” or “blinded administrator.”
{¶59} It is true that Detective Mackey participated in the controlled purchase
investigation. Detective Grant testified at the suppression hearing that Detective Mackey
was in a surveillance vehicle during the buy. (Supp. Hg. Tr., 38-39). However, Detective
Grant also testified that Detective Mackey could not determine the identity of the drug
seller from the surveillance vehicle due to his vehicle’s distance from the buy. (Supp. Hg.
Tr., 39-41). Thus, this testimony would make Detective Mackey a blind administrator as
found by the trial court.
{¶60} Moreover, even if Detective Mackey were disqualified as a blind
administrator due to his involvement, he is still a blinded administrator because he
conducted the photo lineup, was not present when the lineup was created, and did not
know the photos that the confidential informant was viewing.
{¶61} Appellant further asserts that the lineup procedure was violated because
Detective Hilderbrand was present during the lineup. However, this does not necessarily
lead to suppression. In State v. Harmon, 2017-Ohio-8106, ¶ 26 (2d Dist.), the defendant
moved to suppress a victim’s photo identification because the detective, who knew the
suspect’s identity and created the lineup, was present when the officer conducted the
photo lineup. The appellate court noted that the trial court found the testimony of the
detective and the officer credible.
Id. The court further held that while the procedure was
not in compliance with R.C. 2933.83, it was “‘not so impermissibly suggestive as to give
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rise to a substantial likelihood of misidentification.’” Id. at ¶ 31, quoting State v. Moon,
2013-Ohio-395 (2d Dist.).
{¶62} Similarly here, Detective Hilderbrand knew Appellant’s identity, but he
created the photo array while Detective Mackey was on the road and he stood silent in
the room as Detective Mackey conducted the lineup. Appellant presents no evidence of
suggestibility. It is the defendant’s burden to show the procedures were “both suggestive
and unnecessary and that the testimony was or will be unreliable based upon the totalityof-the circumstances test.” State v. Monford, 2010-Ohio-4732, ¶ 41 (10th Dist.).
{¶63} Appellant further contends the lineup procedure was violated when
Detective Mackey asked the CI to “take a second look” after the informant stated “no”
after each photo, indicating that he did not see the perpetrator. Detective Hilderbrand
testified the CI looked through the folders, “and at that point in time, stated he wasn’t sure
and then asked to look through them a second time. When looking through them a
second time, the CI identified the fourth photo as the person he bought drugs from.”
(Supp. Hg. Tr., 101). On cross-examination, Detective Hilderbrand testified, “He didn’t
say no to anybody. He just passed the folders and put them into a pile and then continued
to look through them.” (Supp. Hg. Tr., 109-110). Detective Hilderbrand continued that
the CI put the folders in a pile “and then Deputy Mackey asked him if he needed to take
a second look.” (Supp. Hg. Tr., 117). The CI then looked a second time and picked out
Appellant. Detective Hilderbrand testified that Detective Mackey had to inform the CI that
he could look a second time because otherwise the CI would not know he could. (Supp.
Hg. Tr., 119).
{¶64} The CI viewed the photos a second time. R.C. 2933.83(A)(6)(g) states that,
“[t]he administrator follows the procedures specified in this division for a second viewing
if the eyewitness requests to view each of the folders a second time.” Thus, a second
viewing is permitted. According to Detective Hilderbrand, Detective Mackey simply asked
the CI if he wanted to take a second look if he needed to after the CI placed the folders
in a pile after the first viewing. (Supp. Hg. Tr., 110, 118-119). This does not appear to
be impermissibly suggestive. Further, as Detective Hilderbrand explained at the
suppression hearing, the CI would not have known that he could take a second look if he
wanted to without someone telling him that he could. (Supp. Hg. Tr., 119). When he did,
Case No. 25 BE 0012
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the CI identified Appellant and indicated that he had a 6/10 confidence level in his
identification.
