[Cite as State v. Swift, 2014-Ohio-2004.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2013-08-161

                                                  :             OPINION
    - vs -                                                       5/12/2014
                                                  :

JOHN E. SWIFT,                                    :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-04-0631



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee

Michael K. Allen & Associates, Joshua A. Engel, 5181 Natorp Blvd., Suite 210, Mason, Ohio
45040, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, John Swift, appeals his conviction and sentence in the

Butler County Court of Common Pleas for illegal cultivation of marijuana, possession of

L.S.D., possession of marijuana, and aggravated possession of drugs. For the reasons

detailed below, we affirm in part and reverse in part the judgment of the trial court and

remand this matter for further proceedings.
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       {¶ 2} The West Chester Police Department received complaints that Swift was

involved in the cultivation of marijuana at his residence at 8822 Cox Road, in the township of

West Chester, in Butler County, Ohio. The complaints were referred to Officer Jason Flick of

the West Chester Police Department who investigated the matter and supplied the factual

information pertinent to obtaining a search warrant for Swift's residence.

       {¶ 3} In his affidavit in support of the search warrant, Officer Flick averred, inter alia,

that he had received complaints from a concerned neighbor relating to Swift's drug activity.

As a result, Officer Flick testified that he conducted a trash pull on Swift's residence and

discovered two large marijuana stems cut in a manner consistent with the cultivation of

marijuana. In addition, Officer Flick averred that he conducted an energy-usage analysis by

comparing the energy-usage records of Swift's property with two neighboring properties of

similar size, design, and year of manufacture. Based on this analysis, Officer Flick testified

that Swift used approximately 350 percent more energy than the two comparable properties,

which is often an indicator of marijuana cultivation. On February 12, 2013, a search warrant

was authorized on Swift's residence. A search of Swift's residence uncovered drugs and

evidence of marijuana cultivation leading to the charges pertinent to this appeal.

       {¶ 4} On June 5, 2013, Swift was indicted on one count of illegal cultivation of

marijuana in violation of R.C. 2925.04, a second-degree felony; one count of possession of

L.S.D. in violation of R.C. 2925.11, a third-degree felony; possession of marijuana in violation

of R.C. 2925.11, a fifth-degree felony; and one count of aggravated possession of drugs in

violation of R.C. 2925.11, a fifth-degree felony. Swift pled not guilty to the charges.

       {¶ 5} On June 12, 2013, Swift moved to suppress the evidence seized from his

residence. Following an evidentiary hearing, the trial court denied Swift's motion to suppress.

Thereafter, Swift changed his plea and entered a plea of no contest to the charges. The trial

court found Swift guilty as charged and sentenced him to a four-year prison term for his
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conviction on the charge of illegal cultivation of marijuana. Swift was also sentenced to

concurrent prison terms of 18 months on each remaining count of possession of L.S.D.,

possession of marijuana, and aggravated possession of drugs.                The trial court also

suspended Swift's driver's license for five years. Swift now appeals, raising two assignments

of error for review:

       {¶ 6} Assignment of Error No.1:

       {¶ 7} THE TRIAL COURT COMMITTED ERROR BY DENYING THE MOTION TO

SUPPRESS THE EVIDENCE SEIZED AS A RESULT OF A SEARCH WARRANT ISSUED

WITHOUT PROBABLE CAUSE.

       {¶ 8} In his first assignment of error, Swift argues the trial court erred by denying his

motion to suppress. Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-

4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. "When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position to

weigh the evidence in order to resolve factual questions and evaluate witness credibility."

State v. Harsh, 12th Dist. Madison No. CA2013-07-025, 2014-Ohio-251, ¶ 9; State v.

Durham, 12th Dist. Warren No. 2013-03-023, 2013-Ohio-4764, ¶ 14.

       {¶ 9} When reviewing the denial of a motion to suppress, this court is bound to

accept the trial court's findings of fact if they are supported by competent, credible evidence.

Durham at ¶ 14; Gray at ¶ 15. "An appellate court, however, independently reviews the trial

court's legal conclusions based on those facts and determines, without deference to the trial

court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard."

Harsh at ¶ 10.

       {¶ 10} Initially, Swift asserts the state put forth only one argument at the suppression

hearing and therefore all other arguments with respect to the validity of the search warrant
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are waived. In his brief, Swift alleges the state relied solely on State v. Akers, 12th Dist.

Butler No. CA2007-07-063, 2008-Ohio-4164, to support the validity of the search warrant.

Therefore, Swift relies on a case from the Second District Court of Appeals, State v. Jones,

2d Dist. Montgomery No. 23920, 2010-Ohio-5522, for the proposition that the state has

waived all other arguments with respect to the validity of the search warrant except those

consistent with Akers "for the narrow proposition that a small amount of marijuana in a

defendant's trash is sufficient, by itself, to establish probable cause for magistrate [sic] to

issue a search warrant."

       {¶ 11} In Akers, this court found that probable cause existed to justify the search of a

residence after police conducted a trash pull on the residence of individuals suspected of

drug trafficking. Akers at ¶ 22. The trash pull resulted in the discovery of a sandwich bag

containing marijuana remains, as well as junk mail linking the suspects to the trash bag. Id.

The discovery of the marijuana partially corroborated information that police had received

indicating that the homeowners were involved in drug trafficking. Id. After reviewing the

record, this court affirmed the validity of the search warrant after concluding there was "a

substantial basis for concluding that probable cause existed" based upon the existence of the

marijuana discovered in the suspects' trash. Id. at ¶ 26.

       {¶ 12} Based on our review of the record, we find the state did not waive any

argument with respect to the validity of the search warrant. While the state did place great

emphasis on the fact that the search was supported by probable cause based on the

discovery of two large marijuana stems cut in a pattern consistent with cultivation, the record

clearly indicates the state referenced multiple grounds for obtaining the search warrant in its

written brief and at the suppression hearing. The state's written brief in opposition to Swift's

motion to suppress clearly argues, based on the totality of the circumstances, that

information received from concerned neighbors, high energy use, as well as the trash-pull
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evidence supported a finding of probable cause. Moreover, the record reflects the state did

orally make the arguments regarding electricity usage and the good-faith exception before

the trial court.

       {¶ 13} In addition, we also note that Swift does not argue that he was prejudiced as a

result of the use of the energy-use records. In fact, the record refutes any notion of undue

surprise or prejudice with regard to the energy-use records. For instance, the record reflects

that Swift specifically raised issues with the reliability of the energy-use records referenced in

Officer Flick's affidavit at the hearing on the motion to suppress when he presented the

testimony of Kenneth Rose, one of the homeowner's whose energy use was monitored and

used to compare Swift's energy consumption in the energy-usage analysis. Accordingly, we

find the state did not waive any argument with respect to the validity of the search warrant.

       {¶ 14} Swift next argues the search warrant was insufficient to establish probable

cause and the magistrate did not have a substantial basis for concluding that probable cause

existed. In his brief, Swift separately discusses information contained within the affidavit and

concludes the trial court erred in denying his motion to suppress. Specifically, Swift's brief

references (1) the trash pull of Swift's residence yielding marijuana, (2) the energy use

evidence including Swift's high energy usage, and (3) the inclusion of allegedly stale

information in Officer Flick's affidavit.

       {¶ 15} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures and provides that "* * * no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized." State v. Dubose, 12th Dist.

Clermont No. CA2008-01-007, 2008-Ohio-5933, ¶ 11; State v. Quinn, 12th Dist. Butler No.

CA2011-06-116, 2012-Ohio-3123, ¶ 12.

       {¶ 16} "A neutral and detached judge or magistrate may issue a search warrant only
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upon a finding of probable cause." State v. Ingold, 10th Dist. No. 07AP-648, 2008-Ohio-

2303, ¶ 17; Crim.R. 41(C). In determining whether a search warrant is supported by

probable cause, the issuing judge is confined to the averments contained in the supporting

affidavit. Id. The affidavit must "name or describe the person to be searched or particularly

describe the place to be searched, name or describe the property to be searched for and

seized, state substantially the offense in relation thereto, and state the factual basis for the

affiant's belief that such property is there located." Crim.R. 41(C).

       {¶ 17} "In determining whether probable cause exists for the issuance of a warrant,

courts employ a 'totality-of-the-circumstances' test, requiring an issuing judge 'to make a

practical, common-sense decision whether, given all the circumstances set forth in the

affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a crime will be

found in a particular place.'" State v. Landis, 12th Dist. Butler No. CA2005-10-428, 2006-

Ohio-3538, ¶ 12, quoting State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the

syllabus; Akers, 2008-Ohio-4164 at ¶ 13. Evidence that is obtained in violation of the Fourth

Amendment is subject to exclusion. Quinn at ¶ 21; Dubose at ¶ 11-12.

       {¶ 18} When reviewing the decision to issue a warrant, neither a trial court nor an

appellate court will conduct a de novo determination as to whether the affidavit provided

sufficient probable cause. Quinn at ¶ 21. Rather, the reviewing court need only ensure that

the issuing judge had a substantial basis for concluding that the probable cause existed

based on the information contained in the four corners of the affidavit filed in support of the

warrant. Id.; Akers at ¶ 14. According to Crim.R. 41(C), "the finding of probable cause may

be based upon hearsay in whole or in part, provided there is a substantial basis for believing

the source of the hearsay to be credible and for believing that there is a factual basis for the

information furnished." State v. Cobb, 12th Dist. Butler No. CA2007-06-153, 2008-Ohio-
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5210, ¶ 23.

       {¶ 19} Based on our review of the record, we find the trial court did not err in denying

Swift's motion to suppress. In the present case, the affidavit in support of the search warrant

contained all of the required information and was supported by probable cause. In his

affidavit, Officer Flick testified that he received information from a concerned neighbor

regarding Swift's drug activity. As a result Officer Flick averred that he conducted a trash pull

and discovered two large marijuana stems clipped in a manner consistent with someone

cultivating hydroponic marijuana. During the oral hearing on the motion to suppress Officer

Flick further testified that he attached two photos of the marijuana stems discovered in Swift's

trash and explained:

              The reason that I included that picture and what I attempted to
              reference in that paragraph was the significance of those specific
              marijuana stems that I located. Based on previous investigations
              that I had done on it, so they're a standard investigative tool for
              us to conduct trash pulls. On any type of narcotic complaint,
              typically when we do recover marijuana or marijuana shake, it's
              smaller pieces of broken stems of just small pieces of shake
              which would be broken leaves or broken parts of the bud. I found
              it very significant this specific stem, the fact that it was clipped
              very distinctively slipped on the ends where it appeared to be
              clipped directly off of the plant itself.

              In my experience typically a customer who purchases marijuana
              is not going to want that specific portion of the marijuana plant.
              They're going to want the buds that has the highest THC content.
              So a marijuana smoker is typically not going to have such large
              portions of the stem. So I found that to be very significant and
              very indicative of someone who'd be cultivating and grooming
              marijuana versus specifically someone who's relegated to only
              smoking.

As this court previously acknowledged in Akers, "[c]ourts in foreign jurisdictions that have

faced situations similar to the one here have found the existence of marijuana or cocaine

residue to be sufficient evidence, standing alone, to provide probable cause to issue a search

warrant." Akers at ¶ 24. Therefore, the evidence obtained as a result of the trash pull is


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strong evidence, in itself, to the determination of probable cause.

       {¶ 20} However, in addition to the information concerning the trash pull and discovery

of marijuana stems, Officer Flick also testified that he conducted an investigation of Swift's

energy usage. State v. Thomas, 10th Dist. Franklin No. 12AP-928, 2014-Ohio-1489, ¶ 14

(electricity use data is a relevant factor for purposes of probable cause); see also State v.

Leibold, 2d Dist. Montgomery No. 25124, 2013-Ohio-1371, ¶ 24; State v. Gantz, 106 Ohio

App.3d 27, 34-36 (10th Dist.1995). In his affidavit, Officer Flick stated that high electricity

consumption records are one key indicator of a marijuana grow operation because of the

high levels of energy needed to power the lights to grow the marijuana. To determine Swift's

energy usage, Officer Flick stated that he issued a subpoena to Duke Energy for the account

registered to Swift's residence and compared Swift's energy usage with two neighboring

properties of similar size and design. The energy-use records obtained covered a period of

16 months between September 1, 2011 and January 17, 2013. Based on these records,

Officer Flick testified that Swift's residence consumed approximately 350 percent more

energy than the other properties. Furthermore, Officer Flick also testified that the energy

account for Swift's residence was registered to the name of Swift's sister-in-law, which Officer

Flick stated is typical for persons involved in drug related activities to avoid detection by law

enforcement.

       {¶ 21} Although Swift introduced evidence that one of the properties used in the

energy use comparison was vacant during the winter months, we note that the energy-use

comparison was conducted over a 16-month period and more than one house was used as a

method of comparing Swift's energy usage. After analyzing that data Officer Flick testified

that Swift's residence averaged far more energy consumption per month than either




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property.1 Furthermore, Officer Flick testified that he had no knowledge that the home was

empty during the winter months. Indeed, the record clearly indicates that Officer Flick took

appropriate care to find suitable homes to compare Swift's electricity usage. For example,

Officer Flick testified that he conducted searches of each property's dimensions, performed

examinations of the year of each home's construction, and also conducted a drive-by of each

residence to ensure that there were no other structures on the property, such as a pool, that

might affect the reliability of the energy records.

        {¶ 22} Accordingly, we find the trial court did not err in denying Swift's motion to

suppress. The evidence presented by Officer Flick, when considered in the totality of the

circumstances, was sufficient to support a finding of probable cause. Officer Flick's affidavit

included information concerning the trash pull, which yielded multiple stems of marijuana cut

in a manner consistent with cultivation, evidence of high energy usage in comparison to

similar residences, as well as other background information involving drug activity including

the observations of concerned neighbors. Therefore, we find the issuing judge had a

substantial basis for concluding that probable cause existed based on the information

contained in Officer Flick's affidavit.

        {¶ 23} Nevertheless, Swift further argues that Officer Flick's affidavit does not support

a finding of probable cause because the affidavit allegedly contains stale information.

Specifically, Swift argues the following information was improper: (1) information regarding a

prior search of Swift's residence in 2006; (2) an account of a prior incident in 2010 involving

an unknown odor; (3) a prior report of energy-use records from 2011; (4) an incident involving

Swift's son who was cited for marijuana possession four months before the issuance of the

search warrant; and (5) a complaint of short-term traffic in the area approximately four



1. In his affidavit, Officer Flick noted that Swift's residence averaged $355.47 worth of energy consumption each
month, compared to $102.71 and $103.36 per month for the remaining two properties.
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months before the issuance of the search warrant.

       {¶ 24} Swift is correct in noting that "an affidavit for a search warrant must present

timely information." State v. Young, 12th Dist. Clermont No. CA2005-08-074, 2006-Ohio-

1784, ¶ 23. However, as this court has previously acknowledged "no arbitrary time limit

dictates when information becomes stale." Id.; State v. Prater, 12th Dist. Warren No.

CA2001-12-114, 2002-Ohio-4487, ¶ 12. "Furthermore, information from an informant that is

otherwise stale may be refreshed if the affidavit contains recent information that corroborates

otherwise stale information." United States v. Thomas, 605 F.3d 300, 310 (6th Cir.2010),

quoting United States v. Spikes, 158 F.3d 913, 924 (6th Cir.1998) (recent electricity use

records refreshed eight-month-old tip by an anonymous informant that the defendant was

growing marijuana).

       {¶ 25} As previously noted, the affidavit supplied by Officer Flick supporting probable

cause included pertinent information such as complaints from concerned neighbors, the trash

pull yielding two large marijuana stems cut in a manner consistent with cultivation, as well as

the records indicating high energy usage. In addition, Officer Flick also included other

information that he was aware of regarding prior investigations of Swift. During the hearing

on the motion to suppress, Officer Flick testified as to his reasons for including that

information:

               My training would be that the stale information would not
               necessarily be relevant but that doesn't mean that we can't
               include it. I like to include both information that would be for and
               against the Defendant because I want to make sure that the
               Judge is aware of all the relevant facts and circumstances so
               that he can make an informed decision. I don't want him to be
               surprised by some fact that might come up later that he was
               unaware of.

Accordingly, while some of the information contained in the affidavit may have contained

stale information not necessarily relevant to the determination of probable cause, we find


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Swift's argument in support of his motion to suppress is without merit. Based on the "totality

of the circumstances," Officer Flick's affidavit was supported by probable cause even if some

facts, taken independently, i.e., the allegedly stale information, would not in itself support a

finding of probable cause. See, e.g., Akers, 2008-Ohio-4161 at ¶ 20; Young, 2006-Ohio-

1784 at ¶ 26 ("[p]robable cause is the sum total of layers of information * * *. We weigh not

individual layers but the 'laminated' total").

         {¶ 26} In conclusion, we find the trial court did not err in denying Swift's motion to

suppress. The issuing judge had a substantial basis for concluding that probable cause

existed based on the information contained in Officer Flick's affidavit, which included

complaints made by concerned neighbors, evidence concerning the trash pull yielding two

distinctly cut marijuana stems, as well as the evidence regarding Swift's high energy usage.

Therefore, Swift's arguments to the contrary are without merit and Swift's first assignment of

error is overruled.

         {¶ 27} Assignment of Error No.2:

         {¶ 28} THE TRIAL COURT IMPOSED IMPROPER SENTENCES FOR COUNTS III

AND IV OF THE INDICTMENT.

         {¶ 29} In his second assignment of error, Swift contests the trial court's sentencing

decision with respect to counts three and four in the indictment, possession of marijuana and

aggravated possession of drugs. The state concedes the trial court's imposition of an 18-

month prison term for each offense was outside of the permissible statutory range and

therefore should be vacated. Therefore, we find Swift's second assignment of error is well-

taken.

         {¶ 30} As noted in State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-

Ohio-3315, the standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony

sentences. Id. at ¶ 6; State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-Ohio-
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                                                                       Butler CA2013-08-161

5669, ¶ 9. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court’s

sentencing decision, "[t]he appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing." State v. Olvera, 12th Dist. Butler No.

CA2012-10-199, 2013-Ohio-3992, ¶ 8; State v. Pearce, 12th Dist. Clermont No. CA2013-01-

001, 2013-Ohio-3484, ¶ 24.

       {¶ 31} An appellate court may take any action authorized under R.C. 2953.08(G)(2)

only if the court "clearly and convincingly finds" either: (1) "the record does not support the

sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or

(C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if

any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law." Crawford at ¶ 7;

Pearce at ¶ 25. A sentence is not clearly and convincingly contrary to law where the record

supports the trial court's findings under R.C. 2929.14(C)(4) and where the trial court

considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly applies postrelease control, and sentences Swift within the permissible

statutory range. Olvera at ¶ 8; State v. Sturgill, 12th Dist. Clermont Nos. CA2013-01-002,

CA2013-01-003, 2013-Ohio-4648, ¶ 37.

       {¶ 32} In the present case, the trial court imposed a prison term of 18 months for

possession of marijuana and aggravated possession of drugs to be served concurrently with

an 18-month sentence for possession of L.S.D. and a four-year sentence for illegal cultivation

of marijuana. However, Swift's convictions for possession of marijuana and aggravated

possession of drugs are both fifth-degree felonies. A fifth-degree felony is punishable by a

prison term of six, seven, eight, nine, ten, 11, or 12 months. R.C. 2929.14(A)(5); R.C.

2925.11. Therefore, the trial court's imposition of an 18-month sentence for possession of

marijuana and aggravated possession of drugs, both fifth-degree felonies, was outside the
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permissible statutory range and thus contrary to law. Accordingly, Swift's second assignment

of error is sustained.

       {¶ 33} Judgment affirmed in part, reversed in part, and cause remanded to the trial

court for further proceedings consistent with this Opinion.


       HENDRICKSON and M. POWELL, JJ., concur.




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