[Cite as State v. Fairfield, 2012-Ohio-5060.]




                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 97466


                                        STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                MATTHEW FAIRFIELD
                                                        DEFENDANT-APPELLANT




                                JUDGMENT:
                            AFFIRMED IN PART;
                      REVERSED IN PART AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-543012

               BEFORE:           Blackmon, A.J., Stewart, J., and Boyle, J.

               RELEASED AND JOURNALIZED:                    November 1, 2012
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Daniel M. Kasaris
Mark J. Mahoney
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Appellant Matthew Fairfield (“Fairfield”) appeals his convictions for

unlawful possession of a dangerous ordnance, possession of criminal tools, failure to

secure a dangerous ordnance, and receiving stolen property, and assigns the following

errors for our review:

       I. The trial court erred in overruling appellant’s motion to suppress
       evidence.

       II. The trial court erred in sentencing appellant to sixteen consecutive
       sentences.

       III. The [trial] court erred in failing to merge allied offenses for
       purposes of sentencing.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

denial of Fairfield’s motion to suppress and reverse as to the trial court’s failure to merge

allied offenses, and remand for further proceedings. The apposite facts follow.

                                           Facts

       {¶3} The Cuyahoga County Grand Jury indicted Fairfield on 97 counts. The

charges included 18 counts of unlawful possession of dangerous ordnance, 23 counts of

receiving stolen property, 23 counts of possession of criminal tools, 10 counts of failure

to secure dangerous ordnance, one count of perjury, and 21 counts of pandering obscenity

involving child pornography. The pandering obscenity and perjury counts were severed

from the other counts.
       {¶4} Fairfield filed a motion to suppress regarding searches that occurred at two

residences: one on Pawnee Road in Cleveland, Ohio, and one on Louis1 Drive in North

Olmsted, Ohio. At the suppression hearing, the evidence showed that in the fall of 2009,

Fairfield’s wife2 was being investigated by the Bureau of Criminal Investigation (“BCI”)

of the Ohio Attorney General’s office regarding her part in a mortgage fraud scheme.

She provided information regarding the mortgage fraud to Agent Arvin E. Clar of the

BCI. The information was later determined to be reliable and resulted in the arrest of

several individuals.       The wife entered a guilty plea in the federal court for her

participation in the fraud.

       {¶5} The BCI interviewed her again in the spring of 2010. At that time, she and

Fairfield were separated, and Fairfield was living in the marital home located on Louis

Drive. She told the agents that her husband had explosives and weapons at the marital

home and also at a home on Pawnee Road owned by Martin Engeland. According to

the CRI-wife, Engeland lived at the home with Tim Mayhugh.3              Fairfield allegedly stole

the items from the U.S. government while he was in the army working with the Combat

Engineers Unit. The CRI-wife also told the officers that Fairfield was convicted in 2009




      The address has also been spelled as “Lewis” Drive throughout the record.
       1

We will use the spelling “Louis” as it was spelled in the search warrant.
       2
        Throughout the opinion Fairfield’s wife will be referred to as “CRI-wife” to denote that she
was the confidential informant.

       The name has also been spelled as “Mayhew.” However, we will use the
       3

spelling “Mayhugh” as it was spelled in the search warrant.
for carrying a concealed weapon and, as a result, he moved the explosives and weapons

to the Pawnee Road address.

       {¶6} Based on the evidence provided by the CRI-wife, the agents conducted

surveillance at the Pawnee address and verified that Engeland and Mayhugh lived at the

home. They also verified that Fairfield had prior military training with explosives, lived

at the Louis Drive address in North Olmsted, and had a prior carrying a concealed

weapon conviction. After independently verifying this information, Agent Clar obtained

a search warrant for the Pawnee Road address.

       {¶7} When the agents executed the warrant at the Pawnee Road address,

Engeland was present along with Mayhugh. The agents recovered the following explosive

devices: detonation cords, blasting caps, igniters, booby trap devices, and an actuator.4

While at the Pawnee address, Mayhugh informed the agents that additional explosive

devices were located at the Louis Drive home. He told the agents that he had seen

Fairfield use napalm and that Fairfield told him he had made it.

