[Cite as State v. Stafford, 2017-Ohio-7118.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :
                                                           CASE NO. CA2016-11-219
        Plaintiff-Appellee,                          :
                                                                OPINION
                                                     :           8/7/2017
    - vs -
                                                     :

JOHN EDWARD STAFFORD,                                :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2016-05-0674



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Engel & Martin, Mary K. Martin, 5181 Natorp Blvd., Suite 210, Mason, Ohio 45040, for
defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, John Edward Stafford, appeals from his conviction in the

Butler County Court of Common Pleas after a jury found him guilty of various drug charges,

carrying a concealed weapon, and having a weapon while under disability. For the reasons

outlined below, we affirm.

        {¶ 2} On June 22, 2016, the Butler County Grand Jury returned an indictment
                                                                          Butler CA2016-11-219

charging Stafford with numerous drug offenses, as well as carrying a concealed weapon, and

having a weapon while under disability. The charges arose after Stafford was discovered in

possession of 32 grams of methamphetamine, 15 tablets of amphetamine, .608 grams of

marijuana, Clonazepam, clear plastic baggies, a digital scale, pill bottles, two cell phones,

several hundred dollars in cash, and a loaded firearm, following a traffic stop of the vehicle in

which he was a passenger on the afternoon of May 13, 2016 while in Hamilton, Butler

County, Ohio. The traffic stop occurred after officers with the Hamilton Police Department,

while utilizing a confidential informant to make an undercover drug buy of heroin and

methamphetamine from a now convicted drug dealer, K.L., witnessed Stafford engaged in

what appeared to be a hand-to-hand drug transaction with a third unknown individual. It is

undisputed that this alleged drug transaction occurred in a high-crime area known for illegal

drug activity.

       {¶ 3} On July 25, 2016, Stafford filed a motion to suppress alleging the traffic stop

was unlawful because it was not supported by probable cause or a reasonable, articulable

suspicion of criminal activity. The trial court held a hearing on Stafford's motion on August

16, 2016. During this hearing, the trial court heard testimony from Detectives Robert Horton

and Gary Crouch, as well as Officers Brian Wynn and Casey Johnson, all of whom were

employed by the Hamilton Police Department on the day in question. Following this hearing,

the trial court issued its decision denying Stafford's motion to suppress, finding the traffic stop

of the vehicle in which Stafford was a passenger was lawful. In so holding, the trial court

stated, in pertinent part:

                 The Court recognizes from the testimony this was said to be a
                 high-crime area. While [defense counsel] point out that there
                 were several tips that were made, the Court also recollects
                 testimony from Detective Crouch that search warrants had been
                 executed in that area and that he was aware of drug activity in
                 that area for the last ten years.


                                                -2-
                                                                          Butler CA2016-11-219

               The Court also heard testimony today that the officers, both
               Detective Horton and Detective Crouch, observed some kind of a
               transaction and its [sic] construing the testimony regarding a
               transaction or the exchange also with the fact that both officers
               testified that they had much experience in observing hand-to-
               hand transactions and their opinions followed based upon their
               experience and training.

               So the Court believes that there was reasonable suspicion based
               on the totality of circumstances to stop the vehicle.

       {¶ 4} After denying Stafford's motion to suppress, the matter proceeded to a two-day

jury trial concluding on September 14, 2016. At trial, as part of his defense, Stafford called

K.L. to testify. Prior to K.L. testifying, it is undisputed that K.L. had been convicted for selling

heroin and methamphetamine to Detective Crouch, who, unbeknownst to K.L., was an

undercover officer, on the afternoon of May 13, 2016. However, when defense counsel

asked K.L. about whether he sold or traded any other drugs to Stafford that day, specifically

MDMA, also known as "molly" or "ecstasy," K.L. invoked his privilege against self-

incrimination and stated that he did not want to answer any questions "about any other

drugs." K.L. later expanded the invocation of his privilege to any additional questions at all.

At the request of the state, the trial court then struck K.L.'s testimony and instructed the jury

to disregard the same. Stafford then moved for a mistrial, which the trial court denied.

