[Cite as State v. Johnson, 2014-Ohio-4339.]




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


State of Ohio                                     Court of Appeals No. L-13-1032

        Appellee                                  Trial Court No. CR0201202149

v.

Steven Johnson                                    DECISION AND JUDGMENT

        Appellant                                 Decided: September 26, 2014

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas that found appellant guilty of two counts of felonious assault with attached firearm

specifications and imposed a term of imprisonment. For the following reasons, the

judgment of the trial court is affirmed.
       {¶ 2} This case originated in the Lucas County Court of Common Pleas, Juvenile

Division, where appellant was charged as an alleged delinquent child in connection with

a shooting which occurred on March 18, 2012, in Toledo, Lucas County, Ohio.

Appellant was 17 years of age at the time of the incident, but turned 18 in May 2012. On

June 21, 2012, the juvenile court granted the state’s motion for relinquishment of

jurisdiction, certified appellant to be tried as an adult, and transferred the case to the

Lucas County Court of Common Pleas, General Division.

       {¶ 3} In July 2012, appellant was indicted on two counts of felonious assault in

violation of R.C. 2903.11(A)(2) and one count of improperly discharging a firearm at or

into a habitation in violation of R.C. 2923.161, all of which carried firearm specifications

pursuant to R.C. 2941.145. Before trial, the third count was nolled.

       {¶ 4} On September 26, 2012, appellant filed a motion to suppress his

identification by several witnesses by means of a photo array. At the conclusion of an

evidentiary hearing held on October 15, 2012, the trial court denied the motion. The case

proceeded to a jury trial.

       {¶ 5} On October 16, 2012, the jury found appellant guilty of both counts of

felonious assault and both attached firearm specifications. At sentencing, the trial court

ordered appellant to serve a three-year term of imprisonment for each count of felonious

assault, with the sentences to be served concurrently. The trial court merged the two

firearm specifications and ordered appellant to serve the mandatory three-year term

consecutive to the sentence for the felonious assault convictions.




2.
       {¶ 6} Appellant now files the following assignments of error:

              A. The trial court erred by not suppressing the photo array because

       the array violated R.C. 2933.83 and was unduly suggestive.

              B. The State of Ohio failed to produce legally sufficient evidence to

       sustain a conviction.

              C. Appellant’s conviction fell against the manifest weight of the

       evidence.

       {¶ 7} In support of his first assignment of error, appellant asserts that the trial

court erred by not suppressing the photo array shown to three witnesses because the array

violated R.C. 2933.83 and was unduly suggestive.

       {¶ 8} We note first that appellate review of a ruling on a motion to suppress

presents a mixed question of law and fact. When considering a motion to suppress, the

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

factual questions and evaluate witness credibility. State v. Mills, 62 Ohio St.3d 357, 366,

582 N.E.2d 972 (1992). A disputed motion to suppress judgment supported by

competent, credible evidence must not be disturbed. State v. Fanning, 1 Ohio St.3d 19,

437 N.E.2d 583 (1982).

       {¶ 9} R.C. 2933.83, effective July 2010, requires any law enforcement agency that

conducts live and photo lineups to adopt “specific procedures” for conducting the

lineups. R.C. 2933.83(B). Such procedures must provide, at minimum, the use of a




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“blind or blinded” administrator for the array. Id. at 2933.83(B)(1). Blind or blinded

administrators are defined in R.C. 2933.83(A) as follows:

              (2) “Blind administrator” means the administrator does not know the

       identity of the suspect. “Blind administrator” includes an administrator

       who conducts a photo lineup through the use of a folder system or a

       substantially similar system. (3) “Blinded administrator” means the

       administrator may know who the suspect is, but does not know which

       lineup member is being viewed by the eyewitness. “Blinded administrator”

       includes an administrator who conducts a photo lineup through the use of a

       folder system or a substantially similar system.

       {¶ 10} The folder system set forth in the statute provides for the suspect’s

photograph, five filler photographs and four dummy folders. The folders are shuffled and

the administrator does not know which folder the witness is viewing. R.C.

2933.83(A)(6). The statute does not require the use of the folder system.

       {¶ 11} The statute provides that evidence of noncompliance with the statute shall

be considered by courts in ruling on a defendant’s motion to suppress. R.C.

2933.83(C)(1). In addition, such evidence is admissible at trial. R.C. 2933.83(C)(2). If

such evidence is admitted at trial, the court shall instruct the jury that such

noncompliance may be considered in determining the credibility of the witness

identification. R.C. 2933.83(C)(3).




