State v. Franklin

[Cite as State v. Franklin, 2020-Ohio-1263.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2019-0042
SEAN A. FRANKLIN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2018-0670
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 30, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX AARON JONES
PROSECUTING ATTORNEY 503 South Front Street
TAYLOR P. BENNINGTON Suite 205
ASSISTANT PROSECUTOR Columbus, Ohio 43215
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2019-0042 2
Wise, John, P. J.
{¶1} Defendant-Appellant Sean A. Franklin appeals his conviction and sentence
entered by the Muskingum County Court of Common Pleas on two counts of possession
of drugs, two counts of trafficking in drugs, and one count of possession of drug
paraphernalia following a jury trial.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} On March 13, 2017, detectives with the Muskingum County Sheriff’s Office
were notified by a confidential source that Appellant Sean Franklin was selling cocaine,
methamphetamine and marijuana from his residence. The source then provided a
description of the residence, identifying it as being on Dryden Road, between Luck
Avenue and Brighton Boulevard, in Zanesville, Ohio.
{¶5} Detectives located the residence and conducted trash pulls on April 12,
2017, and April 19, 2017. During the trash pulls, the officers found green vegetation which
appeared to be marijuana, several plastic sandwich bags with the corners ripped out, an
empty package of CBD highly concentrated edibles. The field tests performed on the
baggies were positive for cocaine residue.
{¶6} Officers then submitted an affidavit and obtained a search warrant for the
house. During the search, officers located 28.54g of cocaine and money in Appellant's
dresser. Marijuana, digital scales, and plastic baggies were also found during the search.
{¶7} On October 24, 2018, Appellant was indicted on one count of Possession
of Drugs (Cocaine), with a forfeiture specification, in violation of R.C. §2925.11(A) and
Muskingum County, Case No. CT2019-0042 3
R.C. §2941.1417 [F-1], one count of Trafficking in Drugs (Cocaine), with a forfeiture
specification, in violation of R.C. §2925.03(A)(2) and R.C. §2941.1417 [F-1], one count of
Trafficking in Drugs (Marijuana), with a forfeiture specification, in violation of R.C.
§2925.03(A)(2) and R.C. §2941.1417 [F-5], one count Possession of Drugs (Marijuana),
in violation of R.C. §2925.11(A) [M-4], and one count Possession of Drug Paraphernalia,
in violation of R.C. §2925.14(C)(1) [M-4].
{¶8} On January 2, 2019, Appellant filed a plea of not guilty.
{¶9} On March 4, 2019, Appellant filed a Motion to Suppress.
{¶10} On March 5, 2019, Appellant filed a Motion to Compel the State to Reveal
the Confidential Informant.
{¶11} On March 7, 2019, a hearing was held on Appellant’s Motion to Suppress.
{¶12} On March 11, 2019, the trial court denied the Motion to Suppress.
{¶13} On March 13, 2019, the trial court denied the Motion to Compel.
{¶14} On March 15, 2019, Appellant filed a Motion in Limine requesting that any
testimony regarding the confidential source be excluded.
{¶15} On March 18, 2019, Appellant filed a Motion to Compel a Bill of Particulars.
{¶16} On March 19, 2019, a jury trial began. Prior to the commencement of the
trial, the trial court granted Appellant’s Motion in Limine, holding that information regarding
the confidential source could not be presented. The trial court denied the Motion to
Compel, finding that a Bill of Particulars was not required.
{¶17} During the trial, the court allowed the State to question Detective Wilhite
about the confidential source, finding that counsel or Appellant had opened the door on
cross-examination.
Muskingum County, Case No. CT2019-0042 4
{¶18} On March 20, 2019, the jury found Appellant guilty of all charges as
contained in the indictment.
{¶19} On April 24, 2019, Appellant was sentenced to an aggregate sentence of
ten (10) years in prison.
{¶20} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶21} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S
MOTION TO SUPPRESS WHEN THE COURT IMPROPERLY CONSIDERED
TESTIMONY THAT WAS NOT OFFERED TO THE ISSUING MAGISTRATE OR
INCLUDED IN THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT.