       {¶8} After concluding the search at the Pawnee address, Agent Clar obtained a

search warrant to search the Louis Drive address. Upon executing the warrant, the

agents recovered napalm, two explosive devices called shock tubes, one with a blasting

cap attached, and ammunition.

       {¶9} Based on the evidence presented, the trial court denied Fairfield’s motion to

suppress.   Thereafter, Fairfield entered a plea of no contest to numerous counts of


       Assault rifles were also retrieved from the premises, but the charges related
       4

to the guns were later dismissed because it was not illegal for Fairfield to possess
them.
unlawful possession of a dangerous ordnance, possession of criminal tools, receiving

stolen property, and failure to secure a dangerous ordnance. The court merged some of

the counts after concluding they were allied offenses. The trial court sentenced Fairfield

to a total aggregate sentence of 16 years in prison.

                                    Motion to Suppress

       {¶10} In his first assigned error, Fairfield argues the trial court erred by denying

his motion to suppress. Specifically, he argues that the search warrants were based on

false and misleading information, his CRI-wife was not a credible informant, and she was

prevented by spousal privilege from giving information to the police.

       {¶11}    Fairfield does not have standing to contest the search at the Pawnee

address where most of the explosive devices were recovered. He did not reside at or own

the house; therefore, he had no right to privacy regarding the items stored there. State v.

Dennis, 79 Ohio St.3d 421, 1997-Ohio-372, 683 N.E.2d 1096.               At oral argument,

Fairfield’s counsel for the first time argued that the trunk that contained the illegal items

at the Pawnee address was locked; however, there was no evidence at the suppression

hearing that the items were retrieved from a “locked” trunk.

       {¶12} Fairfield lived at the Louis Drive address; therefore, he has standing to

contest that search.      The Fourth Amendment to the United States Constitution

guarantees people the right to be free from unreasonable searches and seizures and

provides that no warrants shall issue but upon probable cause.            In reviewing the

sufficiency of probable cause in an affidavit submitted in support of a search warrant, the

duty of the reviewing court is to determine whether the issuing judge had a substantial
basis to conclude that probable cause existed. State v. George, 45 Ohio St.3d 325, 544

N.E.2d 640 (1989), paragraph two of the syllabus, following Illinois v. Gates, 462 U.S.

213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Neither a trial court nor an

appellate court should substitute its judgment for that of the issuing magistrate by

conducting a de novo review. Id.

      {¶13} In making the determination of whether there was a substantial basis to

conclude that probable cause existed, the reviewing court must 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. Id. at paragraph one of the syllabus. In conducting any after-the-fact

scrutiny of an affidavit submitted in support of a search warrant, reviewing courts should

afford great deference to the issuing magistrate’s determination of probable cause, and

doubtful or marginal cases in this area should be resolved in favor of upholding the

warrant. Id.

      {¶14} The affidavit attached to the search warrant for the Louis Drive address

presented sufficient evidence to support probable cause that explosives would be found at

the house. Agent Arvin Clar averred in the affidavit that a CRI provided information

that Fairfield had stockpiled an arsenal including handguns, rifles, military rifles, and

military explosives at the home. The Agent verified that Fairfield lived at the home, had

military training with explosives, and had been receiving treatment for Post Traumatic
Stress Disorder for the past three years. Similar items were also recovered from the prior

search at the Pawnee address.

       {¶15} At all times in the affidavit, any reference to the CRI is to Fairfield’s wife.5
 Fairfield contends that his CRI-wife could not provide information in support of the
warrant because it violated the spousal privilege in violation of R.C. 2945.42, concerning
the competency of a witness, and R.C. 2317.02, regarding privileged communications.
Both statutes state that a husband and CRI-wife “shall not testify” concerning
communications made to each other or regarding an act done in the presence of the other,
during coverture, unless the communication or act was done in the known presence of a
third person.

       {¶16} The court in State v. Jaschik, 85 Ohio App.3d 589, 620 N.E.2d 883 (11th

Dist.1993), addressed an identical situation. In Jaschik, the CRI-wife told police that her

husband abused drugs and had weapons at the home. Based on the information she

provided, the police obtained a search warrant for the marital home where weapons were

found. The court in Jaschik concluded that the prohibition against “testifying” against a

spouse applied to trials and not search warrants because warrants are used to aid in the

investigation process and are ancillary to the criminal proceedings.             We agree.

