[Cite as State v. Wilcoxin, 2018-Ohio-1322.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2017-CA-58
                                                     :
 v.                                                  :   Trial Court Case No. 17-CR-158
                                                     :
 LANCE A. WILCOXIN                                   :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                               Rendered on the 6th day of April, 2018.

                                                ...........

DANIEL DRISCOLL, Atty. Reg. No. 0074787, Clark County Prosecutor’s Office, Appellate
Division, 50 E. Columbia Street, P.O. Box 1608, Springfield, Ohio 45501
       Attorney for Plaintiff-Appellee

SAMANTHA L. BERKHOFER, Atty. Reg. No. 0087370, 202 N. Limestone Street, Suite
250, Springfield, Ohio 45502
      Attorney for Defendant-Appellant

                                               .............
                                                                                        -2-


HALL, J.

       {¶ 1} Lance A. Wilcoxin appeals from his conviction and sentence on one count of

aggravated robbery with a firearm specification.1

       {¶ 2} In his sole assignment of error, Wilcoxin contends the trial court erred in

overruling his motion to suppress a witness’ identification of him in a photospread. He

argues that the photospread was unduly suggestive.

       {¶ 3} The record reflects that Wilcoxin was one of two people who stole a cell

phone at gunpoint from a student who was leaving a public library. The victim described

one of the perpetrators as a white male with dreadlocks and a “teardrop” facial tattoo.

(Suppression Tr. at 10). Springfield detective Sandra Fent, the only witness at the

suppression hearing, testified that she prepared a photospread containing a picture of

Wilcoxin, who had been identified as a suspect, and five other people. To create the array,

Fent entered various physical characteristics into a program to produce a computer-

generated list of pictures. She then went through the pictures to find five photographs of

people who were most similar in appearance to Wilcoxin. (Id. at 6-8). A blind administrator

who knew nothing about the case showed the six-person photospread to the victim, who

identified Wilcoxin as one of the people who robbed her. (Id. at 9, 12).

       {¶ 4} Following Fent’s testimony, defense counsel argued that the photospread

was unduly suggestive because Wilcoxin was the only person pictured who had a facial

tattoo. (Id. at 16-17). The trial court rejected this argument and overruled Wilcoxin’s

motion to suppress the victim’s identification. It reasoned:


1 At various places in the record, the appellant’s last name is spelled “Wilcoxin,”
“Wilcoxen,” and “Wilcoxon.” For present purposes, we will use “Wilcoxin,” which is the
spelling found in the judgment entry on appeal. (Doc. #20).
                                                                                      -3-


              The court finds that the presentation of the array to the victim was

      not suggestive in any way. SPD acted in accordance with the procedures

      outlined in Section 2933.83 of the Ohio Revised Code and 6.75 of SPD

      Procedure. Specifically, the photo array was presented to the witness by a

      blind administrator as defined in Section 2933.83(A)(2) of the Ohio Revised

      Code.

              While the array itself may be somewhat suggestive since the

      defendant is the only person depicted with a teardrop tattoo, the Court finds

      that it was not so impermissibly or unduly suggestive as to give rise to a

      very substantial likelihood of misidentification. All six photographs depict

      males of somewhat similar age with light complexions, dark hair, and dark

      eyes. Five of the six photographs, including that of the defendant, depict

      facial hair and three of the six, including that of the defendant, depict

      dreadlocks or similarly looking braided hair. Furthermore, the teardrop

      tattoo on the defendant is not accentuated but barely visible.

              The Court finds that Detective Fent, given the unique limitations

      placed upon her in this case, created a fair photo array that did not violate

      the defendant’s right to due process.

              While the defendant raises a potential reliability issue as to the

      resulting identification, the Court need not address it here because it goes

      to the weight of the identification and not its admissibility. * * *

(Doc. #16 at 2).

      {¶ 5} On appeal, Wilcoxin reiterates his argument about the photospread being
                                                                                                -4-


unduly suggestive because he was the only person depicted with a facial tattoo. He also

asserts that he was the only person shown wearing a “dreadlocks” hairstyle. Finally, he

relies on portions of the trial testimony to argue that the victim’s identification of him as

one of the perpetrators was not reliable.

       {¶ 6} “When a witness has been confronted with a suspect before trial, due

process requires a court to suppress the witness’s identification of the suspect if the

confrontation was unnecessarily suggestive of the suspect’s guilt and the identification

was unreliable under the totality of the circumstances.” State v. Harris, 2d Dist.

Montgomery No. 19796, 2004-Ohio-3570, ¶ 19. “The defendant must first show that the

identification procedure was unduly suggestive. If the defendant meets that burden, the

court must then consider whether the identification, viewed under the totality of the

circumstances, is reliable despite the suggestive procedure. If the pretrial confrontation

procedure was not unfairly suggestive, any remaining questions as to reliability go to the

weight of the identification, not its admissibility, and no further inquiry into the reliability of

the identification is required.” (Citations omitted.) Id.

