[Cite as State v. Gardner, 2021-Ohio-868.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 2020-CA-17 : v. : Trial Court Case No. 2019-CR-580 : REGINALD B. GARDNER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :
...........
OPINION
Rendered on the 19th day of March, 2021.
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellant
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270, Beavercreek, Ohio Attorney for Defendant-Appellee
.............
HALL, J. -2-
{¶ 1} The State of Ohio appeals from defendant-appellee Reginald B. Gardner’s
acquittal following a jury verdict finding him not guilty on charges of aggravated drug
trafficking and aggravated drug possession.
{¶ 2} In its sole assignment of error, the State challenges the trial court’s issuance
of a jury instruction regarding a detective’s non-compliance with R.C. 2933.83, which sets
forth procedures for conducting live or photo “lineups” of suspects.
{¶ 3} The State previously sought and obtained leave to pursue the present
appeal, which it brought under R.C. 2945.67(A) and App.R. 5(C). The statute provides
that a prosecuting attorney “may appeal by leave of the court to which the appeal is taken
any * * * decision, except the final verdict, of the trial court in a criminal case.” This
provision grants us “discretionary authority to review substantive law rulings * * * which
result in a judgment of acquittal so long as the judgment itself is not appealed.” State v.
Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990), syllabus. “Even where principles of
double jeopardy preclude retrial so that no current controversy exists, appellate review is
permitted if ‘the underlying legal question is capable of repetition yet evading review.’ ”
State v. Rac, 2019-Ohio-893, 124 N.E.3d 878 (2d Dist.), ¶ 11, quoting Bistricky at 158.
{¶ 4} In the present case, the State contends the trial court erred in finding itself
“compelled” by R.C. 2933.83 to issue a jury instruction regarding law enforcement’s
failure to comply with the statute’s requirements. The State argues that R.C. 2933.83
applies to photo arrays and multiple-suspect lineups, not “single photo identifications” like
the one that occurred in this case. Because the trial court found itself “compelled” to issue
a jury instruction that the State claims had no relevance, the State argues that the issue -3-
is capable of repetition and evading review. This is particularly so, the State asserts,
because the task-force detectives involved in the present case never use double-blind
photo arrays when showing each other pictures of a suspect. Therefore, the State urges
us to find that the trial court erred as a matter of law, and therefore abused its discretion,
in giving an irrelevant jury instruction regarding non-compliance with procedures found in
R.C. 2933.83 that did not apply.
{¶ 5} We begin our analysis with a review of R.C. 2933.83. It provides minimum
requirements for conducting “live lineups” and “photo lineups.” R.C. 2933.83(B). A “photo
lineup” is defined by the statute as “an identification procedure in which an array of
photographs, including a photograph of the suspected perpetrator of an offense and
additional photographs of persons not suspected of the offense, is displayed to an
eyewitness for the purpose of determining whether the eyewitness identifies the suspect
as the perpetrator of the offense.” (Emphasis added.) R.C. 2933.83(A)(8). Prior to
conducting any “photo lineup,” a law-enforcement agency must comply with specific
minimum requirements found in R.C. 2933.83(B). Notably, when evidence of failure to
comply with the requirements of R.C. 2933.83(B) 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.” R.C.
2933.83(C)(3).
{¶ 6} In the present case, there was no “photo lineup” as defined by R.C. 2933.83.
An undercover detective with a drug task force purchased methamphetamine from
appellee Gardner, who was unknown to the detective. After the transaction, the detective
described Gardner’s physical appearance to another task-force member. This other task -4-
force member responded, “[T]hat sounds like Reginald Gardner. I will show you a picture
of him later and see if you can identify him.” (Trial Tr. at 346.) This other task-force
member later showed the undercover detective a single photograph of Gardner. (Id. at
285, 365.) The undercover detective immediately identified Gardner as the person from
whom he had purchased methamphetamine. (Id. at 367.) At trial, both detectives
acknowledged that the photo identification of Gardner did not involve a “double-blind”
photo array of multiple people. (Id. at 285-286, 362.) The detectives explained that they
use such a procedure with “lay” witnesses and the “general public” but never with each
other. (Id.)
{¶ 7} Over the State’s objection, the trial court included the following jury
instruction as part of its instructions on witness credibility:
In considering the surrounding circumstances under which a witness
has identified the Defendant by a photo procedure, you must consider
whether the photo procedure used met requirements.
Showing one photo to a witness does not meet the requirements of
photo identification procedures.
You may consider evidence of non-compliance with requirements in
determining the reliability of the witness’s identification resulting from this
identification procedure.
(Id. at 479-480.)