{¶22} “II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S
MOTION TO SUPPRESS WHEN THE AFFIDAVIT IN SUPPORT OF THE SEARCH
WARRANT WAS FACIALLY DEFICIENT, OVERBROAD, LACKED PROBABLE CAUSE,
WAS BASED ON UNDISCLOSED INFERENCES OF THE AFFIANT, FAILED TO AVER
TO THE RELIABILITY OR BASIS OF KNOWLEDGE OF A CONFIDENTIAL SOURCE
AND WAS INSUFFICIENTLY PARTICULAR IN VIOLATION OF THE FOURTH
AMENDMENT.
{¶23} “III. THE TRIAL COURT ERRED WHEN IT PERMITTED HEARSAY
TESTIMONY REGARDING A CONFIDENTIAL SOURCE WHO DID NOT TESTIFY AND
WAS NOT REVEALED PRIOR TO TRIAL IN VIOLATION OF APPELLANT'S RIGHT TO
CONFRONT HIS ACCUSERS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS.
Muskingum County, Case No. CT2019-0042 5
{¶24} “IV. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S
REQUEST FOR A BILL OF PARTICULARS.”
I., II.
{¶25} In his first and second assignments of error, Appellant argues that the trial
court erred in denying his motion to suppress.
{¶26} 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. See State v. Fanning (1982), 1 Ohio St.3d 19, 437
N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; 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 has held that as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal. See
Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
{¶27} Here, Appellant claims the trial court erred in finding the affidavit in support
of the search warrant contained sufficient probable cause and further improperly
considered testimony of witnesses during the suppression hearing.
Muskingum County, Case No. CT2019-0042 6
{¶28} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution provide that search warrants may only be issued upon
probable cause, supported by oath or affirmation, particularly describing the place to be
searched, and the person and/or things to be seized. See also State v. Jones, 143 Ohio
St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 11.
{¶29} Appellant herein claims that the search warrant affidavit did not provide
sufficient probable cause that contraband would be found at Appellant’s home. Appellant
argues that the search warrant was based on an undisclosed affidavit, failed to show the
reliability of the confidential source and was not sufficiently particular as to the items to
be seized.
Probable Cause
{¶30} In authorizing a search warrant, the issuing magistrate’s duty is to determine
whether “there is a fair probability that contraband or evidence of a crime will be found in
a particular place * * *.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d
527 (1983); Jones at ¶ 13. “[T]he duty of a reviewing court is simply to ensure that the
magistrate had a ‘substantial basis for * * * conclud[ing]’ that probable cause existed.”
Gates at 238-239, quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4
L.Ed.2d 697 (1960); State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d
638, ¶ 35. Ordinarily, “a probable cause inquiry must be confined to the four corners of
the affidavit.” State v. Klosterman, 114 Ohio App.3d 327, 333, 683 N.E.2d 100 (2d
Dist.1996). In reviewing whether a search warrant has been issued upon probable cause,
courts must examine the totality of the circumstances. Jones, 143 Ohio St.3d 266, 2015-
Ohio-483, 37 N.E.3d 123, at ¶ 15.
Muskingum County, Case No. CT2019-0042 7
{¶31} Trial courts and appellate courts “should accord great deference to the
magistrate’s determination of probable cause, and doubtful or marginal cases in this area
should be resolved in favor of upholding the warrant.” State v. George, 45 Ohio St.3d 325,
544 N.E.2d 640 (1989), paragraph two of the syllabus; Jones, 143 Ohio St.3d 266, 2015-
Ohio-483, 37 N.E.3d 123, at ¶ 14.
{¶32} Initially, Appellant argues that the affidavit was improperly based on an
undisclosed inference of the affiant. More specifically, Appellant claims that Detective
Wilhite presented his own inference that 440 Dryden Road was Appellant’s address.
{¶33} Upon review, we find said argument to be not well-taken. The confidential
source in this case told the detectives where Appellant lived and further provided great
detail.
{¶34} Paragraph 2 of the Affidavit states:
On March 13, 2017, Det. Matt Wilhite spoke with a confidential
source in reference to Sean Anthony Franklin. The source advised that
Franklin sells ounce quantities of cocaine and methamphetamine as well as
marijuana. The source advised that Franklin is supplied by a large scale
trafficker that receives ½ kilo quantities of cocaine and methamphetamine.