4.
       {¶ 12} The trial court in this case found that the administration of the arrays was

substantially in conformance with R.C. 2933.83 and that the testimony of the three

eyewitnesses was “absolutely reliable.” At the October 15, 2012 suppression hearing,

Toledo Police Detective Steve Applin testified as to the lengths to which he went to

create a photo array that portrayed individuals with the same characteristics and

approximate age, that was not in any way suggestive. Further, Applin testified that

although he assembled the photo array, it was administered by Detective Gene Kutz, who

did not know the identity of the suspect. Therefore, Detective Kutz was a “blind

administrator” as defined by R.C. 2933.83.

       {¶ 13} Assuming arguendo that the identification procedures herein did not

comply with the statute, such non-compliance does not provide an independent basis for

suppression. See State v. Henry, 6th Dist. Lucas No. L-11-1157, 2012-Ohio-5522, ¶ 46.

As will be discussed below, while non-compliance is to be taken into consideration by

the trial court when ruling on a motion to suppress, it does not necessitate that the court

suppress the identification. Id. The overriding analysis remains whether the

identification procedure was “impermissibly suggestive.” Neil v. Biggers, 409 U.S. 188,

93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

       {¶ 14} Appellant argues that the array was unduly suggestive because the photo of

his face was substantially larger than the other photos, that Detective Applin

acknowledged “purposely blurring” the filler photos, and because in the BMV photo used

he is wearing glasses although none of the witnesses described him as wearing glasses.




5.
These minor variations, which primarily related to details of appearance that may be

readily changed, do not require a finding that the array was impermissibly suggestive.

The array in this case depicted five Caucasian men of approximately the same age. Each

was wearing glasses of a similar type, with similar hair styles and facial hair. Because

the array included individuals “showing no significant variations in hair length,

complexion, age, features, or dress,” the array was not unduly suggestive. See State v.

Thomas, 8th Dist. Cuyahoga No. 88548, 2007-Ohio-3522, ¶ 14.

         {¶ 15} Denying the motion to suppress, the trial court found that appellant failed

to meet his burden to demonstrate that the procedure used in compiling and showing the

array to the victims was unduly suggestive. Upon review of the trial court’s finding, we

find that no error occurred. Accordingly, appellant’s first assignment of error is not well-

taken.

         {¶ 16} In support of his second assignment of error, appellant asserts that the state

failed to produce legally sufficient evidence as to each element of the offense of felonious

assault. In support of his third assignment of error, appellant asserts that his conviction

was against the manifest weight of the evidence. These arguments will be considered

together as both can be resolved by examining the evidence presented at trial.

         {¶ 17} The term “sufficiency” of the evidence presents a question of law as to

whether the evidence is legally adequate to support a jury verdict as to all elements of the

crime. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541(1997). The relevant

inquiry in such cases is “whether, after viewing the evidence in a light most favorable to




6.
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, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

       {¶ 18} “In contrast, a manifest weight challenge questions whether the state has

met its burden of persuasion.” State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-

Ohio-1394, ¶ 17, citing Thompkins, supra, at 387. In making this determination, the

court of appeals sits as a “thirteenth juror” and, after “reviewing the entire record, weighs

the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether, in resolving conflicts in the evidence, the jury clearly lost its way

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

and a new trial ordered.” Thompkins, supra, at 386.

       {¶ 19} Appellant was convicted of two counts of felonious assault in violation of

R.C. 2903.11(A)(2), which states: “No person shall knowingly * * * cause or attempt to

cause physical harm to another * * * by means of a deadly weapon or dangerous

ordinance.”

       {¶ 20} The jury in this case heard testimony on behalf of the state from three

witnesses to the crime, the responding officer and two detectives. The defense presented

one alibi witness.

       {¶ 21} Detectives Applin and Kutz each testified at length as to assembling and

presenting the photo array to the witnesses, as summarized above. Next, the state




7.
presented the testimony of victims Mark Bollinger and Mia Biggert, as well as witness

Kaleigh Rains.

       {¶ 22} Biggert testified as to the events of the early morning hours on March 18,

2012. Biggert was staying at the home of her friend Kaleigh Rains and Rains’ brother

Mark Bollinger. At approximately 4:00 a.m., after Bollinger returned to the duplex,

Biggert and Rains went outside to have a cigarette. While the two women were on the

porch, they observed three males walk by the house and then turn around. One of the

males said something the women did not hear. Rains asked them what they had said and

one of the males asked her what she was looking at. At that point, Biggert testified, the

men approached them and it became clear “they were going to beat our asses.” Rains

then went inside to get her boyfriend, who in turn got Bollinger to go outside. Bollinger

walked toward the three males and one of them shot him with pepper spray. Biggert

identified appellant as the individual with the pepper spray. After the male pepper-

sprayed Bollinger, he fired two gunshots in the air and then immediately fired five times

at Bollinger.

