[Cite as State v. Chaffin, 2012-Ohio-634.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.    24241

v.                                                     :            T.C. NO.   2010 CR 388/2

CLIFFORD M. CHAFFIN                                    :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                             ..........

                                             OPINION

                          Rendered on the       17th       day of       February    , 2012.

                                             ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney,
301 W. Third Street, 5th Floor, Dayton, Ohio 45422
     Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021,
Beavercreek, Ohio 45434
     Attorney for Defendant-Appellant

                                             ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Clifford M. Chaffin appeals from his conviction

and sentence for one count of aggravated robbery with a deadly weapon, in

violation of R.C. 2911.01(A)(1).

        {¶ 2} Chaffin filed a motion for leave to file a delayed appeal with this Court
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on September 3, 2010. On September 23, 2010, we granted Chaffin’s motion, and

he filed the instant appeal.

                                               I

       {¶ 3} The incident which forms the basis for the instant appeal occurred on

January 24, 2010, outside of an apartment building located at 118 N. Alex Road.

At around ten p.m. in the evening, Keith Kelly, who was inside his apartment with

his wife, heard the buzzing of a saw from out in the parking lot. When Kelly looked

out of his window, he observed a man on the ground next to his wife’s truck. Kelly

told his wife to call 911 while he retrieved his gun and went outside to investigate.

       {¶ 4} Once outside, Kelly observed two pairs of legs protruding out from

under the truck.    Kelly ordered the individuals to stand.     One of the men who

crawled out from under the truck was later identified as Chaffin, and he was armed

with a knife. The other individual, later identified as Ralleigh Pennington, Chaffin’s

co-defendant at trial, took off running. Kelly ordered Chaffin to put the knife down,

but as he did so, he heard Pennington running back towards him at high speed.

Kelly testified that he fired a warning shot in Pennington’s general direction, and

Pennington ran away. After Kelly fired the gun, Chaffin ran away as well.

       {¶ 5} Once the police arrived, Kelly informed West Carrolton Police Officer

Daniel J. Wessling that the two men he had encountered were both white, bald,

and wearing dark clothing with hoods. Earlier on the day of the attempted robbery,

Officer Wessling had observed two individuals matching the description provided by

Kelly approximately six blocks away from the scene of the crime.

       {¶ 6} With the description provided by Kelly, Officer Wessling created two
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photo spreads, each containing six photographs depicting individuals with similar

appearances and physical attributes.      One of the photo spreads contained a

photograph of Chaffin, and the other contained a photograph of Pennington.

Officer Wessling met with Kelly at the police station on January 27, 2010, to show

him the photo spreads.       Kelly positively identified Pennington from the photo

spread containing his picture as the individual at whom he had fired the warning

shot.     Kelly, however, did not select Chaffin from the photo spread, but he

identified another individual therein.

        {¶ 7} On January 31, 2010, Officer Wessling asked Kelly to come to the

station to look at a second photo spread he had created.         The photo spread

contained a more recent photograph of Chaffin. After being shown the second

photo spread, Kelly positively identified Chaffin as the individual who had

brandished the knife during the attempted robbery on January 24, 2010. We note

that in the second photo spread created by Officer Wessling, Chaffin was the only

individual amongst the six who was completely bald on the top of his head.

        {¶ 8} Chaffin was subsequently indicted on February 25, 2010, for one

count of aggravated robbery with a deadly weapon. At his arraignment on March

2, 2010, Chaffin stood mute, and the trial court entered a plea of not guilty on his

behalf.     Chaffin filed a motion to suppress Kelly’s pre-trial and in-court

identifications on March 18, 2010. After a hearing held on April 15, 2010, the trial

court overruled Chaffin’s motion to suppress, issuing findings of fact and

conclusions of law from the bench at the end of the hearing. After a jury trial in

which Chaffin and Pennington were tried together, Chaffin was found guilty on May
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19, 2010.   On June 3, 2010, the trial court sentenced Chaffin to five years in

prison.

      {¶ 9} It is from this judgment that Chaffin now appeals.

                                             II

      {¶ 10} Because we find this assignment to be dispositive, we will first

address Chaffin’s second assignment of error which is as follows:

      {¶ 11} “THE TRIAL JUDGE ERRED WHEN HE OVERRULED THE MOTION

TO SUPPRESS.”

      {¶ 12} In his second assignment, Chaffin contends that the trial court erred

when it overruled his motion to suppress. Specifically, Chaffin asserts that the

second photo spread shown to Kelly by Officer Wessling was unduly suggestive

insofar as Chaffin was the only individual in the spread who was bald on the top of

his head.