Although the CRI-wife would not be permitted to testify at trial, she could provide

information in support of the investigation.

       {¶17} Fairfield also argues that the trial judge who signed the affidavit could not

have determined whether Fairfield’s wife was credible because the affidavit does not

show their relationship and that they were separated. He also argues that although the

affidavit indicates that the CRI-wife gave information that was helpful in the mortgage


       At the suppression hearing, Agent Clar testified that Mayhugh also provided
       5

information at the Pawnee search that explosives and napalm could be found at the
Louis Drive address. However, the affidavit in support of the Louis Drive search
does not refer to Mayhugh.
fraud case, it fails to state that the CRI-wife had engaged in mortgage fraud for which she

was convicted in federal court.     We held in State v. Pustelnik, 8th Dist. No. 91779,

2009-Ohio-3458:

       Further, with regard to confidential or anonymous informants, their
       veracity, reliability and basis of knowledge are all highly relevant in
       determining probable cause, Id., * * * Nonetheless, a deficiency in
       one of these principles does not negate probable cause if there is a
       strong showing on another or if there is some other indicia of
       reliability. Illinois v. Gates, supra. Thus, an identified informant who
       provides corroborated information may establish probable cause. See
       State v. Martin, Cuyahoga App. No. 89030, 2007- Ohio-6062.

       {¶18} Agent Clar averred in his affidavit that he had worked with the CRI-wife

for a year regarding the investigation of the mortgage fraud and that the CRI-wife had

provided reliable information that was subsequently independently verified. Moreover,

the agent also verified the information the CRI-wife gave to him regarding Fairfield by

conducting a surveillance of the Pawnee Road and Louis Drive addresses. He was able

to independently verify that Engeland and Mayhugh lived at the Pawnee address, that

Fairfield had military training in dangerous ordnances, and that Fairfield resided at the

Louis Drive address and had a carrying a concealed weapon conviction. The agent had

also successfully executed a search warrant at the Pawnee Road address based on the

CRI-wife’s information, where weapons, detonation cords, and blasting caps were

recovered.

       {¶19} Because Agent Clar was able to verify that the CRI-wife was a reliable

informant in the mortgage case and was able to verify information the CRI-wife gave him

regarding Fairfield personally and by the successful Pawnee Road search, we conclude

the CRI-wife’s credibility and reliability was sufficiently established.   The fact that she
was Fairfield’s wife and pled guilty to a crime related to mortgage fraud, does not

diminish her credibility in light of the fact that she had provided credible, reliable

information in the mortgage fraud case and in support of the Pawnee Road search

warrant.

       {¶20} Fairfield also argues that the search warrant states as the basis for the

search that Fairfield’s possession of weapons would constitute having weapons while

under disability. Fairfield correctly contends that his prior conviction for carrying a

concealed weapon, which is not a crime of violence, does not support a charge for having

a weapon while under disability. However, the error is harmless because the warrant

also stated that possession of the listed items would result in charges for possession of a

dangerous ordnance, which was true. Under these circumstances, the trial court did not

err by denying Fairfield’s motion to suppress. Accordingly, Fairfield’s first assigned

error is overruled.

                                       Allied Offenses

       {¶21}    We will address Fairfield’s third assigned error prior to his second

assigned error because it is dispositive of the second assigned error. In his third assigned

error, Fairfield argues the trial court failed to merge offenses that related to the same item.

       {¶22} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

¶ 43, the Ohio Supreme Court stated that the purpose of merging allied offenses as

follows:

       [It has been] consistently recognized that the purpose of R.C. 2941.25 is

       to prevent shotgun convictions, that is, multiple findings of guilt and
       corresponding punishments heaped on a defendant for closely related

       offenses arising from the same occurrence. Geiger, 45 Ohio St.2d at

       242, 344 N.E.2d 133. This is a broad purpose and ought not to be

       watered down with artificial and academic equivocation regarding the

       similarities of the crimes. When “in substance and effect but one

       offense has been committed,” the defendant may be convicted of only

       one offense. Botta, 27 Ohio St.2d at 203, 271 N.E.2d 776.

       {¶23} With this purpose in mind, the Johnson court established a new two-part

test for determining whether offenses are allied offenses of similar import under R.C.

2941.25. In so doing, the supreme court expressly overruled State v. Rance, 85 Ohio

St.3d 632, 1999-Ohio-291, 710 N.E.2d 699, which required a “comparison of the

statutory elements in the abstract” to determine whether the statutory elements of the

crimes correspond to such a degree that the commission of one crime will result in the

commission of the other. The Johnson court held that rather than compare the elements

of the crimes in the abstract, courts must consider the defendant’s conduct.

       {¶24} Under Johnson, the first inquiry focuses on “whether it is possible to

commit one offense and commit the other with the same conduct * * *.”          Id. at ¶ 48. It is

not necessary that the commission of one offense will always result in the commission of

the other. Id. Rather, the question is whether it is possible for both offenses to be

committed by the same conduct. Id. Conversely, if the commission of one offense will

never result in the commission of the other, the offenses will not merge. Id. at ¶ 51.
       {¶25} Here, the 75 counts Fairfield was charged with concerned the possession of

two shock tubes, two spools of detonation cord, four wrapped blasting caps, four

unwrapped blasting caps, eight booby traps, five igniters, an actuator, and a jar of napalm.

       {¶26}   In the case of the shock tubes, detonation cords, blasting caps, and

actuator, Fairfield was charged for each item for unlawful possession of a dangerous

ordnance, possession of criminal tools, and receiving stolen property. The court did

merge the category of offenses for the items that were the same. For instance, the court

merged all of the counts for possession of a dangerous ordnance regarding the four

detonation cords. However, the court then also sentenced Fairfield for possession of

criminal tools and receiving stolen property regarding the same cords. Prior to the

Johnson case, the offenses of possession of criminal tools, receiving stolen property, and

possession of a dangerous ordnance would not merge, because the statutory elements of

each requires a different element. However, that is no longer our focus in determining

the merging of allied offenses. Our focus is now whether it is possible for the offenses

to be committed by the same conduct. Fairfield’s receiving the stolen property in the

instant case, also results in him also unlawfully possessing a dangerous ordnance and

possessing a criminal tool.

       {¶27} If the multiple offenses can be committed with the same conduct, the court

must then determine whether the offenses were in fact committed by a single act, or

performed with a single state of mind. Johnson at ¶ 49. If the answer to both questions

is yes, the offenses are allied offenses of similar import and must be merged. Id. at ¶ 50.
On the other hand, if the offenses are committed separately or with a separate animus, the

offenses will not merge. Id. at ¶ 51.

       {¶28}    Under R.C. 2941.25(B), “animus” is defined as “purpose or, more

properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345

(1979). If the defendant acted with the same purpose, intent, or motive in both instances,

the animus is identical for the offenses. State v. Lewis, 12th Dist. No. CA2008-10-045,

2012-Ohio-885, ¶ 13.      Here, there is no indication that Fairfield was acquiring the

materials for separate purposes, or had a separate intent or motive in having the materials.

 Therefore, the offenses were all committed with the same animus.

       {¶29} Having answered both prongs of Johnson in the affirmative, we find that

under the facts of this case, possession of a dangerous ordnance, possession of criminal

tools, and receiving stolen property are allied offenses of similar import that must be

merged. Accordingly, we reverse and vacate Fairfield’s sentence as to those charges and

remand for a new sentencing hearing on the offense that remains after the state selects

which allied offense to pursue. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,

951 N.E.2d 381, ¶ 13-15. On remand, the state will have the right to elect, and the trial

court will be bound by, the state’s election. See State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, paragraphs one, two, and three of the syllabus.

Accordingly, Fairfield’s third assigned error is sustained.

       {¶30} Fairfield’s second assigned error challenges the trial court’s imposition of

consecutive sentences. Our disposition of his third assigned error renders this assigned

error moot. We, therefore, need not address it. App.R. 12(A)(1)(c).
      {¶31}     Judgment affirmed in part; reversed in part and remanded for a

re-sentencing hearing.

      It is ordered that appellant and appellee share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR
