[Cite as State v. McElfresh, 2014-Ohio-2605.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 13 CA 73
RONALD L. McELFRESH

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 12 CR 417


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         June 16, 2014



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

KENNETH W. OSWALT                               DENNIS W. MCNAMARA
PROSECUTING ATTORNEY                            88 East Broad Street
JUSTIN T. RADIC                                 Suite 1350
ASSISTANT PROSECUTOR                            Columbus, Ohio 43215
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 13 CA 73                                                     2

Wise, J.

       {¶1}. Appellant Ronald L. McElfresh appeals his conviction in the Court of

Common Pleas, Licking County, following a plea agreement, on several drug-related

felony counts. The relevant facts leading to this appeal are as follows.

       {¶2}. On August 3, 2012, Judge David Branstool of the Licking County Court of

Common Pleas signed a search warrant regarding appellant's residence on Purity Road

in St. Louisville, Licking County, Ohio. The impetus for the warrant was a fourteen-

paragraph affidavit signed by Detective Doug Bline, a narcotics detective for the Newark

Police Department and member of the Central Ohio Drug Enforcement ("CODE") Task

Force, further analyzed infra.

       {¶3}. Later that evening, officers with the CODE Task Force executed the

search warrant.      The officers ultimately seized approximately 578 grams of

methamphetamine and 12,045 grams of marijuana, as well as other related items.

       {¶4}. The State later conceded that five paragraphs of the application for the

warrant contained information that was incorrect or inapplicable. Judge Branstool later

stated, according to the oral proffer of defense counsel, that without those five

paragraphs, he would not have approved the search warrant.

       {¶5}. On August 10, 2012, under case number 12CR417, appellant was indicted

by the Licking County Grand Jury. The case was not assigned to Judge Branstool. The

counts were as follows:

       {¶6}. Count     I:   One    count    of    aggravated     possession   of   drugs

(methamphetamine), R.C. 2925.11(A)(C)(1)(e), a felony of the first degree;
Licking County, Case No. 13 CA 73                                                       3


       {¶7}. Count II: One count of possession of marihuana, R.C. 2925.11

(A)(C)(3)(e), a felony of third degree;

       {¶8}. Count III: One count of having weapons while under disability, R.C.

2923.13(A)(2) and/or (3), a felony of the third degree;

       {¶9}. Count IV: One count of possession of drug paraphernalia, R.C.

2925.14(C)(1), a misdemeanor of the fourth degree.

       {¶10}. Additionally, there was a one-year firearm specification attached to Counts

I and II, as well as a forfeiture specification attached to Counts I, II, and III.

       {¶11}. On November 1, 2012, appellant, via his first trial attorney, filed a motion

to suppress. On January 7, 2013, appellant filed an amended motion to suppress.

Appellant thereafter obtained new counsel. On April 8, 2013, his second trial attorney

filed a supplemental memorandum in support of the previously filed motion to suppress.

The State filed responses to appellant's motion to suppress on January 11, 2013 and

April 15, 2013.

       {¶12}. Appellant also issued a subpoena to Judge Branstool to testify at the

suppression hearing. On April 12, 2013, the State filed a motion to quash said

subpoena, which the trial court granted.

       {¶13}. On April 15, 2013, the trial court conducted a suppression hearing.

According to the testimony of Detective Bline, the confidential informant referenced in

the search warrant affidavit initially approached the investigating officers and demanded

$40,000.00 for his information. Tr. at 57. Eventually the CI provided the information

without having received any money. Tr. at 58. The CI thereafter apparently recanted

some of the information submitted in support of the application, claiming that persons
Licking County, Case No. 13 CA 73                                                       4

connected with appellant had threatened him. See Tr. at 36, 53. The CI’s whereabouts

were unknown by the time of the motion to suppress hearing. Tr. at 60.

      {¶14}. On April 24, 2013, the trial court issued a written decision denying

appellant's motion to suppress and reiterating its granting of the State's motion to quash

the subpoena to Judge Branstool. Specifically, the trial court held that even after

removing the paragraphs that were admitted to have been incorrectly included, the

affidavit for the search warrant still set forth probable cause upon which a neutral and

detached magistrate could believe a warrant should be issued.

