State v. Torres

Opinion

[Cite as State v. Torres, 2026-Ohio-2729.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ALLEN GENE TORRES,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 25 MA 0099

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2024 CR 00193

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Affirmed.

Atty. Lynn Maro, Mahoning County Prosecutor, and Atty. Kristie M. Weibling, Assistant Prosecutor, for Plaintiff-Appellee

Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, for Defendant-Appellant

Dated: July 15, 2026 –2–

WAITE, P.J.

{¶1} Appellant Allen Gene Torres appeals an October 9, 2025 judgment entry of

the Mahoning County Court of Common Pleas convicting him of various offenses related

to a shooting. On appeal, Appellant limits his argument to a challenge of the victim’s

identification of him as his assailant. A photograph and video were shown to the victim

while he was hospitalized. Appellant contends his right to a fair trial was violated, as

together, the images were unduly suggestive that Appellant was the perpetrator. For the

reasons that follow, Appellant’s argument is without merit and the judgment of the trial

court is affirmed.

Factual and Procedural History

{¶2} This matter arises from a shooting that occurred at Slick’s Bar and Grill

(“Slicks”) in the early hours of New Year’s Day in 2024. The victim, D.S., entered the bar

with a group of friends. On entering, he noticed a group of people sitting at the bar near

the entrance to the women’s bathroom. Among this group were two females and a male.

D.S. took an interest in one of the women and approached the group to speak with her.

At times he also attempted to speak to the man in the group, however, the man did not

have much interest in conversing and did not respond to D.S. At some point, D.S. left the

group to get money from a friend so he could buy the woman a drink. When he returned

with the money, the man shot him in the stomach.

{¶3} Law enforcement sought to interview D.S. soon after the shooting in an

attempt to identify the shooter. However, D.S.’s condition did not allow for an interview

until three days after the shooting. Prior to the interview, police obtained fairly high

resolution security video from the bar. Detective George Anderson and Detective

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Sergeant Michael Cox reviewed the video. While the actual shooting was not caught on

camera, police observed Appellant had a magazine intended for a pistol in his pocket

shortly after the shots can be heard on the video. This led the officers to believe

Appellant, who was apparently known to Det. Cox, may be the shooter.

{¶4} On January 2, 2024, Det. Anderson and Detective Philip Skowron

conducted a hospital interview of D.S. The officers set up what appears to be a body

camera that captured this interview on video. Det. Anderson first asked D.S. to provide

a physical description of the shooter and his attire without informing him that police had

a suspect in mind. D.S. admitted that he had difficulty in describing the shooter but was

adamant that he could identify him if he saw his face.

{¶5} However, he eventually described his assailant as a “light-skinned dude”

but “definitely black.” As to his clothing, he explained “I can’t necessarily remember, I

think he was wearing grey pants or something of that sort. And I think he had dreads.”

(Body Camera, 2:51.) When again asked about the shooter’s clothing, D.S. became

frustrated and said “that’s what I’m saying. It sucks because I really don’t remember. I

think he had dreads. I mean he was black, for sure. He had a red hoodie.” (Body

Camera, 4:10.) Asked again if he thought the man was wearing a red hoodie, he said “I

think so.” (Body Camera, 4:32.) He then stated: “I mean if I seen [sic] his face, I’d be

able to tell you exactly who it is.” (Body Camera, 4:37.)

{¶6} Det. Anderson showed D.S. a photograph of Appellant, their suspect at the

time, and asked if the person depicted could be the shooter. The photograph contains

the image of a dark, shadowed figure and does not provide a clear view of the shooter’s

face. When shown the photograph, D.S. took a relatively long time, approximately fifteen

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seconds, trying to make out the figure in the photograph. He eventually responded: “I

think so, that’s not the bar owner, right?” He reviewed the photograph a second time and

stated, “I think that is him.” (Body Camera, 6:33.)

{¶7} Following this, Det. Anderson showed D.S. the surveillance video from the

bar. We again note that the video does not depict the actual shooting, however, it does

show the main bar area and the door leading outside during the shooting and the

moments that followed. When shown the video D.S. immediately recognized Appellant.

Within seconds of viewing this video, D.S. excitedly said: “all right, right there! See that

dude right there,” pointing to Appellant in the video. (Body Camera, 7:00.) Det. Anderson

replayed the video for D.S., who again pointed to Appellant and said, “him.” When asked

if he was certain, D.S. responded without hesitation “Yeah, I’m one hundred and ten

fucking percent positive.” (Body Camera, 7:32.) He again pointed to Appellant and said,

“right there!” (Body Camera, 7:45.)

