State v. Harris

[Cite as State v. Harris, 2024-Ohio-5807.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 113600

v. :

STEVEN HARRIS, SR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED

RELEASED AND JOURNALIZED: December 12, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-654918-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Kyle Dillon, Assistant Prosecuting Attorney,

for appellee.

Russell S. Bensing, for appellant.

SEAN C. GALLAGHER, J.:

Steven Harris, Sr., appeals his conviction for drug-related offenses

and having weapons while under disability. The State, in part, concedes some errors

that occurred during the proceeding below. For the following reasons, we affirm in

part, reverse in part, and remand for further proceedings.

Cleveland police detectives received information that Harris was

selling drugs in the south Slavic Village area of Cleveland, Ohio. A confidential

informant set up two controlled buys from Harris. Detectives verified Harris’s

phone number, as used by the informant, and his residency at 7820 Worley Avenue.

The informant first called Harris to set up a purchase of heroin and crack. On the

first occasion, police officers surveilling the 7820 address witnessed Harris leave his

house with another individual, identified as Anthony A. Jackson but known by the

name “Ron.” The informant described Jackson as Harris’s runner. After a short

conversation between the two men, Jackson briefly entered the home located at

7824 Worley Avenue. He then drove to meet the informant, who completed the

transaction. Jackson immediately returned to Harris’s home at the 7820 address to

meet up with Harris. Detectives secured the drugs purchased by the informant,

which tested positive for cocaine, heroin, fentanyl, 4-ANPP (a direct precursor to

fentanyl and fentanyl analogues), and Tramadol (generic version of an opioid

painkiller).1

A few weeks later, detectives using the same informant initiated a

second buy of heroin-fentanyl. The informant again called Harris on the same

1 See United States v. Tobias, 101 F.4th 473, 477 (6th Cir. 2024) (noting that 4-

ANPP is a direct precursor to fentanyl and some fentanyl analogues); United States v.

Motley, 89 F.4th 777, 780 (9th Cir. 2023), citing Schedules of Controlled Substances:

Placement of Tramadol Into Schedule IV, 79 Fed. Reg. 37,623, 37,623 (July 2, 2014)

(noting that “Tramadol is a centrally acting opioid analgesic . . . .”).

phone number to set up the meeting. Surveilling officers observed Harris leaving

his 7820 address and directly proceed to the meeting with the informant, who

purchased the same substance as earlier. Officers secured the drugs, which in their

experience appeared to be heroin based on the texture and color of the substance

and that it resembled the material from the first controlled transaction. The

detective did not receive the results of the lab testing at the time the affidavit in

support of a search warrant for the 7820 address was filed, a fact contained in the

affidavit itself. Police executed the search warrant and found a significant quantity

of illicit drugs and other contraband including firearms, which Harris was legally

precluded from possessing due to a prior conviction. The lab results for drugs

obtained from the second buy indicated the presence of fentanyl and 4-ANPP, but

those results came after the search warrant was executed.

A jury found Harris guilty of four counts of drug possession in

violation of R.C. 2925.11(A) (two of which are third-degree felonies, one is a fifth-

degree felony, and the last is a first-degree felony), possession of criminal tools in

violation of R.C. 2923.14(A), a fifth-degree felony, having weapons while under

disability in violation of R.C. 2923.13(A)(3), a third-degree felony, and various

forfeiture specifications attendant to those counts.

During the sentencing hearing, the trial court stated:

Before imposing sentence[,] the Court notes for the record that it has

considered the record itself, the statements made here today, the letter

submitted by the defendant’s wife and codefendant, the defendant’s

prior record, and the nature of the offenses.

The Court must and has formulated its decision based upon the

overriding principles and purposes of felony sentencing, namely to

protect the public from future criminal acts by the defendant or others

and to punish the defendant using the minimum sanctions that the

Court determines accomplishes those purposes without imposing an

unnecessary burden on the State or local government resources under

Revised Code 2929.11(A). To achieve these purposes, the Court has

considered the need for incapacitation, deterrence, and rehabilitation.

