[Cite as State v. Heaggans, 2018-Ohio-4328.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 106485



                                           STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        JAYSON HEAGGANS

                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-605022-B

        BEFORE:         McCormack, J., Kilbane, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: October 25, 2018
ATTORNEY FOR APPELLANT

James J. Hofelich
614 W. Superior Ave., Suite 1310
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Edward D. Brydle
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




TIM McCORMACK, J.:

       {¶1} Defendant-appellant Jayson Heaggans (“Jayson”) appeals his burglary convictions.

For the reasons that follow, we affirm.

Procedural and Substantive History

       {¶2}    Jayson, together with his brother Danny Heaggans (“Danny”), was indicted on

April 21, 2016, relating to their home rental operation. Jayson was indicted on two counts of

burglary, in violation of R.C. 2911.12(A)(3), and one count of theft, in violation of R.C.

2913.02(A)(3). Danny was indicted on the aforementioned counts, along with 18 other counts

of burglary, theft, petty theft, and receiving stolen property.
        {¶3}    These charges were the result of several incidents in which Danny and Jayson

would break into vacant homes, change the locks, and proceed to rent the homes to unsuspecting

tenants. The charges against Jayson stem from two particular incidents, each involving homes

in Bedford, Ohio.

        {¶4}    The first incident involved a home owned by the city of Bedford as part of its

Neighborhood Stabilization Program, in which it would purchase vacant homes, rehabilitate the

properties, and sell them. On July 18, 2014, the city’s building commissioner, Calvin Beverly

(“Beverly”), was showing the city’s properties to a new employee, Richard Hickman

(“Hickman”), when he observed vehicles parked in the driveway of the city-owned house at 361

West Grace Street. When Beverly observed a man, later identified as Danny, come out of the

house, he approached Danny and asked what he was doing on city property. Danny stated that

his company, Second Chance Living, was making repairs on the home in order to get it ready to

rent to a homeless veteran. At the time, Beverly was the only person responsible for authorizing

repairs on the homes owned by the city, and he testified that he had not authorized any such

repairs. Beverly went inside the home, where he encountered two other men, one of whom he

subsequently identified as Jayson Heaggans.      Beverly instructed the men to gather their

belongings and leave, and he proceeded to have Hickman take some photographs of the house

and the cars parked outside of the house.

        {¶5}    Danny gave Beverly a business card before leaving the house. Subsequently,

Bedford city manager Michael Mallis (“Mallis”) called Danny to arrange a meeting. Danny and

Jayson met with Mallis and Beverly and described their company, Second Chance Living, and

again stated that they had been making repairs to the home at 361 West Grace Street in order to

prepare it to rent to a veteran.
       {¶6}   The second incident involves a house at 20 Leyton Road, also in Bedford, Ohio.

Al Kriss (“Kriss”) owned multiple properties, including this home, as part of his real estate

business. On August 26, 2014, Kriss performed a routine check on this property, which was

then vacant and available to be rented in a rent-to-own program. Several days later, on August

29, 2014, Kriss checked on the property again. He testified that he pulled in the driveway and

saw a little boy look out the window from inside the home. Kriss then encountered a man, John

Banks (“Banks”), who told Kriss that he had rented the property. Kriss noticed that a lockbox

and “rent to own” sign that had previously been on the property had been removed. Banks

called Danny, and shortly thereafter Danny and Jayson arrived at the home.

       {¶7}   At trial, Banks testified that he needed a place to live with his girlfriend and her

children, and Jayson had told him about the Leyton house. Jayson presented himself to Banks as

the owner of the house, and Banks subsequently moved into the home. Banks had signed a

lease, but no money had changed hands in relation to the property because Banks was expecting

to get an Eden housing voucher, but the paperwork had not gone through as of August 29. After

the encounter with Kriss, Banks moved his belongings out of the house and testified that he has

not spoken to Jayson or Danny since.