{¶8} On April 18, 2025, Appellant was indicted on eight counts. The following

were as a result of the January 1, 2024 shooting: one count of felonious assault, a felony

of the second degree in violation of R.C. 2903.11(A), (D)(1)(a) with an attenuated three-

year firearm specification in violation of R.C. 2941.145(A); one count of having weapons

while under disability, a felony of the third degree in violation of R.C. 2923.13(A)(2), (B);

and illegal possession of a firearm in a liquor permit premises, a felony of the third degree

in violation of R.C. 2923.121(A), (E). The remaining charges pertain to an incident that

occurred after Appellant had been indicted in this matter. Those charges were later

dismissed as they formed the basis of a federal indictment against Appellant. Hence,

only the first three counts are relevant, here.

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{¶9} On July 23, 2024, Appellant filed a motion to suppress D.S.’s identification

of Appellant as the shooter based on an argument that the one-person photo lineup

violated R.C. 2933.83. The court held a hearing on the motion. On June 3, 2025, the

trial court denied the motion.

{¶10} On September 2, 2025, Appellant entered a no contest plea. On October

9, 2025, the trial court accepted the jointly recommended sentence of five to six years of

incarceration to run concurrent to any sentence Appellant would receive in his federal

case. It is from this decision that Appellant timely appeals. For ease of understanding

the parties’ arguments, the relevant law will be discussed before addressing Appellant’s

arguments.

General Law

{¶11} The pertinent law involves procedures found within R.C. 2933.83(A)(6):

(A) As used in this section:

“Folder system” means a system for conducting a photo lineup that

satisfies all of the following:

(a) The investigating officer uses one “suspect photograph” that

resembles the description of the suspected perpetrator of the offense

provided by the eyewitness, five “filler photographs” of persons not

suspected of the offense that match the description of the suspected

perpetrator but do not cause the suspect photograph to unduly stand out,

four “blank photographs” that contain no images of any person, and ten

empty folders.

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(b) The investigating officer places one “filler photograph” into one

of the empty folders and numbers it as folder 1.

(c) The administrator places the “suspect photograph” and the other

four “filler photographs” into five other empty folders, shuffles the five folders

so that the administrator is unaware of which folder contains the “suspect

photograph,” and numbers the five shuffled folders as folders 2 through 6.

(d) The administrator places the four “blank photographs” in the four

remaining empty folders and numbers these folders as folders 7 through 10,

and these folders serve as “dummy folders.”

(e) The administrator provides instructions to the eyewitness as to

the lineup procedure and informs the eyewitness that a photograph of the

alleged perpetrator of the offense may or may not be included in the

photographs the eyewitness is about to see and that the administrator does

not know which, if any, of the folders contains the photograph of the alleged

perpetrator. The administrator also shall instruct the eyewitness that the

administrator does not want to view any of the photographs and will not view

any of the photographs and that the eyewitness may not show the

administrator any of the photographs. The administrator shall inform the

eyewitness that if the eyewitness identifies a photograph as being the

person the eyewitness saw the eyewitness shall identify the photograph

only by the number of the photograph's corresponding folder.

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(f) The administrator hands each of the ten folders to the eyewitness

individually without looking at the photograph in the folder. Each time the

eyewitness has viewed a folder, the eyewitness indicates whether the

photograph is of the person the eyewitness saw, indicates the degree of the

eyewitness's confidence in this identification, and returns the folder and the

photograph it contains to the administrator.

(g) The administrator follows the procedures specified in this division

for a second viewing if the eyewitness requests to view each of the folders

a second time, handing them to the eyewitness in the same order as during

the first viewing; the eyewitness is not permitted to have more than two

viewings of the folders; and the administrator preserves the order of the

folders and the photographs they contain in a facedown position in order to

document the steps specified in division (A)(6)(h) of this section.

(h) The administrator documents and records the results of the

procedure described in divisions (A)(6)(a) to (f) of this section before the

eyewitness views each of the folders a second time and before the

administrator views any photograph that the eyewitness identifies as being

of the person the eyewitness saw. The documentation and record includes

the date, time, and location of the lineup procedure; the name of the

administrator; the names of all of the individuals present during the lineup;

the number of photographs shown to the eyewitness; copies of each

photograph shown to the eyewitness; the order in which the folders were

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presented to the witness; the source of each photograph that was used in

the procedure; a statement of the eyewitness's confidence in the

eyewitness's own words as to the certainty of the eyewitness's identification

of the photographs as being of the person the eyewitness saw that is taken

immediately upon the reaction of the eyewitness to viewing the photograph;

and any additional information the administrator considers pertinent to the

lineup procedure. If the eyewitness views each of the folders a second time,

the administrator shall document and record the statement of the

eyewitness's confidence in the eyewitness's own words as to the certainty

of the eyewitness's identification of a photograph as being of the person the

eyewitness saw and document that the identification was made during a

second viewing of each of the folders by the eyewitness.

