State v. Womack, Case No. 2020CA00096

2021 Ohio 1309

STATE OF OHIO Plaintiff-Appellee v. KEVIN J. WOMACK Defendant-Appellant

Case No. 2020CA00096

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

April 14, 2021

JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2019CR0614

JUDGMENT: AFFIRMED

APPEARANCES:

For Plaintiff-Appellee:

KYLE L. STONE

STARK COUNTY PROSECUTOR

LON'CHERIE D. BILLINGSLY

110 Central Plaza South, #510

Canton, OH 44702

For Defendant-Appellant:

BERNARD L. HUNT

2395 McGinty Road NW

North Canton, OH 44720

Delaney, J.

{¶1} Defendant-Appellant Kevin Womack appeals his November 18, 2019 conviction and sentence by the Stark County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

A Christmas Day Kidnapping and Burglary

{¶2} After dropping off a Christmas present to her uncle, M.B. returned to her home in Canton, Ohio, on December 25, 2018 at 1:30 p.m. M.B. was home alone. Around 2:00 p.m., she heard a knock at her front door and when she opened the front door, she saw a man holding a box wrapped in Christmas wrapping paper. She did not know the man, but he appeared to be in his forties, was wearing a hat, coat, and orange gloves, and had a salt-and-pepper beard.

{¶3} The man told M.B. he had a present to deliver to her and he needed her to sign for it. There was a note written on the package in black marker that said, "To [M.B.] from ?" When she opened the screen door, the man stepped through the door into the home. He closed the front door behind him. He asked M.B. if she was alone and M.B. said her roommate was home. M.B. became uncomfortable and she walked him back outside to the front porch. The man asked her again to sign for the present. M.B. went back into the home and wrote on a piece of paper, "No thank you, [M.B.]" to give to the man. When she handed him the note, M.B. tried to shut the door. The man pulled it open and shoved himself into the home.

{¶4} The man tried to grab M.B., and she fought with him. He said he had a gun, and he pulled a gun out of his pocket and put it up to her face. M.B. saw the gun had anorange tip and she did not think it was a real gun. The man hit M.B. in the face with the gun several times. As they were fighting, M.B. became aware of another person in the home. She could smell a burning cigarette and felt the presence of someone behind her. The person behind her either hit her or pulled her hoody over her head and pulled her arms behind her back. She was knocked to the ground, tied with a scarf, and held face down on the ground while someone sat on top of her. She thought the person sitting on her was the man at the front door.

{¶5} While she was face down on the ground, M.B. could hear someone walking through the house, looking for something. M.B. begged the people to let her go and leave her home. She heard the person in the background ask, "where is it" and she thought the person meant cash. She said it was in her purse. The person sounded like a man. Someone picked M.B. up and put her in a closet. She heard the closet door slammed shut and the couch dragged in front of the closet door.

{¶6} When she thought the people had left the home, M.B. forced her way out of the closet. She saw the living room was a mess. She saw the attic door was open when it was usually closed and a window in the attic was open. The back door was open. The wrapped Christmas present was on the floor by the couch. She had put $225 in cash on the kitchen table, and she saw it was missing. She had $80 in her purse and it was also gone. She called a friend for support and then called 911.

{¶7} M.B. sought medical treatment the next day, where was diagnosed with a sprained wrist and contusions.

DNA and a Lineup

{¶8} After M.B. called 911, Officer Jeffrey Weller, a detective with the City of Canton Police Department, responded to the scene. He observed that M.B.'s home was in disarray, that she had contusions on her face, and packing tape stuck in her hair. M.B. gave a description to the responding officers of the man who came through her door. She said it was a white male, in his forties, salt-and-pepper beard, under 200 pounds, and a height range of five foot seven to five foot nine. Det. Weller collected the Christmas present, the packing tape from M.B.'s hair, and a hat. The physical evidence was forwarded to the Bureau of Criminal Investigation for DNA analysis.

{¶9} Detective Michael Walker of the Canton Police Department was assigned to the case. During the investigation, Det. Walker learned from the BCI that swabs of the folds of the wrapping paper on the Christmas present produced a DNA profile from Defendant-Appellant Kevin Womack. BCI also obtained a DNA profile from the swabs of the packing tape, which was identified as Raffael Wheeler. Det. Walker located Womack and obtained a search warrant to take a mouth swab from Womack for a DNA standard. The DNA standard from Womack was compared to the DNA profile from the wrapping paper and the profiles were identical. Det. Walker could not locate Raffael Wheeler.

{¶10} Det. Walker contacted M.B. to ask if she recognized the names of Kevin Womack or Raffael Wheeler. M.B. said she was not familiar with either name. Det. Walker instructed M.B. not to investigate either name.

{¶11} Det. Walker asked M.B. to come to the Canton Police Department the next day to review a photo line-up. He prepared a photo array, and a blind administrator handled the viewing. In the photo packet, he included a photo of Womack and five otherphotos of individuals. Using a scale of one to five, five being the perpetrator without question, M.B. stated it was a five that she recognized the photo of Womack as the perpetrator. She looked through the photo lineup one time before making her identification.

{¶12} After M.B.'s identification, Det. Walker charged Womack and issued a warrant for his arrest.

The Criminal Proceedings

{¶13} On May 10, 2019, the Stark County Grand Jury indicted Defendant-Appellant on one count of Aggravated Burglary, a first-degree felony in violation of R.C. 2911.11(A)(1) and one count of Kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(2). Womack entered a plea of not guilty to the charges.

Motion to Suppress Identification Evidence

{¶14} On July 12, 2019, Womack filed a Motion to Suppress Identification Evidence. He contended the State did not comply with R.C. 2933.83, the codification of the process for photo lineups. In his motion, he argued that in the photo lineup, only Womack was wearing an orange jail uniform while the other individuals were wearing street clothes. He also argued that Det. Walker told M.B. the name of the suspect before the photo lineup. A hearing was held on the Motion to Suppress on July 23, 2019. The following evidence was presented at the hearing.

{¶15} On February 6, 2019, Womack was developed as a suspect after DNA connected him to the wrapping paper on the Christmas present. As part of his investigation, Det. Walker contacted M.B. and determined she did not know a personnamed Kevin Womack. He told M.B. not to attempt to look up Kevin Womack because it could taint the photo lineup scheduled for the next day.

{¶16} Det. Walker prepared the photo lineup packet. He used Womack's booking picture found in CJIS (Criminal Justice Information Services) as opposed to a photograph from the BMV. In the January 3, 2019 CJIS photo that Det. Walker selected, Womack was wearing an orange jail uniform. The photo only shows Womack's head and the collar of the shirt. In the photo, there were no identifying marks on the jail uniform other than the orange color. There were other photos of Womack in the CJIS system that did not show Womack wearing an orange jail uniform. There was an October 21, 2018 CJIS photo of Womack that was close in time to the crime and in which his appearance was similar to the January 3, 2019 photo, but Womack was not wearing an orange jail uniform. Det. Walker said he chose not to use the October 21, 2018 photo because of how Womack's eyes appeared in the photo: "You look at his eyes, and it's, it's something that, that you may have said then, 'Well, look at his eyes.' You're - it kind of draws you there, and we don't want that. We're trying to make them as normal as possible and as close as possible." (T. 46).

{¶17} For the remaining five pictures of individuals to be used in the photo lineup, Det. Walker used a combination of methods to choose the subjects. He chose subjects that looked similar to M.B.'s description of the man who came into her home on December 25, 2018 and subjects who looked similar to Womack, the current suspect in the case based on the DNA hit. The men in the five photos were not wearing orange jail uniforms.

{¶18} Womack argued it was suggestive for Det. Walker to use the photograph of Womack in the orange jail uniform when other pictures of Womack were available, andthe other subjects were not wearing orange jail uniforms. He filed a supportive brief after the hearing.

{¶19} On August 27, 2019, the trial court denied the Motion to Suppress.

Notice of Alibi

{¶20} On July 29, 2019, Womack filed a Notice of Alibi. He stated that at the time of the alleged offense, Womack was at an address located in Canton, Ohio.

Jury Trial

{¶21} The matter came on for a jury trial on November 4, 2019. Prior to trial, Womack requested the trial court include in the jury instruction for the affirmative defense of duress. (T. 8). The trial court stated that whether the affirmative defense would be permitted as a jury instruction would be based on the evidence presented at trial. (T. 9). Womack also indicated that he may testify in his own defense, but he had been advised and he understood that the issue of identification raised in his Motion to Suppress may be waived upon appeal or rendered moot if he exercised his right to testify. (T. 13).

{¶22} M.B....