Stafford then rested and the case was submitted to the jury for deliberations.

       {¶ 5} Following its deliberations, the jury returned a verdict finding Stafford guilty of

aggravated trafficking in drugs, two counts of aggravated possession of drugs, possession of

drugs, possession of marijuana, possession of drug paraphernalia, having a weapon while

under disability, and carrying a concealed weapon. After merging the aggravated trafficking

in drugs charge with one of the two counts of aggravated possession of drugs, the trial court

sentenced Stafford to an aggregate term of seven years in prison.

       {¶ 6} Stafford now appeals, raising four assignments of error for review. For ease of


                                                -3-
                                                                       Butler CA2016-11-219

discussion, Stafford's fourth assignment of error will be addressed out of order.

       {¶ 7} Assignment of Error No. 4:

       {¶ 8} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS.

       {¶ 9} In his fourth assignment of error, Stafford argues the trial court erred by denying

his motion to suppress. We disagree.

       {¶ 10} 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.

Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. In turn, 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. State v. Durham, 12th Dist.

Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14.               "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." State v. Cochran, 12th Dist. Preble No.

CA2006-10-023, 2007-Ohio-3353, ¶ 12.

       {¶ 11} Ohio recognizes two types of lawful traffic stops. State v. Campbell, 12th Dist.

Butler Nos. CA2014-02-048 and CA2014-02-051, 2014-Ohio-5315, ¶ 25. The first type of

lawful traffic stop is a non-investigatory stop in which an officer has probable cause to stop a

vehicle because the officer observed a traffic violation. State v. Moore, 12th Dist. Fayette

No. CA2010-12-037, 2011-Ohio-4908, ¶ 31, citing Whren v. United States, 517 U.S. 806,

810, 116 S.Ct. 1769 (1996).       The establishment of probable cause "requires only a
                                              -4-
                                                                         Butler CA2016-11-219

probability or substantial chance of criminal activity, not an actual showing of such activity."

City of Wilmington v. Lubbers, 12th Dist. Clinton No. CA2013-06-013, 2014-Ohio-3083, ¶ 12,

quoting Illinois v. Gates, 462 U.S. 213, 243, fn. 13, 103 S.Ct. 2317 (1983). "The focus,

therefore, is not on whether an officer could have stopped the suspect because a traffic

violation had in fact occurred, but on whether the arresting officer had probable cause to

believe that a traffic violation had occurred." State v. Pfeiffer, 12th Dist. Butler No. CA2003-

12-329, 2004-Ohio-4981, ¶ 23, citing State v. Terrell, 12th Dist. Clinton No. CA99-07-020,

2000 Ohio App. LEXIS 4911 (Oct. 23, 2000).

       {¶ 12} The second type of lawful traffic stop is an investigative stop, also known as a

Terry stop, in which the officer has reasonable suspicion based upon specific or articulable

facts that criminal behavior is imminent or has occurred. State v. Bullock, 12th Dist. Clinton

No. CA2016-07-018, 2017-Ohio-497, ¶ 7, citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868

(1968). While the concept of "reasonable and articulable suspicion" has not been precisely

defined, it has been described as something more than an undeveloped suspicion or hunch,

but less than probable cause. State v. Baughman, 192 Ohio App.3d 45, 2011-Ohio-162, ¶

15 (12th Dist.), citing Terry at 20-21. The propriety of an investigative stop "must be viewed

in light of the totality of the surrounding circumstances, from the perspective of a reasonably

prudent police officer on the scene guided by his experience and training." Id., citing State v.

Batchili, 113 Ohio St. 3d 403, 2007-Ohio-2204, paragraph two of the syllabus; and State v.

Bobo, 37 Ohio St. 3d 177 (1988), paragraph one of the syllabus.

