[Cite as State v. Griffin, 2019-Ohio-37.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.      28829

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
SAMSON GRIFFIN                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2016-08-2868

                                   DECISION AND JOURNAL ENTRY

Dated: January 9, 2019



        TEODOSIO, Judge.

        {¶1}     Appellant, Samson Griffin, appeals from his burglary conviction in the Summit

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     The Blick Clinic operates dozens of residential group homes in the Akron area for

individuals with developmental disabilities. Mr. Griffin previously worked for the Blick Clinic

as a direct care staff member in 2013 and 2014, assisting residents with various issues in their

homes. On August 15, 2016, a 42” Sanyo television was stolen from an autistic resident’s room

in the group home on Eastlawn Avenue in Akron.

        {¶3}     According to a father and son team who were painting the interior of the Eastlawn

group home that day, they encountered Mr. Griffin inside of the home. They saw Mr. Griffin

attempting to open a locked medicine cabinet in the kitchen, and Mr. Griffin told them he was

“taking inventory.” The son later went outside to retrieve a tool from his father’s truck, and
                                                2


when he re-entered the home he passed by Mr. Griffin, who was exiting the home with a large,

flat-screen television under his arm. The two men exchanged pleasantries and Mr. Griffin left.

       {¶4}    According to the human resources director of the Blick Clinic, Mr. Griffin called

the executive director of the Blick Clinic that same afternoon to say he heard that he was being

accused of stealing a television, but the allegation was untrue. The executive director spoke with

Mr. Griffin while on speakerphone, specifically so the human resources director could listen to

and witness the conversation.

       {¶5}    Four separate thefts had occurred in Blick group homes around that time, and the

police began an investigation. They discovered that Mr. Griffin had pawned five different

televisions in the past several weeks, although they were unable to locate the stolen 42” Sanyo.

The father-painter identified Mr. Griffin in a photo array as the man he saw at the Eastlawn home

with 90 percent certainty, but the son was unable to make a positive identification in the photo

array. A Snapchat video of Mr. Griffin was also introduced at trial, in which he is in a vehicle

wearing clothes matching the description provided by the son, and in which a television can be

seen in the back seat. GPS evidence also placed Mr. Griffin’s phone in the vicinity of Eastlawn

Avenue around the time of the theft, and cell phone records indicated that a call was made to

National Jewelry and Pawn (“National”) from Mr. Griffin’s cell phone that morning. Mr. Griffin

denied entering the group home on that day and denied stealing the television, and instead told

police that he was with his wife that afternoon. His wife’s employer testified and presented

documentation as to Mr. Griffin’s wife’s work schedule that day.

       {¶6}    Additional evidence was introduced at trial that Mr. Griffin had visited another

Blick Clinic group home on Winhurst Drive three days prior to the Eastlawn theft. According to

a staff member who was working that day, Mr. Griffin arrived, introduced himself using a
                                                 3


different name, and asked to speak to a resident named Chris, but she informed him that no one

by that name lived there. Mr. Griffin left, but returned shortly thereafter and asked to speak to a

different resident named Kenny, who was in fact present in the home. After the staff member

allowed Mr. Griffin to speak to Kenny, Mr. Griffin told the staff member that he was also

supposed to be meeting Tonya there to “help her do something,” but she informed him that

Tonya no longer worked there. Mr. Griffin was sweating and he went downstairs alone to use

the restroom—where additional doors to the house that could be unlocked from the inside were

located—before he ultimately returned upstairs and left the home.          Another resident who

returned to the Winhurst home later that day discovered that his television had been stolen.

According to the staff member, the name Mr. Griffin provided did not sit well with her and she

believed that she already knew him through mutual friends. She later realized she had gone to

middle school with Mr. Griffin’s ex-wife, and she was friends with both Mr. Griffin and his ex-

wife on Facebook.

        {¶7}   Mr. Griffin was indicted on one count of burglary, a felony of the second degree,

for the incident at the Eastlawn home. He filed a motion to suppress the results of the pretrial

identification, but withdrew his motion prior to a hearing. After a jury trial, Mr. Griffin was

found guilty, and the trial court sentenced him to two years in prison.

        {¶8}   Mr. Griffin now appeals from his conviction and raises four assignments of error

for this Court’s review.