      {¶ 13} With respect to a motion to suppress, “the trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and evaluate

the credibility of witnesses.” State v. Hopfer (1996), 112 Ohio App.3d 521, 548, 679

N.E.2d 321 quoting State v. Venham (1994), 96 Ohio App.3d 649, 653, 645 N.E.2d

831. The court of appeals must accept the trial court’s findings of fact if they are

supported by competent, credible evidence in the record. State v. Isaac (July 15,

2005), Montgomery App. No. 20662, 2005-Ohio-3733, citing State v. Retherford

(1994), 93 Ohio App.3d 586, 639 N.E.2d 498. Accepting those facts as true, the

appellate court must then independently determine, as a matter of law and without

deference to the trial court’s legal conclusion, whether the applicable legal standard
                                                                                        5

is satisfied. Id.

        {¶ 14} To warrant suppression of identification testimony, the accused 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. Manson v. Brathwaite (1977), 432 U.S. 98, 106, 97 S.Ct. 2243,

53 L.Ed.2d 140;     Neil v. Biggers (1972), 409 U.S. 188, 199, 93 S.Ct. 375, 34

L.Ed.2d 401, 88 S.Ct. 967, 19 L.Ed.2d 1247; Simmons v. United States (1968), 390

U.S. 377, 384. See, also, State v. Broom (1988), 40 Ohio St.3d 277, 284, 533

N.E.2d 682; State v. Moody (1978), 55 Ohio St.2d 64, 67, 377 N.E.2d 1008.

        {¶ 15} In State v. Sherls, Montgomery No. 18599, 2002-Ohio-939, this court

addressed the issue of suggestive photographic confrontations:

        {¶ 16} “In many cases, and in almost all cases in which the criminal offender

is not known to his victim or other eyewitnesses and is not arrested at the time of

the crime, those who witness the crime are asked to identify the perpetrator for

purposes of police investigation through some form of confrontation.                 This

confrontation may be in the form of a ‘lineup,’ a one-on-one ‘show up,’ or from a

photograph or series of photographs displayed to the witness. When any of these

systems of confrontation suggest, due to the manner or mode of their presentation,

that one individual is more likely than others to be the perpetrator of the crime, that

fact increases the likelihood of misidentification and violates the right to due

process of law of a defendant so identified. Identification testimony that has been

tainted by an unduly or unnecessarily suggestive out-of-court confrontation may be
                                                                                    6

suppressed on that basis.

       {¶ 17} “However, even when a confrontation is unnecessarily or unduly

suggestive, the identification testimony derived from the confrontation is not

inadmissible solely for that reason. Reliability of the testimony is the linchpin in

determining its admissibility.    So long as the identification possesses sufficient

aspects of reliability, there is no violation of due process.

       {¶ 18} “Reliability is determined from the totality of the circumstances.

These circumstances include the opportunity of the witness to view the criminal at

the time of the crime, the witness' degree of attention, the accuracy of his prior

description of the criminal, the level of certainty demonstrated at the confrontation,

and the time between the crime and the confrontation. Against these factors is to

be weighed the corrupting effect of the suggestive identification itself.

       {¶ 19} “The foregoing due process concerns are implicated only if and when

a confrontation is unnecessarily or unduly suggestive. That prospect usually arises

when the witness has been shown but one subject, whether in a ‘showup’ * * * or a

single photograph * * *. Similarly, if the witness is shown pictures or photographs

of several persons in which the photograph of one recurs or is in some way

emphasized, undue suggestion may occur. However, even when the confrontation

process is unduly or unnecessarily suggestive, the later identification testimony

should not be excluded so long as the identification itself is reliable.” See State v.

White (Feb. 2, 1994), Clark App. No. 3057.

       {¶ 20} In State v. Lathan (1972), 30 Ohio St.2d 92, 282 N.E.2d 574, the Ohio

Supreme Court held that the in-court identification of a defendant does not have to
                                                                                       7

be excluded as long as the state can establish by clear and convincing evidence

that the in-court identification is based on an observation independent of the pretrial

identification or that the error was harmless. The Ohio Supreme Court has also

held that although an identification procedure is suggestive, as long as the in-court

identification is reliable, it is admissible. State v. Barker (1978), 53 Ohio St.2d 135,

142, 372 N.E.2d 1324.

       {¶ 21} The State cites State v. Browner, 4th Dist. No. 99CA2688, 2001 WL

812805 (May 31, 2001), in support of its argument that the trial court did nor err

when it overruled Chaffin’s motion to suppress.         In Browner, the victim of an

aggravated robbery described his assailant as “like bald in the front and short hair.”

 The victim was then shown a photo spread in which the defendant was the only

bald person pictured. The victim identified the defendant from the photo spread as

his assailant. The trial court overruled the defendant’s motion to suppress, and the

appeals court agreed, holding that “when assembling the [photo spread], the police

were not required to insert only bald headed men because hairstyles may change.

One may be bald one week and have at least some hair the next.” Id. In Browner,

however, the victim was only shown one photo spread from which he clearly

identified the defendant as the perpetrator. Id. Moreover, the appeals court noted

that the photo spread contained one bald person and “possibly two more.” Thus, it

is not even clear whether the defendant was the only bald or partially bald individual

pictured in the photo spread.

       {¶ 22} In the instant case, it is undisputed that Kelly failed to identify Chaffin

as the individual wielding the knife from the first photo spread shown to him by
                                                                                     8

Officer Wessling.      In fact, Chaffin identified someone else entirely as the

perpetrator who threatened him with the knife. We note that Kelly looked at the

first photo spread for approximately ten to fifteen minutes before choosing the

wrong individual. We also note that in the first photo spread, Chaffin’s photo was

placed in the number six position, while the individual he incorrectly chose was in

the first position.

       {¶ 23} In the second photo spread, Officer Wessling once again placed a

photograph of Chaffin, albeit a more recent picture, in the sixth position. In this

photo spread, however, Chaffin was the only individual out of six males who was

bald on the top of his head. Furthermore, Chaffin was the only individual depicted

in both spreads.      Chaffin argues the because he was the only bald individual

pictured, the photo spread was impermissibly suggestive.           Upon review, we

conclude that the procedure utilized by Officer Wessling was inherently suggestive.

 It was improper to show Kelly the second photo spread when he had already

circled and initialed the picture of another individual, thereby identifying him as the

perpetrator.    The suggestive nature of this successive photo spread process is

evidenced by the fact that Chaffin was the only bald male pictured in the second

photo spread, and Chaffin’s photograph was in the sixth position in both photo

spreads. Significantly, Chaffin was the only individual depicted in both spreads.

Even the individual previously selected by Kelly was not depicted in the second

spread for comparative purposes.

       {¶ 24} Although we conclude that the trial court erred in its finding regarding

suggestiveness, there are no factual findings regarding the second prong of the
                                                                                     9

analysis with respect to the reliability of the identification. This matter is remanded

for the trial judge to make such findings. Should the trial court deem the photo

spread identification unreliable, a further determination must be made as to the

admissibility of the in-court identification.

       {¶ 25} Chaffin’s second assignment of error is sustained in part and

remanded for additional findings consistent with this opinion.

                                                III

       {¶ 26} Chaffin’s remaining assignments of error are as follows:

       {¶ 27} “THE TRIAL COURT JUDGE COMMITTED PLAIN ERROR WHEN

HANDLING JUROR NUMBER FOUR DURING THE DELIBERATION PHASE OF

THE TRIAL.”

       {¶ 28} “THE TRIAL JUDGE ERRED WHEN HE REFUSED TO GRANT A

MISTRIAL.”

       {¶ 29} “THE     DEFENDANT         WAS     DEPRIVED    OF   THE     EFFECTIVE

ASSISTANCE OF COUNSEL WHEN HIS COUNSEL FAILED TO MOVE FOR A

SEVERANCE.”

       {¶ 30} “THE TRIAL COURT ERRED BY IMPOSING COURT COSTS IN THE

SENTENCING         ENTRY      WITHOUT       IMPOSING   COURT      COSTS     AT    THE

SENTENCING HEARING.”

       {¶ 31} “THE TRIAL COURT ERRED BY DISAPPROVING THE TRANSFER

OF THE DEFENDANT TO TRANSITIONAL CONTROL IN THE SENTENCING

ENTRY.”

       {¶ 32} In light of our disposition with respect to Chaffin’s second assignment
                                                                                10

of error, his remaining assignments are rendered moot.

                                             IV

       {¶ 33}   Chaffin’s second assignment of error having been sustained in part,

this matter is remanded for further proceedings consistent with this opinion.

                                                  ..........

       GRADY, P.J. concurs.



       HALL, J., concurring:

       {¶ 34} When shown a photo spread containing an old, poor-quality picture of

the defendant, the victim selected another individual, and indicated he was about

80% sure. Several days later, the victim was shown a photo spread containing an

updated photo of the defendant, who was the only completely bald subject in the

array. (The heads of the other subjects were closely shaven, but not bald, or were

partially bald and closely shaven.) The second spread did not contain the subject

the victim picked out of the first spread.

       {¶ 35} Determination of whether there is a suggestive array or suggestive

procedure is the first prong of pre-trial identification analysis. I see nothing

inherently suggestive with the showing of a second updated photo spread to a

victim who has already picked someone out. Also, having only one completely

bald subject in the array is not, by itself, unconstitutionally suggestive because

hairstyles can be changed. Nevertheless, in the unique circumstances of this case I

agree that the trial court should have found that the second photo spread and its

presentation was suggestive. Accordingly, I agree that the matter should be
                                                       11

remanded to the trial court for further proceedings.

                                     ..........



Copies mailed to:

R. Lynn Nothstine
Robert Alan Brenner
Hon. Dennis J. Langer