      {¶15}. On June 11, 2013, the trial court conducted a combined change of plea

and sentencing hearing. Appellant pled no contest to all of the charges and

specifications contained in the aforesaid August 10, 2012 indictment. The court then

sentenced appellant to eleven years on the first count, plus one year consecutive for the

attached firearm specification, and one year as to both the second and third counts. The

trial court ordered that the sentences on the second and third counts be served

concurrently, but consecutive to the first count. The court also imposed various fines on

the counts, as well as an imposition of five years of mandatory post release control.

      {¶16}. Appellant filed a notice of appeal on August 12, 2013. This Court granted

leave to proceed on a delayed basis on September 23, 2013. Appellant herein raises

the following two Assignments of Error:

      {¶17}. “I. THE TRIAL COURT ERRED WHEN IT QUASHED THE SUBPOENA

ISSUED TO THE JUDGE WHO APPROVED THE SEARCH WARRANT.

      {¶18}. “II. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S

MOTION TO SUPPRESS.”
Licking County, Case No. 13 CA 73                                                      5


      {¶19}. We will address the assigned errors in reverse order.

                                              II.

      {¶20}. In his Second Assignment of Error, appellant contends the trial court erred

in overruling his motion to suppress the evidence seized following the execution of the

search warrant. We disagree.

      {¶21}. There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641

N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State

v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. The United States Supreme

Court held in Ornelas v. U .S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911, that “... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal.”

      {¶22}. The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d

1271. When issuing a search warrant, a trial judge or magistrate must make a practical,
Licking County, Case No. 13 CA 73                                                     6


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 (1980), 45 Ohio St.3d 325, at paragraph one of the

syllabus, citing Illinois v. Gates (1983), 462 U.S. 213, 238–239. As a reviewing court,

we must accord great deference to the issuing judge's determination of probable cause.

See George, at paragraph two of the syllabus. Doubtful or marginal cases should be

resolved in favor of upholding the warrant. Id. The United States Supreme Court has

held that the totality of the circumstances must be examined in determining whether

probable cause existed for a search warrant. Illinois v. Gates, supra. “Probable cause”

means only the probability and not a prima facie showing of criminal activity. George,

supra, at 644. See, also, Beck v. Ohio (1964), 379 U.S. 89.

       {¶23}. In essence, in reviewing the sufficiency of probable cause in an affidavit

submitted in support of a search warrant, our duty is to ensure that the magistrate or

judge who issued the warrant had a substantial basis for concluding that probable

cause existed. See George, supra, at paragraph two of the syllabus.

       {¶24}. In the case sub judice, as recited previously, Judge Branstool, the judge

issuing the search warrant of August 3, 2012, relied upon a fourteen-paragraph affidavit

sworn by Detective Doug Bline. We will summarize the various sections of the affidavit

as follows:

                                       Paragraph One

       {¶25}. In this introductory paragraph, Detective Bline identified himself as a

narcotics detective for the Newark Police Department and CODE Task Force, with
Licking County, Case No. 13 CA 73                                                       7


sixteen years of experience in law enforcement. Bline stated that there was reason to

believe that methamphetamine and related paraphernalia were concealed on the

premises at 6022 Purity Road.

                                 Paragraphs Two through Six

      {¶26}. The next five paragraphs, incorrectly put in Bline’s August 3rd affidavit,

centered on information about a methamphetamine purchase of approximately $200.00

by an alleged buyer.

      {¶27}. In this portion of the affidavit, Bline stated in sum as follows: CODE

detectives had obtained information on August 24, 2011 from a confidential informant

that Buyer had asked the CI for a ride to appellant's residence to buy drugs for her. The

CI claimed to be familiar with appellant as a meth dealer. At the CODE detectives'

request, Bline sent a text message to Buyer to see if she still needed a ride for the drug

purchase. Buyer replied via text in the affirmative; the CI responded that he would get

some "ice cream" that night, which the CI described as slang for methamphetamine.

One of the detectives thereupon arranged for the CI to make a buy from appellant with

the participation of Buyer, following which officers would make a traffic stop of the CI's

vehicle. The CI was then provided with $350.00 in cash and fitted with an audio

transmitter. Other detectives maintained surveillance as the CI picked up Buyer in

Zanesville, drove her to a check-cashing facility, and then took her to appellant's

residence on Purity Road. A short time later, the CI texted that the deal had been

completed, and uniformed officers soon made a traffic stop of the vehicle near Fallsburg

Road. In searching Buyer, a bag of suspected meth was found. The CI also provided

another bag allegedly purchased from appellant.
Licking County, Case No. 13 CA 73                                                        8


       {¶28}. However, the State later informed the trial court, prior to a decision on the

motion to suppress, that the aforesaid averments were admittedly inaccurate or

inapplicable and should be excised, apparently because Detective Bline had

inadvertently left information from previous warrant paperwork in the text of his affidavit

of August 3, 2012.