The Court must and has also considered the seriousness and recidivism

factors relevant to the offense and the offender pursuant to Revised

Code 2929.12. These factors are very unhelpful to the defendant.

The Court must and has determined that the sentence being imposed

does not demean the seriousness of the offenses and the impact it had

on any potential victims in the community and is consistent with other

similar offenses committed by comparable offenders.

Finally, of course, the sentence is not based upon any impermissible or

irrelevant factors including but not limited to race, sex, age, national or

ethnic origin, sexual orientation, gender identity, or religion of the

defendant.

Tr. 1723:14-1724:25.

Thus, the trial court expressly considered the principles and purposes of sentencing

under R.C. 2929.11 and the relevant sentencing factors under R.C. 2929.12. Notably,

the trial court did not consider, discuss, or make any findings under

R.C. 2929.14(C)(4).

In the final entry of conviction, the trial court imposed an aggregate

sentence of 13 years, running the 11-year mandatory sentence on the first-degree

felony consecutive to each of the two 12-month sentences imposed on the third-

degree felony drug possession counts (one of which would eventually merge with the

first-degree felony). All other counts were concurrently imposed. Notably, the trial

court failed to impose a non-life indefinite sentence for the qualifying first-degree

felony. At the sentencing hearing, however, the trial court only imposed one of the

12-month terms for the third-degree felony offenses to be served consecutive to the

11-year definite term on the qualifying first-degree felony offense. Thus, the entry

differed from that which occurred.

Before trial, Harris moved to suppress the evidence obtained through

the search of the 7820 address, claiming that the affidavit in support of the warrant

was not sufficient to establish a nexus between the two controlled-buy transactions

and Harris’s home. In this appeal, Harris advances four assignments of error

claiming that the trial court (1) erred in denying the motion to suppress; (2) erred

by failing to merge the third-degree felony drug possession in Count 6 with the first-

degree drug possession in Count 4; (3) failed to make any consecutive-sentencing

findings under R.C. 2929.14(C)(4); and (4) imposed a sentence that was contrary to

the sentence imposed at the sentencing hearing. The assignments of error will be

addressed out of order for ease of discussion.

In the first assignment of error, Harris claims that the trial court erred

in denying the motion to suppress because the affidavit in support of the warrant

did not establish a nexus between Harris’s home at 7820 Worley Avenue and the

controlled buys conducted by surveilling detectives. Harris’s argument is focused

on the Fourth Amendment of the federal Constitution.

Under Ohio law, review of a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. “When

considering a motion to suppress, the trial court assumes the role of trier of fact and

is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992).

We generally defer to the trial court’s findings of fact. Id. Notwithstanding, an

appellate court must “independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id. The

trial court, in this case, largely focused on the four corners of the affidavit in support

of the search warrant.

The constitutional prohibition against unreasonable searches and

seizures protects the “‘right of the people to be secure in their . . . houses’ and

requires that ‘no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and the persons

or things to be seized.’” United States v. White, 990 F.3d 488, 490 (6th Cir. 2021),

quoting U.S. Const. amend. IV. When issuing courts are reviewing affidavits in

support of a search warrant, evidence must demonstrate that “there is a fair

probability that contraband or evidence of a crime will be found in a particular place”

in light of the totality of the evidence presented. Id., quoting Illinois v. Gates, 462

U.S. 213, 238 (1983). Generally, the probable cause inquiry in cases involving a

known or suspected drug dealer is a fact-intensive one, which conforms “‘to the

Supreme Court’s general rejection of ‘rigid rules, bright-line tests, and mechanistic

inquiries in favor of a more flexible, all-things-considered approach’ when

evaluating probable cause.” United States v. Brown, 828 F.3d 375, 384 (6th Cir.

2016), quoting Florida v. Harris, 568 U.S. 237, 244 (2013).

Harris claims that the affidavit in support of the search warrant was

deficient because the detectives did not include evidence of numerous visits to the

house by drug buyers or because the detectives did not rifle through his trash looking

for evidence. Harris claims that in order to demonstrate a “fair probability” that

contraband or evidence exists in his house, the State needs evidence of

surveillance which establishes frequent, short visits of numerous

people to the premises can give rise to an inference of drug-dealing in

the house. State v. Williams, 2023-Ohio-4344 (6th Dist.); State v.

Karsikas, 2020-Ohio-5058 (11th Dist.)[.] Trash pulls resulting in the

discovery of evidence of drug trafficking can also provide the necessary

nexus for a warrant. State v. Rieves, 2018-Ohio-955 (8th Dist.); State

v. Craine, 2024-Ohio-2501 (10th Dist.)[.] In fact, even a single trash

pull can furnish probable cause for a search of the residence. State v.

Jones, 143 Ohio St.3d 266, 2015-Ohio-483.

According to Harris, because none of that evidence was presented in the affidavit in

this case, then necessarily the State’s evidence in support of probable cause to justify

the issuance of the search warrant was insufficient.

Harris’s reliance on those above-mentioned cases as creating the

minimum to establish probable cause is misplaced. Although that evidence was

sufficient to justify the issuance of search warrants in those cases, it is not necessarily

required in all cases. Such a conclusion would amount to the rigid, bright-line test

generally avoided by the Supreme Court. See Harris. And regardless, the authority

cited by Harris does not stand for the proposition that all searches of a known or

suspected drug dealer’s home are required to be based on evidence of numerous

sales inside the house or that obtained from trash pulls. That was merely the

evidence presented in those particular cases, as the courts noted in resolving the

fact-intensive inquiry. Given the limited argument, we need not expand on this part

of the discussion any further.

In this case, officers conducted two controlled buys of illegal

narcotics from Harris. The first was admittedly less compelling as to the probability

of illicit contraband being discovered in the 7820 address than the second. But

coupling both buys together, there was sufficient evidence demonstrating more than

a mere suspicion that officers would find illicit contraband at 7820 Worley Avenue.

On two occasions, the reliable informant called Harris’s phone directly and arranged

to purchase heroin-fentanyl and crack cocaine. On both occasions, Harris was seen

exiting his house at 7820 Worley Avenue and either sending someone (who also

exited that house) or appearing himself to complete the drug sale to the informant.

After the first controlled transaction, the confidential, reliable informant told

officers that the man he met was a runner for Harris. Although the first buy included

a short detour to 7824 Worley Avenue by the runner, who ultimately sold the drugs

to the informant, the second buy was more direct with Harris seen exiting his house,

driving straight to and from the transaction, and returning to the 7820 address.

That second controlled buy is the primary foundation of the search warrant given

the issues with the first transaction — that the runner detoured before meeting the

confidential informant, which indicates the drugs may not have been stored at the

7820 address.

In similar situations to the second transaction, federal courts have

upheld the validity of the warrant to search a drug dealer’s premises based on the

“common sense” inference that drugs would be found in the home, essentially

finding that evidence of the defendant leaving the house, directly proceeding to the

site of the drug buy, and then immediately returning to the same house

demonstrates that the house was essentially used as the defendant’s base of

operations. White, 990 F.3d 488, at 490 (warrant supporting the search of a house

was upheld on a single controlled buy in which the informant called the defendant

to buy drugs, the defendant left the house, sold the drugs to the informant, and

returned to the same house); White at 490-491 (noting, in upholding the validity of

the warrant to search a house, that “the informant saw a person exit the home,

provide a buyer with a ‘large quantity of cocaine in a plastic bag,’ and return inside”);

see also United States v. Coleman, 923 F.3d 450, 457 (6th Cir. 2019); United States

v. Stearn, 597 F.3d 540, 564 (3d Cir. 2010); United States v. Barnes, 492 F.3d 33,

37 (1st Cir. 2007). Harris has not discussed nor given any reasons to distinguish

that line of authority, especially as it pertains to the second controlled buy. Harris’s

avoidance of discussing the totality of the case authority surrounding the Fourth

Amendment and controlled-buy transactions limits our review.