       {¶ 13} Stafford claims the trial court erred by denying his motion to suppress because

the officers lacked a reasonable, articulable suspicion of criminal activity to initiate a traffic

stop of the vehicle in which he was a passenger. In support of this claim, Stafford argues

"the sole basis of the stop was the information relayed about the gun and drugs by the

informant [K.L.]," thus requiring the state to provide some evidence as to K.L.'s credibility,
                                               -5-
                                                                        Butler CA2016-11-219

honesty, and reliability. However, contrary to Stafford's claim, the basis of the traffic stop

was a not K.L.'s statement that Stafford had drugs and a gun in his possession. Rather, just

as the trial court found, the traffic stop was effectuated by Officers Wynn and Johnson after

Detectives Horton and Crouch informed them they had just observed what appeared to be

Stafford engaged in hand-to-hand drug transaction with an unknown individual in a high

crime area known for illegal drug activity. After the transaction was complete, Stafford was

observed getting into the passenger side of the vehicle and leaving the scene.

       {¶ 14} Based on the totality of the circumstances, and due to their extensive

experience and training as narcotics officers, Detectives Horton and Crouch were justified in

relaying the suspicious activity they observed to Officers Wynn and Johnson in order for

them to initiate an investigatory stop of the vehicle in which Stafford was a passenger. Under

the "collective knowledge doctrine," also known as the "fellow officer rule," police officers may

develop the reasonable suspicion necessary to affect a traffic stop based on information

obtained and relayed by their fellow officers. State v. Ojezua, 2d Dist. Montgomery No.

26787, 2016-Ohio-2659, ¶ 30; State v. Mook, 9th Dist. Wayne No. 97CA0069, 1998 Ohio

App. LEXIS 3238, *7 (July 15, 1998) ("[r]easonable suspicion may exist based upon the

collective knowledge of the police when there is reliable communication between the officer

supplying the information and the officer acting on that information"). That is exactly what

occurred here. In turn, the traffic stop of the vehicle in which Stafford was a passenger was

lawful, and therefore, the trial court did not err in denying Stafford's motion to suppress.

Accordingly, finding no error in the trial court's decision denying Stafford's motion to

suppress, Stafford's fourth assignment of error is without merit and overruled.

       {¶ 15} Assignment of Error No. 1:

       {¶ 16} THE TRIAL COURT ERRED IN EXCUSING THE WITNESS [K.L.] FROM

TESTIFYING AND STRIKING HIS TESTIMONY.
                                               -6-
                                                                         Butler CA2016-11-219

       {¶ 17} In his first assignment of error, Stafford argues the trial court erred by excusing

K.L. from testifying at trial and by striking K.L.'s testimony from the record after K.L. asserted

his privilege against self-incrimination. We again disagree.

       {¶ 18} The Fifth Amendment to the United States Constitution and Article I, Section 10

of the Ohio Constitution declare that no person shall be compelled in any criminal case to be

a witness against himself. State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, ¶ 30. The

privilege against self-incrimination is accorded liberal construction in favor of the right it was

intended to secure; namely, "the right of an individual to force the state to produce the

evidence against him or her by its own labor, not by forcing the individual to produce it from

his or her own lips." Id. at ¶ 31, citing State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, ¶

43. Although the right against testimonial compulsion provides protection to the accused, "it

also applies to witnesses who would incriminate themselves by giving responses to questions

posed to them." Id.

       {¶ 19} "The Ohio Supreme Court has held that when a witness asserts a privilege

against self-incrimination, a court may not rely upon the witness's claim alone, but has a duty

to determine whether the witness's refusal to answer is justified." State v. Spangler, 5th Dist.

Fairfield No. 16-CA-12, 2017-Ohio-268, ¶ 30, citing Arnold, 2016-Ohio-1595 at ¶ 45, citing

Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814 (1951). A valid assertion exists

where a witness has "reasonable cause" to apprehend a real danger of incrimination. United

States v. Apfelbaum, 445 U.S. 115, 127, 100 S.Ct. 948 (1980). Therefore, to sustain the

privilege, it need only be evident from the implications of the question, in the setting in which

it is asked, that a responsive answer "might be dangerous because injurious disclosure could

result." Hoffman, 341 U.S. at 486-487. The privilege extends to answers which would

furnish a link in the chain of evidence, exposing the witness to criminal liability. Id. at 486.