                                  Paragraphs Seven and Eight

       {¶29}. In this portion of the affidavit, Bline stated that CODE officers had used

appellant as another confidential informant in 2010 during an investigation of large

methamphetamine sales in the Columbus area. Appellant had admitted at that time to

buying large amounts of "ice" from Mexican dealers and transporting it to Licking

County to sell from his residence. However, appellant had also stated that he was "done

selling meth." Bline also averred that from "late 2011 to March of 2012" he heard from

"several individuals" that appellant was using automobiles with dealer tags to transport

large amounts of drugs. Bline also stated that a Newark police officer had found

appellant to be in possession of approximately $10,000.00 in cash during this time

frame, which appellant maintained was the proceeds of a car sale.

                                        Paragraph Nine

       {¶30}. Detective Bline next averred that in March 2012 he began looking into

appellant's alleged "large scale drug dealing" and alleged money laundering connected

with a used car dealership on Purity Road. Bline stated he had been in contact with a

BMV investigator who told him the car lot "appeared to be a sham."

                                         Paragraph Ten
Licking County, Case No. 13 CA 73                                                        9


      {¶31}. According to Detective Bline "[s]everal persons in 2011 to present have

told me and other detectives that [appellant] is selling large amounts of drugs

specifically meth and marijuana." In addition, "[s]everal people other than the two

specific informants named later in this affidavit" had stated appellant's house has a "trap

door in the floor" which is used to hide money and drugs and that appellant had

"buckets" of meth. These persons also described appellant as "extremely paranoid."

                                       Paragraph Eleven

      {¶32}. Detective Bline also related an incident in July 2012 wherein the Newark

Police Department responded to a call of "shots fired" at David McElfresh. Bline

indicated that information received from unspecified informants suggested that two men,

Cole and Jason, owed appellant more than $40,000.00 for drugs. The informants stated

that Jason believed he was shooting at appellant rather than David. Bline also averred

that Detective Massaro had learned from a confidential informant that a few weeks

before the July 2012 incident, Jason's father had shot at appellant on Orchards Street in

Newark.    Furthermore, "[a]ccording to informants this has caused a battle to rage

between all the men ***."

                                       Paragraph Twelve

      {¶33}. Bline then noted that in late July 2012, detectives from CODE came into

contact with another confidential informant, referenced as CI-2. This person gave

information that was "able to be substantiated by detectives." CI-2 reported that he

made two meth purchases from appellant in July 2012, and he was able to give

detectives two telephone numbers for appellant, which nonetheless were subsequently
Licking County, Case No. 13 CA 73                                                           10


changed. Bline asked CI-2 if appellant ever ran out of meth, to which CI-2 replied "there

is always dope there."

                                        Paragraph Thirteen

       {¶34}. We will herein quote this paragraph of the Bline affidavit in its entirety:

       {¶35}. "ON [sic] 8-2-2012 I talked with yet another informant (CI-3) who Det.

Green has used in the past and has been proven reliable in the past on a weapons

case. This ci came up to us and volunteered information. The ci said that he/she was at

Ronnie's house (6022 Purity Rd) yesterday and saw what is estimated to be 12 ounces

of meth in a bucket sitting next to the coffee table. The ci said that he/she had been at

the address and actually stayed out there for a couple of weeks and at no time was

there not meth in that bucket. The ci said 'the amount in the bucket will fluctuate but

never will there not be meth in that bucket.' The ci detailed that there are several

cameras set up around the property and if Ronnie is in the center room where the

coffee table is he can't see the cameras but if he in [sic] the back he can see all around

the house. The ci said it's nothing for Ronnie to lose or misplace an ounce of meth in

the house or forget where he left 10 pounds of weed. The ci said that all the cash that

Ronnie has if [sic] from the sale of drugs and that the car lot is just a front. The ci says

that due to the violence between Ronnie, Cole and Jason, Ronnie has a handgun in the

house. The ci confirmed that the gun has been seen with his/her own eyes."

