[Cite as State v. Flagg, 2019-Ohio-3032.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-18-43

        v.

ANDREW FLAGG,                                             OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 18-CR-0327

                                      Judgment Affirmed

                              Date of Decision: July 29, 2019




APPEARANCES:

        Todd A. Workman for Appellant

        Nathan R. Heiser for Appellee
Case No. 9-18-43


SHAW, J.

      {¶1} Defendant-appellant, Andrew A. Flagg (“Flagg”), brings this appeal

from the October 23, 2018, judgment of the Marion County Common Pleas Court

sentencing him to twelve months of community control after Flagg was convicted

in a jury trial of two counts of Forgery in violation of R.C. 2913.31(A)(3), both

felonies of the fifth degree. On appeal, Flagg argues that the trial court erred by

overruling his suppression motion.

                                     Background

      {¶2} On June 27, 2018, Flagg was indicted for two counts of Forgery in

violation of R.C. 2913.31(A)(3), both felonies of the fifth degree. It was alleged

that Flagg presented a counterfeit $100 bill as payment at a minimart in Marion

County on January 14, 2018, and that Flagg presented a counterfeit $100 bill as

payment at an Amish store in Hardin County on January 18, 2018. In both instances,

the bills were accepted as payment. The charges were indicted together in Marion

County as part of an ongoing course of criminal conduct. Flagg pled not guilty to

the charges.

      {¶3} Prior to trial, Flagg filed a suppression motion contending that officers

in Marion County conducted a photo lineup with the cashier who accepted the $100

bill at the minimart, and that the lineup was not in compliance with the statutory

procedures for photo lineups codified in R.C. 2933.83. In addition, Flagg argued


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that different officers in Hardin County conducted a photo lineup with the cashier

who accepted the $100 bill at the Amish store, and that lineup even more

egregiously failed to comply with the statutory procedures codified in R.C. 2933.83.

           {¶4} The State filed a memorandum in opposition to Flagg’s suppression

motion, arguing that the statutory procedures were largely complied with,

particularly in the Marion County lineup, and that even if the photo lineups were

not in compliance with the statute, the lineups were not unduly suggestive such that

they warranted suppression.                   The State contended that a jury instruction as

mentioned in R.C. 2933.83 was the appropriate remedy for failure to comply with

R.C. 2933.83 when the photo lineups were not unduly suggestive.

           {¶5} On September 21, 2018, a suppression hearing was held. At the

hearing, the State presented the testimony of officers from the Hardin County

Sheriff’s Office who conducted a photo lineup with Marie H., the 17-year old girl

from the Amish store who had accepted the $100 bill on January 18, 2018, and an

officer from the Marion County Sheriff’s Office who prepared the photo lineup for

Sharon W., the woman from the minimart in Marion County who accepted the $100

bill on January 14, 2018. Unlike the Hardin County photo lineup, the Marion

County lineup was given by a blind administrator, who did not know the identity of

the purported suspect.1 The State also presented the testimony of Marie and Sharon



1
    The blind administrator testified at trial but not at the suppression hearing.

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regarding the lineups themselves. Both indicated that the officers did not attempt

to influence them, and that they were extremely confident in their selection of

Flagg’s photograph.

       {¶6} At the conclusion of the hearing, the trial court overruled the

suppression motion. In its entry on the matter, the trial court stated as follows.

       Based on the evidence presented, the Court finds that two photo
       lineups were presented in this case, neither of which fully
       complied with the procedures required by R.C. 2933.83.
       However, there was no evidence that either identification
       procedure was unduly suggestive. It is therefore ORDERED that
       the Defendant’s motion to suppress is denied.

       {¶7} However, the trial court did determine that Flagg would be permitted to

present evidence at trial of law enforcement’s failure to comply with the statutory

procedures, and that failure to follow the procedures could be considered by the jury

in determining the reliability of the identification testimony pursuant to R.C.

2933.83(C). The trial court also indicated that the jury would receive an instruction

on the matter.