       {¶8}   Kriss contacted the Bedford police about the incident, and Bedford detective Buck

Kidd (“Kidd”) initiated an investigation into the Heaggans brothers. Danny was ultimately

arrested on October 16, 2014. A search of Danny’s car following his arrest produced documents

relating to other homes, box cutters, keys, a broken lockbox, and documents and an ID with

Jayson’s name.

       {¶9} As part of the investigation, Bryan Byard (“Byard”), who was then the sergeant in

charge of the Bedford Police Detective Bureau, presented a six-person photo array to Beverly.
Beverly identified Jayson as the person with whom he had spoken in relation to the property at

361 West Grace.

          {¶10} The aforementioned indictment was the result of this investigation.

          {¶11} On May 11, 2017, Danny pleaded guilty to amended charges. On June 20, 2017,

he was sentenced to two years of community control.

          {¶12} Jayson proceeded to a jury trial on September 11, 2017. At the close of the state’s

case, Jayson made a Rule 29 motion. In response, the state dismissed the misdemeanor theft

count. The court denied the motion as it related to the two burglary counts. After presenting

several witnesses on his own behalf, including Danny and another brother, Gerald Heaggans, the

defense rested. Jayson renewed his Rule 29 motion, and the court denied this motion. The jury

returned a guilty verdict as to both burglary counts.

          {¶13} The court held a sentencing hearing on October 24, 2017. At this hearing, the

court asked Jayson about the inconsistent personal details he provided to court employees as to

his military service. He was unresponsive, and the court called medical services for Jayson

before continuing the hearing to a later date.

          {¶14} On October 27, 2017, the court again confronted Jayson about his military service,

and he was unable to explain the discrepancies in his statements to court employees. The court

sentenced Jayson to two years in prison on each count, to be served concurrently.

          {¶15}   Jayson appeals his convictions, presenting four assignments of error for our

review.

Law and Analysis

I. Ineffective Assistance of Counsel
       {¶16} In his first assignment of error, Jayson argues that he was denied the right to

effective assistance of counsel.    Specifically, Jayson argues that he was prejudiced by his

counsel’s failure to file a motion to suppress the photo identification evidence and failure to

object to hearsay testimony offered by Beverly.

       {¶17} To establish ineffective assistance of counsel, a defendant must demonstrate that

(1) counsel’s performance at trial was seriously flawed and deficient and fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the trial would have been different.            Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is

a probability sufficient to undermine confidence in the outcome of the proceedings. Id. at

687-688.

       {¶18} Failure to file a motion to suppress constitutes ineffective assistance of counsel

only when the record demonstrates that the motion would have been successful if made. State v.

Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28, citing State v. Finch, 5th Dist.

Licking No. 11-CA-114, 2012-Ohio-4727, ¶ 28. In order to establish that a motion to suppress

would have been successful, a defendant is required to show that there was a basis to suppress

the evidence in question. Id.

       {¶19} “An identification derived from unnecessarily suggestive procedures, which have a

likelihood of leading to a misidentification, violates a defendant’s right to due process.” State v.

Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 63, citing Neil v. Biggers, 409 U.S.

188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Courts employ a two-prong analysis to determine

whether a challenged identification is admissible. Id. First, the court considers whether the

defendant has shown that the identification procedure was unduly suggestive. If the defendant
can establish this, the court then considers whether the identification, viewed under the totality of

the circumstances, is reliable despite its suggestive character. Id., citing State v. Harris, 2d Dist.