       {¶ 7} The defendant “bears the burden of showing that the identification procedure

was ‘so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification’ and that the identification itself was unreliable under the

totality of the circumstances.” State v. Sherls, 2d Dist. Montgomery No. 18599, 2002 WL

254144, *2 (Feb. 22, 2002), quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972). “We review a trial court’s refusal to suppress a pretrial identification

for an abuse of discretion.” State v. Harmon, 2017-Ohio-8106, __ N.E.3d __, ¶ 22 (2d

Dist.), citing State v. Wilson, 2d Dist. Montgomery No. 22624, 2009-Ohio-1038, ¶ 19.
                                                                                         -5-


       {¶ 8} Upon review, we see no abuse of discretion in the trial court’s suppression

ruling. The photo array is part of the record, and we have examined it. The array contains

photographs of six young men of similar age, hair color, eye color, and skin tone. The

photographs have similar backgrounds, and the men are dressed similarly. The small

tattoo about which Wilcoxin complains is neither prominent nor a significant facial feature.

Although the mark is visible, it is not clear, given the quality of the photographs, that it

even is a tattoo. We note too that at least one of the other subjects, the person in the top

row on the far right, has a similar-appearing mark on his cheek.

       {¶ 9} In any event, there is no requirement that subjects in a photospread “bear no

differing marks or blemishes.” State v. Gordon, 10th Dist. Franklin No. 10-AP-1174, 2011-

Ohio-4208, ¶ 31, citing State v. Green, 67 Ohio App. 3d 72, 79, 585 N.E.2d 990 (8th

Dist.1990); see also State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633 (2d Dist.) (finding a

photospread not unduly suggestive despite the fact that the defendant was the only

person with tattoos all over his face); Roussell v. Caldwell, No. CV 17-846, 2017 WL

2790701, *7 (E.D. La. June 7, 2017), report and recommendation adopted, No. CV 17-

846, 2017 WL 2778207 (E.D. La. June 26, 2017) (“Although the defendant was the only

person in the photograph display with a facial tattoo, all had facial hair or other facial

characteristics that resembled the defendant’s description. From the defendant’s photo,

the mark below his eye is not distinguishable as a ‘teardrop tattoo.’ To require that the

photographic display include other persons who look similar to the defendant and have a

‘teardrop tattoo’ is unreasonable. We find that the photographic display was not unduly

suggestive.”); United States v. Lang, No. 06-30124, 2007 WL 1725548, *10 (5th Cir. June

14, 2007) (“Lee’s argument that the fact that the police lineup from which numerous
                                                                                             -6-


witnesses selected Lee contained no other photographs of a man with a tattoo on his face

makes it impermissibly suggestive is similarly unavailing. The government is not required

to fill a lineup with other photos of men of roughly Lee’s age, hair, and skin tone, all of

whom have tattoos on their faces. As we have noted, ‘[p]olice stations are not theatrical

casting offices; a reasonable effort to harmonize the lineup is normally all that is required.’

Swicegood v. Alabama, 577 F.2d 1322, 1327 (5th Cir.1978) (quoting United States v.

Lewis, 547 F.2d 1030, 1035 (8th Cir.1976)). Disparity in physical appearance among the

lineup photos is not enough to render an identification suggestive.”); Bennett v. State, 223

Md. App. 768, 2015 WL 5893595, *6 (2015) (“Although the [teardrop] tattoo may

somehow distinguish appellant from his neighbors in the array, it is not sufficient to brand

the array as unduly suggestive. Maryland courts have not specifically considered the

impact of teardrop tattoos on photographic array procedures, but they have considered

similar markings and found them not to be suggestive.”).

       {¶ 10} Wilcoxin also complains about being the only person pictured wearing

“dreadlocks.” Although two other men are shown with a similar hairstyle, Wilcoxin

contends they are wearing “cornrows” or “braids.” Having reviewed the photographs,

however, we note that the hairstyles are quite similar. Because we believe the six

photographs are substantially alike, the trial court reasonably concluded that the

photospread was not unduly suggestive.

       {¶ 11} Finally, Wilcoxin cites portions of the trial testimony to argue that the victim’s

identification of him was unreliable. “No inquiry concerning the reliability of identification

evidence is necessary, however, when there is no basis to conclude that it was the

product of an impermissibly suggestive confrontation procedure.” State v. White, 2d Dist.
                                                                                      -7-


Montgomery No. 20324, 2005-Ohio-212, ¶ 48. Therefore, the trial court correctly declined

to address Wilcoxin’s argument about reliability of the victim’s identification in its

suppression ruling.

      {¶ 12} The assignment of error is overruled, and the judgment of the Clark County

Common Pleas Court is affirmed.

                                    .............



WELBAUM, P.J. and TUCKER, J., concur.


Copies mailed to:

Daniel Driscoll
Samantha L. Berkhofer
Hon. Douglas M. Rastatter