{¶ 8} In overruling the State’s objection to the foregoing instruction, the trial court
reasoned:
All right. On the issue presenting a single photograph, the Supreme -5-
Court in 1977 in [Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53
L.Ed.2d 140 (1977)], under the facts—exactly identical to this case—held
that that is not a due process violation, that it doesn’t violate the
Constitution, and that would be permissible, not only in a Motion to
Suppress to survey [sic] that, as well as present that testimony during the
course of a trial, and so—and the Court has also, the Supreme Court has
also held that one-on-one identifications—be it a photo or a person lineup—
under certain circumstances, mostly exigent circumstances, are
permissible, so we do have one-on-one identifications.
Clearly, this Court has no issue with the procedure employed, in fact,
the Jury has heard evidence of the procedure and also the identification
made by the eyewitness as a result of that procedure.
What the Court is looking at here under [R.C.] 2933.83 is that, is the
following statement in that statute, and Ohio has kind of gone above and
beyond what the Supreme Court has addressed in the issue of pretrial
identification procedures.
While those deal with due process and Constitutional issues, Ohio
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[Cite as State v. Gardner, 2021-Ohio-868.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 2020-CA-17 : v. : Trial Court Case No. 2019-CR-580 : REGINALD B. GARDNER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :
...........
OPINION
Rendered on the 19th day of March, 2021.
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellant
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270, Beavercreek, Ohio Attorney for Defendant-Appellee
.............
HALL, J. -2-
{¶ 1} The State of Ohio appeals from defendant-appellee Reginald B. Gardner’s
acquittal following a jury verdict finding him not guilty on charges of aggravated drug
trafficking and aggravated drug possession.
{¶ 2} In its sole assignment of error, the State challenges the trial court’s issuance
of a jury instruction regarding a detective’s non-compliance with R.C. 2933.83, which sets
forth procedures for conducting live or photo “lineups” of suspects.
{¶ 3} The State previously sought and obtained leave to pursue the present
appeal, which it brought under R.C. 2945.67(A) and App.R. 5(C). The statute provides
that a prosecuting attorney “may appeal by leave of the court to which the appeal is taken
any * * * decision, except the final verdict, of the trial court in a criminal case.” This
provision grants us “discretionary authority to review substantive law rulings * * * which
result in a judgment of acquittal so long as the judgment itself is not appealed.” State v.
Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990), syllabus. “Even where principles of
double jeopardy preclude retrial so that no current controversy exists, appellate review is
permitted if ‘the underlying legal question is capable of repetition yet evading review.’ ”
State v. Rac, 2019-Ohio-893, 124 N.E.3d 878 (2d Dist.), ¶ 11, quoting Bistricky at 158.
{¶ 4} In the present case, the State contends the trial court erred in finding itself
“compelled” by R.C. 2933.83 to issue a jury instruction regarding law enforcement’s
failure to comply with the statute’s requirements. The State argues that R.C. 2933.83
applies to photo arrays and multiple-suspect lineups, not “single photo identifications” like
the one that occurred in this case. Because the trial court found itself “compelled” to issue
a jury instruction that the State claims had no relevance, the State argues that the issue -3-
is capable of repetition and evading review. This is particularly so, the State asserts,
because the task-force detectives involved in the present case never use double-blind
photo arrays when showing each other pictures of a suspect. Therefore, the State urges
us to find that the trial court erred as a matter of law, and therefore abused its discretion,
in giving an irrelevant jury instruction regarding non-compliance with procedures found in
R.C. 2933.83 that did not apply.
{¶ 5} We begin our analysis with a review of R.C. 2933.83. It provides minimum
requirements for conducting “live lineups” and “photo lineups.” R.C. 2933.83(B). A “photo
lineup” is defined by the statute as “an identification procedure in which an array of
photographs, including a photograph of the suspected perpetrator of an offense and
additional photographs of persons not suspected of the offense, is displayed to an
eyewitness for the purpose of determining whether the eyewitness identifies the suspect
as the perpetrator of the offense.” (Emphasis added.) R.C. 2933.83(A)(8). Prior to
conducting any “photo lineup,” a law-enforcement agency must comply with specific
minimum requirements found in R.C. 2933.83(B). Notably, when evidence of failure to
comply with the requirements of R.C. 2933.83(B) 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.” R.C.
2933.83(C)(3).
{¶ 6} In the present case, there was no “photo lineup” as defined by R.C. 2933.83.
An undercover detective with a drug task force purchased methamphetamine from
appellee Gardner, who was unknown to the detective. After the transaction, the detective
described Gardner’s physical appearance to another task-force member. This other task -4-
force member responded, “[T]hat sounds like Reginald Gardner. I will show you a picture
of him later and see if you can identify him.” (Trial Tr. at 346.) This other task-force
member later showed the undercover detective a single photograph of Gardner. (Id. at
285, 365.) The undercover detective immediately identified Gardner as the person from
whom he had purchased methamphetamine. (Id. at 367.) At trial, both detectives
acknowledged that the photo identification of Gardner did not involve a “double-blind”
photo array of multiple people. (Id. at 285-286, 362.) The detectives explained that they
use such a procedure with “lay” witnesses and the “general public” but never with each
other. (Id.)