{¶65} For these reasons, we find that Detective Mackey was a blind administrator
because he did not know Appellant’s identity in the folders as the folders were created by
Detective Hilderbrand and Detective Mackey showed the folders to Appellant. We further
find that even if Detective Mackey could not be considered a blind administrator because
he participated in the surveillance of Appellant, he was nevertheless a blinded
administrator because he was not present when Detective Hilderbrand created the
folders.
{¶66} Further, Detective Hilderbrand was not the blind administrator because
Detective Mackey administered the lineup to the CI. Detective Hilderbrand’s silent
presence at the lineup was not impermissibly suggestive.
{¶67} Moreover, Detective Mackey’s query as to whether the CI wanted a second
look at the photo array did not violate procedure. In light of the above discussion, we
need not consider the second step “– whether the identifications were unreliable under
the totality of the circumstances.” Moon, 2013-Ohio-395, at ¶ 35 (2d Dist.).
{¶68} Accordingly, Appellant’s third assignment of error lacks merit and is
overruled.
{¶69} In his fourth assignment of error, Appellant asserts:
THE TRIAL COURT ERRED IN FAILING TO PROPERLY APPLY THE
EXCLUSIONARY RULE WHERE IT FOUND THAT EVIDENCE WAS
ILLEGALLY OBTAINED BUT NEVERTHELESS ALLOWED THE FRUIT
OF THE POISONOUS TREE TO BE ADMITTED INTO EVIDENCE.
{¶70} Appellant contends that once the trial court determined police exceeded the
scope of the 45-day GPS warrant, it should have suppressed all evidence related to the
warrant as fruit of the poisonous tree, rather than just the evidence obtained after the 45th
day. Appellant concludes that this includes the search warrant that was issued for his
residence since it was obtained based on the GPS warrant.
{¶71} Appellant’s assertion lacks merit. “The exclusionary rule applies to
constitutional violations, not statutory ones.” State v. Simpson, 2023-Ohio-3207, ¶ 21 (3d
Case No. 25 BE 0012
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Dist.), quoting State v. Campbell, 2022-Ohio-3626, ¶ 3 and citing State v. Ridenour, 2010-
Ohio-3373, ¶ 29, 33 (4th Dist.) (denial of motion to suppress affirmed because the police’s
noncompliance with Crim.R. 41 did not violate constitutional rights).
{¶72} Here, the trial court suppressed all evidence obtained after expiration of the
45-day deadline for the GPS tracking warrant. Crim.R 41(C)(2) outlines the issuance and
contents of a tracking device warrant and provides that the device may be used for a
period not to exceed 45 days. This is not a constitutional violation. Consequently, the
exclusionary rule does not apply.
{¶73} Accordingly, Appellant’s fourth assignment of error lacks merit and is
overruled.
{¶74} In his fifth assignment of error, Appellant asserts:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION
TO SEVER THE TRIAL OF THE TWO SEPARATE INCIDENTS WHICH
OCCURRED MONTHS APART.
{¶75} Appellant contends the court should have granted his motion to sever the
trial on his April 20, 2024 offense from his June 21, 2024 offenses. He submits that the
CI’s 6/10 confidence level in identifying him was weak and little evidence existed to link
him to the drugs found in his home on June 21, 2024.
{¶76} The standard of review for a motion to sever trials is abuse of discretion.
State v. Ford, 2019-Ohio-4539, ¶ 106 (citing State v. Hand,
2006-Ohio-18, ¶ 166.).
“Abuse of discretion” means an attitude that is “unreasonable, arbitrary, or
unconscionable.” Ford at ¶ 106, citing Huffman v. Hair Surgeon, Inc.,
19 Ohio St.3d 83,
87 (1985) (citing State v. Adams,
62 Ohio St.2d 151, 157 (1980)).
{¶77} Crim.R. 8(A) allows joinder “if the offenses charged . . . are of the same or
similar character . . . ” Joinder is also allowed when the offenses “are based on the same
act or transaction, or are based on two or more acts or transactions connected together
or constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.” Ford at ¶ 103. Allowing joinder “conserves resources by avoiding duplication
inherent in multiple trials and minimizes the possibility of incongruous results that can
Case No. 25 BE 0012
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occur in successive trials before different juries.” Id., quoting State v. Hamblin, 37 Ohio
St.3d 153, 158 (1988).
