State v. Wills

• Decision Date: 16 June 1997
• Docket Number: No. 70988,70988
• Parties: The STATE of Ohio, Appellee, v. WILLS, Appellant. *
• Court: Ohio Court of Appeals

Page 320

120 Ohio App.3d 320

697 N.E.2d 1072

The STATE of Ohio, Appellee, v. WILLS, Appellant. ^*

No. 70988.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided June 16, 1997.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Erika Ritt, Assistant Prosecuting Attorney, Cleveland, for appellee.

James A. Draper, Cuyahoga County Public Defender, and Robert M. Ingersoll, Assistant Public Defender, Cleveland, for appellant.

PATTON, Judge.

A jury found defendant Anthony Wills guilty of one count of aggravated arson resulting from his attempt to firebomb a residence. He raises three issues in this appeal: (1) eyewitness identification, (2) "other acts" evidence, and (3) the sufficiency of the evidence.

The state's evidence showed that the victim of the offense came home sometime after 11:30 p.m. to find three broken windows in her kitchen. She reported the broken windows to the police, and then called her next-door neighbor and told her what happened. When finished with that conversation, the victim began cleaning glass from the floor. Suddenly, a plastic two-liter soft drink bottle filled with gasoline flew threw the broken windows. The charred remains of paper towels were stuffed into the mouth of the bottle. The victim testified that the bottle landed one foot away from her but bounced away. She looked and saw a figure moving near the window, but darkness from the late hour prevented her from clearly seeing the figure.

At about the same time, the neighbor's daughter and her friend were pulling out of their driveway. They, too, saw a male they later identified as defendant standing by the victim's window. Aware that someone had broken the victim's window, the neighbor's daughter and her friend began honking the car horn. When defendant heard the horn, he ran to a waiting blue pickup truck and drove away.

The next day, the victim's neighbor saw defendant speak with the victim. The neighbor heard defendant say that he was looking for Marvin because his house had been broken into. When the conversation between defendant and the victim ended, the neighbor saw defendant drive away in a light blue pickup truck.

The victim testified that she began supervising repairs to her windows when defendant approached her and asked if he could speak with her. Noticing the broken windows, defendant remarked that someone had broken into his house as well. He explained that he rented a room to the victim's son and suspected that the victim's son Marvin broke into his house and stole a television and videotape recorder while he had been out to rent videotapes at about 9:00 p.m. the previous evening. The victim told defendant that Marvin was actually her godson, and not a family relation. She further told defendant that she did not know his whereabouts.

Another witness testified that the day after the firebombing, defendant knocked on her apartment door and said he was looking for Mary McPherson. He told the witness that McPherson's son Marvin had stolen his television and videotape recorder. Defendant also told the witness that McPherson had broken the victim's windows and thrown the firebomb into her house. He gave the witness a note and asked to her to hand that note to Mary McPherson at the first opportunity.

The note contained defendant's name and telephone number. Mary McPherson spoke to defendant the day after the firebombing and he told her that Marvin stole his television and videotape recorder while he was returning some videotapes to a rental store.

The police separately showed the neighbor's daughter and her friend photo arrays. Both identified defendant as the man they saw outside the victim's home shortly after the firebombing. When they went to execute an arrest warrant at defendant's address, the officers saw the blue pickup truck.

Defendant presented an alibi defense. His primary witness testified that defendant had been with her throughout the night of the firebombing. She stated that she and defendant attended to her brother during emergency treatment at a hospital. The witness testified that defendant arrived at the hospital between 9:00 and 9:30 p.m. and stayed with her until 2:00 a.m. the next day. Another witness testified that she and her husband picked defendant up from the hospital at 2:00 a.m.

I

The first assignment of error complains that the trial court erred by denying defendant's motion to suppress the results of a photo array shown to the neighbor's daughter and her friend. Defendant argues that the photographs shown to these witnesses were unduly suggestive in that they did not all fairly depict suspects that matched defendant's age and body type.

The courts apply a two-step test in determining the admissibility of challenged identification testimony. First, the defendant must show that the identification procedure was unnecessarily suggestive. If the defendant meets this burden, the court must consider whether the procedure was so unduly suggestive as to give rise to irreparable mistaken identification. Stated differently, the issue is whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure. Manson v. Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154; State v Garner (1995), 74 Ohio St.3d 49, 61, 656 N.E.2d 623, 635. If the pretrial procedures were not suggestive, any remaining questions as to reliability go to the weight of the identification, not its admissibility, and the identification is generally admissible without any further reliability inquiry. United States v. Sleet (C.A.7, 1995), 54 F.3d 303, 309.

When deciding motions to suppress photographic identification procedures, the courts must determine whether the photos or procedures used were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253. Suggestiveness depends on several factors, including the size of the array, its manner of presentation, and its contents. Reese v. Fulcomer (C.A.3, 1991), 946 F.2d 247, 260. Stated otherwise, the test is "whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit." Jarrett v. Headley (C.A.2, 1986), 802 F.2d 34, 41.

Defendant contends that four of the six photos depict men who were obviously too young to match the description given by the witnesses. He further complains that even if the age discrepancy were not apparent from the photographs, a futile attempt to black out the biographical information on the photographs made it very easy for the witnesses to determine the age of each person in the photos.

We have examined the photographs and find that the differences defendant complains of would not suggest to the identifying witnesses that defendant was more likely to be the culprit. It is not a requirement that all pictures in a photo array be of the same type. State v. Green (1990), 67 Ohio App.3d 72, 79, 585 N.E.2d 990, 994. Moreover, we find that the men shown in the photographs are not so disparate in age as to be impermissibly suggestive. Likewise, the alleged size difference between the men does not make it more likely that the witnesses would have chosen defendant. Although both witnesses described defendant as "pot-bellied," midsections were not shown in the photo array. Additionally, the height of the men was not apparent from the photographs.

Defendant complains that the witnesses could have discerned the age, weight and height information from the mugshot photographs because the police crudely attempted to black out that information on the photographs. We agree that the police could have done a better job at blacking out the mugshot information, but the facts of this case give us no reason to believe that the witnesses attempted to read through the blacked-out portions to make their identifications. Importantly, both witnesses and the police officer conducting the photo array testified that the witnesses chose defendant immediately, without hesitation. Consequently, the facts do not indicate that either witness attempted to read through the blacked-out portions of the individual photographs. The first assignment of error is overruled.

II

The second assignment of error complains that the trial court permitted the jury to hear two instances of "other acts" evidence. First, he complains that a police officer improperly referred to the photographs used in the photo array as "mug shots." Second, he complains that the state improperly framed defendant's motive for the firebombing as retaliation over a disagreement centering on drugs. Defendant argues that either instance would permit the jury to find that he had been arrested in the past or engaged in drug activity--acts that would taint the fairness of the jury.

Evid.R. 404(B) prohibits the introduction of evidence of other crimes, wrongs or acts to prove the character of a person in order to show that he acted in conformity therewith. Consequently, "[e]vidence of other crimes, wrongs or bad acts independent of, and unrelated to, the offenses for which a defendant is on trial is generally inadmissible to show criminal propensity." State v. Woodard (1993), 68 Ohio St.3d 70, 73, 623 N.E.2d 75, 78; State v. Thompson (1981), 66 Ohio St.2d 496, 497, 20 O.O.3d 411, 411-412, 422 N.E.2d 855, 856.

A

Mug-shot photographs may be admissible if they do not provide a trier of fact with the reasonable inference that the accused has had prior criminal involvement. See State v. Wilkinson (1971), 26 Ohio St.2d 185, 187, 55 O.O.2d 444, 271 N.E.2d 242, 243-244. We need not determine whether the mugshots shown to the jury created a reasonable inference of defendant's prior criminal involvement pursuant to State v....