[Cite as State v. Suber, 2016-Ohio-7497.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 16 CA 14
ERIC E. SUBER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 15 CR 831


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 26, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

BRIAN T. WALTZ                                 ROBERT C. BANNERMAN
ASSISTANT PROSECUTOR                           Post Office Box 77466
20 South Second Street, 4th Floor              Columbus, Ohio 43207
Newark, Ohio 43055
Licking County, Case No. 16 CA 14                                                        2

Wise, J.

       {¶1}    Defendant-appellant Eric E. Suber appeals his conviction entered in the

Licking County Court of Common Pleas on one count of aggravated trafficking in drugs

following a jury trial.

       {¶2}    Appellee is the State of Ohio

                                  STATEMENT OF THE CASE AND FACTS

       {¶3}    On or about September 15, 2015, Appellant Eric E. Suber sold

methamphetamine to a confidential informant, hereinafter “CI”, working with the Central

Ohio Drug Enforcement Task Force. The CI contacted Appellant via phone and arranged

to meet him at 290 W. National, Newark, Licking County, Ohio. When the CI arrived at

this residence, Appellant contacted someone named Shawn Moyer and asked him to

bring the drugs to be sold. Moyer arrived at the residence, entered, and per the CI, handed

the drugs to Appellant. Appellant then provided the CI with the drugs, in exchange for

$800 in recorded buy money. The drugs were collected and tested by BCI and were found

to be 11.87 grams of methamphetamine, a Schedule II controlled substance. Bulk amount

for methamphetamine is 3 grams, so this amount exceeded the bulk amount, but was

less than five (5) times bulk amount.

       {¶4}    Appellant was arrested in December, 2015. He was Mirandized and

interviewed.    He    denied   selling   methamphetamine,    but   did   admit   to   using

methamphetamine.

       {¶5}    Appellant was indicted on one count of Aggravated Trafficking in Drugs, in

violation of R.C. §2925.03(A)(l)(C)(l)(c), a felony of the 3rd degree, punishable by a

mandatory prison term of up to three (3) years in prison.
Licking County, Case No. 16 CA 14                                                         3


      {¶6}     Appellant had at least two (2) prior convictions for felony drug offenses. As

charged in the single count of the indictment, the charge carried with it a maximum fine

of $10,000, and a mandatory minimum fine of $5,000. Additionally, Appellant was subject

to a driver's license suspension of between six (6) months and five (5) years.

      {¶7}     Appellant was tried before a jury on the 1st and 2nd days of March, 2016.

      {¶8}     At trial, the State put on evidence which consisted of audio recordings of

the drug buy by the confidential informant "CI", and testimony by the police officers

directing the buy. The CI did not appear at trial and could not be cross examined by

Appellant.

      {¶9}     Following deliberations, the jury found Appellant guilty of Aggravated

Trafficking in Drugs (Methamphetamine), in violation of R.C. §2925.03(A)(I)(C)(1)(c), a

felony of the third degree; and that the amount of Methamphetamine involved at the time

of the offense was equal to or in excess of the bulk amount but less than five times the

bulk amount.

      {¶10} The trial court sentence Appellant to a mandatory prison term of thirty (30)

months, running consecutively with the sentence in an unrelated case. No fine was

imposed, and Appellant's driver’s license was suspended for two years. Appellant was

also sentenced to three years of post-release control.

      {¶11} Appellant now appeals, assigning the following error for review:

                                         ASSIGNMENT OF ERROR

      {¶12} “I. APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS

VIOLATED.”
Licking County, Case No. 16 CA 14                                                          4


                                             I.

       {¶13} In his sole Assignment of Error, Appellant contends that the trial court erred

when it permitted the State to introduce the audio recordings of the undercover drug buy

into evidence. More specifically, Appellant argues his right to confront the witnesses

against him was violated because the audio tapes the trial court admitted contained

hearsay as they contained out-of-court statements made by a confidential informant who

was never identified and did not appear or testify at trial. Appellant argues that pursuant

to the U.S. Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004), the confidential informant’s taped statements should have

been excluded by the trial court as inadmissible hearsay.

       {¶14} Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). Hearsay is generally not admissible, except as provided by the

U.S. or Ohio Constitutions, by statute or court rule. Evid.R. 802. We review a trial court's

evidentiary rulings for an abuse of discretion, provided an objection is made at trial. State

v. Cunningham, 2d Dist. Clark No. 11CA 0032, 2012–Ohio–2333, ¶ 22.

       {¶15} The Sixth Amendment's Confrontation Clause provides, “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him.” “The United States Supreme Court has held that the right to confrontation

is violated when an out-of-court statement that is testimonial in nature is admitted into

evidence without the defendants having had the opportunity to cross-examine the

declarant. Crawford, 541 U .S. 36, 68.” State v. Syx, 190 Ohio App.3d 845, 2010–Ohio–

5880, 944 N.E.2d 722, ¶ 23 (2d Dist.). The Crawford court stated that “the core class of
Licking County, Case No. 16 CA 14                                                        5


testimonial statements includes statements ‘that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.’ Id. at 52.” Syx at ¶ 23.