(i) The administrator shall not say anything to the eyewitness or give

any oral or nonverbal cues as to whether or not the eyewitness identified

the “suspect photograph” until the administrator documents and records the

results of the procedure described in divisions (A)(6)(a) to (g) of this section

and the photo lineup has concluded.

ASSIGNMENT OF ERROR

The trial court erred in denying Appellant’s Motion to Suppress, in violation

of Appellant’s right to Due Process under the Fifth and Fourteenth

Amendments to the United States Constitution and Article I, Section 16 of

the Ohio Constitution, because law enforcement did not follow proper

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procedures for a photo lineup pursuant to R.C. 2933.83, because law

enforcement’s confrontation of the witness with Appellant as a suspect was

unnecessarily suggestive of Appellant’s guilt, and because the identification

of Appellant was unreliable under all the circumstances.

{¶12} Appellant contends that Det. Anderson’s decision to provide D.S. with a

single photograph of only himself violates R.C. 2933.83. Appellant explains that the only

way to overcome the strictures contained in the statute is for the state to prove that the

photograph was not unduly suggestive. Appellant does argue that the photograph at

issue was unduly suggestive, but his argument focuses more on the failure of the officers

to provide an “excuse” for failing to comply with the statute.

{¶13} The state responds that D.S. had ample opportunity to view his shooter,

knew exactly where Appellant was located, who he sat with, and was mostly accurate in

his physical description. While hesitant in his identification from the photo, the state urges

that D.S. was certain in his identification of Appellant from the video. Hence, D.S.’s

identification of Appellant as his assailant was reliable.

{¶14} “[A] failure to comply with R.C. 2933.83 does not require suppression of the

pretrial identification.” State v. McCrary, 2014-Ohio-1468, ¶ 50 (7th Dist.). The statute

does not require exclusion of the identification for failure to comply, but instructs the court

to consider any failure to comply with the folder procedure in deciding suppression issues

and to admit into evidence at trial law enforcement’s failure to comply with the photo folder

procedure. Id. at ¶ 51.

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{¶15} A reviewing court applies a two-prong test for evaluating the constitutionality

of a pretrial identification. State v. Hopkins, 2021-Ohio-4632, ¶ 28 (7th Dist.), citing

McCrary at ¶ 52.

“When a witness has been confronted with a suspect before trial, due

process requires a court to suppress her identification of the suspect if the

confrontation was unnecessarily suggestive of the suspect's guilt and the

identification was unreliable under all the circumstances.” State v. Murphy,

91 Ohio St.3d 516, 534, 747 N.E.2d 765 (2001) (adding emphasis), quoting

State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992). “Thus, if

the presentation was not unduly suggestive, the court need not proceed any

further in the test, and likewise, if the court finds the identification reliable, it

need not consider suggestiveness.” McCrary, 7th Dist. No. 12 MA 135 at

¶ 53, citing State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d

1061, ¶ 19 and Murphy, 91 Ohio St.3d at 534.

Id. at ¶ 29.

{¶16} When determining whether a photograph is unduly suggestive, courts have

considered five factors: (1) the witness’ opportunity to view the offender at the time of the

offense, (2) the witness’ degree of attention, (3) the witness’ accuracy in the description

of the offender, (4) the witness’ level of certainty, and (5) the length of time between the

offense and the identification. Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

{¶17} Some considerations that have led to a finding of reliability have been:

viewing the suspect and spending time with him or her before the incident, prior

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knowledge of the person, and stating the ability to recognize the person and then being

able to do so. Hopkins at ¶ 34.

{¶18} We begin with a discussion of the photograph shown to D.S. Appellant

asserts this photograph was unduly suggestive of his guilt and that D.S.’s later

identification of him from a video was, thus, unreliable. A review of this evidence in the

record reveals the opposite is true. First, it is apparent that the photograph is of extremely

poor quality. This photograph was shown to D.S. on a cell phone, and while the

photograph admitted into evidence has been somewhat enlarged and quality of this

photograph undoubtedly suffered somewhat in the enlargement, it is apparent that the

details, such as they are in this photo, would not have been more clear. Typical of a bar

setting, the lighting is very poor. While there was some sort of overhead light reflected

off of the glossy finish of the bar counter, this only serves to throw the subject into deeper

shadow. The darkness of the photo renders it impossible to see any details of the

subject’s (Appellant’s) face. As deep shadow is being cast on Appellant’s face, and his

face seems to be turned, neither his facial features nor his profile can be detected. Thus,

the image is limited to a dark silhouette of a portion of Appellant’s head, revealing the

general shape of part of a face and the outline of his hairstyle, which looks to be braided

or in dreadlocks. Notably, the photo is so dark that it provides no depiction of his eyes,

facial hair, or normal facial features. While the image depicts a man of probable African-

American descent based on his hands, this photograph holds no value for any other

identification purposes.

{¶19} The video, however, is of much clearer resolution and is better lit than the

photograph. Notably, unlike the photograph, Appellant’s face, profile, and facial features

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are clearly observable. Appellant’s dreadlocks are readily apparent underneath his hat

and it is apparent he is wearing what appears to be a puffy black coat. When the officer

handed the phone to D.S. and played the video, D.S., who had been unsure of his

identification of Appellant from viewing the dark, shadowy figure in the photo, immediately

and decisively recognized and identified Appellant without prompting.

{¶20} When earlier attempting to verbally describe the shooter, D.S. had trouble

remembering exactly what the shooter was wearing and describing his facial features.

This is unsurprising, as the woman he was attracted to held his attention far more than

the male positioned next to her. Further, it is undoubtedly true D.S. was still in shock from

the shooting. Nonetheless, D.S. expressed that while he struggled to describe the

shooter and his clothing, he was confident that he would recognize him if shown an image.

{¶21} Placing D.S.’s initial description, his viewing of the photograph, and his

viewing of the video into a timeline, it is apparent D.S. could clearly identify the shooter

when looking at his face instead of his clothing. The police interview with the hospitalized

victim was recorded on the officer’s body camera and is also in this record. During the

first part of the interview when D.S. was asked to verbally describe the shooter, he began

by describing the location of the shooter and the women he was with that evening,

including the woman he was attracted to. He described the area where he first saw the

shooter as a section of the bar near the woman’s restroom and that two women sat near

a “light-skinned dude.” (Body Camera, 2:30.) He explained that he found one of the

women attractive, so he walked over to this area to talk to her. As to the shooter, he told

the officer, “I can’t necessarily remember, I think he was wearing grey pants or something

of that sort. And I think he had dreads.” (Body Camera, 2:51.) As he struggled to

Case No. 25 MA 0099 – 13 –

describe the shooter’s clothing, D.S.’s facial expressions reveal that he was making a

great deal of effort to remember, and show that he felt some uncertainty. He explained

that he walked away from the group to get money from a friend to buy the woman a drink

and that when he returned, the male in the group pulled out a gun and shot him at point

blank range in the stomach.

{¶22} When again asked about the shooter’s clothing D.S. became frustrated and

said “that’s what I’m saying. It sucks because I really don’t remember. I think he had

dreads. I mean he was black, for sure. He had a red hoodie.” (Body Camera, 4:10.)

Asked again if he thought the man was wearing a red hoodie, he said “I think so.” (Body

Camera, 4:32.) He then stated: “I mean if I seen [sic] his face, I’d be able to tell you

exactly who it is.” (Body Camera, 4:37.)

{¶23} When shown the dark photograph, which depicts a blurred, shadowed figure

and does not contain a clear view of the shooter’s face, D.S. took a relatively long time,

approximately fifteen seconds, trying to make out the figure in the photograph. He

eventually responded: “I think so, that’s not the bar owner, right?” After again looking at

the photograph he said, “I think that is him.” (Body Camera, 6:33.) We note that while

Appellant was not wearing a red hoodie, the video does reveal there was another man at

the bar that night who sat front and center at the bar and was very noticeable. This man

stands out due to the bright red color of his hoodie. In the video, he can be seen

constantly standing up and walking around hugging other patrons. It is hardly surprising

that D.S. would clearly remember seeing a man in a red hoodie, and may have transposed

this item of clothing with the shooter’s actual garb, given that he admittedly did not pay

much attention to his assailant’s clothing.

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{¶24} However, once the officer handed D.S. his phone and played the video of

the bar that night, D.S. immediately recognized Appellant. Within seconds of viewing this

video, D.S. became excited and said: “all right, right there! See that dude right there,”

pointing emphatically to Appellant in the video. (Body Camera, 7:00.) D.S. displayed no

hesitation in this identification and it was voiced strongly and loudly. There is no hesitation

in his voice and his response was immediate upon seeing Appellant walk in front of the

camera. Unlike his response to the poor-quality, shadowed photograph, D.S.’s

confidence in his identification when viewing the video is obvious.

{¶25} On a replay, D.S. again pointed to Appellant and said, “him.” When asked

if he was certain, D.S. responded without hesitation “Yeah, I’m one hundred and ten

fucking percent positive.” (Body Camera, 7:32.) He once again pointed to Appellant and

said, “right there!” (Body Camera, 7:45.)

{¶26} Beginning with D.S.’s opportunity to view the shooter at the time of the

incident, he explained that he saw Appellant sitting next to two women, one of which he

had an interest in pursuing, when he entered the bar. Hence, D.S. first saw Appellant the

moment he walked into the building. (Body Camera, 2:23.) While Appellant may not

have been the actual focus of D.S.’s attention, D.S. clearly noticed Appellant. D.S. went

over to talk to the woman and attempted to engage in conversation with all three

individuals, including Appellant. D.S. noted that even though he spoke to Appellant, he

did not receive a response. As indicated within Hopkins, the ability of a victim to observe

the offender prior to the incident is a relevant consideration. Here, D.S. clearly observed

and interacted with Appellant prior to the shooting.

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{¶27} It is also noteworthy that Appellant shot D.S. point blank in the stomach,

hence, D.S. was looking right at the shooter in close proximity at the time. While D.S.

was unquestionably more interested in one of the women, his statements reveal that he

did remember his encounter with Appellant prior to the shooting and had time to observe

him. He told officers that while he had difficulty remembering the shooter’s clothing, he

could definitely identity the man if shown his face. This factor weighs in the state’s favor.

{¶28} Next, we turn to the witness’s degree of attention. While obviously D.S. was

more interested in a woman in the group, he clearly observed Appellant before the

shooting and was confident that he could identify the shooter’s face. Again, D.S.

attempted some small talk with Appellant while talking to the woman, thus he did pay

some attention to Appellant in the period before he was shot. This factor also weighs in

favor of the state.

{¶29} Moving to the accuracy of D.S.’s prior description, we note that all three

attempts at identification (his verbal discussion with the officers, viewing of the

photograph, and viewing of the video) occurred basically at the same time within mere

minutes. Regardless, it is readily apparent from D.S.’s attempts to describe the shooter

verbally that he had a better look at, and memory of, Appellant’s face than his clothing.

There is little question that D.S. had difficulty describing the shooter’s clothing and

physical details, but he could describe the woman he was attracted to in detail. While

Appellant described her male companion (Appellant) as appearing to be light-skinned

when he first walked in and noticed the group, he specified that this man was “black, for

sure.” (Body Camera, 4:21.) D.S. also mentioned that Appellant had dreadlocks but

Case No. 25 MA 0099 – 16 –

thought he wore a hood over his head. The video reveals Appellant wore some sort of

dark colored hat over his dreadlocks, closely consistent with D.S.’s verbal description.

{¶30} When officers asked, first, for D.S. to describe the shooter, D.S. stated, “I

can’t necessarily remember, I think he was wearing grey pants or something of that sort.”

(Body Camera, 2:51.) D.S. continued to struggle with providing any physical description

when asked by the officers on their arrival in D.S.’s hospital room. However, D.S.

repeatedly said he got a better look at Appellant’s face than his clothing. Even so, some

shades of grey can be confused with black, especially in a not very well lit bar. D.S.

conceded that he was uncertain about the shooter’s clothing, using qualifiers such as “I

can’t necessarily remember,” and “something of that sort.” D.S.’s struggle to identify the

color of Appellant’s pants is unsurprising, as it appears that Appellant was sitting down at

the bar when D.S. approached the group to talk to the woman, making his lower half less

visible.

{¶31} Appellant also takes issue with D.S.’s description of his shooter as a “a light

skinned dude.” However, D.S. also described his shooter as “definitely black.” And

again, his reaction to seeing Appellant in the video was immediate and certain.

{¶32} This brings us to the fourth factor, the level of certainty. This factor is best

discussed in three parts: D.S.’s verbal description, the photograph, and the video. Again,

there is no question that D.S. struggled in trying to verbally describe Appellant. However,

he made it clear that if shown an image containing the shooter’s face, he would be able

to recognize him. It is apparent that D.S. had a better look at the shooter’s face than his

body and clothing.

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{¶33} This leads us to the photograph. Again, this photograph is so dark and

shadowed as to be virtually useless for identification purposes, as the viewer cannot make

out any facial features or even a profile. At best, the photo shows the person depicted

may be dark skinned, has dreadlocks or braids, and is wearing a yellow shirt. When

police showed this photograph to D.S. and asked him if it depicted the shooter, his

response was hesitant and not immediate. He studied the photograph and after roughly

fifteen seconds, he told police “I think so” and “that looks like him” but does not

conclusively identify the man in the photograph as his shooter.

{¶34} When shown the video, however, within three seconds D.S. confidently

stated “alright, right there” as he pointed to the phone screen. He continued “see that

dude right there?” The video was replayed and D.S. again pointed at the screen and said

“him!” When asked if he was certain, he responded without hesitation, “yeah, I’m a

hundred ten fucking percent positive.” (Body Camera, 7:31.) There is no question that

D.S. conclusively and confidently identified Appellant from the video as the shooter.

{¶35} Appellant claims that the photograph could have predisposed D.S. to select

Appellant in the video. There are two problems with this assertion. First, as we earlier

pointed out, the photograph is of such poor quality and is so dark and shadowed it

provides no distinguishing features of the man depicted. Following review of this photo,

we can only conclude that it would not serve to assist any identification later obtained in

the video. Second, in the photograph Appellant was wearing a bright yellow shirt. In the

video, Appellant has on a black or dark colored coat, making the shirt under it barely

visible. Thus, Appellant’s appearance in the video is different from that of the photograph.

This factor weighs in favor of the state.

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{¶36} As to the fifth, and final, factor, three days had passed from the shooting to

the identification. An earlier attempt by police to interview D.S. failed due to D.S.’s serious

medical condition following his shooting. We note that three days is unlikely to cause

significant lapses in memory and was the first opportunity for police to conduct any

interview of D.S. This factor also weighs in favor of the state.

{¶37} In summation, while the single photograph attempt at identification certainly

did not fall within best police practices, this record shows it had no harmful suggestive

effect on D.S.’s identification of Appellant. There is no image contained in the dark, poor

quality photograph that could predispose D.S. to identify Appellant from the video, which

was clearer and had better lighting. Regardless, it is apparent that D.S. was certain in

his identification of Appellant in the video. While his verbal description of Appellant was

not entirely accurate, D.S. consistently told the officer that he would recognize the

shooter’s face, if he saw it again, and had observed and could recognize his face much

better than the shooter’s attire.

{¶38} Based on all of the evidence contained in this record, the trial court did not

err in admitting the victim’s identification of Appellant as the perpetrator of the crimes

against him. While D.S., the victim, struggled to verbally describe the man who shot him,

many details of the man’s companions and location correctly match Appellant’s. In

addition, D.S. knew his shooter was black and had dreadlocks, like Appellant’s. While he

was shown a single photo of Appellant and asked to make an identification of the

perpetrator instead of being presented with a folder array of photos of various individuals

as per the statute, it is apparent that this single photo was of such poor quality that it

cannot be said to be “unduly suggestive” of Appellant’s guilt. Coupled with D.S.’s certainty

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as to his identification of Appellant when shown a video, which we note depicted several

individuals, the record supports that D.S.’s identification, under all of the circumstances,

was not unreliable and the trial court correctly overruled Appellant’s motion to suppress.

Conclusion

{¶39} Appellant argues that a photograph and video shown to the victim were

unduly suggestive and his identification of Appellant as the man who shot him was

unreliable so as to require suppression. For the reasons provided, Appellant’s argument

is without merit and the judgment of the trial court is affirmed.

Robb, J. concurs.

Hanni, J. dissents with dissenting opinion.

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Hanni, J., dissenting.

{¶40} With respect and regard to my colleagues, I must dissent from the majority

opinion. I would find that the identification of Appellant should have been suppressed

based on the Biggers factors.

{¶41} Because the identification procedure here was a one-person show up, it

was inherently suggestive. The State concedes this issue. Detective Anderson

presented D.S. with a single photograph that showed Appellant sitting alone at the bar.

This procedure suggested Appellant was the perpetrator. Because the show up was

suggestive, the Biggers factors and circumstance must be analyzed to determine the

reliability of the identification.

{¶42} The first Biggers factor to consider is the opportunity of the witness to view

the criminal at the time of the crime. D.S. stated that when he entered the bar he noticed

two women and “a light-skinned dude” in the corner. (Interview Tr. 3). He thought the

“white girl” was attractive so he went over to talk to her. (Interview Tr. 3). D.S. accurately

described the tan jumpsuit that the girl was wearing. (Interview Tr. 3-4). As to the shooter,

D.S. said, “I think he was wearing gray pants, or something of that sort” and “I think he

had dreads.” (Interview Tr. 4). D.S. then went to ask his cousin for some money so he

could buy her a shot. (Interview Tr. 4). When he walked back over to the corner, the

shooter shot him “pointblank” in his stomach. (Interview Tr. 4-5). D.S. did not say how

much time he spent by the shooter and the two women. However, from his description

of the events, it appears to have been a short time but long enough to have a brief

conversation. Thus, I would find the first factor does not weigh heavily in favor of or

against the reliability of the identification.

Case No. 25 MA 0099 – 21 –

{¶43} The second Biggers factor is the witness’s degree of attention. D.S.’s focus

at the time was on the attractive woman for whom he wanted to purchase a shot. He was

able to accurately describe her jumpsuit outfit and her light hair. (Interview Tr. 3-4). But

when asked by the detective what the shooter looked like, D.S. was uncertain:

DET./SGT. ANDERSON: Uh-huh. So kind of describe to me what

the guy that shot you was wearing or what he looked like, or anything

distinguishable.

[D.S.]: That’s what I’m saying. It sucks ‘cause I really don’t

remember. I think he had dreads.

DET./SGT. ANDERSON: Okay.

[D.S.]: I mean, he was black, for sure. He had a red hoodie.

DET./SGT. ANDERSON: He was wearing a red hoodie?

[D.S.]: Yeah.

[D.S.]: I think so. I mean, if I seen his face, I’d be able to tell you

exactly who it is.

DET./SGT. ANDERSON: Could you tell what color shirt he had on,

anything like that?

Case No. 25 MA 0099 – 22 –

[D.S]: Probably. This shit got my fuckin’ nerves going.

DET./SGT. ANDERSON: Just take your time and think.

Was he wearing a hat, anything like that? Was – was –

[D.S.]: He had a hoodie on.

DET./SGT. ANDERSON: A hoodie on. He had the hoodie pulled

up?

[D.S.]: And he was sitting with a mixed girl and a white girl.

DET./SGT. ANDERSON: By chance is this him [detective shows

D.S. the photo of Appellant sitting at the bar]?

[D.S.]: I think so. That’s not the bar owner right?

DET./SGT. ANDERSON: No.

[D.S.]: No?

(Interview Tr. 5-6).

{¶44} D.S.’s statements to the detective indicate that he was not paying a great

deal of attention to the man who would shoot him. Instead, he was focused on the

attractive woman. He accurately described her clothing and hair. But he was unsure

when describing the man who shot him, stating “I really don’t remember.” Thus, I would

find the second factor weighs against the reliability of the identification.

Case No. 25 MA 0099 – 23 –

{¶45} The third Biggers factor is the accuracy of the witness's prior description of

the criminal. This is the factor that weighs most in favor of suppression. D.S. first

described the shooter as wearing “gray pants, or something of that sort.” (Interview Tr.

4). He also described him as “a light-skinned dude”. (Interview Tr. 3). D.S. said that he

thought the shooter “had dreads.” (Interview Tr. 4, 5). He further described the shooter

as “black, for sure” and stated that he was wearing a red hoodie. (Interview Tr. 5). The

detective asked D.S. if the shooter was wearing a hat and D.S. again stated that he was

wearing a hoodie. (Interview Tr. 6). But later, D.S. said the shooter was wearing a hat.

(Interview Tr. 8).

{¶46} This description of the shooter matches Appellant only insofar as Appellant

is a black man with a dreadlock hair style. But the rest of D.S.’s description, detailing

what the shooter was wearing and the shooter’s skin tone, does not describe Appellant

and what he was wearing that night. The image of Appellant sitting at the bar that night

shows that he was wearing a yellow short-sleeve tee shirt and black pants. And the video

from security taken after the shooting shows that he has a black jacket over his yellow

tee shirt and a black hat. None of these items are similar to D.S.’s prior description of the

shooter wearing a red hoodie, gray pants, and no hat. Moreover, D.S. said that the

shooter was a black man but “a light-skinned dude”. The photograph of Appellant,

however, shows that Appellant’s skin is not light as Appellant described. Additionally, the

video reveals there was another man at the bar that night who was wearing a red hoodie.

This man was white and had long hair. Based on the multiple inconsistencies between

D.S.’s description of the shooter and Appellant’s actual appearance that night, I would

find the third factor weighs against the reliability of the identification.

Case No. 25 MA 0099 – 24 –

{¶47} The fourth Biggers factor is the witness's level of certainty at the

confrontation. Early on in the interview, D.S. told Detective Anderson, “I mean, if I seen

his face, I’d be able to tell you exactly who it is.” (Interview Tr. 5). Detective Anderson

showed D.S. the photograph of Appellant sitting at the bar. (Interview Tr. 6; Ex. 2). The

detective then continued questioning D.S.:

DET./ SGT. ANDERSON: By chance, is this him?

[D.S.]: I think so. That’s not the bar owner, right?

DET./ SGT. ANDERSON: No.

UNIDENTIFIED FEMALE: He was communicating a lot with the bar

owner that night, too, chitchatting.

[D.S.]: Yeah, but - -

UNIDENTIFIED FEMALE: I just don’t want - -

DET./ SGT. ANDERSON: Was he there for a long time prior to

everybody else getting there?

[D.S.]: I’m not for sure ‘cause I believe we came in probably about

30 - - 30 minutes to - - that looks like him. And I don’t understand how he

got in with a gun ‘cause everybody else got pat down.

Case No. 25 MA 0099 – 25 –

DET./SGT. ANDERSON: Here’s a video of right after.

[D.S.]: All right. Right there. See that dude right there?

DET./SGT. ANDERSON: In the black - - in the black coat?

[D.S.]: See that girl?

DET./SGT. ANDERSON: Yeah.

[D.S.]: Him.

DET./SGT. ANDERSON: Okay. That’s him, for sure?

UNIDENTIFIED FEMALE: You’re positive?

[D.S.]: Yeah, I’m a 110 fuckin’ percent positive.

UNIDENTIFIED FEMALE: Okay.

(Interview Tr. 6-8).

{¶48} Detective Anderson testified that when he first showed D.S. the photograph

of Appellant, D.S. “wasn’t exactly sure” if it was the shooter. (Suppression Tr. 10). This

was despite the fact that D.S. stated if he saw the shooter’s face he would be able to tell

the detective exactly who the shooter was. In fact, D.S. inquired of the detective if the

person in photograph might be the bar owner. The detective then showed D.S. the

surveillance video on his phone and D.S. pointed to Appellant as the shooter.

(Suppression Tr. 11, 14-15). But this was after Detective Anderson had shown D.S. the

Case No. 25 MA 0099 – 26 –

photograph of Appellant sitting at the bar. Thus, D.S. was likely predisposed to look for

Appellant in the video after seeing him in the photograph. Moreover, in the video

Appellant’s face is less clear than in the photograph. This further supports the conclusion

that D.S., whether consciously or unconsciously, was looking for Appellant in the video.

Thus, I would find the fourth factor weighs against the reliability of the identification.

{¶49} Also worth pointing out here is the fact that an unidentified female, whom

Detective Anderson testified was D.S.’s mother, interjected her comments into D.S’s

identification. (Suppression Tr. 32-33). When D.S. asked if the photograph was of the

bar owner, his mother indicated that either D.S. or Appellant, it unclear to which one she

was referring, was “chitchatting” with the bar owner that night. (Interview Tr. 6-7). She

also asked D.S. if he was sure in his identification of the shooter. (Interview Tr. 7). The

detective stated that D.S.’s father was also in the hospital room during the interview.

(Suppression Tr. 33). Their presence and comments may have pressured D.S.’s

identification.

{¶50} The fifth and final Biggers factor is the length of time between the crime and

the confrontation. The shooting took place in the early morning hours of January 1, 2024.

Detective Anderson showed D.S. the photo of Appellant on January 4, 2024, while he

was still in the hospital recovering from the shooting. Thus, only three days had passed

since the shooting. This factor weighs likely weighs in favor of reliability of the

{¶51} It is relevant to note, however, that Detective Anderson attempted to visit

D.S. in the hospital on January 2, 2024, the day after the shooting. (Suppression Tr. 18-

19). But due to D.S.’s medical condition at the time, the detective was unable to actually

Case No. 25 MA 0099 – 27 –

visit with D.S. (Suppression Tr. 18-19). When Detective Anderson interviewed D.S., D.S.

was still in lying in bed in his hospital room. (Suppression Tr. 23). Detective Anderson

testified that he imagined that D.S. was medicated at that time, but the detective did not

ask him about any medications. (Suppression Tr. 23).

{¶52} In sum, I would find three out of the five Biggers factors weigh against the

reliability of D.S.’s identification of Appellant and one factor does not weigh heavily in

favor of or against the reliability of the identification. When D.S. was first shown the clear

photograph of Appellant, he was uncertain if that was the shooter. He even questioned

whether the photograph may have been of the bar owner. He then picked Appellant out

in the video, which was not a clear view of Appellant. This suggested that D.S. was

looking for the man in the photograph instead of independently looking for the shooter in

the video. Moreover, D.S. initially told the detective that he did not really remember what

the shooter looked like. He stated later that the shooter wore a red hoodie and gray pants.

D.S. reiterated that the shooter was wearing a red hoodie later in his interview. Appellant

was not wearing a red hoodie and gray pants that night. Instead, Appellant was wearing

a yellow tee shirt, black jacket, and black pants. There was another man in the video at

the bar who was in fact wearing a red hoodie. Additionally, D.S.’s mother made various

comments during the interview which could have served to bolster D.S.’s belief that his

identification was correct. Furthermore, D.S. was still in the hospital recovering from his

gunshot wound. Detective Anderson stated that on January 2, 2024, D.S. was unable to

be interviewed due to his medical condition. Two days later, when the detective was able

to interview D.S., the detective stated that D.S. was likely on medication but he did not

ask D.S. about this.

Case No. 25 MA 0099 – 28 –

{¶53} For all of these reasons, I would find Appellant met his burden of

demonstrating D.S.’s identification was unreliable under the totality of the circumstances.

Therefore, I would find the trial court should have granted the motion to suppress D.S.’s

identification of Appellant.

Case No. 25 MA 0099 – 29 –

Case No. 25 MA 0099 [Cite as State v. Torres, 2026-Ohio-2729.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignment of

error is overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.