[Cite as State v. Howard, 2014-Ohio-2176.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100094




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     LEDON HOWARD
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-566854-A

        BEFORE: McCormack, J., S. Gallagher, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: May 22, 2014
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: James M. Rice
Brett Hammond
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113




TIM McCORMACK, J.:
       {¶1} Ledon Howard appeals from a judgment of the Cuyahoga Court of Common

Pleas that convicted him of felonious assault after a jury trial and sentenced him to three

years in prison.    On appeal, Howard raises claims regarding the law enforcement’s

administration of the photo lineup procedure and the state’s failure to provide him with a

transcript of an audiotaped statement by a witness to the police.    He also claims the trial

court imposed the prison term consecutive to an existing prison term in an unrelated case

without making the requisite findings. For the following reasons, we affirm Howard’s

conviction, but reverse his consecutive sentences and remand for further proceedings

consistent with this opinion.

                                  Evidence Presented at Trial

       {¶2} Howard was charged with felonious assault for striking Shawna Mackey and

breaking her jaw during a drug transaction gone awry.     At the jury trial, Mackey testified

that Howard had been introduced to her by Floyd McGee, a neighbor, three weeks before

the incident. She bought drugs from Howard, and their relationship turned sexual at one

point. In the early hours of August 16, 2012, around 2:30 a.m., after she was drinking for

some time, her friend “Melvin” came over and they decided she would call Howard to

purchase crack cocaine.    At this time, McGee also joined them. When Howard arrived,

Mackey got inside his vehicle, a blue Sonata.      Howard was unhappy that Mackey only

brought $7 for the transaction. Because she still owed him $5 dollars from previous drug

buys, Howard snatched the $7 from Mackey’s hand without giving her the drug, and

ordered her to get out his car.    The two began to argue loudly.   Their argument drew the
attention of her neighbors, Christopher Poole and Pasueall Nance.     After she exited the

car, she walked past Poole and McGee toward her apartment building.      When she turned

around, Howard hit her in her jaw.   She “went straight to the ground,” breaking her jaw.

       {¶3} After she fell, McGee pushed Howard back and stopped Howard from

hitting her again.   She got up and went to her house to call 911.       When the police

arrived, she provided the police with Howard’s phone number and told the police she

knew him as “D.”

       {¶4} Mackey testified that she identified Howard in a photo lineup.             She

indicated 80 percent certainty at the photo lineup because the picture was a little fuzzy.

However, she knew with 100 percent certainty that the person who punched her was

Howard.    When asked if she was able to see it was Howard who hit her, she answered

“definitely.”   Mackey also identified Howard in court.

       {¶5} McGee testified that he knew Howard since Howard was 15.               He had

introduced Howard to Mackey and was with Mackey on the night of the incident.          He

was with her before she went to Howard’s car for the drug transaction.      After Mackey

exited the car, Howard exited as well.   Mackey and Howard exchanged some words, and,

the next thing he knew, he hit her and she fell to the ground.   Howard told McGee later

that he hit Mackey because Mackey “threatened” him.

       {¶6} Christopher Poole testified that at the time of the incident, he had just come

home from a third shift at work and was walking to his building.          He saw Nance,

Mackey, McGee, and another individual whom he did not know.              Mackey and that
individual were talking, and all of sudden, “she turned facing us and he hit her.” Poole

was later asked to identify the individual from a photo lineup. Poole could not identify

him on the first try, but was able to do so on a second try, with “100%” certainty. It is

unclear from his testimony whether the photo lineups were administered on a single or two

separate occasions.   Detective Joseph Greene, who administered the photo lineups to

Poole and was the sole witness presented by the defense, testified that Poole was not able

to make an identification.   It was unclear, however, from the officer’s testimony whether

he administered the first or both photo lineups.

       {¶7} Nance testified that on the night of the incident, he and his cousin “Pony”

were walking down the street.      He saw Mackey and a man arguing in a parked car.

Mackey got out of the car and started walking, and the man followed her.     They stood “in

front of each other” talking, and all of a sudden, he hit her, causing her to hit the ground.

He identified Howard in court as the man who hit Mackey.

       {¶8} Dr. Rothenberg treated Mackey in the emergency room.              She described

Mackey as “slightly intoxicated.”     She explained the extent of her jaw injury and the

procedure required to hold her jaw in place.       In addition, she testified that Mackey

suffered mood disorder and PTSD due to abuse in her childhood. Mackey’s psychiatric

assessment report noted she also suffered “psychotic manifestations,” which meant

sometimes having “thought processes that could be not in touch with reality.”