The source advised that Franklin lives on Dryden Road between Luck
Avenue and Brighton Boulevard. The source described the residence as
being tan in color and having several surveillance cameras on the front of
the residence.
{¶35} With regard to the detective’s confidence in and reliability of the confidential
source, the affidavit at page 3 stated:
Muskingum County, Case No. CT2019-0042 8
And the affiant has reasonable cause to believe that the source of
the information is credible and reliable in that: Information obtained from a
confidential source, information obtained by law enforcement through
independent investigation, and information passed from one law
enforcement officer to another corroborate one another.
{¶36} Testimony was also provided by the Detective that he ran Appellant’s Ohio
Driver’s License and it came back with 440 Dryden Road as Appellant’s address. (T. at
34).
{¶37} Further, paragraph 5 of the Probable Cause Affidavit states:
Sean Anthony Franklin’s Ohio Driver’s License was checked in the
Ohio Law Enforcement Gateway and found that Franklin has listed the
address of 440 Dryden Road, Zanesville, Ohio as his address.
{¶38} However, Appellant, in his Reply Brief, raised for the first time the issue that
the copy of the Probable Cause Affidavit provided to Appellant by fax by the State of Ohio
omitted the second page which contained paragraphs 4 and 5. Appellant argues that
because the trial court did not have this page before it when considering the Affidavit, the
Court should likewise not consider the information contained in those two paragraphs,
namely the second trash pull and the fact that Appellant’s driver’s license listed 440
Dryden as his address.
{¶39} Under App.R. 16(C), an appellant may file a brief “in reply to the brief of the
appellee.” “A reply brief affords an appellant an opportunity to respond to an appellee's
brief, * * * and it is improper to use it to raise a new issue.” State v. Mitchell, 10th Dist. No.
10AP–756, 2011–Ohio–3818, ¶ 47. See also State ex. rel. Bryant v. Indus. Comm., 10th
Muskingum County, Case No. CT2019-0042 9
Dist. No. 07AP–731, 2008–Ohio–3292, ¶ 5 (“The purpose of a reply brief is to afford the
appellant, or in this case, relator, with an opportunity to ‘reply’ to the arguments in
appellee's/respondent's brief, not to raise a new argument for the first time.”). For this
reason, generally, we will not address an argument raised for the first time in a reply brief.
State v. Townsend, 10th Dist. No. 10AP–983, 2011–Ohio–5056, ¶ 15.
{¶40} However, because ordinarily, “a probable cause inquiry must be confined
to the four corners of the affidavit” we will consider the trial court’s probable cause
determination without consideration of the missing page. State v. Klosterman, 114 Ohio
App.3d 327, 333, 683 N.E.2d 100 (2d Dist.1996).
{¶41} In reviewing whether a search warrant has been issued upon probable
cause, courts must examine the totality of the circumstances. Jones, 143 Ohio St.3d 266,
2015-Ohio-483, 37 N.E.3d 123, at ¶ 15.
{¶42} Trial courts and appellate courts “should accord great deference to the
magistrate’s determination of probable cause, and doubtful or marginal cases in this area
should be resolved in favor of upholding the warrant.” State v. George, 45 Ohio St.3d 325,
544 N.E.2d 640 (1989), paragraph two of the syllabus; Jones, 143 Ohio St.3d 266, 2015-
Ohio-483, 37 N.E.3d 123, at ¶ 14.
{¶43} Upon review, as stated above, probable cause for the search warrant was
based on evidence of drug trafficking provided by a confidential source and found during
a trash pull. We find that this evidence alone, even without consideration of the second
trash pull or evidence that Appellant’s driver’s license listed 440 Dryden as his address,
was sufficient to support a finding of probable cause.
Muskingum County, Case No. CT2019-0042 10
Overbreadth
{¶44} Appellant further claims that the search warrant was overbroad and lacking
in particularity.
{¶45} “Courts addressing the particularity requirement of the Fourth Amendment
are concerned with two issues. The first issue is whether the warrant provides sufficient
information to ‘guide and control’ the judgment of the executing officers in what to seize.
The second issue is whether the category as specified is too broad in that it includes items
that should not be seized.” (Citations omitted.) Castagnola, 145 Ohio St.3d 1, 2015-Ohio-
1565, 46 N.E.3d 638, at ¶ 79; see also State v. Terrell, 2017-Ohio-7097, 95 N.E.3d 870,
¶ 66 (2d Dist.).
{¶46} Here, the warrant authorized a search for the following items:
cocaine, marijuana, and any other illegal/illicit narcotics, drug scales,
drug paraphernalia, drug abuse instruments, firearms, U.S. currency,
computers, computer discs/programs, cell phones, any/all documents
pertaining to trafficking in drugs, or the manufacture of drugs, telephone
records, tax records, bank account numbers, banking records, safety
deposit box keys, storage unit keys, safes or strong boxes, or any other
financial records, cameras or video equipment being used as security/
counter-surveillance.
{¶47} Criminal Rule 41(B) provides:
Property Which May Be Seized With a Search Warrant. A search
warrant may be issued under this rule to search for and seize any: (1)
evidence of the commission of a criminal offense; or (2) contraband, the
Muskingum County, Case No. CT2019-0042 11
fruits of crime, or things otherwise criminally possessed; or (3) weapons or
other things by means of which a crime has been committed or reasonably
appears about to be committed.
{¶48} Upon review we find that the affidavit sets forth evidence of drug trafficking
which would support a warrant for the above listed items as items likely to be found in the
possession of someone possessing and/or trafficking in drugs. We therefore find said
Affidavit was not overbroad.
{¶49} Finally, Appellant argues that the trial court considered testimony from
Detective Wilhite at the suppression hearing which was not contained in the affidavit.
Appellant argues the affidavit only references one trash pull, but Det. Wilhite testified
regarding two separate trash pulls. Upon review, we find that the affidavit specifically sets
forth, in detail, that two separate trash pulls were conducted: one on April 12th and one
April 19th. (See Affidavit at paragraphs 3 and 4). However, if we disregard the second
trash pull based on the omission of the second page of the Affidavit, we find any error
with regard to such testimony to be harmless as evidence of the second trash pull was
still before the trial court with regard to a separate search warrant issued on April 25,
2017.
{¶50} Appellant further claims that it was error for Det. Wilhite to provide the trial
court with photographs of the items discovered during the trash pull because same were
not provided to the magistrate who issued the search warrant. Upon review, we find no
error as the items depicted in the photographs were described in detail in the affidavit.
{¶51} The admission or exclusion of relevant evidence rests in the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).
Muskingum County, Case No. CT2019-0042 12
Generally, all relevant evidence is admissible. Evid.R. 402. Abuse of discretion means
more than an error of law or judgment. Rather, it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983). Absent an abuse of discretion resulting in material prejudice to
the defendant, a reviewing court should be reluctant to interfere with a trial court's decision
in this regard. Sage, 31 Ohio St.3d 173.
{¶52} Appellant also argues Det. Wilhite should not have been allowed to testify
as to why bank records, firearms, computers, and cell phones were included in the
affidavit because in said affidavit Det. Wilhite only stated “Your affiant has participated in
hundreds of investigations where cell phones, computers and various personal and
financial documents have been used as a means to facilitate a crime. (Affidavit at
paragraph 1).
{¶53} Det. Wilhite’s testimony was as follows:
Q: What about firearms, do individuals that are in trafficking with drugs
often have firearms?
A: Yes.
Q. U.S. currency?
A: Yes
Q: What about computers, cell phones, have you ever seen those
used for purposes of engaging in trafficking ill drugs?
A: Yes, on several occasions.
Q: What about bank records, why would you want bank records?
Muskingum County, Case No. CT2019-0042 13
A: Bank records are used to prove or disprove employment, money,
monetary money coming in, and valid sources of income.
(Suppression hearing at 26-27).
{¶54} Upon review, we find that Det. Wilhite did not add any additional elaboration
to his statements as contained in his affidavit.
{¶55} As set forth above, we find no error in the trial court’s decision finding that
the affidavit in support of the search warrant contained sufficient probable cause for the
issuance of same.
{¶56} Appellant’s first and second assignments of error are overruled.
III.
{¶57} In his third assignment of error, Appellant argues the trial court erred in
allowing testimony regarding a confidential source who did not testify at trial. We disagree.
{¶58} Upon review, we find that no mention of the confidential source was made
during the direct testimony of Detective Wilhite. The first mention of the confidential
source came during cross-examination of Detective Wilhite by Appellant’s counsel. Said
exchange was as follows:
Q: … Why do you believe that that residence was Sean
Franklin’s [sic]?
A: Because he had items in the residence that were his, and he
was in the residence when the search warrant was conducted.
Q: Okay. But prior to that time did you have any reason to believe
Sean Franklin lived there?
A: Yes.
Muskingum County, Case No. CT2019-0042 14
Q: Okay. How?
A: I received anonymous complaints
Counsel: Objection, Your Honor.
Court: You’re the one that asked the question.
A: I received anonymous complaints and information from
sources.
{¶59} (T. at 223-224).
{¶60} As set forth above, Appellant opened the door to introduction of the
testimony about the confidential source. A court will not find error “when the defense
opens the door to otherwise inadmissible evidence.” State v. Davis, 195 Ohio App.3d 123,
2011-Ohio-2387, 958 N.E.2d 1260, ¶ 26 (8th Dist.). We find that Appellant did so here.
Once defense counsel questioned Det. Wilhite about how he learned that Appellant lived
at that address, this opened the door for the answer. It is well-settled that “[a] party will
not be permitted to take advantage of an error which he himself invited or induced. * * * ”
Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. 28 Ohio St.3d 20, 502 N.E.2d 590,
paragraph 1 of the syllabus. We find that the trial court did not abuse its discretion in
admitting the testimony.
{¶61} Based on the foregoing analysis, we find that the trial court did not err when
it allowed the above testimony in response to defense counsel’s questions.
{¶62} Accordingly, Appellant's third assignment of error is overruled.
IV.
{¶63} In his fourth assignment of error, Appellant argues the trial court erred when
it denied his request for a bill of particulars. We disagree.
Muskingum County, Case No. CT2019-0042 15
{¶64} Specifically, Appellant argues that indictment in this matter only contained
the names of the charged offenses and relevant code sections but failed to include dates
and times or the specific manner Appellant engaged in drug trafficking.
{¶65} The purpose of a bill of particulars is to inform an accused of the nature of
the offense and the conduct alleged to constitute the offense. Crim.R. 7(E). “A bill of
particulars has a limited purpose - to elucidate or particularize the conduct of the accused
alleged to constitute the charged offense.” State v. Sellards, 17 Ohio St.3d 169, 171, 478
N.E.2d 781 .
{¶66} Here, it is undisputed that Appellant was informed at the time of receipt of
discovery that the State does not provide Bills of Particulars in any criminal matter.
{¶67} At the beginning of the trial, the trial court addressed the issue as follows:
THE COURT: If he presents something that hasn't been provided in
discovery, you have a right to object to the rule at that point in time.
MR. BEDTELYON: Sure.
THE COURT: If it's not contained within the four corners of your discovery,
I won't allow it. So he's stuck to what you already have.
MR. BEDTELYON: I - I understand.
THE COURT: So there shouldn't be anything hidden. If there is, bring it
up.
{¶68} (T. at 17).
{¶69} Further, it is undisputed that the Muskingum County Prosecutor's Office
maintains “open-file discovery,” pursuant to which the state provides discovery by
allowing defense counsel to see all of its files regarding a case without requiring the
Muskingum County, Case No. CT2019-0042 16
defense to make a written request for discovery. No bill of particulars is required when
the state allows open-file discovery. State v. Evans, 2d Dist. Montgomery No. 20794,
2006–Ohio–1425, ¶ 24, citing State v. Tebcherani, 9th Dist. Summit No. 19535, 2000 WL
1729456 (Nov. 22, 2000). State v. Coffey, 6th Dist. Lucas No. L-12-1047, 2013-Ohio-
3555, ¶ 35
{¶70} In this case, a bill of particulars would not have provided the defense with
any additional information. Appellant was informed of Appellee's open-discovery policy
and thus had access to items such as the police reports, medical reports, and witness
statements in the case. The record clearly establishes that the defendant had notice of
the nature of the pending charges. Therefore, the purpose of the bill of particulars was
fulfilled.
{¶71} Appellant’s fourth assignment of error is overruled.
{¶72} Accordingly, the judgment of the Court of Common Pleas, Muskingum
County, Ohio, is affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0220