{¶78} A defendant can request severance of counts or offenses under Crim.R. 14.
In order to defeat joinder and obtain severance, a defendant must show “(1) that his rights
were prejudiced, (2) that at the time of the motion to sever he provided the trial court with
sufficient information so that it could weigh the considerations favoring joinder against the
defendant's right to a fair trial, and (3) that given the information provided to the court, it
abused its discretion in refusing to separate the charges for trial.” Ford at ¶ 106, quoting
State v. Schaim, 65 Ohio St.3d 51, 59 (1992). The State can overcome a claim of
prejudicial joinder by showing that (1) it could have introduced evidence of the joined
offenses as other acts under Evid.R. 404(B) or (2) the “evidence of each crime joined at
trial is simple and direct.” State v. Lott,
51 Ohio St.3d 160, 163 (1990).
{¶79} The trial court did not abuse its discretion in denying Appellant’s motion for
severance. The court reasonably found that under Evid.R. 404(B), the State could
introduce evidence from the April 20, 2024 controlled buy into the trial on the June 21,
2024 offenses to explain the investigation for the search of Appellant’s residence. It would
also show a common plan or scheme as the controlled buy on April 20, 2024 involved
methamphetamine and the June 21, 2024 home search revealed methamphetamine
found hidden in the bottom of a lemonade mix container in the kitchen.
{¶80} The trial court also reasonably found that joinder was permissible because
the evidence of each joined offense was simple and direct. The evidence of the April 20,
2024 controlled buy is simple and direct and clearly distinct from the evidence from the
June 21, 2024 search of Appellant’s home.
{¶81} Accordingly, Appellant’s fifth assignment of error lacks merit and is
overruled.
{¶82} In his sixth assignment of error, Appellant asserts:
GAFFNEY RECEIVED INEFFICTIVE [sic] ASSISTANCE OF COUNSEL
AND/OR THE TRIAL COURT ERRED IN FAILING TO SUSTAIN
GAFFNEY’S MOTION FOR A NEW TRIAL.
Case No. 25 BE 0012
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{¶83} Appellant contends his counsel was ineffective for failing to file a motion to
suppress the evidence found at his home on the basis that Detective Grant’s affidavit
supporting the search warrant for his home lacked probable cause to believe the items
sought would be found in the home. He notes the trial court’s repeated statement that no
such motion to suppress was filed and the affidavit and search warrant were not placed
in the record until after trial when he filed his motion for a new trial. He asserts the four
corners of the affidavit fail to establish probable cause that the items in the warrant would
be found in a search.
{¶84} This assignment of error lacks merit. A claim of ineffective assistance of
counsel requires showing both deficient performance and resulting prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984). If one prong of this test fails, the Court need
not consider the other. State v. Madrigal,
2000-Ohio-448, ¶ 15.
{¶85} To show deficient performance, the defendant must show that counsel's
representation fell below an objective standard of reasonableness. State v. Bradley,
42 Ohio St.3d 136, 142 (1989), citing
Strickland at 687-688. Our review is highly
deferential to counsel's decisions because of the strong presumption that counsel's
conduct fell within the wide range of what would be considered reasonable professional
assistance.
Id. There are “countless ways to provide effective assistance in any given
case.”
Id. To show resulting prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”
Strickland at 694.
{¶86} Further, we review a trial court's ruling on a motion for a new trial for an
abuse of discretion. See State v. Davis, 2011-Ohio-5028, ¶ 37 (explaining that “[t]he trial
court acts as the gatekeeper for [motions for a new trial] and, using its discretion, can limit
the litigation to viable claims only.”). Crim.R. 33, in relevant part, provides that:
A new trial may be granted if a defendant demonstrates that any of the
following causes materially affected his “substantial rights”:
Case No. 25 BE 0012
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(1) Irregularity in the proceedings, or in any order or ruling of the court, or
abuse of discretion by the court, because of which the defendant was
prevented from having a fair trial;
...
