         [Cite as State v. Flagg, 2018-Ohio-1702.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-170015
                                                         TRIAL NO. B-1502174
        Plaintiff-Appellee,                          :
                                                            O P I N I O N.
  vs.                                                :

NIKOLE FLAGG,                                        :

        Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 2, 2018




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



MOCK, Presiding Judge.

       {¶1}    Following a second jury trial, defendant-appellant Nikole Flagg, who

is a drug addict, was convicted of aggravated murder, aggravated robbery, tampering

with evidence and gross abuse of a corpse. Flagg repeatedly stabbed her mother to

death, doused the body and crime scene with bleach, and stole her mother’s cellular

phone. She then used the phone as currency to purchase crack cocaine from her

drug dealer, Matthew Barwick. The trial court sentenced Flagg to life without parole

for the aggravated murder, 11 years for the aggravated robbery, three years for

tampering with evidence and one year for gross abuse of a corpse. The trial court

ordered the sentences to be served consecutively, for an aggregate sentence of life

without parole, plus 15 years.

       {¶2}   Flagg now appeals her convictions, arguing that she was not the

perpetrator of these crimes, that her second trial violated double jeopardy

protections in the state and federal constitutions, that the trial court erroneously

admitted evidence of other weapons, that she had received ineffective assistance of

counsel and that the offenses of aggravated murder and aggravated robbery were

allied and should have been merged for purposes of sentencing. Finding no merit to

these arguments, we affirm the trial court’s judgment.

       First Trial

       {¶3}   Prior to the first jury trial, the trial court presided over a three-day

hearing on Flagg’s motion in limine, where she sought to prevent the state from

referencing or admitting her prior conviction for voluntary manslaughter. The trial

court granted her motion.




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       {¶4}    During opening arguments, co-counsel for the defense told the jury

two separate times that although Flagg is a crack addict and a thief, she does not kill.

There was no objection to these comments by the state. At the close of opening

arguments, the trial court excused the jury and asked the state if they wanted to use

Flagg’s prior conviction at trial despite the fact that the court had granted Flagg’s

motion in limine. The trial judge said he believed that defense counsel’s comments

may have opened the door for the state’s use of the prior conviction, and asked the

parties to research and argue the issue. Ultimately, the trial court ruled that defense

counsel’s comments had opened the door, and, based on that ruling, defense counsel

moved for a mistrial on the grounds of ineffective assistance of counsel. The trial

judge said that he had “anticipated your motion and I expected you to make it.” The

court then took the motion under submission, and ultimately granted the mistrial the

next day.

       Second Trial - Facts

       {¶5}    The parties do not dispute that Myrvinia Lowe, Flagg’s mother, was

murdered shortly before 3:00 p.m. on Friday, April 10, 2015, in her apartment

located in the Pleasant Ridge neighborhood of Cincinnati. Lowe failed to show up for

her second-shift job at Children’s Hospital, which was unusual for her. A month

prior to her murder, her son, Maurice Allen, had been living with her, sleeping on an

air mattress in the living room and often playing the stereo at night. Allen testified

that Lowe was concerned about Flagg’s drug problem and was scared of her.

Consequently, Lowe would hide her cash in her bible, her bra, and under the trash-

can liner.    Although Allen had warned his mother against letting Flagg in her




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apartment when he was not there, Lowe would occasionally pay Flagg to style her

hair.

        {¶6}   On April 9, 2015, Flagg’s alleged boyfriend refused to rent a room to

her because she already owed him money and he believed that she would spend what

money she had on drugs and not rent.        Instead, he drove her to her mother’s

neighborhood, where she spent a night in the woods because she did not have access

to her mother’s apartment.

        {¶7}   On Friday morning, Lowe let Flagg into her apartment to style her

hair.   Cellular phone records show that Flagg had contacted her drug dealer,

Matthew Barwick, several times that morning, and he eventually met her mid-

morning “out back” of her mother’s apartment and sold her $20 worth of crack

cocaine, which he testified was “more than [a] one time use.” Shortly after noon,

Allen called his mother from “the Hyde Park area” asking for directions to a health-

food store. He heard Flagg in the background, and told his mother to make Flagg

leave, but she did not. The phone call ended at 12:44 p.m. Allen later clocked into

work at 1:56 p.m. in Mason, Ohio.