       {¶16} The State argues that the taped statements of the C.I. and Appellant which

were admitted into evidence during trial were not hearsay because they were not offered

for the truth of the matter asserted. Furthermore, because the statements are not

testimonial, the State asserts that Appellant’s Sixth Amendment right to confrontation was

not violated.

       {¶17} A recording of a criminal defendant's own actions or reactions does not

implicate the Confrontation Clause. State v. Graves, Lorain App. No. 08CA9397, 2009-

Ohio-1133, at ¶ 8. Our Third District colleagues recently held that the comments of the

confidential informant are not hearsay as they give context to a defendant's statements

and are not offered to prove the truth of the matter asserted. See State v. Stewart, Seneca

App. No. 13-08-18, 2009-Ohio-3411, at ¶ 90. These rulings are consistent with other

jurisdictions that have considered the admissibility of recorded drug purchases post-

Crawford. See e.g. United States v. Jones (C.A.6 2006), 205 Fed. Appx. 327, 342; Turner

v. Kentucky (Ky. 2008), 248 S.W.3d 543, 545-546; Connecticut v. Smith (CT 2008), 289

Conn. 598, 960 A.2d 993, 1011-1012; State v. Jones, 2010-Ohio-865 citing State v.

Graves, 2009-0hio-1133 (a recording of a criminal defendant's own actions or reactions

does not implicate the Confrontation Clause); State v. Waver, 2016-0hio-5092 (finding

defendant's statements from the recording made by a CI during a drug transaction to not

be barred by the Confrontation Clause); and Davis v. Washington, 547 U.S. 813, 825
Licking County, Case No. 16 CA 14                                                           6


(2006)("statements made unwittingly to a Government informant" are "clearly

nontestimonial").

       {¶18} The State also relies on the case of U.S. v. Sexton, 119 Fed.Appx. 735

(C.A.6 2005), in which several defendants were convicted of conspiracy to distribute

cocaine. Prior to any arrests in the case, the police used confidential informants to

conduct controlled drug buys from the defendants. Each undercover drug buy was

audiotaped. One of the police informants, Eddie Goins, made several of the undercover

drug buys from two of the defendants. Id. at 741–742. The drug buys were audiotaped

using a hidden recorder supplied by the police to Goins. Most of the tapes of the drug

buys, as well as the accompanying transcripts, were admitted into evidence over the

objections of the defendants. Id. at 742. Goins, however, did not testify at trial. Similar to

the instant case, the government introduced the tapes through the testimony of the police

officers who participated in the operation who were specifically questioned about the

circumstances surrounding the audio recordings. Id.

       {¶19} On appeal, the Sexton court concluded that Goins' taped statements were

not hearsay because they were not offered to prove the truth of the matter asserted.

Rather, Goins' statements were offered “to give meaning to the admissible responses of

[defendants].” Id. The court also held that Goins' statements did not violate the

defendants' Sixth Amendment rights under the Confrontation Clause because they were

not testimonial in nature as defined by the U.S. Supreme Court in Crawford. Id; see State

v. Smith, 162 Ohio App.3d 208, 2005–Ohio–3579, 832 N.E.2d 1286, ¶ 14, 16 (8th Dist.)

(an informant's taped statements were not offered for the truth of the matter asserted, but
Licking County, Case No. 16 CA 14                                                         7


provided “a context within which to understand” the encounter; statements were not

testimonial and did not violate the defendant's constitutional right to confrontation).

       {¶20} In the case sub judice, with respect to the controlled drug buy on September

15, 2015, the jury was permitted to hear audio recordings of the telephone calls between

the C.I. and Appellant. In the recorded phone call made prior to the actual drug buy, the

C.I. and Appellant can both be heard arranging the location where the transaction is to

occur. In the second call, the C.I. and Appellant can be heard discussing the amount (a

half-ounce) and price ($800) of the methamphetamine to be bought.

       {¶21} Upon review, we conclude that the recorded statements made by the C.I.

during the drug buy were not offered for their truth, but rather to provide a context within

which to understand Appellant’s admissible statements. We therefore find said

statements were not hearsay under Evid.R. 801(C). Further, as the C.I.'s statements were

not hearsay, they were not testimonial, and Crawford is inapplicable. We therefore

conclude that the admission of the C.I.’s statements does not violate Appellant's Sixth

Amendment right to confrontation.

       {¶22} Furthermore, we find nothing amiss with police testifying as to the

confidential informant's comments. Those comments provided context to the use of the

informant and the recorded controlled purchase.
Licking County, Case No. 16 CA 14                                               8


      {¶23} Appellant’s Assignment of Error is overruled.

      {¶24} For the foregoing reasons, the judgment of the Licking County Court of

Common Pleas is affirmed.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.


JWW/d 1004