Montgomery No. 19796, 2004-Ohio-3570, ¶ 19, citing State v. Wills, 120 Ohio App.3d 320, 324,

697 N.E.2d 1072 (8th Dist.1997).

       {¶20} Jayson argues that because Byard failed to comply with R.C. 2933.83 in

administering the photo identification to Beverly, the evidence of Beverly’s photo identification

should have been suppressed.          We disagree.          R.C. 2933.83(B) outlines the statutory

requirements for the administration of photo lineups. These requirements include the use of a

blind or blinded administrator and the creation of a written record containing identification and

nonidentification results.      R.C. 2933.83(C) goes on to discuss the consequences of

noncompliance with any of these statutory requirements. R.C. 2933.83(C)(1) and (2) provide

that evidence of a failure to comply with any of these provisions “shall be considered by trial

courts in adjudicating motions to suppress eyewitness identification resulting from or related to

the lineup” and “shall be admissible in support of any claim of eyewitness misidentification

resulting from or related to the lineup.”       Further, R.C. 2933.83(C)(3) provides that when

evidence of noncompliance 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 that lineup.”

       {¶21} Here, Byard testified, and the state concedes, that the statutory procedures were not

followed in the administration of the photo lineup to Beverly. Specifically, Byard was not a

blind or blinded administrator, as he was familiar with the investigation and had participated in

Danny’s arrest. In addition, Byard did not make a record of Beverly’s identification of Jayson.
While this noncompliance would have been considered by the court in adjudicating a motion to

suppress, we do not believe it is sufficient to warrant suppression.

       {¶22} The first step of our analysis in considering whether the photo identification would

have been suppressed is determining whether it was unduly suggestive.                  While the

administration of the photo lineup in this case blatantly disregarded the relevant statutory

requirements, Jayson does not argue, and we cannot conclude, that this noncompliance rendered

the photo lineup unduly suggestive. A photo array 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, 45 N.E.3d 127, ¶ 208, citing Wilson v. Mitchell, 250 F.3d 388, 397 (6th

Cir.2001). “Suggestiveness depends on several factors, including the size of the array, its

manner of presentation, and its contents.” Wills, 120 Ohio App.3d at 325, 697 N.E.2d 1072,

citing Reese v. Fulcomer, 946 F.2d 247, 260 (3d Cir.1991). Here, nothing about the size and

contents of the photo array would have steered Beverly to one suspect. Byard presented Beverly

with six photos of different men, all with similar complexions, hairstyles, and facial hair.

Further, the photos were all the same size, and Jayson’s photo does not appear to stand out in any

way from the other five photos. Therefore, we must find that the manner of presentation was

suggestive in order to conclude that the photo identification was unduly suggestive.

       {¶23} A blind administrator is an individual who does not know the suspect’s identity.

Although Jayson argues that Byard knew his identity when he administered the photo array, this

is not entirely clear from the record. Byard testified that he was unsure if he assembled the

photo lineup or if Kidd assembled the lineup and gave it to him. Even assuming that Byard

knew Jayson’s identity when he administered the photo lineup, there is no evidence that Byard

steered Beverly toward Jayson in any way. The record, including testimony from both Beverly
and Byard, contains nothing to suggest that Byard’s potential knowledge of the suspect’s identity

in any way influenced Beverly’s identification. Nothing in the record supports an inference that

Byard suggested Jayson’s identity to Beverly or subsequently confirmed Beverly’s identification

of Jayson.

        {¶24} Because Jayson is unable to satisfy the first prong of the test and establish that the

photo identification was unduly suggestive, it is not necessary to consider the second prong.

Even if we were able to infer from the record that the identification was unduly suggestive,

however, we note that the totality of the circumstances shows that the identification was

nevertheless reliable. At trial, Beverly testified that Jayson was at 361 West Grace Street when

he encountered Danny, and that Jayson and Danny both attended the meeting at city hall about a

week after this encounter. By the time Beverly identified Jayson in the photo array, Beverly had

seen Jayson on multiple occasions for an extended period of time. In the case of the meeting at

city hall, he was engaged in an intimate conversation with Jayson, and the premise of this

conversation was that both Danny and Jayson had been on city property without permission.

Finally, Beverly made an in-court identification of Jayson when asked who was at 361 West

Grace Street.

        {¶25} Because we find that a motion to suppress the photo identification would not have

been successful, we cannot conclude that Jayson received ineffective assistance of counsel on

this basis.