       {¶9} Officer Andrew Ziska investigated the assault incident.      He testified that at

the scene of the incident, Mackey only identified the individual who struck her as “D.”
The following day, Mackey telephoned Officer Ziska and put her friend McGee on the

phone.     McGee was at first hesitant but finally told the officer the perpetrator’s name was

“Ledon,” who drove a Hyundai Sonata.          McGee also provided the officer information

regarding where “Ledon” lived. This testimony differed slightly from McGee’s own

account — McGee himself recalled that he did not talk to the police directly but only gave

Mackey information about Ledon’s car to give to the police.

         {¶10} Detective Tom DeCaro also investigated the incident.            He personally

prepared three sets of photo lineups, one of them containing Howard’s photo.               He

testified that Mackey identified Howard from one of the three sets of photo lineups.       In

addition, Mackey provided two phone numbers to the police and Detective DeCaro

obtained from the phone company the phone record for one of the numbers.           The phone

record revealed multiple phone calls between Mackey and Howard on the night of August

15, 2012, and the phone calls stopped at around 2:00 a.m. the next day. Although the

account information of the cell phone record, state’s exhibit No. 12, includes both

Howard’s name and the name of another individual “Jim Bell,” it was Howard’s date of

birth and email address that were listed in the account page.

         {¶11} Officer Doug Evans was the blind administrator of the photo lineups shown

to Mackey.     He testified he showed her three sets of photo lineups and she identified

Howard from the second set.

         {¶12} Kaniece Kates, Howard’s fiancée, testified she owned a Hyundai Sonata and

she let Howard drive her vehicle. She also testified that sometime in August 2012,
Howard lost his cell phone and obtained a new number, but she did not recall with

certainty when, or what these phone numbers were.

       {¶13} The jury found Howard guilty of felonious assault. The trial court sentenced

him to a prison term of three years, to run consecutively to a sentence on an unrelated case.



       {¶14} Howard now appeals, raising four assignments of error for our review.

                              Photo Lineup: R.C. 2933.83

       {¶15} Before trial, Howard moved to suppress Mackey’s identification of him in

the photo lineup. The trial court denied the motion. Under the first assignment of error,

Howard claims the trial court erred by “failing to give a mandated jury instruction on the

state’s noncompliance with the statutory requirements of R.C. 2933.83 in violation of

appellant’s Sixth and Fourteenth Amendment rights.” Under the second assignment of

error, Howard claims the trial court erred by “denying the appellant’s motion to voir dire

witnesses and suppress pretrial identification, in violation of his Sixth and Fourteenth

Amendment Rights.”      Because the arguments made under these two assignments of error

are duplicative, we address them together.

       {¶16} We begin our review with a background discussion on identification

testimony in general.   The courts have adopted a two-prong test for the admissibility of

identification testimony.    “An identification derived from unnecessarily suggestive

procedures, which have a likelihood of leading to a misidentification, violates a

defendant’s right to due process.”      State v. Fields, 8th Dist. Cuyahoga No. 99750,
2014-Ohio-301, ¶ 10, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401

(1972).    The burden of demonstrating that the procedures utilized were unnecessarily

suggestive is upon the defendant. State v. Quarterman, 8th Dist. Cuyahoga No. 99317,

2013-Ohio-4037, ¶ 26.

       {¶17} “If the defendant meets that burden, the court must consider whether the

identification, viewed under the totality of the circumstances, is reliable despite its

suggestive character.” Fields at ¶ 10, citing Manson v. Brathwaite, 432 U.S. 98, 114, 53

L.Ed.2d 140, 97 S.Ct. 2243 (1977). See also State v. Monford, 190 Ohio App.3d 35,

2010-Ohio-4732, 940 N.E.2d 634 (10th Dist.).         If, on the other hand, the pretrial

procedures were not unnecessarily suggestive, “any remaining questions as to reliability go

to the weight of the identification, not its admissibility, and the identification is

admissible.” Fields at ¶ 10, citing State v. Wills, 120 Ohio App.3d 320, 324, 697 N.E.2d

1072 (8th Dist.1997). Pretrial identification may be suppressed only if they are both

unnecessarily suggestive and unreliable under the totality of the circumstances. Monford

at ¶ 40.   If the defendant fails to meet the first part of his burden, the court need to

consider the totality of the circumstances test under the second prong. State v. Green,

117 Ohio App.3d 644, 653, 691 N.E.2d 316 (1st Dist.1996).

       {¶18} R.C. 2933.83, effective July 2010, governs the administration of photo

lineups and is aimed at preventing the use of unnecessarily suggestive procedures.   Fields

at ¶ 11.   R.C. 2933.83 requires any law enforcement agency that conducts live and photo

lineups to adopt specific procedures for conducting the lineups. Such procedures must
provide, at minimum, the use of a “blind” administrator for the photo array.          R.C.

