[Cite as State v. Main, 2016-Ohio-4892.]




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

 STATE OF OHIO                                   :
                                                 :   Appellate Case No. 26952
         Plaintiff-Appellant                     :
                                                 :   Trial Court Case No. 15-CR-2467
 v.                                              :
                                                 :   (Criminal Appeal from
 DANIEL S. MAIN                                  :    Common Pleas Court)
                                                 :
         Defendant-Appellee                      :
                                                 :

                                            ...........
                                           OPINION
                               Rendered on the 8th day of July, 2016.
                                            ...........

MATHIAS H. HECK, JR., by ANDREW FRENCH, Atty. Reg. No. 0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

TERRY W. POSEY, Atty. Reg. No. 0039666, 10 North Ludlow Street, Suite 950, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee

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

FAIN, J.

        {¶ 1} Plaintiff-appellant the State of Ohio appeals from an order of the trial court

excluding eyewitness-identification evidence. The State contends that the trial court

erred by concluding that the eyewitness identification procedure was insufficiently
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reliable. Defendant-appellee Daniel Scott Main contends that the trial court correctly

excluded the faulty eyewitness identification, because the identification was insufficiently

reliable. We conclude that the trial court properly excluded the eyewitness identification

testimony as unreliable. The order of the trial court suppressing the evidence is Affirmed.



                       I. The Eyewitness Identification Process

       {¶ 2} Main was charged with Menacing by Stalking, after being identified by the

next-door neighbor of the victim. The victim, a minor, was working at Tim Horton’s and

had complained to police about a customer who had come to her workplace and acted in

a way that made her uncomfortable. While the police were investigating this report, the

victim’s neighbor reported to the police that she saw two scruffy looking men in the vicinity

of the victim’s house. When the neighbor saw the two men, she pulled her car to the curb,

stopped, and looked at them through the driver’s side window. She stated that one of the

two men looked directly at her, and she got a very good look at his face. Later that day,

the neighbor went to the police department, was presented with two photographs, and

was asked if that was one of the two men she saw that morning. The neighbor positively

identified one of the photos as the man she saw, but she thought the second photo

depicted someone else. In fact, both photos shown to the neighbor were BMV photos of

the same person. No photo array of multiple different photos was created or used for the

photo identification process.



                                II. The Course of Proceedings

       {¶ 3} Main was indicted on one count of Menacing by Stalking, a fourth-degree
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felony, based on the allegation that the victim was a minor. Main moved to suppress the

eye-witness identification. At the hearing on the motion to suppress, testimony was

offered by Officer Harlow and Officer Stose from the City of Huber Heights Police

Department. The victim’s neighbor testified regarding her eyewitness identification of

Main. The parties stipulated that the police officer did not follow state law, R.C. 2933.83,

or the department’s policy for eyewitness identification.

       {¶ 4} The trial court concluded that the State failed to satisfy its burden by clear

and convincing evidence to establish that the witness identification had an independent,

reliable basis. From the order of the trial court sustaining the motion to suppress and

excluding the eye-witness identification, the State appeals.



                               III. The Standard of Review

       {¶ 5} “Appellate review of 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 the

credibility of witnesses.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-

1326, ¶ 13, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. “Consequently, an appellate court must accept the trial court's findings of fact if

they are supported by competent, credible evidence. Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id.       The

application of the law to the trial court's findings of fact is subject to a de novo standard

of review. State v. Gordon, 5th Dist. Fairfield No. 14-CA-13, 2014-Ohio-5027, ¶ 14, citing
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Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).



      IV. The Court Did Not Err by Suppressing the Eyewitness Identification

       {¶ 6} For its sole assignment of error, the State asserts:

              CONSIDERED        IN   LIGHT     OF    THE     TOTALITY      OF    THE

       CIRCUMSTANCES, THE WITNESS’S OUT-OF-COURT IDENTIFICATION

       OF APPELLEE WAS RELIABLE. THUS, ADMISSION AT TRIAL WOULD

       NOT VIOLATE APPELLEE’S RIGHT TO DUE PROCESS.