       {¶8} Flagg’s case proceeded to trial on September 25-26, 2018. Regarding

the incident in Marion County, the State presented the testimony of Sharon W., who

worked at the LaRue minimart in Marion County and accepted the $100 bill from

Flagg on January 14, 2018. She testified that she did not know Flagg’s name, but

he had been in the store multiple times in the past so she recognized him. She

testified that the $100 bill he presented had questionable pink writing on it, and that

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she thought it seemed like it had been “laundered several times.” (Tr. at 213).

Sharon testified that she asked Flagg where he got it, and he said he had received it

from “one of the cash places.” (Id.) Sharon testified that while she usually used a

special pen to mark the bills to see if they were legitimate, the pen was not readily

nearby and she ultimately accepted the bill. Sharon identified Flagg in court as the

man who provided the bill to her.

        {¶9} Sharon testified that she was shown a photo lineup a few days after the

incident and that she was “100 percent” certain that she had identified the correct

person in the photo lineup. She testified she was not influenced by the detective

who showed her the photographs.

        {¶10} The Marion County Officers who were involved with the photo lineup

testified at trial. Detective Craig Layne testified as to how he put the photo lineup

together. A database called OLEG was used to generate photographs of males with

a similar height, weight, and hair color to Flagg. Flagg’s photograph was then

placed alone in one folder, then the five other photographs of different individuals

were placed in separate individual folders. Four folders with blank pages in them

were also included in the stack of folders, so that there were ten folders total that

would be provided to Sharon.2 The folders were then given to a blind administrator

who did not know the identity of the suspect, and the blind administrator conducted


2
  The trial court stated that the purpose of the use of the blank pages is so that the person doing the
identification does not know how many individuals she is about to view.

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the photo lineup with Sharon. There was some ambiguity about whether the blind

administrator handed all of the folders to Sharon at once in contravention of the

statute, or handed them to her one at a time, and as to whether Sharon viewed the

photographs in the administrator’s presence or a few feet away. Regardless, the

administrator did not know the alleged perpetrator, and Sharon identified Flagg,

stating that she was 100 hundred percent certain it was him.

           {¶11} As to the Hardin County incident, the State presented the testimony of

Marie H., whose Amish family owned and operated a small grocery store on their

property. Marie testified that a man came into the store on January 18, 2018, and

asked if she could make change for $100.3 Marie indicated that it depended on how

much he bought, and that the man then purchased roughly $50 worth of goods.

Marie affirmatively identified Flagg at trial as that man. Marie testified that Flagg

produced a $100 bill that she felt was suspicious so she got his license plate number

when he left and wrote it on her hand. She then showed her brother the $100 bill,

and he told her it was fake, so the police were informed. Marie also made a list of

things that Flagg had purchased from the store, and gave it to law enforcement. A

number of the items were found in Flagg’s home when it was subsequently




3
    Marie testified that Flagg was with a woman at the time.

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Case No. 9-18-43


searched, along with a fake $100 bill and a fake $20 bill. The fake $100 bill that

was found was consistent with the ones that had been used in his prior purchases.4

         {¶12} Hardin County officers administered their own photo lineup to Marie,

and they testified regarding that lineup at trial. Detective Scott Willoby indicated

that he put the lineup together by pulling photographs of males with a similar height,

weight, and hair color to Flagg from the OLEG database. He indicated that he

placed Flagg’s photograph in one folder, then placed five other photographs of

different individuals in separate folders. Four folders with blank pages in them were

also used, so that there were ten folders total that would be given to Marie.

         {¶13} Detective Willoby testified that he went with Deputy Joe Carl to

Marie’s house5, and that the photo lineup was administered at the kitchen table.

Detective Willoby admitted that a blind administrator was not used pursuant to

statute, stating that their Sheriff’s Office was small and short-staffed, and that while

it was possible that they could have gotten a blind administrator, he preferred to get

the lineup done as soon as possible.

         {¶14} Detective Willoby’s testimony revealed that there were multiple areas

where the Hardin County photo lineup was not compliant with the statute. He



4
  John Timmons testified at trial that he purchased fake money for his children in the fall of 2017 on wish.com.
He testified that he wanted his children to learn to count money and “play store.” He indicated that he
received hundreds and twenties, but they had bright pink Chinese writing on them. Timmons testified that
his children passed them out to other children in the neighborhood, including Flagg’s children. When the
police came to speak with him, Timmons turned over the fake money he had remaining in the house.
5
  They also had an intern with them.

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indicated that Marie’s parents were present at the time of the lineup, that he never

said that the suspect may not be in the lineup, that he explained how the photographs

were generated before presenting the lineup to Marie, and that he told Marie at the

outset to go through the lineup twice even though she was only supposed to do it

once unless she requested to do so again. Marie identified Flagg’s photo and stated

that she was almost positive that it was him. She testified that the officers did not

do anything to assist her identification.

       {¶15} The trial court gave an instruction to the jury during the trial indicating

that it could consider the police officers’ noncompliance with the law when

evaluating the credibility of the photo lineup identification. At that time, the trial

court actually stated all of the statutory requirements of R.C. 2933.83 to the jury. In

fact, at one point during a witness’s testimony regarding the photo lineup, the trial

court questioned the procedure and asked the witness if the procedure was

inconsistent with the statute. The witness admitted that it was, thus the trial court

helped emphasize the officer’s noncompliance.

       {¶16} After the parties rested their cases, the trial court again provided a

lengthy jury instruction regarding the photo lineup procedures. Nevertheless, the

jury returned guilty verdicts on both Forgery counts, specifically finding with regard

to the Hardin County incident that Marion County had jurisdiction to hear the case

as part of an ongoing course of criminal conduct.


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       {¶17} On October 19, 2018, the matter proceeded to sentencing. Flagg was

placed on twelve months of community control on each count, with a number of

specified conditions. He was notified that if he violated his community control he

would receive nine months in prison on each count.               A judgment entry

memorializing Flagg’s sentence was filed October 23, 2018.           It is from this

judgment that Flagg appeals, asserting the following assignment of error for our

review.

                             Assignment of Error
       The trial court erred by failing to suppress evidence of
       identification of Appellant from an improper photo lineup that
       was unduly suggestive and violated the Constitutional rights of
       Appellant.

       {¶18} In Flagg’s assignment of error, he argues that the trial court erred in

overruling his suppression motion. Specifically, he contends that the Hardin County

photo lineup blatantly disregarded the rules for administering a photo lineup

pursuant to R.C. 2933.83, that the photo lineup was unduly suggestive, and that

given the totality of circumstances there was clear opportunity for misidentification.

                                Standard of Review

       {¶19} “Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–

Ohio–5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge

of the credibility of the witnesses and the weight to be given to the evidence


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presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist.2000). Therefore,

when an appellate court reviews a trial court’s ruling on a motion to suppress, it

must accept the trial court’s findings of facts so long as they are supported by

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006–Ohio–

3665, ¶ 100. The appellate court must then review the application of the law to the

facts de novo. Burnside at ¶ 8.

       {¶20} In specifically adjudicating a motion to suppress eyewitness

identifications under R.C. 2933.83(C)(1), a trial court must consider evidence of a

failure to comply with the required array procedures. However, the statute does not

provide an independent basis to suppress evidence, and a trial court errs in solely

relying on the statute in suppressing an identification. State v. Lindsey, 8th Dist.

Cuyahoga No. 106111, 2019-Ohio-782, ¶ 67. The overriding analysis remains

whether the procedure was “impermissibly suggestive.” State v. Wells, 8th Dist.

Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 84, citing State v. Henry, 6th Dist. Lucas

No. L-11-1157, 2012-Ohio-5552 (failure to strictly comply with blind administrator

component does not necessarily result in reversible error).

       {¶21} Regarding the admissibility of identification testimony in general,

courts have adopted a two-prong test. State v. Lindsey, 8th Dist. Cuyahoga No.

106111, 2019-Ohio-782, ¶ 68. First, the trial court must determine whether the

identification procedures were so impermissibly suggestive as to give rise to a


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substantial likelihood of misidentification. Id. citing Neil v. Biggers, 409 U.S. 188,

93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Second, the trial court must determine whether

the identification itself was unreliable under the totality of the circumstances. Id. If

the defendant fails to meet the first part of his burden that the procedures used were

unduly suggestive, the court need not consider the totality of the circumstances

under the second prong. State v. Tate, 8th Dist. Cuyahoga No. 103446, 2016-Ohio-

5622, 70 N.E.3d 1056, ¶ 31, citing State v. Green, 117 Ohio App.3d 644, 691 N.E.2d

316 (1st Dist.1996). If the pretrial procedures were not unduly suggestive, any

remaining questions as to reliability go to the weight of the identification, not its

admissibility. Id.

       {¶22} If, on the other hand, the defendant establishes that the pretrial

identification procedure was unduly suggestive, the court must then consider

whether the identification, viewed under the totality of the circumstances, was

reliable. To determine reliability, the United States Supreme Court instructs courts

to consider the following factors: the opportunity of the witness to view the

perpetrator at the time of the offense, the witness’s degree of attention, the accuracy

of the witness’s prior description of the perpetrator, the level of certainty

demonstrated by the witness at the confrontation, and the length of time between

the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct.

375 (1972).


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                                               R.C. 2933.83

           {¶23} Revised Code 2933.83(B) codifies the specific procedures that law

enforcement officers are supposed to follow when conducting a photo lineup. It

reads as follows.6

           (B) Prior to conducting any live lineup or photo lineup on or
           after the effective date of this section, any law enforcement agency
           or criminal justice entity in this state that conducts live lineups or
           photo lineups shall adopt specific procedures for conducting the
           lineups. The procedures, at a minimum, shall impose the
           following requirements:

           (1) Unless impracticable, a blind or blinded administrator shall
           conduct the live lineup or photo lineup.

           (2) When it is impracticable for a blind administrator to conduct
           the live lineup or photo lineup, the administrator shall state in
           writing the reason for that impracticability.

           (3) When it is impracticable for either a blind or blinded
           administrator to conduct the live lineup or photo lineup, the
           administrator shall state in writing the reason for that
           impracticability.

           (4) The administrator conducting the lineup shall make a
           written record that includes all of the following information:

           (a) All identification and nonidentification results obtained
           during the lineup, signed by the eyewitnesses, including the
           eyewitnesses' confidence statements made immediately at the
           time of the identification;

           (b) The names of all persons present at the lineup;

6
    The definitions for specific words and phrases are codified in R.C. 2933.83(A).

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Case No. 9-18-43



      (c) The date and time of the lineup;

      (d) Any eyewitness identification of one or more fillers in the
      lineup;

      (e) The names of the lineup members and other relevant
      identifying information, and the sources of all photographs or
      persons used in the lineup.

      (5) If a blind administrator is conducting the live lineup or the
      photo lineup, the administrator shall inform the eyewitness that
      the suspect may or may not be in the lineup and that the
      administrator does not know who the suspect is.

      {¶24} Revised Code 2933.83(C) contains provisions that deal with failure to

comply with the appropriate minimal photo lineup procedures.

      (C) For any photo lineup or live lineup that is administered on or
      after the effective date of this section, all of the following apply:

      (1) 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 shall be
      considered by trial courts in adjudicating motions to suppress
      eyewitness identification resulting from or related to the lineup.

      (2) 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 shall be
      admissible in support of any claim of eyewitness misidentification
      resulting from or related to the lineup as long as that evidence
      otherwise is admissible.



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       (3) 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 resulting from or
       related to the lineup.

                                      Analysis

       {¶25} In this case, Flagg argues that the photo lineup in Hardin County was

not in compliance with R.C. 2933.83, and that the trial court erred by denying his

suppression motion. Notably, despite the broad statement of his assignment of error

contending that the trial court should have suppressed both of the photo lineups in

this matter, Flagg actually concedes in his brief that the Marion county lineup was

“administered for the most part, in compliance with ORC 2933.83.” (Appt.’s Br. at

9). Thus he focuses his argument on contending that the Hardin County photo

lineup administration was deeply flawed and that the statute was “knowingly

disregarded.” (Id.)

       {¶26} Flagg catalogues numerous ways that the statutory procedure was not

followed in the Hardin County lineup: the lineup was not administered by a blind

administrator; no written statement was provided to establish why a blind

administrator was not used; the lineup administrator did not state that the suspect

may or may not be in the lineup; the lineup administrator and another officer present


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knew who the suspect was; the administrator said “this may not be his first time, he

may have done this before” while conducting the lineup; the administrator instructed

Marie to look through the photographs twice at the outset, though under the statute

she was only supposed to look a second time at the photo lineup if she requested to

do so; Marie was accompanied by her father, mother, two deputies and an intern

while the test was being given.

       {¶27} In addition, Flagg contends that the photos in the lineup itself were

unduly suggestive as some men had facial hair and some had differently defined

hairlines drastically different from Flagg’s photograph. Further, Flagg argues that

there was potential for misidentification in this case as there was some testimony

that another individual, Jimmy Skaggs, attempted to pass fake bills at the minimart

in Marion after Flagg had, and that Skaggs said the fake bill he was attempting to

use had come from a man named Andy Greenwood.

       {¶28} At the outset of our analysis, we emphasize that the trial court itself

did not find that the photo lineup conducted in Hardin County was compliant with

R.C. 2933.83; rather, the trial court stated that the photo lineup was not in

compliance with the statute, but it was not unduly suggestive, which is what is

required before suppressing a photo lineup identification. State v. Ruff, 1st Dist.

Hamilton No. C-110250, 2012-Ohio-1910, ¶ 8 (“noncompliance with R.C.

2933.83(B) alone is insufficient to warrant suppression.”)


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       {¶29} In our own review, we agree with the trial court that the Hardin County

lineup was not compliant with R.C. 2933.83.         The lineup was conducted by

Detective Willoby and Deputy Carl of the Hardin County Sheriff’s Office. Portions

of the statute were complied with, such as using the folder system, showing the

photographs one at a time, and getting Marie to sign and rate her confidence in the

identification. Moreover, Detective Willoby did offer some explanation as to why

a blind administrator was not used, stating that their office was small and short-

staffed, that it would have been difficult (but not impossible) to get a blind

administrator to assist that day, and that they wanted to do the lineup as close in

time to the incident as possible. See State v. Moon, 2d Dist. Montgomery No. 25061,

2013-Ohio-395, ¶ 28 (finding that while being short-staffed did not make obtaining

a blind administrator impractical, the absence of a blind administrator or written

reasons why one was not used does not warrant suppression.) Nevertheless, there

was no blind administrator per the statute, Detective Willoby did not inform the

eyewitness that the suspect may or may not be in the lineup, and Detective Willoby

ordered Marie to look at all the photographs twice, instead of waiting to see if she

would request to do so.

       {¶30} However, similar to the trial court, despite numerous failures to

comply with the statutory procedure, we cannot find that the Hardin County lineup

was unduly suggestive in this matter. “A lineup is unduly suggestive if it steers the


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witness to one suspect, independent of the witness’s honest recollection.” State v.

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 208, citing Wilson v. Mitchell, 250

F.3d 388, 397 (6th Cir.2001). Although it is a suppression matter, the defendant

actually “ ‘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. Wilcoxin, 2d Dist. Clark No. 2017-CA-

58, 2018-Ohio-1322, ¶ 7, quoting 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).

       {¶31} Here, there is no indication that Detective Willoby or Deputy Carl

“steered” Marie toward Flagg’s photograph. In fact, Marie testified that when she

looked through the photographs the first time, she was confident that Flagg was the

right individual. She testified that she only looked at the photographs a second time

because she was instructed to by Detective Willoby. Marie specifically testified

that the officers did not influence her decision in any manner, and that her

recollection was entirely independent. Marie also testified that she did not recall

Detective Willoby stating that the suspect’s photograph was in the lineup, or that

the suspect was wanted for other similar crimes.




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       {¶32} Detective Willoby and Deputy Carl also testified individually that they

did nothing to influence Marie’s identification. They indicated that the procedure

was explained and that small talk was made with Marie’s father during the lineup,

but they explicitly did not attempt to aid Marie in any manner.

       {¶33} In addition, as to the lineup itself, Detective Willoby testified that he

compiled the lineup by putting Flagg’s height, eye color, hair color, weight, and

race into the OLEG database, and that the database compiled five other individuals

for comparison. There is no indication that Detective Willoby selected individuals

different from Flagg, and in fact, the opposite is true. See State v. Wilcoxin, 2d Dist.

Clark No. 2017-CA-58, 2018-Ohio-1322 (where defendant was only photo in lineup

with a facial tattoo, specifically a teardrop, lineup still was not so impermissibly

suggestive that it warranted suppression). At the very least, Flagg did not meet his

burden to establish that the lineup was unduly suggestive.

       {¶34} Nevertheless, even assuming arguendo that we found the lineup to be

unduly suggestive, the next issue we would have to analyze before determining that

suppression was appropriate was whether there were indications that the

identification was reliable. In this case, Marie identified Flagg in the photo lineup

very soon after seeing him in the store—the same day. She also testified that she

remembered his eyes and lack of smile from seeing him in the store, and that she

was suspicious of him because of the look of the $100 bill he provided. When Marie


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first saw his photo in the lineup, she stated that she was “almost positive she

recognized him.” (Tr. at 278).

       {¶35} Further establishing Marie’s good memory, she recalled the items

Flagg bought in the store, she recalled that Flagg had a woman with him, and she

recalled the brief conversation she had with Flagg wherein he asked if she could

make change for $100, and she said it depended on how much he bought. A

significant number of the items Marie listed as having been “purchased” by Flagg

were found in his house in a subsequent search. Based on Marie’s testimony, her

identification would appear to have some reliability.

       {¶36} Finally, we would note that the trial court emphasized the officers’

failure to comply with the statutory procedures to the jury in a lengthy

admonishment, stating that the jury was entitled to consider that as part of evaluating

the reliability of the photo lineup identification. The trial court also gave an

instruction to the jury on the matter, which spanned five pages of the transcript. The

jury was thus very aware of the issues regarding the photo lineup, which is precisely

what R.C. 2933.83 requires when procedures were not complied with. State v.

Moon, 2d Dist. Montgomery No. 25061, 2013-Ohio-395, ¶ 28 (“Significantly,

although R.C. 2933.83(C)(1) provides that the trial court must consider non-

compliance with the provisions of the statute in adjudicating a motion to suppress

eyewitness identification testimony, it does not provide that non-compliance, by


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itself, requires suppression of the testimony. In dictum, we have said that the

“penalty” for failure to comply with the statute is not suppression, but the other

remedies provided for in the statute.”) (Emphasis sic.)

        {¶37} For all of these reasons, we cannot find that the trial court erred in

denying Flagg’s suppression motion.7                  Therefore, his assignment of error is

overruled.

                                             Conclusion

        {¶38} For the foregoing reasons Flagg’s assignment of error is overruled and

the judgment of the Marion County Common Pleas Court is affirmed.

                                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




7
  As stated previously, Flagg conceded in his brief that the Marion County photo lineup was mostly in
compliance with the statute. Even if he did challenge this issue on appeal, there is no evidence of undue
influence and Sharon was familiar with Flagg from prior dealings making her identification more reliable.
Nevertheless, the officer administering the Marion County photo lineup did not even know who the suspect
was. The photo lineup was also put together the same way through OLEG, thus we could find no prejudicial
error here.

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