       {¶ 20} It is undisputed that K.L. invoked his privilege against self-incrimination at trial
                                               -7-
                                                                        Butler CA2016-11-219

when Stafford's defense counsel asked him whether he had sold or traded any other drugs to

Stafford than the ones he had sold to Detective Crouch. Stafford does not challenge K.L.'s

right to assert his privilege against self-incrimination. What Stafford challenges is the trial

court's decision to allow K.L. to make a "blanket assertion" of his privilege against self-

incrimination rather than engage in a "question by question analysis" to determine if such

invocation of the privilege was valid. We find no merit to Stafford's claim.

       {¶ 21} "In general, a witness may not make a blanket assertion of his or her Fifth

Amendment privilege, and may not invoke the Fifth Amendment prior to questioning." Sojic

v. Karp, 2d Dist. Montgomery No. 26664, 2015-Ohio-3692, ¶ 31. In other words, "a blanket

assertion of the Fifth Amendment privilege by a witness is not sufficient as the privilege must

be asserted by a witness with respect to a particular question, and, in each instance, the

court must determine the propriety of the refusal to testify." Vega v. Tivurcio, 10th Dist.

Franklin No. 14AP-327, 2014-Ohio-4588, ¶ 12. "This presumption against blanket assertions

of Fifth Amendment privilege is premised on the common sense notion that a judge must

know what the witness believes is incriminating in order to evaluate whether the witness

invokes the privilege with 'reasonable cause.'" United States v. Bates, 552 F.3d 472, 475-76

(6th Cir. 2009). However, where the witness has a "clear entitlement" to claim the privilege,

"forcing the defendant to take the stand is 'futile' and thus unnecessary. In such a case, the

reason behind the rule does not apply because the court already knows that 'reasonable

cause' to invoke the privilege exists." Id.

       {¶ 22} After reviewing the record, we find any error that may have occurred by allowing

K.L. to make a "blanket assertion" of his privilege against self-incrimination rather than

conduct a "question by question analysis" was, at worst, harmless. The same is true

regarding the trial court's decision to strike K.L.'s testimony. The record in this case contains

overwhelming evidence of Stafford's guilt. This includes evidence indicating Stafford was
                                               -8-
                                                                        Butler CA2016-11-219

seen engaged in a hand-to-hand drug transaction with an unknown individual in a high-crime

area known for illegal drug activity just prior to being found in possession of 32 grams of

methamphetamine, 15 tablets of amphetamine, .608 grams of marijuana, Clonazepam, clear

plastic baggies, a digital scale, pill bottles, two cell phones, several hundred dollars in cash,

and a loaded firearm, following a lawful traffic stop of a vehicle in which he was a passenger.

Many of these drugs, which had a total street value approximated at nearly $7,500, were

located in a backpack Stafford was observed wearing mere minutes before. The driver of the

vehicle in which Stafford was a passenger, M.M., also testified that Stafford asked her to

"take ownership" of the backpack found in her car, a request M.M. refused because "it was

not mine." Therefore, because any error committed by the trial court was, at worst, harmless,

we find no merit to Stafford's first assignment of error and overrule the same.

       {¶ 23} Assignment of Error No. 2:

       {¶ 24} THE TRIAL COURT ERRED IN ALLOWING IMPERMISSIBLE HEARSAY.

       {¶ 25} In his second assignment of error, Stafford argues the trial court erred by

admitting alleged hearsay statements from Detectives Horton and Crouch as to what K.L.

said during the undercover drug buy between K.L. and Detective Crouch; i.e., that K.L. had

obtained the methamphetamine he sold to Detective Crouch from Stafford – who had a

backpack with drugs and a firearm inside – in exchange for a gram of MDMA. We disagree.

       {¶ 26} As this court has stated previously, "[t]estimony not offered for the truth, but to

explain the actions of a witness to whom the statement was directed, such as to explain the

witness's activities, is not hearsay." State v. Smith, 12th Dist. Butler Nos. CA2000-05-093

and CA2000-05-095, 2001 Ohio App. LEXIS 2148, *12 (May 14, 2001). Thus, "where

statements are offered into evidence to explain an officer's conduct during the course of

investigating a crime, such statements are not hearsay." State v. Blevins, 36 Ohio App.3d

147, 149 (10th Dist.1987).
                                               -9-
                                                                           Butler CA2016-11-219

       {¶ 27} After reviewing the record, including the testimony from both Detectives Horton

and Crouch, we find no error for it is clear the disputed testimony was offered into evidence

to explain their conduct during the undercover drug buy between Detective Crouch and K.L.,

as well as the conduct of Officers Wynn, Johnson, and Officer Eric Taylor, a third officer at

the scene, in effectuating a lawful traffic stop of the vehicle in which Stafford was a

passenger.     Stafford's defense counsel even inquired about Detectives Horton's and

Crouch's conduct in response to K.L.'s statements to Detective Crouch as part of his cross-

examination. Stafford, therefore, can demonstrate no resulting prejudice. Moreover, the fact

that the trial court did not give a limiting instruction as it relates to this testimony was also not

error, let alone plain error, when considering the overwhelming evidence of Stafford's guilt.

Stafford's claim otherwise lacks merit.

       {¶ 28} Furthermore, given the fact K.L. was unaware Detective Crouch was serving as

undercover officer at the time the alleged hearsay statements were made, K.L.'s statements

to Detective Crouch were nontestimonial, and therefore, do not implicate any concerns

regarding the Confrontation Clause. See, e.g., United States v. Mooneyham, 473 F.3d 280,

286-87 (6th Cir.2007) (co-defendant's out-of-court statements to an undercover officer whose

status was unknown to the declarant were nontestimonial); see also Davis v. Washington,

547 U.S. 813, 825, 126 S.Ct. 2266 ("statements made unwittingly to a Government

informant" are "clearly nontestimonial"). "[T]he Confrontation Clause bars only the admission

of 'testimonial' hearsay. State v. Waver, 12th Dist. Butler No. CA2015-08-155, 2016-Ohio-

5092, 39, citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354 (2004). "If

testimony qualifies as nonhearsay," such as the case here, "it does not implicate the

Confrontation Clause." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 186.

Accordingly, finding no error in the trial court's decision, Stafford's second assignment of

error is also without merit and overruled.
                                                - 10 -
                                                                       Butler CA2016-11-219

       {¶ 29} Assignment of Error No. 3:

       {¶ 30} THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL.

       {¶ 31} In his third assignment of error, Stafford argues the trial court erred by not

declaring a mistrial because he was denied a fair trial "based on the hearsay statements that

were impermissibly allowed" and because he was denied the "right to confront witnesses

against him." However, as discussed above, we find no error in the trial court's decision

regarding these issues. Moreover, even if we were to find such error, which we do not, any

such error would be harmless due to the overwhelming evidence of Stafford's guilt. Again,

the record indicates that following a lawful traffic stop of a vehicle in which he was a

passenger, Stafford was found to be in possession of 32 grams of methamphetamine, 15

tablets of amphetamine, .608 grams of marijuana, Clonazepam, clear plastic baggies, a

digital scale, pill bottles, two cell phones, several hundred dollars in cash, and a loaded

firearm. "[I]t is not necessary to declare a mistrial in such circumstances when 'overwhelming

evidence' establishes the defendant's guilt." State v. Carano, 9th Dist. Summit No. 26544,

2013-Ohio-1633, ¶ 33, citing State v. Trimble, 122 Ohio St.3d 297, 2009 Ohio 2961, ¶ 175.

Therefore, due to the overwhelming evidence against him, Stafford's claim that the trial court

erred by not declaring a mistrial lacks merit. Accordingly, Stafford's third assignment of error

is overruled.

       {¶ 32} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




                                             - 11 -