And finally, in a cursory manner, Harris claims that because the

testing on the drugs obtained during the second controlled buy had not been

returned at the time the officers obtained the search warrant, the events of the

second controlled buy are not relevant to the warrant. Harris did not present this

argument to the trial court in his motion to suppress and, therefore, is raising a new

argument not addressed below.

Nevertheless, Harris failed to present any authority or analysis

demonstrating viability to his argument. He instead simply presumes that the

official testing results of the second drug buy were required to create a nexus

between the controlled transactions and his sale of drugs from the 7820 address. He

has not offered any authority to support that notion, and given the limited argument,

we are reluctant to weigh in on what could appear to create a rigid rule. It is not the

role of an appellate court to flush out or create legal analysis on behalf of one of the

parties. See State v. Quarterman, 2014-Ohio-4034, ¶ 19, citing State v. Bodyke,

2010-Ohio-2424, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part); see

also Russo v. Gissinger, 2023-Ohio-200, ¶ 28 (9th Dist.), quoting State v. Taylor,

1999 Ohio App. LEXIS 397 (9th Dist. Feb. 9, 1999) (“‘It is the duty of the appellant,

not [an appellate court], to demonstrate his assigned error through an argument

that is supported by citations to legal authority and facts in the record.’”).

In reviewing the facts in the affidavit, after the informant conducted

the second transaction, a detective, who has 19 years of law-enforcement experience

and five years specifically focusing on drug crimes, testified that he took possession

of the same drug material as the first time, which had already been tested. In

addition, in his experience, the material looked like the heroin-fentanyl mix as

requested by the informant. In light of that, it cannot be said that a drug test is

always required before obtaining a search warrant when there is some evidence that

a drug sale took place. In light of the limited arguments presented, we find no merit

to the first assignment of error.2

On the remaining three assignments of error, we note that the State

concedes two issues. First, the State concedes that the drug possession Counts 4 and

6 merged under State v. Pendleton, 2020-Ohio-6833, ¶ 20, which held that “the

imposition of two punishments for the same, singular quantity of drugs violated the

Double Jeopardy protections of the Ohio and United States Constitutions.” In this

case, like Pendleton, the State aggregated the drugs charged under Count 6 into the

total quantity of drugs that created the first-degree, qualifying felony offense as

charged under Count 4. Thus, Harris’s sentences for Counts 4 and 6 are on allied

offenses of similar import as a matter of law. Id. Those two sentences on Counts 4

and 6 are hereby vacated, and the matter is remanded for sentencing anew under

R.C. 2929.14, and if applicable under R.C. 2929.141, after the State elects on which

count to proceed.

Second, with respect to concessions, the State agrees that the trial

court’s journalized sentencing entry does not comport with the sentence imposed at

the sentencing hearing because the trial court only imposed one of the 12-month

terms on the third-degree felony offenses to be served consecutively to the 11-year

term on the first-degree drug possession offense. In the final entry of conviction,

2 This is not to say that we are necessarily agreeing with the State that the evidence

in this case would always support a finding of probable cause for the issuance of a search

warrant. It is more a reflection of the limited arguments presented and review of the

general case law on this topic.

two 12-month terms were imposed consecutive to the 11-year mandatory term on

the first-degree qualifying felony. This issue, however, is directly impacted by the

third assignment of error, in which Harris claims that the trial court failed to make

any consecutive-sentencing findings under R.C. 2929.14(C)(4). We agree with

Harris. As a result, we need only consider the findings question because the remedy

is a remand to address the consecutive-sentencing question anew.

In order to impose consecutive sentences under R.C. 2929.14(C)(4),

a trial court must consider and find that “the consecutive service is necessary to

protect the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public.” The trial court also must make at

least one of the findings set forth under R.C. 2929.14(C)(4)(a)-(c). “When imposing

consecutive sentences, a trial court must state the required findings as part of the

sentencing hearing” and “incorporate its statutory findings into the sentencing

entry.” State v. Bonnell, 2014-Ohio-3177, ¶ 29.