{¶ 7} Over the State’s objection, the trial court included the following jury
instruction as part of its instructions on witness credibility:
In considering the surrounding circumstances under which a witness
has identified the Defendant by a photo procedure, you must consider
whether the photo procedure used met requirements.
Showing one photo to a witness does not meet the requirements of
photo identification procedures.
You may consider evidence of non-compliance with requirements in
determining the reliability of the witness’s identification resulting from this
identification procedure.
(Id. at 479-480.)
{¶ 8} In overruling the State’s objection to the foregoing instruction, the trial court
reasoned:
All right. On the issue presenting a single photograph, the Supreme -5-
Court in 1977 in [Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53
L.Ed.2d 140 (1977)], under the facts—exactly identical to this case—held
that that is not a due process violation, that it doesn’t violate the
Constitution, and that would be permissible, not only in a Motion to
Suppress to survey [sic] that, as well as present that testimony during the
course of a trial, and so—and the Court has also, the Supreme Court has
also held that one-on-one identifications—be it a photo or a person lineup—
under certain circumstances, mostly exigent circumstances, are
permissible, so we do have one-on-one identifications.
Clearly, this Court has no issue with the procedure employed, in fact,
the Jury has heard evidence of the procedure and also the identification
made by the eyewitness as a result of that procedure.
What the Court is looking at here under [R.C.] 2933.83 is that, is the
following statement in that statute, and Ohio has kind of gone above and
beyond what the Supreme Court has addressed in the issue of pretrial
identification procedures.
While those deal with due process and Constitutional issues, Ohio
has chosen, through the general assembly, to set specific requirements and
guidelines in regard to how pretrial lineups and photo spreads should be
conducted.
The statute says in [R.C.] 2933.83(C)(3), and I quote this from [State
v. McShann, 2d Dist. Montgomery No. 27803, 2019-Ohio-4481], when
evidence of a failure to comply with any of the provisions of this section or -6-
with any procedure for conducting lineups is presented to the Jury, the Jury
shall be instructed that it may consider credible evidence of non-compliance
in determining the reliability of the eyewitness identification.
So I begin with the proposition that the statute indicates that the
Court is compelled to provide the instruction.
(Id. at 469-471.)
{¶ 9} On appeal, the State contends evidence of its failure to comply with the
requirements of R.C. 2933.83 did not compel the trial court to give the challenged
instruction. The State argues that failure to comply necessitates the instruction only when
the statute applies. The State reasons that the statute did not apply here because the
undercover detective was shown a single photograph, not a “photo lineup” consisting of
“an array of photographs, including a photograph of the suspected perpetrator of an
offense and additional photographs of persons not suspected of the offense,” which is
what R.C. 2933.83 covers.
{¶ 10} Upon review, we find the State’s argument to be persuasive. As set forth
above, R.C. 2933.83 establishes minimum requirements for the administration of “live
lineups” and “photo lineups.” R.C. 2933.83(B). A “photo lineup” is defined as “an array of
photographs” that includes the suspect and others. R.C. 2933.83(A)(8). When a “photo
lineup” does not comport with the requirements of R.C. 2933.83(B), “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.” R.C.
{¶ 11} Here there was no eyewitness identification resulting from or related to any -7-
“photo lineup.” One detective showed another detective a single picture, and an
identification was made. In State v. McShann, 2d Dist. Montgomery No. 27803, 2019-
Ohio-4481, we cited favorably to multiple Ohio appellate courts holding “that where only
one photo is shown, R.C. 2933.83 does not apply.” Id. at ¶ 70. Based on the language in
R.C. 2933.83(B) making the statute applicable to “photo lineups,” which by definition
consist of any array of photographs, we hold that the statute’s requirements did not apply
in the present case. The fact that a detective failed to comply with an inapplicable statute
when showing a picture to another detective was irrelevant.
{¶ 12} For the foregoing reasons, the trial court erred as a matter of law and
abused its discretion in giving a jury instruction based on non-compliance with
requirements in R.C. 2933.83 that did not apply.1 Accordingly, we sustain the State’s
assignment of error. This decision has no impact on Gardner’s final judgment of acquittal,
as he cannot be placed in jeopardy twice. Rac at ¶ 40.
TUCKER, P. J. and DONOVAN, J., concur.
Copies sent to:
Marcy A. Vonderwell Thomas M. Kollin Hon. Michael A. Buckwalter
1 This does not mean that a defendant is without recourse when a witness makes an identification after viewing a single photograph. Due process requires suppressing witness identification of a defendant if the confrontation was unduly suggestive of the defendant’s guilt and the identification was unreliable under the totality of the circumstances. McShann at ¶ 26. Thus, when a single photograph is shown, “the issue is whether a defendant’s due process rights were violated due to the procedure used for identification.” Id. at ¶ 70.