{¶87} In his motion for a new trial, Appellant raised the irregularity of the court’s
ruling and its abuse of discretion in overruling his motion to suppress. He alleged his
counsel was ineffective for failing to file a motion to suppress the search of his house
based on the absence of probable cause in the affidavit for the search warrant.
{¶88} Counsel was not ineffective in this case because such a motion to suppress
would have been overruled. To determine the sufficiency of probable cause in an affidavit
submitted for a search warrant, a trial judge or magistrate “is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit
before him [or her], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); Accord State
v. George,
45 Ohio St.3d 325 (1989).
{¶89} As a court of review, we must ensure that the court issuing the warrant had
a substantial basis to conclude that probable cause existed. Gates at 236. We afford
great deference to this decision and we review the totality of the circumstances to
determine whether probable cause existed for the search warrant.
Id. at 238. The
defendant bears the burden of establishing that the evidence obtained under a search
warrant should be suppressed because the warrant is invalid. State v. Middleton, 2024-
Ohio-5172, ¶ 15 (7th Dist.) citing State v. Dennis,
79 Ohio St.3d 421, 426 (1997). The
supporting affidavit for a warrant to search the home of a suspected drug dealer, “must,
under the totality of the circumstances, establish a nexus between the defendant's
criminal activity and his residence sufficient to raise a fair probability that evidence of
criminal activity will be found there.” State v. Johnson,
2024-Ohio-1147, ¶ 15 (1st Dist.),
citing State v. Lang,
2023-Ohio-2026, ¶ 19 (1st Dist.) (citing State v. Hobbs, 2018-Ohio-
4059, ¶ 58 (4th Dist.)) and State v. Howard,
2023-Ohio-4618, ¶ 20, 24 (1st Dist.).
Case No. 25 BE 0012
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{¶90} Appellant attached the affidavit in support of the search warrant to his
motion for a new trial. Upon review of the five-page affidavit, it meets the probable cause
standard. In the affidavit, Detective Grant detailed the circumstances of the controlled
buy video that preceded and supported the search of Appellant’s residence. He identified
the make and model of the car and the license plate of the vehicle Appellant was driving
during the buy. Detective Grant related that a clear photo of the vehicle was obtained
and its license plate number was put into the Ohio Law Enforcement Gateway. He
indicated the car owner’s spouse was Appellant, Appellant was known to law
enforcement, and they believed he was a large drug dealer operating with an alias of
“Beasley,” which detectives believed was the same name mentioned in their controlled
buy. Detective Grant also described the photo lineup where the CI identified Appellant
from the lineup as the person who sold him drugs in the controlled buy.
{¶91} Detective Grant also detailed the surveillance of Appellant’s home and
Appellant’s numerous vehicle trips to Cleveland and returns from Cleveland with short
trips to the homes of individuals known to law enforcement to be involved with illegal
drugs. Detective Grant stated that in his experience and training, his observations of
Appellant’s actions were consistent with drug trafficking. He also noted that surveillance
showed that Appellant drove to Cleveland on June 20, 2024 and returned the next day
carrying a large black bag and large box into his home.
{¶92} This constitutes sufficient probable cause to support the search warrant for
the residence. Since the affidavit contained sufficient probable cause to support the
search warrant, counsel was not ineffective by failing to file a motion to suppress the
search of the residence.
{¶93} Accordingly, Appellant’s sixth assignment of error lacks merit and is
overruled.
{¶94} In his seventh assignment of error, Appellant asserts:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES.
{¶95} Appellant contends the trial court erred by imposing a consecutive
sentence. He asserts that the court lacked evidence to find that his illegal drug
Case No. 25 BE 0012
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possession and trafficking caused harm so great and unusual that no single prison term
reflected the seriousness of the criminal conduct. He submits that no evidence showed
he caused physical or mental damage or injury from either incident giving rise to his
convictions.