        {¶26} Jayson also argues that he received ineffective assistance of counsel based on his

counsel’s failure to object to hearsay testimony offered by Beverly. Jayson argues that Beverly’s

testimony as to the conversation he had with Danny at 361 West Grace is impermissible hearsay
because it was offered by the state in an attempt to show a criminal scheme that Jayson and

Danny were operating.

       {¶27} A failure to meet either prong of the Strickland test defeats a claim for ineffective

assistance. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice * * * that course should be followed.” State v. Bradley, 42 Ohio St.3d 136,

143, 538 N.E.2d 373 (1989). Here, even if defense counsel had objected to the testimony in

question, and even if those objections had been properly sustained based on the rules of evidence,

the record contains substantial other evidence to support Jayson’s convictions. Beverly testified

that Jayson had been at 361 West Grace without permission. Photos of the repairs made to the

house were introduced into evidence, and Danny testified that those repairs were made as part of

the plan to turn the house over to a tenant. All of the testimony from current and former city

employees supports the conclusion that neither Jayson nor Danny were authorized to be inside

the house at 361 West Grace Street, let alone make any repairs to that property. Finally, there

was testimony from Beverly, Mallis, and Danny as to the meeting that Jayson attended at city

hall. Again, this meeting was premised on the brothers’ presence at 361 West Grace Street, and

Danny’s testimony was consistent with that of Beverly’s as to the nature and subject of that

meeting.    Therefore, counsel’s failure to object to Beverly’s testimony about his initial

conversation with Beverly cannot be said to have prejudiced Jayson. For these reasons, we

overrule this assignment of error.

II. R.C. 2933.83(C)(3)

       {¶28} In his second assignment of error, Jayson argues that the trial court erred when it

failed to issue the proper jury instruction under R.C. 2933.83(C)(3), which provides:
       When evidence of a failure to comply with any of the provisions of this section, or
       with any procedure for conducting lineups that has been adopted by a law
       enforcement agency or criminal justice agency pursuant to division (B) of this
       section and that conforms to any provision of divisions (B)(1) to (5) of this
       section, is presented at trial, the jury shall be instructed that it may consider
       credible evidence of noncompliance in determining the reliability of any
       eyewitness identification from or related to the lineup.

As discussed above, this subsection is clearly applicable to Jayson’s trial because Byard testified

that he failed to follow the relevant statutory requirements when he administered the photo array

to Beverly.

       {¶29} At trial, the jury instructions were discussed by the state, defense counsel, and the

court, and at no point did defense counsel object to the jury instructions. The failure to object to

jury instructions is a waiver of the issue on appeal. Crim.R. 30(A) states, in relevant part:

       On appeal, a party may not assign as error the giving or the failure to give any
       instructions unless the party objects before the jury retires to consider its verdict,
       stating specifically the matter objected to and the ground of the objection.

As Jayson waived this issue by failing to object to the jury instructions, we review the trial

court’s failure to give the R.C. 2933.83(C)(3) instruction for plain error. “Plain error is an

obvious error or defect in the trial court proceeding that affects a substantial right.” State v.

Gray, 8th Dist. Cuyahoga No. 92303, 2010-Ohio-240, ¶ 17, citing State v. Long, 53 Ohio St.2d

91, 94, 372 N.E.2d 804 (1978). We take notice of plain error only in exceptional circumstances

to avoid a miscarriage of justice. Long at 95. Further, the party asserting the error bears the

burden of demonstrating plain error. State v. Crawford, 2016-Ohio-7779, 73 N.E.3d 1110, ¶ 13

(8th Dist.), citing State v. McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 84 (8th Dist.).