2933.83(B). “‘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.”                R.C.

2933.83(A)(2).

      {¶19} Furthermore, the administrator conducting the lineup must make a written

record of the lineup that includes all results obtained during the lineup, the names of all

persons at the lineup, the date and time of the lineup, and the sources of the photographs

used in the lineup. R.C. 2933.83(B)(4). The administrator is also required to inform the

eyewitness that the suspect may or may not be in the lineup and that the administrator does

not know the identity of the suspect. R.C. 2933.83(B)(5).

      {¶20} As to the folder system set forth in the statute, it provides for the suspect’s

photograph, five filler photographs, and four dummy folders. The blind administrator

does not know which photo the witness is viewing. R.C. 2933.83(A)(6). Although R.C.

2933.83(A)(6) defines the “folder system” procedure, this court has held that R.C. 2933.83

does not require the use of the “folder system” and that the “folder system” is just one of

the systems law enforcement agencies may use for photo lineup identifications. State v.

Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 77.                 See also R.C.

2933.83(A)(6) and (D).

      {¶21} Finally, the statute provides that evidence of the law enforcement’s

noncompliance with the statute shall be considered by the trial court in ruling on a
defendant’s motion to suppress.       R.C. 2933.83(C)(1).     Moreover, such evidence of

noncompliance is admissible at trial.        R.C. 2933.83(C)(2).      If such evidence of

noncompliance 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).

                                   Suppression Hearing

       {¶22} Having reviewed the statute and the case law regarding photographic

identification procedures, we now turn to the instant case.    Before trial, Howard filed a

“motion to voir dire witness and suppression of eyewitness identification.” He did not

allege the police administration of the photo lineups was not in compliance with the

statute.   Rather, he argued Mackey’s out-of-court identification was not reliable under the

totality of the circumstances pursuant to the second prong of the Biggers-Monford test,

because she was highly intoxicated at the time of the incident and she only identified her

attacker as “D” and her description of that person’s build as “thin” did not match his

physique. He claimed Mackey identified him based purely on the information provided by

McGee, with whom he had a history of animosity.

       {¶23} At the hearing over the motion to suppress, Detective DeCaro, who prepared

the photo lineups, testified that he compiled three sets of photos and gave them to Officer

Evans, the blind administrator, to show to Mackey.       Officer DeCaro testified Mackey

identified folder No. 5 in the second set of lineups, which contained Howard’s photo.     In

the state’s exhibit containing the second set of photo lineups, the photos – folders were not
marked with numbers.         Detective DeCaro, however, testified that he knew folder No. 5

contained Howard’s photo because he compiled the folders himself.1

       {¶24} When the trial court inquired whether the defense was challenging the

procedures of the photo array, the defense counsel raised one specific issue regarding the

photo lineups. Each set of photo lineups contained a lineup “key,” which is a sheet of

paper (not available to the blind administrator) containing all six photos in the set with

identifying information. Defense counsel pointed out that the photo lineup “key” in the

second set of photo lineup (the set containing Howard’s photo) should have been marked

with number 2, yet it was left unnumbered.

       {¶25} The defense counsel cross-examined Detective DeCaro at great length

regarding the numbering of the lineup “key.”             Detective DeCaro testified that how the

numbering of the lineup “keys” would not affect the identification procedure because the

lineup “keys” were not available to the blind administrator during the administration of the

photo lineup.

       {¶26} The state submitted three exhibits, consisting of the three sets of photo

lineups prepared by Detective DeCaro and administered by Officer Evans, each complete

with the instructions for the administrations, a supplemental report for the folder system


         We note that the statute provides for a folder system in which the administrator, not the
       1


investigating officer, numbers the folders containing the photos. R.C. 2933.83(B)(6)(c). Here,
Detective DeCaro testified he numbered the folders, a practice that deviated from the folder system
provided in the statute. Howard did not claim any error in this regard, either at trial or on appeal, and
we do not find prejudice, as the photo lineups were shown by a blind administrator, who did not know
which folder contained the suspect’s photo.
utilized, the photos shown, and the lineup “keys.”      Because the defense did not allege

noncompliance with the statute but only focused on the issue of the numbering of the

photo lineup “keys,” the defense did not question Detective DeCaro regarding the folder

system utilized.