{¶96} “[A]n appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 2016-Ohio-1002, ¶ 1. A sentence is clearly and convincingly contrary
to law in the following circumstances: (1) if it falls outside of the statutory range for the
particular degree of offense; (2) if the trial court fails to properly consider the purposes
and principles of felony sentencing under R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12; or (3) if the trial court orders consecutive sentences
and does not make the necessary consecutive sentence findings. State v. Chappell,
2024-Ohio-1541, ¶ 36 (7th Dist.), citing State v. Pendland,
2021-Ohio-1313, ¶ 41 (7th
Dist.).
{¶97} In State v. Jones, 2020-Ohio-6729, the Ohio Supreme Court modified an
appellate court's review of felony sentences. The Court clarified that “[n]othing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42. Thus, appellate
review of the sentencing factors is very limited and we may not reweigh the findings.
{¶98} While our review is limited, the trial court must consider the sentencing laws,
including those evaluating aggravating and mitigating factors. State v. McElroy, 2025-
Ohio-1356, ¶ 23-24 (7th Dist.), citing State v. Chappell, 2024-Ohio-1541, ¶ 37 (7th Dist.);
State v. Duley,
2023-Ohio-4722, ¶ 9 (7th Dist.); State v. Scott,
2023-Ohio-2640, ¶ 15 (7th
Dist.) (citing State v. Burkhart,
2019-Ohio-2711, ¶ 16 (7th Dist.)). Although the sentencing
court must consider the relevant sentencing factors under R.C. 2929.11 and 2929.12,
neither statute requires the court to make specific factual findings on the record.
Jones
at ¶ 20.
{¶99} As to consecutive sentences, R.C. 2929.14(C)(4) provides that:
Case No. 25 BE 0012
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(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶100} The trial court here addressed its reasons for imposing consecutive
sentences at the hearing. The court explained it was necessary to protect the public from
future crime and to punish Appellant. (Sent. Tr., 31). The court noted Appellant’s five
past prison sentences and their ineffectiveness in causing reform. (Sent. Tr., 31). The
court also stated that consecutive sentences were not disproportionate to the seriousness
of Appellant’s conduct in trafficking drugs and the resulting danger he poses to the public.
(Sent. Tr., 31). The court indicated that Appellant’s drug dealing was serious and
dangerous to not only the victims he sold drugs to, but also to those collaterally affected
by the abuse problems created. (Sent. Tr., 31). The court further found that Appellant
committed a course of conduct of putting drugs into the community and the harm caused
Case No. 25 BE 0012
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by this was so great and unusual that no single prison term for any of the offenses
adequately reflected the seriousness of his criminal conduct. (Sent. Tr., 32).
{¶101} The court's sentencing entry also stated that it considered R.C. 2929.11,
2929.12, 2929.13, and 2929.14. The court specifically stated it had considered the
principles and purposes of sentencing as outlined in those statutes. The court made the
same findings that it made at the sentencing hearing, explaining that consecutive
sentences were necessary to protect the public from Appellant's future crimes and to
punish him, and consecutive sentences were not disproportionate to the seriousness of
Appellant's conduct and to the danger he posed to the public. The court found Appellant’s
five prior prison sentences were ineffective. The court further found that Appellant's
offenses were not disproportionate to the seriousness of his drug trafficking and the
resulting danger he poses by distributing illegal drugs to the actual victims and/or those
victims who are impacted by drug abuse.
{¶102} Other courts addressing Appellant’s argument have found that even
without evidence of “actual harm” presented in the record, drug trafficking in substances
such as methamphetamine and fentanyl pose a “significant danger to the public, both
directly and indirectly” regardless of whether the person consuming the drug is injured.
See State v. Richey, 2023-Ohio-336, ¶ 20 (12th Dist.). The Richey Court declared that
the danger only increases when the drug trafficker continues to deal drugs even after
being caught.
Id. That court opined that the defendant had been fortunate that none of
his buyers had been seriously hurt or killed. Id. at ¶ 19. The court held that the trial
court’s findings were not clearly and convincingly unsupported by the record. Id. at ¶ 20.
{¶103} Similarly here, the trial court noted Appellant’s prior drug convictions and
the dangerous effects his drug trafficking had on those consuming the drugs and those
indirectly impacted. While no evidence in the record showed a direct serious physical or
mental harm per se, the Richey case supports the finding of a serious potential and
perhaps inevitable harm from continuing to traffic illegal drugs.
{¶104} Consequently, we cannot find that the evidence clearly and convincingly
does not support the trial court's findings under the applicable sentencing statutes or that
the sentence is otherwise contrary to law.
Case No. 25 BE 0012
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{¶105} Accordingly, Appellant’s seventh assignment of error lacks merit and is
overruled.
{¶106} In Appellant’s eighth assignment of error, he asserts:
THE TRIAL COURT ERRED IN FAILING TO GIVE PROPER JURY
INSTRUCTIONS REQUESTED BY THE DEFENDANT.
{¶107} Appellant contends the trial court erred by not instructing the jury as his
counsel requested on two instructions. The first instruction was Instruction 12(C), which
requested the court instruct the jury on statutory procedures for conducting photo lineups.
Appellant requested that the court specifically instruct the jury that, “in considering the
surrounding circumstances under which the Informant has identified the defendant in the
photo lineup, you must consider whether the lineup procedures used met several
requirements. You may consider credible evidence of noncompliance with these
requirements in determining the reliability of the Informant’s identification resulting from
or related to this lineup.”
{¶108} Appellant asserts that R.C. 2933.82 requires this jury instruction because
evidence of non-compliance with the procedure existed and the identity of the person who
sold drugs to the informant was a crucial issue in this case. Appellant further asserts that
his counsel requested the court to instruct the jury on 12(D) as to the credibility of an
informant and the serious questions raised by an informant. The trial court refused this
instruction.
{¶109} Appellee counters the trial court did not abuse its discretion in refusing the
proposed jury instructions because the legal requirements of the photo lineup were
discussed for the motion to suppress, but not for trial. Appellee further submits that the
credibility instruction would have required the jury to view the confidential informant’s
testimony with “grave suspicion” and requested that it be “weighted with great caution.”
Appellee explains that Appellant’s counsel could not cite to an Ohio Jury Instruction
requiring this instruction and the court denied the instruction, explaining that a credibility
jury instruction already existed, but defense counsel could argue in closing that the
testimony should be viewed with caution or suspicion.
Case No. 25 BE 0012
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{¶110} Appellant’s counsel presented to the court a complete jury instruction on
the photo lineup procedure in Proposed Jury Instruction 12(C). That proposed instruction
included the directions for administering the lineup and specifically advised in number 14
of “In the Presence of the Informant:” that “[t]he Informant can view the folders for a
second time if Informant requests. If the Informant requests a second viewing, repeat
steps 7 through 14 after documenting the results of the first viewing. If the Informant does
not request a second viewing the inquiry ends.” The proposed instruction also included
the following statement which appeared in two different places: “You may consider
credible evidence of non-compliance with these requirements in determining the reliability
of the Informant’s identification resulting from or related to this lineup.”
{¶111} During discussions on jury instructions, the court acknowledged that the
record appeared to support an instruction on number 14 of Appellant’s proposed jury
instructions. (Trial Tr., 504). The prosecution stated “okay” and requested that the court
note its objection due to the pretrial ruling overruling Appellant’s motion to suppress
evidence based on a violation of this procedure. (Trial Tr., 504).
{¶112} The trial court instructed the jury that it was their decision whether the
identification was reliable under the totality of the circumstances. (Trial Tr., 629). The
court informed them that they could consider the informant’s capacity and the degree of
attention that the informant paid to the offender, whether the informant had observed the
offender in the past, and the surrounding circumstances. (Trial Tr., 629). The court also
specifically advised the jury that, “The informant can view the folders for a second time if
the informant requests. If the informant does not request a second viewing, the inquiry
ends.” (Trial Tr., 629). After additional discussion with counsel off the record, the court
thereafter gave the jury an additional instruction, stating that a “blind administrator” means
“an administrator who does not know the identity of the suspect.” (Trial Tr., 647).
Detective Mackey was identified at trial as the administrator of the photo lineup. (Trial
Tr., 340).
{¶113} Detective Hilderbrand had testified that while Detective Mackey may not
be the type of blind administrator who knew nothing about the case, he was the type of
an administrator who did not know who Detective Hilderbrand put into the folders that
Mackey showed to the confidential informant. (Trial Tr., 546-549). Detective Hilderbrand
Case No. 25 BE 0012
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further testified that after the CI told Detective Mackey he could not identify anyone from
the photo lineup, Detective Mackey asked if he “wanted another look.” (Trial Tr., 548).
The CI testified that after he looked at the photo lineup, no one appeared to be the seller.
(Trial Tr., 240). He testified that Detective Mackey then told him to take a second look.
(Trial Tr., 240). He then identified Appellant in the second viewing at a 6/10 or 60/40
confidence level. (Trial Tr., 243).
{¶114} We review a trial court's refusal to give a requested jury instruction under
the abuse of discretion standard. State v. Wolons, 44 Ohio St.3d 64, 68 (1989). Abuse
of discretion means an attitude that is “unreasonable, arbitrary, or unconscionable
Huffman v. Hair Surgeon, Inc.,
19 Ohio St.3d 83, 87 (1985).
{¶115} Appellant concedes that he did not formally object to the court’s refusal to
give the two jury instructions. However, he submits that a party does not waive objections
to the court’s charge by failing to object because “[r]equested jury instructions should
ordinarily be given if they are correct statements of law, if they are applicable to the facts
in the case, and if reasonable minds might reach the conclusion sought by the requested
instruction.” State v. Adams, 2015-Ohio-3954, ¶ 240. (citations omitted). Plain error
applies when no objection was made.
{¶116} In any event, the trial court did not abuse its discretion by refusing to
instruct the jury as Appellant requested. As to an instruction on non-compliance with the
photo lineup procedure, as explained above, the trial court applied the proper legal
standard and found that Detective Mackey was a “blind administrator” in overruling
Appellant’s motion to suppress. Further, the court found that offering the informant a
second viewing did not render the photo lineup process faulty or suggestive since any
suggestibility concern was outweighed by the facts that the confidential informant knew
his seller, videotaped the controlled buy, identified Appellant shortly after the buy, ruled
out other photos, and stated a 60% certainty level on his identification.
{¶117} In addition, the trial court properly instructed the jury on their job to
determine the credibility of the witnesses and the court instructed them on the factors to
review in determining credibility. (Trial Tr., 628-629). The court further instructed the jury
that “[t]he informant can view the folders for a second time if the informant requests. If
the informant does not request a second viewing, the inquiry ends.” (Trial Tr., 629). After
Case No. 25 BE 0012
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additional discussion with counsel off the record, the court gave the jury an additional
instruction, stating that a “blind administrator” means “an administrator who does not
know the identity of the suspect.” (Trial Tr., 647). Detective Mackey was identified at trial
as the administrator of the photo lineup. (Trial Tr., 340).
{¶118} Thus, even though the trial court found the photo lineup procedure was
not faulty, it nevertheless instructed the jury on determining the credibility of the
witnesses, the definition of a blind administrator, and the second viewing of the photo
lineup.
{¶119} Accordingly, Appellant’s eighth assignment of error lacks merit and is
overruled.
{¶120} For the above reasons, we find that all of Appellant’s assignments of error
are overruled and the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
Robb, P.J., concurs.
Case No. 25 BE 0012
[Cite as State v. Gaffney, 2025-Ohio-4963.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