                                       Paragraph Fourteen

       {¶36}. Finally, Bline averred that officers had "confirmed the accuracy of the

address, and have also confirmed that no one unconnected to the illegal activity

appears to frequent the address." Bline also stated that detectives had observed
Licking County, Case No. 13 CA 73                                                     11


security cameras on the porch area of appellant's residence, as reported by some of the

confidential informants. Bline summarized that appellant has an arrest record that

includes aggravated assault, assault, intimidation, burglary, and assault on a police

officer. He requested that because drug dealers and users are frequently connected

with weapons, and based on the potentiality for destruction of evidence, a night-time "no

knock and announce" warrant be granted.

                                   Analysis and Conclusion

      {¶37}. In urging reversal of the denial of his suppression motion, appellant first

maintains that paragraphs two through six should be ignored, which the State does not

dispute. Appellant then contends that paragraphs seven and eight contain information

that is too stale to be considered, and that paragraphs eight, ten, eleven, and twelve

rely too heavily on uncorroborated hearsay. Appellant also charges that paragraph nine

consists in large measure of speculation and opinion, and he directs us to evidence that

Purity Auto Sales has not simply had a "handful" of sales, as Bline alleged. He likewise

insists his telephone number at home has not changed since 2008 and his cell number

remains the same as in 2010. Finally, appellant argues that the information in paragraph

thirteen is comprised of unverified information or statements made with reckless

disregard for the truth, and that paragraph fourteen carries little weight in determining

probable cause.

      {¶38}. Nonetheless, upon review, while we afford due deference to the decision

of the judge issuing the search warrant (George, supra), we hold that based upon

Detective Bline's affidavit, even without paragraphs two through six, there would have

been a substantial basis for concluding that probable cause existed to support the
Licking County, Case No. 13 CA 73                                                    12


warrant's issuance. Having found no reversible error as to the validity of the search

warrant, we hold the trial court did not err in denying the motion to suppress under the

facts and circumstances of this case.

      {¶39}. Appellant's Second Assignment of Error is overruled.

                                              I.

      {¶40}. In his First Assignment of Error, appellant argues the trial court erred in

quashing the subpoena to Judge Branstool. We disagree.

      {¶41}. An appellate court's standard of review on most evidentiary matters is that

of abuse of discretion. See State v. Morris 132 Ohio St.3d 337, 972 N.E. 2d 528, 2012-

Ohio-2407, ¶ 14; State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343.

Accordingly, we generally apply an abuse of discretion standard when reviewing a trial

court's decision to quash a subpoena. See Petro v. N. Coast Villas Ltd. (2000), 136

Ohio App.3d 93, 96, 735 N.E.2d 985. Specifically, "[i]n order to compel the testimony of

a judge concerning matters learned in his or her official capacity as a judge, the

proponent of the testimony must demonstrate that the judge's testimony is necessary

and must demonstrate that no other witness could testify about the same matters."

State v. Johnson, 4th Dist. Ross No. 94 CA 2004, 1995 WL 764319. See, also, Inscoe

v. Inscoe, 121 Ohio App.3d 396, 417-18, 700 N.E.2d 70 (1997).

      {¶42}. In the case sub judice, the testimony of Judge Branstool would clearly

have been based upon information and knowledge gained in his official capacity as the

judge who issued the search warrant herein. The trial court in this instance was

provided with the general proffer that Judge Branstool would not have granted the

search warrant had he known the first five paragraphs of the affidavit were faulty. We
Licking County, Case No. 13 CA 73                                                        13


find that his actual appearance as a witness at the suppression hearing would have

accomplished little other than invading the province of the trial court to determine

whether probable cause to carry out the search warrant still existed in the absence of

the five paragraphs. As such, the trial court acted within its discretion in finding Judge

Branstool's appearance via subpoena to be unnecessary. Moreover, despite appellant's

reliance on case law from the federal courts on the practice (see, e.g. U.S. v. Nunley,

567 F.2d 822 (8th Cir. 1977)), we surmise that it would rarely serve the interest of justice

to hale sitting Ohio trial court judges, already busy with their own dockets, into other

courtrooms to articulate from the witness stand their prior reasoning on search warrants.

       {¶43}. Accordingly, we find the trial court did not abuse its discretion in quashing

the subpoena to Judge Branstool.

       {¶44}. Appellant's First Assignment of Error is overruled.

       {¶45}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.


JWW/d 0520
Licking County, Case No. 13 CA 73   14