       {¶27} The trial court found the issue raised by the defense regarding the numbering

of the photo lineup “key” to be “minute.”      It determined the procedure utilized in this

case to be in compliance with the statute, meeting the first prong of the test.     Because

Howard failed to demonstrate the first prong, the court did not address the second prong

— whether the identification was reliable under the totality of the circumstances — before

it denied the motion to suppress.

       {¶28} On appeal, Howard raises a claim regarding the photo lineup not raised

before the trial court.   He now argues the photo lineup procedure was not in compliance

with the statute and was “fatally flawed.”   He also claims that the trial court erred in not

instructing the jury on the “noncompliance” of the procedure utilized, even though he

never requested such a jury instruction.

       {¶29} Howard waived these claims that he now raises for the first time on appeal.

Phillips v. Irwin, 96 Ohio St.3d 350, 2002-Ohio-4758, 774 N.E.2d 1218, ¶ 6. Even if we

were to consider it, we would find that his claims lack merit, for the following reasons.

       {¶30}       Howard claims the procedure was not in compliance because the statute

required ten folders (six containing a photo and four left blank) but Officer Evans testified

he showed the victim three folders. Our reading of the transcript shows that Howard
grossly misrepresented Officer Evans’s testimony.              Officer Evans testified he

administered three sets of photo lineups, each set containing ten folders.

       {¶31} Howard also claims the procedure was not in compliance because the state

did not offer any evidence of the administrator’s “documentation and record” required by

R.C. 2933.83(A)(6)(h). This section requires the administrator to document and record

the results of the procedure, including (1) the date, time, and location of the lineup

procedure, (2) the name of the administrator, (3) the names of all of the individuals present

during the lineup, (4) the number of photographs shown to the eyewitness, (5) copies of

each photograph shown to the eyewitness, (6) the order in which the folders were

presented to the witness, (7) the source of each phonograph, and (8) a statement of the

eyewitness’s confidence in the eyewitness’s own words as to the certainty of the

eyewitness’s identification.

       {¶32} Contrary to Howard’s claim, our review of the three sets of photo lineups and

accompanying documentation, submitted as exhibits both at the suppression hearing and at

trial, reflects that the procedure for the photo lineup administered in this case substantially

complied with each of the requirements set forth in 2933.83(A)(6)(h).

       {¶33} Therefore, the trial court properly concluded the photo lineup procedure was

in compliance with the statute and, as such, it was not unnecessarily suggestive under the

first prong of the Biggers-Monford analysis. Consequently, the trial court needed not

engage in the second prong of the analysis and properly overruled the motion to suppress.
        {¶34} We additionally observe that, even if the administration of the photo lineup to

the victim were not in compliance with the statute, any impropriety regarding the photo

lineup identification would not have been prejudicial. The victim testified she knew

Howard before the incident — she had been purchasing drugs from him and was

romantically involved with him. She telephoned him before the incident to purchase

drugs and argued with him before she was struck.      She also testified that she was “100%”

certain the person who struck her was Howard.        In addition, several other witnesses also

saw Howard strike Mackey.

        {¶35} Finally, regarding the jury instruction, “the rule regarding jury instructions is

that requested instructions in a criminal case must be given when they are correct,

pertinent, and timely presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503

(1995). The giving of jury instructions is within the sound discretion of the trial court,

and we review it for an abuse of discretion. State v. Martens, 90 Ohio App.3d 338, 629

N.E.2d 462 (3d Dist.1993). Howard is correct that R.C. 2933.83(C)(3) requires the trial

court to instruct the jury that noncompliance may be considered in determining the

credibility of the witness identification.   However, our review of the record indicates the

statute was complied with and, therefore, such jury instruction was not warranted in this

case.

        {¶36} The first and second assignments of error are without merit.

                      Transcript of Witness’s Audiotaped Statement
       {¶37} Under the third assignment of error, Howard claims the trial court erred when

it denied his motion for a transcript of an audiotaped statement made to the police by

McGee, in violation of his Sixth and Fourteenth Amendment rights. Before trial, Howard

requested that the state provide a transcript of a videotaped statement made by McGee to

the police.   Howard claimed that because Mackey was “drunken and high” on the night

of the incident and provided insufficient identifying information to the police that night,

McGee was the key witness in this case.       He claimed a written transcript of McGee’s

statement was necessary in order to effectively cross-examine him and expose any prior

inconsistent statements.     The defense argued to the trial court that without a written

transcript, it would be very cumbersome and time-consuming to cross-examine McGee

and to demonstrate inconsistency between his in-court testimony and his statements

recorded in the audiotape.    The defense argued a transcript of McGee’s statements on the

audiotape was necessary for purposes of “judicial economy.”

       {¶38} We first note that, despite claiming McGee made prior inconsistent

statements necessitating a careful cross-examination of him aided by a written transcript,

the defense never did cross-examine McGee at trial regarding his prior recorded

statements — presumably because no such inconsistent statements actually existed.

Therefore, Howard cannot now claim a denial of a state-provided transcript of the

audio-taped statement prejudiced his ability to present a defense.

       {¶39} Furthermore, Howard claims he was entitled to a transcript of the audiotaped

statement pursuant to the authority of State v. Arrington, 42 Ohio St.2d 114, 326 N.E.2d
667 (1975).   His reliance is misplaced.    In Arrington, the court held that in a criminal

case, “the state must provide an indigent defendant with a transcript of prior proceedings

when that transcript is needed for an effective defense or appeal.”      (Emphasis added.)

Id. at paragraph one of the syllabus. Arrington is not applicable here, because that case

concerned the necessity of a state-provided transcript of judicial “proceedings,” and we are

not aware of any case law interpreting “proceedings” to include a witness’s audiotaped

police statements. The third assignments of error is without merit.

                                  Consecutive Sentences

       {¶40} Under the fourth assignment of error, Howard argues the trial court erred in

failing to make findings required by R.C. 2929.14(C)(4) before imposing the prison term

in this case consecutive to an existing sentence in an unrelated case.

       {¶41} R.C. 2929.14(C)(4) provides that “[i]f multiple prison terms are imposed on

an offender for convictions of multiple offenses, the court may require the offender to serve

the prison terms consecutively” if the court makes findings that “the consecutive service is

necessary to protect the public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public,” and one of the factors enumerated in

R.C. 2929.14(C)(a)-(c), including the offender’s history of criminal conduct.

       {¶42} The way the statute is worded — “if multiple prison terms are imposed” — it

is unclear whether findings are required when multiple terms are not contemporaneously

imposed in a single sentencing proceeding.      However, the Supreme Court of Ohio had
observed that “Ohio appears to be unique in having a rule that sentences of imprisonment

shall be served concurrently.”        State v. Venes, 8th Dist. Cuyahoga No. 98682,

2013-Ohio-1891, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, ¶ 66.       This court also remarked in Venes that “[t]he imposition of

consecutive sentences in Ohio is thus an exception to the rule that sentences should be

served concurrently. And there is no doubt that the provisions of H.B. 86, like those of

S.B. 2 before it, were intended, among other things, to alleviate overcrowding in the prison

system.” Venes at ¶ 15.

       {¶43} Indeed, R.C. 2929.41(A) provides expressly that all sentences of

imprisonment are presumptively concurrent.      It states:

       (A) Except as provided in division (B) of this section, division (C) of section
       2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a
       prison term, jail term, or sentence of imprisonment shall be served
       concurrently with any other prison term, jail term, or sentence of
       imprisonment imposed by a court of this state, another state, or the United
       States. * * *.”2

(Emphasis added.)

       {¶44} Pursuant to R.C. 2929.41(A), therefore, the trial court has the duty to make

the statutory findings when imposing consecutive sentences, even when one of the terms

had already been imposed in a separate proceeding in an unrelated case.         Here, the trial

court failed to make the findings required by the statute before imposing consecutive

sentences.   The state concedes the error.       Accordingly, we reverse the trial court’s


        R.C. 2929.41(B) concerns misdemeanor sentencing and R.C. 2971.03 governs sentences for
       2


sexually violent offenders.
imposition of consecutive terms of imprisonment and remand the case to the trial court to

consider whether consecutive sentences are appropriate and, if so, to enter the proper

findings on the record.         State v. LaSalla, 8th Dist. Cuyahoga No. 99424,

2013-Ohio-4596.

       {¶45} This cause is affirmed in part, reversed in part, and remanded to the lower

court for further proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

SEAN C. GALLAGHER, P.J., and
KENNETH A. ROCCO, J., CONCUR
