State v. Green

2020 Ohio 5206

STATE OF OHIO Plaintiff-Appellee v. TAJRAE MARQUIS GREEN Defendant-Appellant

Appellate Case No. 28614

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

November 6, 2020

Trial Court Case No. 2018-CR-4618

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409 Attorney for Defendant-Appellant

FROELICH, J.

{¶ 1} Tajrae Marquis Green was convicted after a jury trial of aggravated burglary, a first-degree felony. The trial court sentenced him to 10 years in prison and ordered him to pay restitution of $50 and court costs.

{¶ 2} Green appeals from his conviction, claiming that (1) the trial court erred in denying his motion to suppress an eyewitness identification, (2) his conviction was based on insufficient evidence and was against the manifest weight of the evidence, (3) the court erred in allowing other acts evidence, (4) the court erred in failing to give a jury instruction on alibi, (5) cumulative error deprived him of a fair trial, and (6) the court failed to consider appropriate statutory factors at sentencing. For the following reasons, the trial court's judgment will be affirmed.

I. Motion to Suppress

{¶ 3} In his first assignment of error, Green claims that the trial court erred in failing to suppress the victim's pretrial identification of him.

{¶ 4} In ruling on a motion to suppress, the trial court "assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. Retherford at 592. "Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard." Id.

{¶ 5} Detective Jeffrey Colvin of the Huber Heights Police Department was the sole witness at the suppression hearing. His testimony established the following facts.

{¶ 6} On November 17, 2018, Judy Owens was alone in her home when she heard her doorbell ring. Owens went to the door, but she did not recognize the individual and did not open the door. She then went to a bedroom window, watched the man go to and get into a silver car, and saw him "kind of wrestle around" in the car. Owens went back to her living room, where she was watching the Ohio State football game, and the doorbell rang again. Owens was a little slower getting up this time, and when she walked back to the hallway to go to the bedroom, the man was standing in the hallway inside her house. Owens asked him how he got in the house. The man raised his fist up and asked where her purse was. Owens walked to the kitchen and got money out of her purse, handed it to him, and he told her to go to the back bedroom and to wait ten minutes before coming out. The man left the house after receiving the money. The silver car was gone when Owens went back to the window to look. Owens immediately called the police.

{¶ 7} At approximately 12:37 p.m., police officers were dispatched to Owens's home on a report of an aggravated burglary. Owens relayed to the officers what had occurred, and she provided a physical description of the perpetrator to the responding officers.

{¶ 8} Detective Colvin followed up with Owens by telephone on November 19. During their conversation, Owens described the perpetrator. Colvin recalled the description as "black male, 20-ish" years old, "six-foot, 170 [pounds, and] short dreadlocks." Owens did not describe the perpetrator's clothing, but she indicated that he was neatly dressed. The description was similar to the one provided to the responding officers. Owens did not know the burglar and had never seen him before. Owens also told Colvin that the burglar had a four-door silver sedan. Colvin did not have a suspect at that time.

{¶ 9} After the burglary of Owens's home, a few more daytime burglaries occurred where the perpetrator was described similarly to the man Owens had described and was driving a silver or gray Honda. On November 29, the Huber Heights Police Department received information from the Montgomery County Sheriff's Office about a similarly-described individual who had acted suspiciously around a home in Harrison Township on November 26. The resident inside the home had taken a photo of the individual and the individual's Honda. The Sheriff's Office forwarded the two photos to the Huber Heights Police Department. Detective Colvin spent several days looking at records for early 2000s silver Hondas.

{¶ 10} On December 3 (16 days after the burglary of Owens's home), Detective Colvin went to Owens's residence to get a DNA standard from her to exclude her DNA from any evidence the police had obtained. While there, Colvin showed Owens the photographs he received from the Montgomery County Sheriff's Office of the Honda and of the individual. Colvin showed Owens the photo of the car first, and Owens responded that the photo showed the vehicle that had been outside her home. (Colvin acknowledged that the vehicle in the photo was a four-door, but Owens testified at the preliminary hearing in this case that the vehicle she saw was a two-door.) When Colvin showed Owens the photo of the man, Owens "became emotional." Colvin testified: "I think she teared up a little bit, and she [said], I'm 100 percent sure that's the one that was in my house."

{¶ 11} Detective Colvin testified that he did not have a name, birthdate, Social Security number, or any other information about the man in the photo. He stated that, if he had, he would have prepared a photo spread for Owens.

{¶ 12} The same day as Owens's identification, the police department posted the photos on social media seeking assistance from the public. Several people responded to the department that they had had similar experiences. In addition, on December 4, Detective Minnix from the Vandalia Police Department called to say that Green might the person that the Huber Heights Police Department was looking for. Vandalia was also experiencing daytime burglaries, and Minnix had identified Green as the person who had sold a particular stolen necklace.

{¶ 13} Detective Minnix was conducting surveillance of Green's apartment. Detective Colvin met Minnix there, and they obtained a search warrant for Green's apartment and vehicle.

{¶ 14} Green moved to suppress Owens's identification, which purported to identify him as the perpetrator of the aggravated burglary. Green claimed that Detective Colvin's single-photo identification process was improperly suggestive and created a "substantial risk of irreparable mistaken identification."

{¶ 15} After a hearing, the trial court overruled the motion. The trial court initially found that the presentation of the photographs was inherently, and thus unnecessarily, suggestive. The court nevertheless concluded that Owens's identification was reliable. The court reasoned, in part:

* * * Ms. Owens was able to closely view Green twice on the day of the alleged aggravated burglary: once when he initially rang the doorbell and then left, and then once when he actually entered Ms. Owens' house. Green was in Ms. Owens' hallway, pointing a gun at her. Ms. Owens retrieved her purse and money and gave the money to Green. She also observed him get into a silver car twice. Ms. Owens provided a description of the suspect to responding officers on the day of the offense, and then provided the same description to Det. Colvin two days later. She described the suspect as a black male in his twenties, who appeared to be about one hundred seventy pounds and who had short dreadlocks. The photograph of Green which Det. Colvin showed Ms. Owens was taken twelve days after the alleged aggravated burglary offense, and showed a black male with short dreadlocks. State's Ex. 1. Ms. Owens was shown this photograph on December 3, 2018, sixteen days after the offense was allegedly committed. When Ms. Owens' observed State's Ex. 1, she identified the individual as the person who had been in her house with 100% certainty. Thus, based on the totality of the circumstances, the Court finds that Ms. Owens' pretrial identification was reliable. As such, Green's constitutional rights were not violated by this identification.

{¶ 16} Green subsequently filed a motion for reconsideration, arguing that several of the court's factual findings were not supported by the suppression hearing testimony: (1) that Owens answered the door when the burglar first rang the doorbell, (2) that the burglar had a gun, and (3) that DNA from Green matched DNA obtained from Ms. Owens' house.

{¶ 17} The trial court overruled the motion to reconsider. It explained:

While the Court may have mistakenly understood Det. Colvin to testify that Green was in Ms. Owens' house with a gun in his hand, the fact that Green had a gun was not determinative in finding Ms. Owens' pre-trial identification to be reliable. Rather, the Court highlighted that Ms. Owens observed Green at her front door when he "initially rang the doorbell and then left" and then standing in front of her in the hallway of her house. Motion to Suppress Decision, p. 4. These two observations allowed Ms. Owens to consistently describe the suspect to both the responding officers and Det. Colvin as a black male in his twenties who appeared to be approximately one hundred seventy pounds and who had short dreadlocks. Id. The consistency of the descriptions, which

...