        {¶8}   From 1:57 p.m. until 2:26 p.m., Flagg made 16 phone calls to Barwick.

Barwick testified that in one of the calls Flagg had told him she had a cellular phone

and credit cards to give him in exchange for drugs. Sometime after 2:26 p.m.,

Barwick met Flagg outside of her mother’s apartment. When she entered his car, she

offered him a red Verizon phone, later determined to belong to her mother, and

credit cards she said she had obtained from the laundry room in her mother’s

apartment building. Barwick took the phone, refused the credit cards, and gave her

drugs. He then drove her to Kandy Loudermilk’s house, where he sold Loudermilk




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$40 worth of drugs. Barwick testified that on the drive to Loudermilk’s house he had

the car windows down and had not smelled bleach or seen blood on Flagg.

       {¶9}   An expert in historical cellular phone analysis testified, based on which

tower the cellular phones were “pinging,” that Flagg’s cellular phone had been in the

vicinity of the crime scene until 2:12 p.m. on the day Lowe was murdered. His

analysis also demonstrated that Barwick had met Flagg that afternoon and had

driven her to Loudermilk’s house.

       {¶10} Loudermilk testified that Flagg had told her that her mother had not

paid her the money she had been expecting for styling her hair. Apparently, Lowe

had given Flagg the air mattress that Allen used to sleep on, and Flagg still owed her

money for it. Flagg arrived at Loudermilk’s house with a trash bag that she kept near

her.

       {¶11} Eventually, Flagg ended up on the doorstep of her boyfriend’s home,

the night of April 10, 2015. He testified that she looked “rough.” He allowed her to

stay at his residence for the next few weeks, until she moved into her own apartment.

       {¶12} Allen testified that he called his mother’s cell phone after his shift was

over on April 10, but the call went to voicemail. He was concerned because there was

rap music playing on her voicemail and he knew she did not like that type of music.

On Saturday night, he called her phone again and heard the same message. At this

time, he was commuting to work from Columbus, Ohio, where his girlfriend lived.

He contacted the Cincinnati Police in the early morning hours of April 12, 2015, and

asked them to check on his mother.

       {¶13} Police Officer Roy responded to Lowe’s apartment and heard music

coming from the apartment. Officer Roy entered the apartment through a window,




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because the apartment door was locked. Upon entering the apartment, he smelled a

strong odor of bleach and saw Lowe lying between the kitchen and the dining room.

There was blood splattered all over the kitchen, and it appeared as if Lowe had been

in the process of packing food for work. Lowe’s shirt and bra had been pulled up and

her pants had been pulled down. Bleach had been doused over the crime scene and

on Lowe’s body, which left post-mortem burns.

       {¶14} Lowe had been stabbed 12 times in the head, neck and torso. Two of

the stab wounds had cut through Lowe’s ribs and one had pierced her aorta, resulting

in her death. Homicide detective Jenny Luke testified that it had appeared that Lowe

had put up a fight. In what the coroner described as a defensive wound, one of

Lowe’s fingers had been nearly cut off. Lowe had also been stabbed three times in the

upper back. There were four knives found in Lowe’s kitchen—one in a drawer, two in

a knife block and one on the counter, which appeared to have blood on it, but it was

later determined that it was bits of tomato. A folding knife that contained black and

white fibers was later discovered at a residence, which was of significant interest

during the investigation. And Flagg’s black socks, with what was later determined to

be bleach stains, were found in her new apartment.

       {¶15} The knives from the kitchen as well as the folding knife were

introduced into evidence. The kitchen knives had no blood, fingerprints or DNA on

them. The trace-evidence expert testified that the fibers found on the folding knife

could have come from the shirt Lowe had been wearing at the time of her murder. A

report by the deputy chief coroner, which was admitted into evidence, stated that the

folding knife could have caused the wounds on Lowe’s upper back, but it could not

have caused the fatal stab wounds.




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       {¶16} There was no cash, credit cards, car keys or apartment key found in

Lowe’s apartment. The apartment door had been locked. On the bookshelf, by the

door, was a paper towel in the shape of a door knob, as if someone had used it when

opening the door. Flagg’s DNA was found on that paper towel.