       {¶30} Here, Jayson makes no argument as to the consequence of the trial court’s failure to

give the R.C. 2933.83(C)(3) instruction, let alone how or to what degree this failure impacted his

rights or created a miscarriage of justice. We note that, although the trial court did not give the
explicit statutory instruction regarding noncompliance, it did instruct the jury as to the testimony

of identifying witnesses as follows:

       Now, some things that you may consider in weighing the testimony of an
       identifying witness are this: The capacity of the witness; that is, the age or the
       intelligence, any defective senses, and the opportunity that the witness had to
       observe. The witness’ degree of attention at the time that he or she observed the
       offender. The accuracy of the witness’ prior description or identification. Whether
       the witness had the occasion to observe the defendant in the past. The interval of
       time between the event and the identification, and all surrounding circumstances
       under which the witness’ identified including deficiencies, if any, in any lineup,
       photo display, or one on one.

In light of this instruction, and the extensive cross-examination of Byard as to his noncompliance

with R.C. 2933.83, we cannot conclude that the trial court’s failure to issue a more explicit jury

instruction constitutes plain error. This assignment of error is overruled.

III. Sufficiency

       {¶31} In Jayson’s third assignment of error, he argues that the trial court erred when it

denied his Crim.R. 29 motion because the charges were not supported by sufficient evidence.

Specifically, he argues that while “significant” evidence was presented that Danny committed

burglaries, there was insufficient evidence that he committed any crimes. Jayson asserts that the

only evidence connecting him to the home at 361 West Grace Street is Beverly’s identification,

which he asserts is unreliable. With respect to the Leyton property, Jayson points to Danny’s

testimony that Jayson was unaware of the status of the home when he rented it to Banks.

       {¶32} A sufficiency challenge requires a court to determine whether the state has met its

burden of production at trial and to consider not the credibility of the evidence but whether, if

credible, the evidence presented would support a conviction. State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997). The relevant inquiry is whether, after viewing the evidence in

a light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259,

273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).

       {¶33} We note that, despite Jayson’s assertion that Beverly’s identification was

unreliable, we reached the opposite conclusion in the foregoing analysis. Further, Jayson is

incorrect that this identification is the only evidence connecting him to the Grace property. In

addition to Beverly’s in- and out-of-court identifications of Jayson, Jayson was also present at the

city hall meeting where he and Danny attempted to defend their unlawful presence at 361 West

Grace Street.

       {¶34} With respect to the Leyton house, Danny’s testimony that Jayson was ignorant to

the status of the house — that is, that it was owned by Al Kriss — cannot be said to show that

Jayson’s conviction was supported by insufficient evidence. Kriss and Banks both testified that

Jayson presented himself as the owner of the property, even as he was being confronted by the

actual owner of the property.       Viewing the evidence in the light most favorable to the

prosecution, we find that the state met its burden and any rational trier of fact could have found

Jayson guilty beyond a reasonable doubt.

IV. Manifest Weight

       {¶35} In his fourth assignment of error, Jayson argues that his conviction was against the

manifest weight of the evidence.

       {¶36} Unlike a challenge to the sufficiency of evidence, a manifest weight challenge

attacks the quality of the evidence and questions whether the state met its burden of persuasion at

trial. State v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 25, citing State v. Bowden,

8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When reviewing a manifest weight
challenge, a court reviews the entire record, weighing all evidence and reasonable inferences and

considering the credibility of the witnesses, to determine whether the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be reversed.

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.

       {¶37} After a thorough review of the record, we conclude that the jury did not clearly lose

its way, as Jayson’s convictions were not against the manifest weight of the evidence. Here,

Jayson reiterates his argument that the weight of the evidence shows only that Danny was

engaged in a criminal enterprise. Given the totality and nature of the evidence, we disagree.

The testimony of Danny and Gerald Heaggans was inconsistent and even to the extent that it

could be interpreted as exculpatory, it was not so exculpatory as to negate the balance of the

evidence presented by the state.

       {¶38} Therefore, this assignment of error is overruled, and the convictions are affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s convictions having been affirmed,

any bail pending appeal is terminated.       Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



__________________________________________
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR
