[Cite as State v. Stubbs, 2020-Ohio-3464.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
ROCKY STUBBS                                 :       Case No. 2019CA0020
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2019CR0025




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 23, 2020




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTIE M. L. THORNSLEY                             APRIL F. CAMPBELL
318 Chestnut St.                                     545 Metro Place South
Coshocton, OH 43812                                  Suite 100
                                                     Dublin, OH 43017
Coshocton County, Case No. 2019CA0020                                                      2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant Rocky Stubbs appeals the August 7, 2019 decision of

the Coshocton County Court of Common Pleas denying his motion to suppress. Stubbs

further appeals the trial court's October 25, 2019 judgment of conviction and sentence.

Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 2} On January 25, 2019, Detective Tim Bethel of the Coshocton County

Sheriff's Department approached the trial court for two warrants following a 6-month

investigation first involving Charles Kirkpatrick, and in the final month, involving Stubbs.

Bethel sought a warrant for the residences of both Stubbs and Kirkpatrick.

       {¶ 3} Bethel's investigation began in July of 2018 using confidential informants to

purchase prescription pills from Kirkpatrick. Later in the investigation, Bethel was advised

by two different informants Kirkpatrick could get them cocaine from "Rocky" who

Kirkpatrick bragged had the highest quality cocaine.

       {¶ 4} The informants advised Bethel they had purchased cocaine through

Kirkpatrick in the past, with Kirkpatrick acting as the middleman. The informants were not

permitted to travel with Kirkpatrick to Stubbs' home, but rather had to wait at Kirkpatrick's

home until he returned with the informants' purchase.

       {¶ 5} On January 24, 2019, Bethel set up a controlled buy. For the transaction,

the informants were wired with audio recording devices and given $900 in buy money.

The informants and their car were searched for contraband and found free of the same.

Once at Kirkpatrick's home, in a turn from normal events, Kirkpatrick accepted a ride from

the informants to Stubbs' home, but he still required them to wait in the car. Officers were
Coshocton County, Case No. 2019CA0020                                                       3


stationed outside both Kirkpatrick's and Stubbs' home surveilling the operation with video

recording devices.

       {¶ 6} Officers observed Kirkpatrick entering Stubbs' home alone. He emerged

approximately five minutes later and gave the informants their cocaine. Kirkpatrick was

heard advising the informants "Rocky" was home alone, was bored, and had asked

Kirkpatrick to snort a few lines of cocaine with him.

       {¶ 7} Based on this investigation, on January 25, 2019, Detective Bethel

requested warrants to search the homes of Kirkpatrick and Stubbs.

       {¶ 8} The warrant for Stubbs' home was executed on January 29, 2019, following

a second controlled buy carried out in the same fashion as the first. Officers located both

large and small baggies of cocaine, scales, baggies, cell phones and cash.

       {¶ 9} On February 22, 2019, the Coshocton County Grand Jury returned a three-

count indictment charging Stubbs with two counts of trafficking in cocaine, felonies of the

third degree, and one count of trafficking in cocaine, a felony of the first degree. The first

degree felony trafficking also carried a major drug offender specification and three

forfeiture specifications; two for automobiles and one for United States currency all of

which were confiscated during a search of Stubbs' home.

       {¶ 10} Stubbs pled not guilty to the charge and on May 17, 2019, filed a motion to

suppress. On July 31, 2019 the court heard the arguments of the parties and the parties

submitted two joint exhibits. No witnesses were called by either party. Joint Exhibit 1 is a

copy of the affidavit, search warrant, and return on the warrant of Stubbs' home. Joint

Exhibit 2 is the recorded testimony of Detective Bethel taken during his request for the

warrants. On August 7, 2019, the trial court denied Stubbs' motion to suppress.
Coshocton County, Case No. 2019CA0020                                                 4


      {¶ 11} On October 21, 2019, Stubbs entered pleas of no contest to each count of

the indictment and its specifications. The trial court ordered Stubbs to serve 30 months

for count one, 30 months for count two, and 11 years for count three with the major drug

offender specification. The trial court ordered Stubbs to serve the sentences

consecutively.

      {¶ 12} Stubbs filed an appeal and the matter is now before this court for

consideration. He raises three assignments of error as follow:

                                            I

      {¶ 13} "THE TRIAL COURT SHOULD HAVE GRANTED STUBB'S MOTION TO

SUPPRESS: A. STUBBS'S WARRANT WAS UNSUPPORTED BY PROBABLE CAUSE:

THE AFFIANT DID NOT ESTABLISH THE RELIABILITY OF THE SOURCE OF THE

AFFIANT'S INFORMATION, AND THE AFFIANT DID NOT CORROBORATE

SOURCE'S INFORMATION THROUGH POLICE INVESTIGATION. B. STUBB'S

WARRANT WAS UNSUPPORTED BY PROBABLE CAUSE: THE ONLY STATEMENTS

ABOUT CRIMINAL CONDUCT BY STUBBS CAME THROUGH DOUBLE HEARSAY

FILTERED TO THE MAGISTRATE, WHICH NEITHER ESTABLISHED ITS TRUTH OR

THE RELIABILITY THEREOF. C. STUBB'S WARRANT WAS UNSUPPORTED BY

PROBABLE CAUSE: THERE IS AN INSUFFICIENT "NEXUS" BETWEEN STUBBS'

ALLEGED CRIMES, THE OBJECTS TO BE SEIZED, AND 332 LOCUST STREET."

                                           II

      {¶ 14} "THE GOOD FAITH EXCEPTION DOES NOT APPLY TO CURE THE

INSUFFICIENT SEARCH WARRANT IN STUBB'S CASE."

                                           III
Coshocton County, Case No. 2019CA0020                                                    5


      {¶ 15} "THE TRIAL COURT ERRED IN FAILING TO MERGE STUBB'S COCAINE

OFFENSES."




                                             I

      {¶ 16} In his first assignment of error, Stubbs argues the warrant to search his

home was unsupported by probable cause for three reasons 1) the affiant did not

establish the reliability of affiants' information and did not corroborate that information

through investigation; 2) the only statements regarding criminal conduct by Stubbs was

double hearsay, and; 3) there was an insufficient nexus between the alleged crimes,

objects to be seized, and the place to be searched. We disagree.

                                   Standard of Review

      {¶ 17} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



             "Appellate review of a motion to suppress presents a mixed question

             of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

             5372, 797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial

             court assumes the role of trier of fact and is therefore in the best

             position to resolve factual questions and evaluate the credibility of

             witnesses." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582

             N.E.2d 972 (1992). On appeal, we "must accept the trial court's

             findings of fact if they are supported by competent, credible
Coshocton County, Case No. 2019CA0020                                                         6


              evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437

              N.E.2d 583 (1982). Accepting those facts as true, we must then

              "independently determine as a matter of law, without deference to

              the conclusion of the trial court, whether the facts satisfy the

              applicable legal standard." Id.



       {¶ 18} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal."

                                       Probable Cause

       {¶ 19} In determining whether there is probable cause for the issuance of a

warrant, courts employ a “totality-of-the-circumstances” test. This requires the issuing

judge or magistrate “to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit * * * 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. George, 45 Ohio St.3d

325, 329 (1989), quoting, Illinois v. Gates, 462 U.S. 213, 238 103 S.Ct. 2317, 76 L.Ed2d

527 (1983).

       {¶ 20} In Gates, supra, the court elaborated upon the “fair probability” standard

applicable to the judge or magistrate's probable cause determination:



              “ * * * ‘[T]he term “probable cause,” according to its usual acceptation,

              means less than evidence which would justify condemnation * * *. It
Coshocton County, Case No. 2019CA0020                                                        7


              imports a seizure made under circumstances which warrant

              suspicion’ [quoting from Locke v. United States (1813), 11 U.S. 339,

              7 Cranch 339, 348, 3 L.Ed. 364]. More recently, we said that ‘the

              quanta * * * of proof’ appropriate in ordinary judicial proceedings are

              inapplicable to the decision to issue a warrant. Brinegar, 338 U.S., at

              173 [69 S.Ct. 1302, 93 L.Ed. 1879]. Finely tuned standards such as

              proof beyond a reasonable doubt or by a preponderance of the

              evidence, useful in formal trials, have no place in the magistrate's

              decision. * * * [I]t is clear that ‘only the probability, and not a prima

              facie showing, of criminal activity is the standard of probable cause.’

              Spinelli, 393 U.S., at 419 [89 S.Ct. 584, 21 L.Ed.2d 637]. See Model

              Code of Pre-Arraignment Procedure § 210.1(7) (Prop. Off. Draft

              1972); 1 W. LaFave, Search and Seizure § 3.2(e) (1978).”



       Illinois v. Gates, supra, at 235.



       {¶ 21} Accordingly,    the   standard for probable       cause    demands      only   a

demonstration that a fair probability of criminal activity exists, rather than a prima facie

demonstration of criminal activity. State v. George, 45 Ohio St.3d 325 329, 544 N.E.2d

640 (1989).

                             Hearsay and Informant Reliability

       {¶ 22} Hearsay may serve as the basis for the issuance of a warrant as long as

there is a substantial basis for crediting the hearsay. United States v. Ventresca, 380 U.S.
Coshocton County, Case No. 2019CA0020                                                       8


102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). In Aguilar v. Texas (1964), 378 U.S.

108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410,

89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court set forth a two-

pronged test to determine whether an informant's tip establishes probable cause to issue

of a warrant. Under that test, a magistrate must be informed of: (1) the basis of the

informants knowledge; and (2) sufficient facts to establish either the informant's veracity

or the reliability of the informant's information. Aguilar, at 114; Spinelli, at 413.

In Gates, however, the Court abandoned the Aguilar-Spinelli test in favor of a traditional

“totality of the circumstances” test for probable cause. Gates at 238. Nonetheless, the

Court specifically found that those two elements remain “ * * * relevant considerations in

the totality of circumstances analysis that traditionally has guided probable cause

determinations: a deficiency in one may be compensated for, in determining the overall

reliability of a tip, by a strong showing as to the other, or by some other indicia of

reliability.” Id. at 233. (Citations omitted.) Thus, the elements of the Aguilar-Spinelli test

remain relevant.

                        The Court Properly Found Probable Cause

       {¶ 23} We have reviewed the record, including the recorded testimony of Detective

Bethel. While Stubbs accurately argues the affidavit did not outline the reliability of the

informants, and that statements regarding criminal conduct were hearsay, these facts do

not invalidate the warrant under the facts of this case.

       {¶ 24} First, we find the statements by the informants to Bethel – that they had in

the past purchased cocaine from Stubbs using Kirkpatrick as a middle man – were
Coshocton County, Case No. 2019CA0020                                                        9


established as credible through and corroborated by independent police investigation

during the January 24, 2019 controlled buy.

       {¶ 25} The informant's knowledge began with Kirkpatrick and led to Stubbs. During

his testimony to obtain the warrant for Stubbs' home Detective Bethel stated:



               These particular informants advised that Kirkpatrick sold cocaine

              and said in the past the informant had gone to Mr. Kirkpatrick and

              Mr. Kirkpatrick would go to a guy he called Rock who lived behind

              the sheriff's office on Locust Street. The informants said Mr.

              Kirkpatrick bragged about the fact that Rocky's cocaine was better

              than anyone else's. * * * Then yesterday I set up a $900 purchase.

              In the past Mr. Kirkpatrick would not allow the informants to ride with

              him to Rocky's house. But yesterday he accepted a ride to Rocky's.

Joint Exhibit 2.



       {¶ 26} Bethel went on to explain Kirkpatrick directed the informants to a home on

Locust Street where Bethel had determined Stubbs resided, and which officers had under

surveillance. Officers observed Kirkpatrick enter the residence alone and return five

minutes later. Kirkpatrick then turned the cocaine over to the informants. He further told

them Rocky was home alone, bored, snorting cocaine, and had Kirkpatrick snort a few

lines with him.

       {¶ 27} This controlled buy provided sufficient facts to establish the reliability of the

informants' knowledge. The buy played out exactly as the informants had stated it would
Coshocton County, Case No. 2019CA0020                                                      10


with the exception of Kirkpatrick accepting a ride to Stubbs' home. For the same reason,

it established Kirkpatrick's reliability as an unwitting informant.

       {¶ 28} Further, the affidavit stated the informants and their car were searched

before the controlled buy and no contraband was found. It can therefore be inferred the

cocaine recovered by officers after the buy did not originate with the informants. So too,

Kirkpatrick did not provide the informants with cocaine until he exited Stubbs' residence.

From these facts it may be inferred Kirkpatrick did not have cocaine before entering

Stubbs's home, as otherwise he would have sold it to the informants himself. Additionally

these facts establish a nexus between Stubbs' crimes and the objects to be seized, further

bolster Kirkpatrick's reliability, and create a substantial basis for crediting the hearsay.

       {¶ 29} For the forgoing reasons, we find no error in the trial court's probable cause

determination. Accordingly, the first assignment of error is overruled.

                                               II

       {¶ 30} Stubbs next argues the good faith exception does not apply to cure the

insufficient search warrant in this matter. Given our resolution of the first assignment of

error, however, we find it unnecessary to address Stubbs' second assignment of error.

                                              III

       {¶ 31} In his final assignment of error, Stubbs argues the trial court erred when it

failed to merge his cocaine offenses. We disagree.

       {¶ 32} R.C. 2941.25 governs multiple counts and states the following:



              (A) Where the same conduct by defendant can be construed to

              constitute two or more allied offenses of similar import, the indictment
Coshocton County, Case No. 2019CA0020                                                    11


             or information may contain counts for all such offenses, but the

             defendant may be convicted of only one.

             (B) Where the defendant's conduct constitutes two or more offenses

             of dissimilar import, or where his conduct results in two or more

             offenses of the same or similar kind committed separately or with a

             separate animus as to each, the indictment or information may

             contain counts for all such offenses, and the defendant may be

             convicted of all of them.



      {¶ 33} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held the following:



             1. In determining whether offenses are allied offenses of similar

             import within the meaning of R.C. 2941.25, courts must evaluate

             three separate factors -- the conduct, the animus, and the import.

             2. Two or more offenses of dissimilar import exist within the meaning

             of R.C. 2941.25(B) when the defendant's conduct constitutes

             offenses involving separate victims or if the harm that results from

             each offense is separate and identifiable.

             3. Under R.C. 2941.25(B), a defendant whose conduct supports

             multiple offenses may be convicted of all the offenses if any one of

             the following is true: (1) the conduct constitutes offenses of dissimilar

             import, (2) the conduct shows that the offenses were committed
Coshocton County, Case No. 2019CA0020                                                    12


              separately, or (3) the conduct shows that the offenses were

              committed with separate animus.



      {¶ 34} The Ruff court explained at ¶ 26:



              At its heart, the allied-offense analysis is dependent upon the facts

              of a case because R.C. 2941.25 focuses on the defendant's conduct.

              The evidence at trial or during a plea or sentencing hearing will reveal

              whether the offenses have similar import.        When a defendant's

              conduct victimizes more than one person, the harm for each person

              is separate and distinct, and therefore, the defendant can be

              convicted of multiple counts.      Also, a defendant's conduct that

              constitutes two or more offenses against a single victim can support

              multiple convictions if the harm that results from each offense is

              separate and identifiable from the harm of the other offense. We

              therefore hold that two or more offenses of dissimilar import exist

              within the meaning of R.C. 2941.25(B) when the defendant's conduct

              constitutes offenses involving separate victims or if the harm that

              results from each offense is separate and identifiable.



       {¶ 35} Stubbs was charged with three counts of trafficking in cocaine. He argues

that because all of the cocaine was found in one toolbox during the search of his home,

all three counts should merge. Specifically, he argues "* * * Stubbs's act was singular: he
Coshocton County, Case No. 2019CA0020                                                    13


had cocaine stashed in a toolbox." Appellant's brief at 16. According to the record in this

matter, however, the first two counts of the indictment stemmed from two separate

controlled buys, rather than from from anything found in Stubbs' home.

       {¶ 36} Counts one and two charged Stubbs under the same code sections, R.C.

2925.03(A)(1) and R.C. 2925.03(C)(4)(d). Count one was based on a controlled buy

which took place on January 24, 2019, while count two was a result of a controlled buy

which took place on January 29, 2019, shortly before Stubbs was served with the search

warrant. State's exhibit 1, indictment.

       {¶ 37} Count three charged Stubbs with trafficking under R.C. 2925.03(A)(2) and

R.C. 2925.03(C)(4). This count charged Stubbs with preparing for shipment, transporting,

delivering, preparing for distribution, or distributing cocaine. Count three arose as the

result of the search of Stubbs' home which yielded evidence indicative of preparing

cocaine for distribution -- digital scales, baggies, various containers with white residue,

200 grams of cocaine in a toolbox, 9 cell phones, and a large sum of cash. Indictment,

search warrant return.

       {¶ 38} Stubbs' crimes therefore were committed separately, on different dates, or

involved different conduct. Accordingly, the trial court did not err in failing to merge the

charges.

       {¶ 39} The final assignment of error is overruled.
Coshocton County, Case No. 2019CA0020                                            14


      {¶ 40} The judgment of the Coshocton County Court of Common Pleas is affirmed.


By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.

EEW/rw