The trial court failed to render any findings at the sentencing hearing

or in the final entry of conviction. The trial court’s sole discussion pertaining to the

felony-sentencing requirements was limited to a discussion focusing on R.C. 2929.11

and 2929.12. We acknowledge that there is some overlap in the principles of felony

sentencing under R.C. 2929.11 and 2929.14(C)(4). For example, the former provides

that the “overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others, to punish the offender . . . ,” while the first

finding of the latter section provides that consecutive sentences can be imposed “if

the court finds that the consecutive service is necessary to protect the public from

future crime or to punish the offender.” That is but one element, however, and in

this context, it is not clear that the trial court was considering the R.C. 2929.14(C)(4)

factors rather than reciting, nearly verbatim, the principles of sentencing under R.C.

2929.11. It is well settled that R.C. 2929.11 does not apply to consecutive sentencing.

See, e.g., State v. Gwynne, 2019-Ohio-4761, ¶ 17 (holding that “R.C. 2929.11 and

2929.12 both clearly apply only to individual sentences.” (Emphasis deleted.)).

The State essentially argues that the findings can be discerned from

the record based on the trial court’s reference to R.C. 2929.11 and 2929.12. See State

v. Bonnell, 2014-Ohio-3177, ¶ 29 (“[A]s long as the reviewing court can discern that

the trial court engaged in the correct analysis and can determine that the record

contains evidence to support the findings, consecutive sentences should be

upheld.”). Although appellate courts may discern the findings are made from the

record, that divination must be derived from the record as it pertains to the trial

court’s exercise of its discretionary authority to impose consecutive sentences under

R.C. 2929.14(C)(4). State v. Jackson, 2024-Ohio-583, ¶ 4-9 (8th Dist.). Here, the

trial court did not consider the findings under R.C. 2929.14(C)(4) in exercising its

discretion to impose consecutive sentences. It merely cited the general sentencing

provisions from R.C. 2929.11 and 2929.12. That there is some overlap between R.C.

2929.14(C)(4) and the sentencing considerations or factors does not dispel what is

apparent from the record, that trial court did not consider R.C. 2929.14(C)(4) when

imposing the sentences to be consecutively served.

The imposition of consecutive service of the underlying sentences on

all counts is reversed, and the matter remanded for the purpose of conducting a new

sentencing hearing to address the consecutive-service question with respect to all

the individual sentences imposed and to be imposed on remand. See State v. Nashe,

2024-Ohio-3400, ¶ 73 (8th Dist.); see also State v. Banks, 2023-Ohio-4655, ¶ 15

(8th Dist.), citing State v. Tolbert, 2023-Ohio-532, ¶ 10 (8th Dist.), State v. Vargas,

2015-Ohio-2856, ¶ 15 (8th Dist.), and State v. Nia, 2014-Ohio-2527, ¶ 28 (8th Dist.).

Although the trial court is to consider the consecutive-sentencing issue anew, the

individual sentences imposed on each offense, except for Counts 4 and 6 that are

hereby vacated as discussed above, are now final and cannot be revisited on remand.

If necessary, the findings under R.C. 2929.14(C)(4) must be included in the record

and in the final entry of conviction.

As a result of the foregoing, we affirm in part, reverse in part, and

remand for further proceedings. The trial court did not err by denying the motion

to suppress based on the fact that the defendant failed to demonstrate that the

evidence demonstrating probable cause from the sequence of events and

observations presented in the affidavit supporting the search warrant was

insufficient. Nevertheless, the sentences imposed on Counts 4 and 6 are contrary to

law based on the State’s concession that those two offenses should have merged.

Both of those sentences are vacated, and the matter remanded for the purposes of

the State’s election on resentencing. And finally, the consecutive sentences on all

counts are reversed. At the resentencing hearing, the court must impose a sentence

on either Count 4 or 6 (at the State’s discretion) and then, if applicable, make the

findings under R.C. 2929.14(C)(4) and include those in a new final entry of

conviction.

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 issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for further proceedings consistent with this opinion.

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

of the Rules of Appellate Procedure.

______________________

SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and

EILEEN T. GALLAGHER, J., CONCUR