[Cite as State v. Williams, 2019-Ohio-5144.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                      Court of Appeals No. E-18-024

        Appellee                                   Trial Court No. 2016 CR 0349

v.

Dwayne Williams                                    DECISION AND JUDGMENT

        Appellant                                  Decided: December 13, 2019

                                               *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, for appellee.

        Ronnie L. Wingate, for appellant.

                                               *****

        SINGER, J.

        {¶ 1} Appellant, Dwayne Williams, appeals the August 3, 2017 judgment of the

Erie County Court of Common Pleas denying his motion to suppress the identification of

appellant by the victim, D.C. We affirm because the identification of appellant was not

impermissibly suggestive and was otherwise reliable.
      {¶ 2} Appellant brings one assignment of error:

             The trial court erred to the prejudice of Mr. Williams when it denied

      his motion to suppress, and renewed motion to suppress, the pretrial

      identification of Mr. Williams by D.C.

                                          Facts

      {¶ 3} On June 1, 2016, at about 2:00 a.m., two men entered the home of D.C. and

held him and four others at gunpoint for approximately 20 minutes while the home was

burglarized. The men had masks on that covered the lower half of their faces. The two

men obtained cash and a cellular phone from the victims. When the suspects demanded

more money, D.C. indicated there was additional money in another apartment. When the

men and D.C. got onto the back porch, D.C. was able to jump back into the house and

quickly close the door, leaving the men outside. D.C. then contacted the police.

      {¶ 4} When the police arrived, D.C. was deeply upset after the robbery and was

unable to make a statement to the police. The other victims, including D.C.’s wife, were

able to make statements to the police about what they witnessed and gave a description of

the suspects. Two days later, Sandusky Police Detective Ken Nixon returned to the home

and interviewed D.C. and his wife. D.C. then gave a detailed description of the night, the

suspects, and the weapons used in the crime.

      {¶ 5} At that time, D.C. indicated that he believed appellant was one of the men

who held him at gunpoint during the robbery. D.C. stated that he knew appellant from a

party on the Fourth of July. He stated that he knew appellant’s voice from this party as




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well. D.C. also told the detective that he was told by a third party that appellant may

have been involved with the crime. D.C. then showed the detective a photograph from

Facebook and stated he believed the photograph showed both men who burglarized his

home.

        {¶ 6} Detective Nixon did not indicate to D.C. that the man in the photograph was

appellant or that the detective suspected appellant in a separate robbery. Nixon then had

a photo lineup created and administered to D.C. by a blind administrator. The photo used

in the lineup was not the same photo that was shown by the detective on Facebook. The

photo lineup was created by a computer program called the Ohio Law Enforcement

Gateway and placed five photos of men of similar characteristics of appellant into the

photo array. After viewing the photo lineup, D.C. indicated that he was positive

appellant was one of the men in the photo lineup. D.C.’s wife identified the other suspect

in a separate lineup.

        {¶ 7} Appellant was then charged with five counts of aggravated burglary in

violation of R.C. 2911.11(A)(2), five counts of aggravated robbery in violation of R.C.

2911.01(A)(1), five counts of felonious assault in violation of R.C. 2903.11(A)(2), and

three counts of complicity to commit theft in violation of R.C. 2923.03(A)(2). The

fifteen counts of aggravated burglary, aggravated robbery, and felonious assault had

firearm specifications under R.C. 2941.145 attached to each count.

        {¶ 8} Appellant filed a motion to suppress seeking to suppress the identification of

appellant. Appellant also sought to suppress evidence gained from a warrant issued for




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his cell phone. Appellant did not appeal that portion of the decision. At the suppression

hearing, Detective Nixon testified about the creation of the lineup and the process that

occurred prior to the identification of appellant. He also testified about the events of the

night and any factors concerning D.C.’s ability to identify appellant.

       {¶ 9} The trial court denied appellant’s motion to suppress. The trial court found

that the identification procedure was not unnecessarily suggestive because the photo

lineup was obtained through a computer program and was administered by a blind

administrator. The trial court also found that the identification was reliable because

appellant’s mask did not hide his entire face, appellant was in the house for more than 20

minutes, D.C.’s description of appellant was consistent, and he indicated that he was

positive of the identification.

       {¶ 10} Appellant was found guilty of all charges by a jury. Appellant was then

sentenced to an aggregate term of 37 years.

                                             Law

       {¶ 11} “An appellate review of a ruling on a motion to suppress presents mixed

questions of law and fact.” State v. Heflin, 6th Dist. Lucas No. L-10-1268, 2011-Ohio-

4134, ¶ 16, citing United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir.1992). The

trial court assumes the role of trier of fact and is in the best position to resolve questions

of fact and evaluate witness credibility at the suppression hearing. Id., citing State v.

Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). “As a result, an appellate court

must accept a trial court’s factual findings if they are supported by competent and




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credible evidence.” Id., citing State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d

726 (4th Dist.1993). We review the trial court’s application of law de novo. Id., citing

State v. Russell, 127 Ohio App.3d 414, 416, 713 N.E.2d 56 (9th Dist.1998).

      Photo array evidence is suppressed only if the identification, or method of

      identification, is unduly suggestive and unreliable. The defendant has the

      burden to show that the identification procedure was unduly suggestive. If

      the pretrial confrontation procedure was not unduly 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. If the defendant meets his or her burden, the

      court must then consider whether the identification, viewed under the

      totality of the circumstances, is reliable despite its suggestive character.

      Factors to be considered in determining the reliability and suggestiveness of

      a challenged identification include: (1) the victim’s opportunity to view the

      defendant during the crime, (2) the victim’s degree of attention, (3) the

      accuracy of the victim’s prior description, if any, of the defendant, (4) the

      victim’s certainty, and (5) the amount of time that has elapsed between the

      offense and the identification.” (Citations omitted). Id. at ¶ 17.

                                          Analysis

      {¶ 12} We do not find that the procedure used in this case was unduly suggestive.

Appellant argues that because D.C. had already viewed a photo of him, the procedure of a




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photo lineup was suggestive. However, at no time did Detective Nixon identify appellant

to D.C. Nixon returned to the police station to create a photo lineup with computer

software that provides five other pictures of men with similar stature, age, hair, eye color,

and race as appellant to put into the photo lineup. Appellant was not placed into the first

slot for the express purpose of removing any possible suggestion he was the suspect who

committed the crime. The photo lineup was administered by another officer who did not

know who the suspect was or if a suspect was even present in the photo lineup. Detective

Nixon was not present when the photo lineup was administered to D.C. No evidence in

the record demonstrates that any officer influenced D.C.’s identification of appellant.

Therefore, the identification procedure was not suggestive.

       {¶ 13} Even if the procedure were suggestive, the identification is reliable under

the totality of the circumstances. D.C. had ample opportunity to view the suspect as the

men were holding him and the other victims at gunpoint for more than 20 minutes. D.C.

recognized appellant’s voice and was able to accurately describe the weapon used during

the robbery. Both men only had the bottom half of their faces covered by masks and

therefore the victims were able to see the top half of the faces in order to identify them.

Only two days passed between the crime and D.C.’s identification of appellant. D.C. also

indicated that he was very positive when he identified appellant.

       {¶ 14} D.C.’s identification of appellant is bolstered by his previous knowledge of

appellant. D.C. and appellant had attended a Fourth of July party together and D.C. used

this information in his identification of appellant. The mere fact that appellant identified




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appellant before a photo lineup was presented to him does not make his identification

unreliable, but rather strengthens its reliability.

       {¶ 15} We find appellant’s sole assignment of error not well-taken. Judgment of

the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the

costs of this action pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                                 _______________________________
                                                              JUDGE
Christine E. Mayle, P.J.
                                                  _______________________________
Gene A. Zmuda, J.                                             JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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