       {¶ 7} The State argues that, based on the totality of the circumstances, the

witness identification should be considered reliable. We have held that, “[w]hen a witness

who identifies a defendant has been confronted with a live or photographic lineup of

suspects, due process requires the court to suppress evidence of the witness's

identification of the defendant if the confrontation was unduly suggestive of the

defendant's guilt and the witness's identification of the defendant was unreliable under

the totality of the circumstances.” In re D.D., 2d Dist. Montgomery No. 22740, 2009-Ohio-

808, ¶ 4, citing State v. Waddy, 63 Ohio St.3d 424, 588 N.E.2d 819 (1992); State v.

Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001). “In applying the totality of the

circumstances test the court must consider (1) the opportunity of the witness to view the

criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of

the witness's prior description of the criminal, (4) the level of certainty demonstrated by

the witness at the confrontation, and (5) the length of time between the crime and the

confrontation.” In re D.D., at ¶ 4, citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct.

375, 34 L.Ed.2d 401 (1972). “The Biggers standards look to the reliability of the
                                                                                           -5-


identification itself instead of the suggestive nature of the procedures that produced the

identification. Nevertheless, ‘[a]gainst these factors is to be weighed the corrupting effect

of the suggestive identification itself.’ ” Id. at ¶ 5, quoting Manson v. Brathwaite, 432 U.S.

98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

       {¶ 8} Here, the photo array used by the police and shown to the victim’s neighbor

to identify Main only contained two photos, both of which were of Main. It is undisputed

that the police did not create a photo array that included persons other than the suspect,

and did not use a blind administrator. The State concedes that the state statute and the

police department policy on photo identification were not followed. The trial court properly

concluded that the out-of-court identification procedure was overly suggestive. We have

followed the holding of the Supreme Court of Ohio that although an identification

procedure is suggestive, as long as the identification is reliable, it is admissible. State v.

Chaffin, 2d Dist. Montgomery No. 24241, 2012-Ohio-634, ¶ 20, citing State v. Barker, 53

Ohio St.2d 135, 142, 372 N.E.2d 1324 (1978). In State v. Lathan, 30 Ohio St.2d 92, 99,

282 N.E.2d 574 (1972), the Supreme Court of Ohio held that the State’s burden of proof

to establish the reliability of eyewitness testimony is by clear and convincing evidence.

Therefore, the question in the case before us is whether the State met its burden of

proving, by clear and convincing evidence, the reliability of the eyewitness identification

under the totality of the circumstances.

       {¶ 9} The trial court did look at the totality of the circumstances, and applied the

Biggers standards, noting that the witness had about five seconds of unobstructed

opportunity to see the person she later identified, and that only about 10 hours had

elapsed from the time she saw the person until she was shown the photos of the suspect.
                                                                                            -6-


The trial court noted that the witness’s physical description of the person she saw lacked

sufficient detail to be helpful, since she only described him as a Caucasian male, less

than six feet tall, with unruly hair and a beard, wearing dark clothing. Although her

confidence of a positive identification was based on the person’s eyes, she could not

recall the color of his eyes, or whether he was wearing glasses. In finding that the

identification was not sufficiently reliable, the trial court noted that the witness identified

Main in one of the photos, but did not identify him in the second photograph. The trial

court found that the two photos, despite different hairstyles and slightly different camera

angles, “obviously depict the same person.” While our view of the two photos only leads

us to conclude that the photos probably depict the same person, we conclude, under the

totality of the circumstances, that the State failed to prove, by clear and convincing

evidence, that the witness’s identification was sufficiently reliable to avoid the substantial

likelihood of a misidentification as a result of the unduly suggestive procedure followed.

       {¶ 10} We accept the trial court's findings of fact, which are supported by

competent, credible evidence. Accepting these facts as true, we agree with the trial

court’s conclusion that, based on the totality of the circumstances, the witness’s

identification has not been proven, by clear and convincing evidence, to be sufficiently

reliable. The State’s sole assignment of error is overruled.



                                       V. Conclusion

       {¶ 11} The State’s sole assignment of error having been overruled, the order of the

trial court suppressing the eyewitness identification is Affirmed.


                                       .............
                                       -7-


DONOVAN, P.J., and HALL, J., concur.




Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Terry W. Posey
Hon. Michael Tucker