        {¶9}   For ease of analysis, we will consolidate and reorganize Mr. Griffin’s assignments

of error.
                                               4


                                               II.

                              ASSIGNMENT OF ERROR ONE

       TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE
       ADMISSION OF HEARSAY EVIDENCE.

                              ASSIGNMENT OF ERROR TWO

       TRIAL COUNSEL’S FAILURE TO OBJECT TO THE ADMIISSION (SIC) OF
       EVIDENCE OF SAMSON’S PAWNING OF NUMEROUS TELEVISIONS
       CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

                             ASSIGNMENT OF ERROR FOUR

       TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO
       SUPPRESS THE IDENTIFICATION OF SAMSON

       {¶10} In his first and second assignments of error, Mr. Griffin argues that his trial

counsel was ineffective for failing to object to the admission of testimony and the pawn shop’s

business records identifying Mr. Griffin as having pawned five televisions between June 28,

2016, and August 15, 2016, because (1) the evidence was hearsay, and (2) the probative value of

the records was outweighed by their prejudicial effect. In his fourth assignment of error, Mr.

Griffin argues that his trial counsel was ineffective for withdrawing his motion to suppress the

photo array as unduly suggestive. We disagree with all three propositions.

       {¶11} We first note that “in Ohio, a properly licensed attorney is presumed competent.”

State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. “There are countless ways to

provide effective assistance in any given case. Even the best criminal defense attorneys would

not defend a particular client in the same way.” Strickland v. Washington, 466 U.S. 668, 689

(1984). Moreover, debatable trial tactics will not constitute ineffective assistance of counsel.

State v. Clayton, 62 Ohio St.2d 45, 49 (1980). To prove ineffective assistance of counsel, one

must establish that: (1) his counsel’s performance was deficient, and (2) the deficient
                                                  5


performance prejudiced the defense. Strickland at 687. Counsel’s performance is deficient if it

falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of the syllabus. Prejudice can be shown by proving “there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial would have

been different.” Id. at paragraph three of the syllabus. “[T]he Court need not address both

Strickland prongs if an appellant fails to prove either one.” State v. Lortz, 9th Dist. Summit No.

23762, 2008-Ohio-3108, ¶ 34.

                           Hearsay and the Business Records Exception

       {¶12} Mr. Griffin first argues that his trial counsel was ineffective for failing to object to

the admission of testimony and records—demonstrating that Mr. Griffin had recently pawned

five televisions—as hearsay because the proper foundation was not laid, as the witness testified

regarding records that were retained but not produced by his business. See Monroe v. Steen, 9th

Dist. Summit No. 24342, 2009-Ohio-5163, ¶ 14 (“A witness who merely receives and retains

records produced by another business does not necessarily have a ‘working knowledge of the

specific record-keeping system that produced the document.’”).

       {¶13} Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted” and

is generally inadmissible unless it falls within a recognized exception. Evid.R. 801(C) and 802.

Evid.R. 803(6) sets forth an exception to the hearsay rule for business records of regularly

conducted activity:

       A memorandum, report, record, or data compilation, in any form, of acts, events,
       or conditions, made at or near the time by, or from information transmitted by, a
       person with knowledge, if kept in the course of a regularly conducted business
       activity, and if it was the regular practice of that business activity to make the
       memorandum, report, record, or data compilation, all as shown by the testimony
       of the custodian or other qualified witness or as provided by Rule 901(B)(10),
                                                 6


       unless the source of information or the method or circumstances of preparation
       indicate lack of trustworthiness. The term “business” as used in this paragraph
       includes business, institution, association, profession, occupation, and calling of
       every kind, whether or not conducted for profit.

       {¶14} The director of operations in Ohio for National Jewelry and Pawn (“National”)

testified as to his extensive training and experience within the pawn industry, including his

distinction as one of only 48 people in the world who is “certified to say what’s known as a

professional pawnbroker, which is about 100 hours of certification * * * [from] operations to

identification of items in pawnshops.” His testimony established that it is the regular practice of

the pawn business to require customers to provide photo identification, and all of the relevant

information regarding their transaction is electronically recorded in the pawn shop’s point-of-

sale software and kept in the ordinary course of business. That same information is then

automatically transferred into the LeadsOnline database, whereby law enforcement is afforded

access to daily reports on all transactions. The director’s testimony established that the specific

records of Mr. Griffin’s transactions—pawning five televisions at Pawn Brokers of America

(“Pawn Brokers”) between June 28, 2016, and August 15, 2016—were created and entered into

the system by several different clerks who had actual knowledge of the individual transactions.

       {¶15} Mr. Griffin’s argument that the proper foundation was not laid because National

retained but did not actually produce the records lacks merit.

       When laying a foundation, “the testifying witness must possess a working
       knowledge of the specific record-keeping system that produced the document.”
       [State v. Davis, 62 Ohio St.3d 326, 342 (1991)].

       The witness whose testimony establishes the foundation for a business record
       need not have personal knowledge of the exact circumstances of preparation and
       production of the document. Evid.R. 803(6). However, the witness must
       “demonstrate that he or she is sufficiently familiar with the operation of the
       business and with the circumstances of the preparation, maintenance, and retrieval
       of the record in order to reasonably testify on the basis of this knowledge that the
       record is what it purports to be, and was made in the ordinary course of business.”
                                                7


       [Keeva J. Kekst Architects, Inc. v. George Dev. Group, 8th Dist. Cuyahoga No.
       70835, 1997 WL 253171, *5 (May 15, 1997), citing WUPW TV-36 v. Direct
       Results Marketing, Inc., 70 Ohio App.3d 710, 714-715 (10th Dist.1990)].

State v. Baker, 9th Dist. Summit No. 21414, 2003-Ohio-4637, ¶ 10-11. Here, the director

testified that National acquired the assets of Pawn Brokers in November of 2016 and re-opened

the business at the same location, maintaining the same phone number, only now under the

control of National. The director’s testimony established his working knowledge of the point-of-

sale software utilized by National and Pawn Brokers. Although the director did not physically

conduct the pawn transactions with Mr. Griffin, and he did not specifically refer to himself as the

“custodian” of the records, he was surely at least an “other qualified witness” within the meaning

of Evid.R. 803(6), enabling him to lay a foundation establishing the evidence as business

records. See State v. Rich, 2d Dist. Montgomery No. 27356, 2018-Ohio-1225, ¶ 18; State v.

Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 40 (“A ‘qualified witness’ for this purpose would

be someone with ‘enough familiarity with the record-keeping system of the business in question

to explain how the record came into existence in the ordinary course of business.’”).

       {¶16} Defense counsel never objected at trial to the director’s testimony or to the

introduction of the business records. However, as a matter of law, the failure to object at trial

may be justified as a trial tactic and thus does not sustain a claim of ineffective assistance of

counsel. State v. Miller, 9th Dist. Summit No. 23240, 2007-Ohio-370, ¶ 10, citing State v.

Gumm, 73 Ohio St.3d 413, 428 (1995). “Strategic trial decisions are left to the deference of trial

counsel and are not to be second-guessed by appellate courts.” Id., citing State v. Carter, 72

Ohio St.3d 545, 558 (1995). The record here indicates that the director’s testimony laid a

sufficient foundation for the admission of the business records into evidence, and counsel’s

decision not to object was conceivably a strategic trial tactic, as any objection on the basis of
                                                8


hearsay may have been presumed futile by counsel. Even assuming arguendo that counsel

should have objected to the director’s testimony or the records, we would nonetheless conclude

that the failure to do so did not affect the outcome of the trial in light of the overwhelming

evidence introduced against Mr. Griffin in this case. See State v. Jackson, 9th Dist. Lorain No.

14CA010555, 2015-Ohio-2473, ¶ 68, citing State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, ¶ 105 (finding no ineffective assistance of counsel where even if trial counsel objected and

evidence was excluded, other evidence established facts giving rise to the defendant’s

conviction).

                              Probative Value vs. Prejudicial Effect

       {¶17} Mr. Griffin also argues that his trial counsel was ineffective for failing to object to

the admission of the pawn shop’s business records because their prejudicial effect outweighed

their probative value. He directs our attention specifically to the fact that the stolen 42” Sanyo

was not among the five televisions pawned by Mr. Griffin between June 28, 2016, and August

15, 2016, and he claims that the evidence may confuse a jury into believing the pawned

televisions were stolen.

       {¶18} “‘Logically, all evidence presented by a prosecutor is prejudicial, but not all

evidence unfairly prejudices a defendant.’” (Emphasis added.) State v. Martin, 9th Dist. Lorain

No. 15CA010888, 2017-Ohio-2794, ¶ 23, quoting State v. Skatzes, 104 Ohio St.3d 195, 2004-

Ohio-6391, ¶ 107. Relevant evidence is not admissible “if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury.” Evid.R. 403(A). “The Supreme Court has stated the ‘relevant evidence, challenged as

being outweighed by its prejudicial effects, should be viewed in a light most favorable to the

proponent of the evidence, maximizing its probative value and minimizing any prejudicial effect
                                                 9


to one opposing admission[.]’” Martin at ¶ 23, quoting State v. Ellis, 9th Dist. Summit No.

27013, 2014-Ohio-4186, ¶ 26, quoting State v. Frazier, 73 Ohio St.3d 323, 333 (1995).

       {¶19} Evidence that Mr. Griffin pawned five different televisions in the weeks

immediately preceding the theft at the Eastlawn home is certainly probative in a case involving

the theft of a television. Mr. Griffin is correct in stating that the stolen 42” Sanyo was not among

the five televisions he pawned.      The evidence at trial demonstrated that only one of the

televisions recently stolen from Blick homes—not the 42” Sanyo—could be traced with a serial

number, and that serial number did not match any of the five televisions recently pawned by Mr.

Griffin. Mr. Griffin contends that evidence of him pawning televisions could lead a jury to

believe that the pawned televisions were stolen, but the evidence at trial simply indicated that

insufficient information was available to identify the pawned televisions as stolen property. As

such, Mr. Griffin has not demonstrated how the probative value of the evidence was substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury. See Evid.R. 403(A).

       {¶20} In viewing the evidence in a light most favorable to the State, while maximizing

its probative value and minimizing its prejudicial effect, we cannot conclude that it unfairly

prejudiced Mr. Griffin or that it confused or misled the jury. Once again, trial counsel’s failure

to object to this evidence may reasonably be justified as a trial tactic, which this Court will not

second-guess. See Miller, 2007-Ohio-370, at ¶ 10. Moreover, even if we had concluded that

counsel should have objected, his failure to object would not have prejudiced Mr. Griffin, as the

State introduced a wealth of evidence supporting a conviction in this case. See Jackson, 2015-

Ohio-2473, at ¶ 68.
                                                 10


                               Withdrawal of the Motion to Suppress

       {¶21} Mr. Griffin also argues that his trial counsel was ineffective for withdrawing his

motion to suppress evidence obtained from the photo array. He claims the photo array was

unduly suggestive, and the father’s identification of Mr. Griffin was tainted because the father’s

boss showed him a photo of Mr. Griffin as a possible suspect in the theft one day prior to police

administration of the photo array.

       {¶22} Defense counsel is not required to file a motion to suppress in every case. State v.

Taylor, 9th Dist. Summit No. 24054, 2008-Ohio-5238, ¶ 3. This Court has held that the decision

to withdraw a motion to suppress constitutes a tactical decision by counsel and cannot be used to

establish an ineffective assistance claim. See, e.g., State v. Liu, 9th Dist. Summit No. 24112,

2008-Ohio-6793, ¶ 32. Moreover, the Supreme Court of Ohio has “rejected claims of ineffective

counsel when counsel failed to file or withdrew a suppression motion when doing so was a

tactical decision, there was no reasonable probability of success, or there was no prejudice to the

defendant.” State v. Nields, 93 Ohio St.3d 6, 34 (2001).

       {¶23} The father-painter testified that his employer texted a photo of Mr. Griffin to both

him and his son one day after the theft, and he confirmed that it was the same man he saw in the

Eastlawn home on the day of the theft. Detective Russell Bassett administered a photo array on

the following day at one of the painters’ job sites. Detective Bassett testified as to his role as the

“blind administrator” of the photo array as well as the procedures he employed in administering

the photo array. The photo array consisted of six tabbed photos in a single folder and the

painters were each asked, individually, to look at each of the six photos in succession. They

were permitted to go through the array a second time, but not a third time. The father identified

a photo of Mr. Griffin in the array as the man he saw in the Eastlawn home on the day of the
                                                11


theft with 90 percent certainty. The father testified that the photo of Mr. Griffin in the array was

different than the one his boss sent him, as it was much grainier, Mr. Griffin’s face was a little

fuller, and his facial hair may have been different. The son was unable to make a positive

identification from the photo array.

         {¶24} Mr. Griffin’s counsel filed a motion to suppress the evidence obtained from the

photo arrays, arguing that (1) the Akron Police Department has not adopted specific procedures

for conducting photo lineups in compliance with R.C. 2933.83, and (2) the photos contained

within the array were unduly suggestive. Several months later, the trial court permitted defense

counsel to withdraw from the case and appointed new counsel to represent Mr. Griffin. After

several more months, new counsel withdrew the motion to suppress, and the case proceeded to

trial.

         {¶25} Mr. Griffin makes no argument to refute the presumption that counsel’s decision

to withdraw the motion was a tactical decision and fails to argue that the withdrawal resulted in

any prejudice. Although he claims “a motion to suppress would have been successful if made,”

he provides no argument to support this assertion apart from a generalized reliance on persuasive

authority from State v. Hofacker, 2d Dist. Darke No. 2015-CA-5, 2016-Ohio-519, the facts of

which we determine to be distinguishable from Mr. Griffin’s case.

         {¶26} In Hofacker, an assault victim’s neighbor never saw the suspect’s face in the dark

and could only identify him as a man wearing dark pants and a dark shirt, yet she positively

identified him in a single photo provided to her by police. Id. at ¶ 25. The 90-year-old victim

was not wearing her glasses at the time of the attack and had not given police any physical

description of her attacker, but she was present when her neighbor positively identified the

attacker in the photo. Id. The victim then viewed the same photo and also positively identified
                                                 12


the suspect. Id. The Court determined that “the methods employed were unduly suggestive and

that the victim’s identification of Hofacker was not otherwise reliable.” Id. Unlike in Hofacker,

both painters saw and even spoke to Mr. Griffin for several minutes in the Eastlawn home.

When sent a picture of Mr. Griffin on the following day, they both confirmed that he was the

man they had spoken to in the home. When police later administered the photo array, the father

was able to identify Mr. Griffin with 90 percent certainly while the son was unable to make a

positive identification.

        {¶27} “Due process may require a court to suppress eyewitness testimony when the

identification results from an unduly suggestive identification procedure. “A lineup is unduly

suggestive if it steers the witness to one suspect, independent of the witness’s honest

recollection.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 208. However, Mr.

Griffin is not challenging the photo array itself or the actions of police in administering the array.

Instead, he specifically takes issue with the father being shown a picture of Mr. Griffin by his

employer a day before the administration of the photo array and argues that “[t]his surely would

have had a corrupting effect on his identification.” “When the questionable circumstances of an

identification procedure are not due to state action, the reliability of the identification is a

question going to the weight of the testimony, not its admissibility.” Id. at ¶ 209. Consequently,

as Mr. Griffin is not challenging the actions of the police, he has not demonstrated a reasonable

probability that the motion to suppress on the basis of an unduly suggestive photo lineup would

have been successful.      Therefore, we cannot conclude that Mr. Griffin’s trial counsel was

ineffective for withdrawing the motion.
                                                 13


       {¶28} For the reasons set forth above, we conclude that Mr. Griffin has not

demonstrated that his trial counsel was ineffective, as he has failed to demonstrate deficient

performance by counsel or any resulting prejudice. See Strickland, 466 U.S. at 687.

       {¶29} Accordingly, Mr. Griffin’s first, second, and fourth assignments of error are

overruled.

                             ASSIGNMENT OF ERROR THREE

       THR (SIC) TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED
       TO INSTRUCT THE JURY ON THE PHOTO-LINEUP NONCOMPLIANCE
       AS REQUIRED BY REVISED CODE §2933.83(C)(3)

       {¶30} In his third assignment of error, Mr. Griffin argues that the police failed to include

four blank photos in four dummy folders to satisfy the “folder system” requirements of R.C.

2933.83(A)(6), and the trial court therefore committed plain error in failing to instruct the jury as

to the photo array’s noncompliance, pursuant to R.C. 2933.83(C)(3). We disagree.

       {¶31} Because Mr. Griffin did not raise this issue at the trial court level, he has forfeited

all but plain error. See State v. Brantley, 9th Dist. Summit No. 27466, 2016-Ohio-4680, ¶ 71.

“Plain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” Crim.R. 52(B). “[The] error must be obvious and have a

substantial adverse impact on the integrity of and the public’s confidence in judicial

proceedings.” State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). “Plain error does not

exist unless it can be said that but for the error, the outcome of the trial would clearly have been

otherwise.” State v. Elkins, 9th Dist. Summit No. 19684, 2000 Ohio App. LEXIS 4670, *25

(Sept. 27, 2000). Notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus.
                                                14


       {¶32} R.C. 2933.83(B) requires law enforcement agencies conducting photo lineups to

adopt specific procedures for conducting the lineups:

       Such procedures must provide, at minimum, the use of a “blind administrator” for
       the photo array, who does not know the identity of the suspect. The
       administration involves the use of a folder system or a substantially similar
       system. R.C. 2933.83(A)(2). The administrator conducting the lineup must make
       a written record of the lineup that includes all results obtained during the lineup,
       the names of all persons at the lineup, the date and time of the lineup, and the
       sources of the photographs used in the lineup. R.C. 2933.83(B)(4). The
       administrator is also required to inform the eyewitness that the suspect may or
       may not be in the lineup and that the administrator does not know the identity of
       the suspect. R.C. 2933.83(B)(5).

(Emphasis added.) State v. Potts, 8th Dist. Cuyahoga No. 104482, 2017-Ohio-4435, ¶ 17. When

evidence of failure to comply with either the provisions of R.C. 2933.83 or any adopted

procedures for conducting lineups is presented at trial, “the jury shall be instructed that it may

consider credible evidence of noncompliance in determining the reliability of any eyewitness

identification resulting from or related to the lineup.” R.C. 2933.83(C)(3).

       {¶33} Mr. Griffin’s argument that the police failed to comply with the “folder system”

identification procedures set forth in R.C. 2933.83(A)(6) is misplaced. “The folder system

provides for the inclusion of the suspect’s photograph with five ‘filler photographs,’ and four

‘blank photographs,’ which are placed into ten empty folders and shuffled; the administrator

accordingly does not know which folder the witness is viewing when the array is administered.”

State v. Harmon, 2d Dist. Montgomery No. 26883, 2017-Ohio-8106, ¶ 24. While the folder

system is one particular method available to law enforcement for administering photo lineups, it

is not required to be used for all photo lineups under R.C. 2933.83. See In re T.H., 8th Dist.

Cuyahoga No. 106433, 2018-Ohio-2300, ¶ 16; State v. Patton, 6th Dist. Lucas No. L-12-1356,

2015-Ohio-1866, ¶ 19; Harmon at ¶ 24. See also R.C. 2933.83(A)(2)-(3) (permitting photo

lineups through the use of a folder system or a substantially similar system).
                                                 15


       {¶34} Detective Bassett testified that he administered a photo array to the painters, but

the record is devoid of any evidence that the folder system specifically outlined in R.C.

2933.83(A)(6) was ever utilized in this case. Mr. Griffin cannot argue noncompliance with the

folder system requirements under R.C. 2933.83(A)(6) when that particular system was not

required to be used and was, in fact, never used in this case. A review of Detective Bassett’s

testimony reveals that the photo array he administered in this case satisfied, at the very least, the

requirement of a being a “substantially similar system” under R.C. 2933.83.

       {¶35} Mr. Griffin has failed to show that the outcome of his trial would have been

different had the trial court instructed the jury in accordance with R.C. 2933.83(C)(3), and this is

not an exceptional circumstance where plain error must be noticed to prevent a manifest

miscarriage of justice. As Detective Bassett’s testimony established compliance with at least the

minimum requirements of R.C. 2933.33(B), we conclude that the trial court did not commit plain

error in failing to instruct the jury in accordance with R.C. 2933.83(C)(3).

       {¶36} Mr. Griffin’s third assignment of error is overruled.

                                                III.

       {¶37} Mr. Griffin’s assignments of error are all overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                16


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

KIRK A. MIDGAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