       {¶17} Allen’s DNA was found on the power button to the stereo, and his DNA

profile could not be excluded as a contributor to the DNA found on the bottle of

bleach under Lowe’s kitchen sink. Detective Luke testified that when she had told

Allen that his mother had been killed he began to cry. She verified that he had

clocked into work at 1:56 p.m. on the day of the murder.

       {¶18} Detective Luke interviewed Flagg on April 12, 2015. Flagg told the

detective that she had spent Thursday night at her boyfriend’s home, and then went

to her mother’s apartment the next morning to style her mother’s hair. She said that

during her visit her mother had spoken to Allen on the phone. Flagg said she stayed

until 1:00 p.m., and had made plans with her mother to see a movie the next day.

Flagg said that she had asked her mother for a ride, but her mother refused because

she had to get ready for work. Flagg said she took the bus when she left her mother’s

house, but had spotted Barwick at a Sunoco station, and had exited from the bus to

ask him for a ride to her friend’s house. She said that she had spent Friday night

with her boyfriend, and had called her mother the next day to go to a movie, but her

mother had not picked up the phone. She indicated that her mother’s voicemail had

rap music on it, which she thought was strange.

       {¶19} Detective Luke testified that she had reviewed videos from the Metro

bus and had determined that Flagg had never been on it. She had also reviewed the

security camera footage from the Sunoco station and had determined that Flagg and




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Barwick were never there. Luke further testified that there was no record, from

either Flagg’s cellular phone or her boyfriend’s home and cellular phones, that Flagg

had called her mother’s phone the day after the murder. Luke testified that the day

after she had interviewed Flagg, Flagg had left an angry voicemail telling Luke to

stop talking to other people about her mother and that Luke should only speak to

her.

       {¶20} As part of the investigation, Luke texted Lowe’s cellular phone,

indicating that she was a homicide detective and that she was looking for the phone.

Barwick agreed to leave the cellular phone at a specific location for Luke to retrieve.

Barwick ultimately appeared at trial, testifying that on Saturday, April 11, 2015, Flagg

had called him and told him to get rid of the red cell phone because her “mother was

tracing it.” She then called him on Sunday, upset, saying that her mother had been

robbed and was taken away in an ambulance.

       {¶21} After a second interview with police, where Flagg defensively asked

police where they had found her mother’s cellular phone, she was arrested for the

charged offenses.

Double Jeopardy

       {¶22} In her first assignment of error, Flagg contends that her second jury

trial violated the constitutional prohibition against double jeopardy. Initially, we

note that Flagg did not object to the second trial or raise the issue of double jeopardy

to the trial court.   A reviewing court may, but is not required to, consider a

constitutional issue raised for the first time on appeal where the rights and interests

involved may warrant it. In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988); see

State v. Jones, 12th Dist. Clermont No. CA2001-07-061, 2003-Ohio-815, ¶ 5.




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       {¶23} Where a defendant in a criminal trial successfully moves for a mistrial,

he may invoke the bar of double jeopardy in a second effort to try him only if the

conduct giving rise to the successful motion for a mistrial was prosecutorial or

judicial conduct intended to provoke the defendant into moving for a mistrial.

Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

       {¶24} Flagg argues that her second trial should have been barred because the

trial court’s conduct—announcing to the parties that defense counsel may have

opened the door to the admission of a prior conviction—was intentionally calculated

to cause a mistrial. But this is not supported in the record. The trial court was

unclear as to whether defense counsel’s comments in opening argument opened the

door to the admission of the prior conviction and asked for research on the issue.

After determining that the prior conviction could be admitted, the trial judge stated

that he anticipated that the defense would move for a mistrial if he ruled a certain

way. He also stated, prior to making his ruling, “I wish I wasn’t in this situation

frankly.” The record does not demonstrate that the court was intentionally trying to

cause a mistrial. At most, the record shows that the court recognized a possible

future problem. Given the amount of litigation that occurred prior to the first trial

over the issue of whether the prior conviction should have been allowed in, and given

the fact that a ruling was made in favor of the defense on that issue, the trial court

had cause to address defense counsel’s comments in opening argument.

       {¶25} Because the trial court’s actions were not intentionally calculated to

cause Flagg to request a mistrial, we overrule the first assignment of error.




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Other Weapons Evidence

       {¶26} In the second assignment of error, Flagg argues that the trial court

erred in admitting other weapons evidence in violation of Evid.R. 404(B) and the

Due Process Clause of the state and federal constitutions.

       {¶27} Because Flagg did not object to the admission of the four kitchen

knives found at the crime scene or the admission of the folding knife found at a

different residence, we review the admission of the knives for plain error.       To

constitute plain error, the error must be obvious and outcome determinative; i.e., it

must have affected the outcome of the trial. State v. Lewis, 1st Dist. Hamilton Nos.

C-050989 and C-060010, 2007-Ohio-1485, ¶ 39; State v. Barnes, 94 Ohio St.3d 21,

2002-Ohio-678, 759 N.E.2d 1240.

       {¶28} Flagg argues that admitting the kitchen knives into evidence, where it

was undisputed that none were the murder weapon, was prejudicial error. She cites

to State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, in support.

In Thomas, the defendant was found guilty of stabbing to death a woman outside of

the bar where she had been employed and disposing of her body in the woods behind

the bar. The Ohio Supreme Court held that the admission of the set of knives that

had been found in the defendant’s home contravened Evid.R. 404(B) and amounted

to plain error where the state knew that the knives had not been used in connection

with the murder and where the prosecutor had relied on the knives to “describe

Thomas as an owner of ‘full Rambo combat knives’ with the intent to have the jury

infer that Thomas is a dangerous person of violent character.” Id. at ¶ 45.

       {¶29} This case is distinguishable from Thomas. First, the four kitchen

knives were found at the crime scene, and not in an unrelated location as the knives




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had been in Thomas. Second, the prosecutor in the instant case told the jury during

closing that the knives had been admitted to show the extent of the police

investigation, and acknowledged that the knives did not have any blood or DNA on

them. Thus, unlike in Thomas, the knives had not been introduced to show that

Flagg was a violent person. Because the knives were found at the scene and admitted

to show the extent of the investigation, we hold that the trial court did not err in

admitting the knives into evidence.

           {¶30} With respect to the folding knife, we also cannot say that it was error

for the trial court to admit it into evidence where that knife contained fibers that the

trace-evidence expert testified could have come from the shirt Lowe had been

wearing the day she was murdered, and where the coroner’s report indicated that the

folding knife could have made the three stab wounds on Lowe’s upper back that

would have had to have gone through her shirt.

           {¶31} Based on the foregoing, we overrule Flagg’s second assignment of

error. We address the remaining assignments of error out of order for purposes of

clarity.

Sufficiency and Weight

           {¶32} In her fifth assignment of error, Flagg contests the sufficiency and

weight of the evidence underlying her convictions. When reviewing a challenge to

the sufficiency of the evidence, we must determine, after viewing the evidence in a

light most favorable to the prosecution, whether any rational trier of fact could have

found the essential elements of the offenses proved beyond a reasonable doubt. See

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. To reverse a conviction on the manifest weight of the evidence, this court




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must review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether the trier of fact

clearly lost its way and created a manifest miscarriage of justice in finding the

defendant guilty. See State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d

541 (1997).

       {¶33} Under this assignment, Flagg does not contest that an aggravated

murder, which requires proof of a specific intent to kill, and an aggravated robbery

occurred, and she does not contest that the scene was tampered with or that Lowe’s

body was desecrated. The only contested issue is whether the state proved she was

the perpetrator of those crimes. Viewing the evidence in a light most favorable to the

state, we hold there was sufficient evidence to find Flagg guilty of the charged

offenses. Flagg concedes that the evidence shows that her mother was killed prior to

3:00 p.m. on Friday, April 10, 2015. By Flagg’s own admission, she was at her

mother’s apartment until shortly after 1:00 p.m. Starting around 1:30 p.m., Flagg

called Barwick at least 16 times in a half-hour period. Barwick testified that he met

Flagg outside of her mother’s apartment between 2:00 p.m. and 2:30 p.m. on April

10, 2015, where she gave him her mother’s cellular phone in exchange for drugs. The

paper towel most likely used to open the door of the apartment had Flagg’s DNA on

it.

       {¶34} We also hold that the jury did not create a manifest miscarriage of

justice by finding Flagg guilty of these crimes. Although Flagg argues that Allen, her

half-brother, was most likely the killer, we note that police had verified that he had

clocked into work at 1:56 p.m. The jury could have reasonably believed that it was

not possible for Allen to have had time kill his mother a little after 1:00 p.m., douse




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the apartment with bleach, and then arrive at his job in Mason, Ohio, at 1:56 p.m;

especially in light of the fact that the evidence showed that Flagg’s cellular phone was

still near the crime scene at 2:12 p.m. that day. Flagg also argues that Allen’s DNA

and not hers was found on the stereo button, but he had lived there up until a month

prior to the murder, and it is reasonable that his DNA would still be present in the

home. Finally, Flagg argues that Barwick’s testimony was unreliable as he was a

drug dealer who had pending felony charges against him. But the historical-analysis-

of-cellular-phones expert’s testimony confirmed Barwick’s testimony regarding the

location of each person’s cellular phones on Friday, April 10th. Further, the jury was

in the best position to judge the credibility of witnesses and determine the weight to

be given to the evidence. State v. Blakenburg, 197 Ohio App.3d 201, 2012-Ohio-

1289, 966 N.E.2d 958, ¶ 114 (12th Dist.).          Therefore, we will not overturn a

conviction on the manifest weight of the evidence unless the evidence weighs heavily

against the conviction, which it does not here.

       {¶35} The fifth assignment of error is overruled.

Allied Offenses

       {¶36} In her third assignment of error, Flagg contends that the offenses of

aggravated murder and aggravated robbery were allied under R.C. 2941.25, and that

the trial court erred by not merging the offenses at sentencing. We disagree.

       {¶37} This court reviews the trial court’s R.C. 2941.25 determination de

novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.

Flagg did not object at the sentencing hearing to the imposition of multiple sentences

for these offenses. She has therefore forfeited this issue absent a showing of plain




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error. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶

31; Crim.R. 52(B).

       {¶38} Under R.C. 2941.25, a trial court must merge offenses if the conduct of

the defendant can be construed to constitute two or more allied offenses of similar

import, and this conduct shows that the offenses were not committed separately or

with a separate animus. State v. Sanders, 1st Dist. Hamilton Nos. C-140579 and C-

140580, 2015-Ohio-5232, ¶ 46. Thus, separate convictions are permitted for allied

offenses if the offenses were (1) dissimilar in import or significance, (2) committed

separately, or (3) committed with a separate animus or motivation. Id. A reviewing

court may end its analysis upon finding that any one of the three applies. State v.

Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 83.

       {¶39} In Sanders, and State v. Tibbs, 1st Dist. Hamilton No. C-100378, 2011-

Ohio-6716, this court held that where an offender’s conduct demonstrated a purpose,

or specific intent, to kill while in the course of committing an aggravated robbery, the

two offenses were committed with a separate animus and thus were separately

punishable under R.C. 2941.25(B). Sanders at ¶ 51; Tibbs at ¶ 48. As in Sanders and

Tibbs, the jury here returned a guilty verdict for aggravated murder in violation of

R.C. 2903.01(B), after being instructed that “[a]person acts purposely when it is her

specific intention to cause a certain result. It must be established in this case that at

the time in question there was present in the mind of the defendant a specific

intention to cause the death of [Lowe].” Because the jury determined that Flagg had

a specific intent to kill Lowe by finding her guilty of aggravated murder, and because

we ratified that finding by rejecting Flagg’s weight-and-sufficiency-of-the-evidence

assignments of error, the aggravated-murder offense was committed with a separate




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animus or motivation from the aggravated-robbery offense, and thus the two

offenses did not merge under R.C. 2941.25(B). Id.; see State v. Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of the syllabus.

       {¶40} Because the trial court did not err in failing to merge the offenses at

sentencing, the third assignment of error is overruled.

Counsel

       {¶41} In her fourth assignment of error, Flagg contends she was deprived of

her right to effective representation of counsel at trial.

       {¶42} Flagg argues that she received ineffective assistance of counsel because

her counsel failed to (1) move to dismiss the second trial on double jeopardy

grounds, (2) object to the admission of the knives, and (3) raise the issue of allied

offenses at sentencing. But, based on our resolution of those assignments of error

dealing with those issues, Flagg cannot demonstrate that trial counsel’s performance

fell below a reasonable standard of representation or that she was prejudiced. See

Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Accordingly, the fourth assignment of error is overruled.

       {¶43} We, therefore, affirm the judgment of the trial court.

                                                                      Judgment affirmed.

CUNNINGHAM and ZAYAS, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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