       {¶ 23} Mark Bollinger testified that, after spending the evening of March 17,

2012, with friends and family, he returned to his apartment at about 4:00 a.m. Shortly

thereafter, he heard commotion and pounding on his door. He looked outside and saw

three men approaching his sister and her friend and screaming at them. Bollinger ran

outside and saw the three men standing on the grass in front of the house. When

Bollinger told the individuals to leave, one of them pulled out a can of pepper spray and




8.
shot him in the face from about six feet away. Bollinger turned around and backed up,

wiping his face and eyes. He testified that although the pepper spray caused the skin on

his face to burn, it did not hurt his eyes. He then heard shots fired and turned around and

saw an individual he identified in court as appellant shooting a gun in the air. Appellant

then started shooting toward Bollinger and Biggert. Bollinger turned away and was

struck in the foot by a bullet. He received medical attention for his wound. Bollinger

further testified that when he viewed the photo array he was “110 percent” sure the

picture of appellant was the same man that shot him.

       {¶ 24} Kaleigh Rains testified that Bollinger returned home in the early morning

hours of March 18, 2012, and woke her up because she had locked the door. At that

point, Rains and Biggert went outside to have a cigarette on the front porch. Rains

testified that three males walked past the house once, turned around and walked by a

second time, calling out to the women and asking what they were looking at. Words

were exchanged and the women told them to leave. When Bollinger went outside, he

also told the individuals to leave. As Bollinger stood there, one of the males sprayed

pepper spray in his face and then “almost immediately” fired gunshots in the air. Rains

testified that when Bollinger turned to walk into the house one of the males started

shooting in Bollinger’s direction. As Rains called the police on her cell phone, the three

men fled down the street and out of sight. Finally, Rains testified that she was “[one]

[h]undred and fifty percent sure” appellant was the person who fired the gun that night.




9.
       {¶ 25} The defense presented the testimony of Beronica Lopez, who stated that

appellant was a friend of her daughter’s and was living at her house at the time of the

shooting. Lopez testified that appellant was with her and several other individuals during

the afternoon and evening of March 17, 2012. She testified that she did not go to bed

until about 5:30 or 6:00 a.m. the following morning, and that appellant went to bed

sometime between 1:00 and 2:00 a.m. She reported that she woke appellant up around

4:00 a.m. and made him move to the living room because he had fallen asleep in her

daughter’s bedroom, which was not allowed.

       {¶ 26} This court has thoroughly considered the entire record of proceedings in the

trial court and the testimony as summarized above. Bollinger, Biggert and Rains all

identified appellant in court as the individual who pepper sprayed Bollinger and fired

shots at Bollinger and Biggert. They also verified that on March 22, 2012, they identified

appellant in a photo array. All three testified that they were certain of their identifications

and confirmed that the detective who presented the array told them the suspect’s photo

might or might not be included in the array. Additionally, all three witnesses testified

that although the confrontation occurred in the early morning hours the area was lighted

by streetlights and other outdoor lights.

       {¶ 27} We find that the state presented sufficient evidence from which, when

viewed in a light most favorable to the state, a rational trier of fact could have found

appellant guilty beyond a reasonable doubt of felonious assault in violation of R.C.




10.
2903.11(A)(2) and the attached firearm specifications. See Jenks, 61 Ohio St.3d 259 at

syllabus, 574 N.E.2d 492.

       {¶ 28} As this court has consistently affirmed, the trier of fact is vested with the

discretion to weigh and evaluate the credibility of conflicting evidence in reaching its

determination. It is not within the proper scope of the appellate court’s responsibility to

judge witness credibility. State v. Hill, 6th Dist. Ottawa No. OT-04-035, 2005-Ohio-

5028, ¶ 42. Further, based on the testimony summarized above and the law, this court

cannot say that the jury clearly lost its way or created a manifest miscarriage of justice by

finding appellant guilty of the two charges of felonious assault with firearm

specifications. Thompkins, supra, 78 Ohio St.3d 380 at 387, 678 N.E.2d 541, quoting

State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1983). Accordingly, we find that

appellant’s second and third assignments of error are not well-taken.

       {¶ 29} Upon consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant 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.




11.
                                                                     State v. Johnson
                                                                     C.A. No. L-13-1032




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Thomas J. Osowik, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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