[Cite as State v. Byrd, 2025-Ohio-5857.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 115014 v. :
JEREMY BYRD, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: December 31, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-695828-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew W. Moretto, Assistant Prosecuting Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, Jennifer J. Pritchard, Assistant Public Defender, for appellee.
SEAN C. GALLAGHER, P.J.:
The State appeals the trial court’s interlocutory decision compelling
it to disclose the identity of a nonwitness to the factual allegations: the confidential
informant who provided information used to obtain a warrant leading to the search of Jeremy Byrd’s residence. Byrd has not challenged the legality of the search, the
fruit of which is the basis of the underlying drug-related charges. For the following
reasons, we reverse the trial court’s decision and remand for further proceedings.
In light of the interlocutory nature of this appeal, the underlying facts
are sparse. Byrd was the subject of a surveillance operation that used a confidential
informant to execute several controlled buys of illegal drugs from Byrd. This led
investigating officers and detectives to obtain a search warrant for Byrd’s residence.
The search revealed and secured 77 grams of cocaine; multiple scales, including one
with flurofentanyl residue; multiple cell phones; drug packaging materials; and
$6,534.00 in currency. The drug-trafficking and related charges in the current
indictment are solely based on the contraband discovered during the search. The
indictment also includes forfeiture of Byrd’s vehicle, which is alleged to have been
used in, or obtained from the proceeds of, the underlying charges. There are no
charges related to the controlled buys, which appear to have been investigatory tools
used to secure the warrant.
Several weeks before trial, Byrd, through counsel, filed a motion to
compel the State to disclose the identity of the confidential informant identified in
the search warrant. In that motion, Byrd generically claimed that the controlled
buys were integral to the probable-cause determination underlying the warrant and
that the confidential informant’s credibility “is a cornerstone of the prosecution’s
case, and as such, the defense must be able to investigate any potential biases,
motivations, or unreliability that may undermine the informant’s information.” The problem with both arguments starts with the fact that Byrd has
never challenged the legality of the warrant or the ensuing search that led to the
charges in the indictment. The underpinnings of the warrant are irrelevant to the
trial. Further, the State’s discovery response does not list the confidential informant
as a potential trial witness and the State’s certification of nondisclosure of discovery
materials, as required under Crim.R. 16(D), only identifies telephone records as
being discovery material withheld by the State. In other words, the State was not
withholding the identity of a trial witness or one who had any information related to
the charged conduct.
The State filed a brief in opposition arguing that
[t]he Defendant in this case has not demonstrated that the information is vital to establish an element of the offense (the controlled buys were not charged); nor has he established that the CI’s identity would be helpful or beneficial to his defense. The Defendant is only charged with drugs found because of the execution of a search warrant. The informant did not directly participate in the charged conduct, nor will the conduct between the informant and the defendant be introduced at trial.
Nonetheless, the trial court granted Byrd’s motion to compel without a hearing, and
this interlocutory appeal followed. See Crim.R. 12(K); State v. Port Clinton
Fisheries, 12 Ohio St.3d 114 (1984), syllabus.
“The common law recognizes a qualified privilege for law-
enforcement investigatory information, including confidential sources, surveillance
information, and law-enforcement techniques and procedures.” J&Cmarketing,
L.L.C. v. McGinty, 2015-Ohio-1310, ¶ 17. The “identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to
establishing an element of the crime or would be helpful or beneficial to the accused
in preparing or making a defense to criminal charges.” State v. Williams, 4 Ohio
St.3d 74, 77 (1983), syllabus.
If, however, the informant’s role is limited to providing information
concerning the offense, disclosure is not permitted. State v. Bays, 87 Ohio St.3d 15,
25 (1999). “[W]here the informant merely provided information concerning the
offense,” the courts “have quite consistently held that disclosure is not required.”
Id., quoting 3 LaFave & Israel, Criminal Procedure, Section 23.3 (1984). The
defendant bears the burden of establishing the need for disclosure. State v. Mays,
2003-Ohio-6949 (8th Dist.), citing State v. Brown, 64 Ohio St.3d 649, 653 (1992).
“In meeting this burden, the defendant must set forth more than mere speculation
that ‘the informer might somehow be of some assistance in preparing the case.’”
State v. Steward, 2003-Ohio-1337, ¶ 13 (8th Dist.), quoting State v. Parsons, 64
Ohio App.3d 63, 69 (4th Dist. 1989); see also State v. Evans, 2015-Ohio-1022, ¶ 27
(8th Dist.). This is because if speculation was sufficient to defeat the privilege
against disclosure, all defendants would be entitled to the identity of the informant.
There is a strong presumption against lifting the privilege.
J&Cmarketing, L.L.C. at ¶ 18, citing In re New York City, 607 F.3d 923, 929 (2d Cir.
2010). Nonetheless, appellate review of the trial court’s decision granting or
denying a motion to compel disclosure is reviewed for abuse of discretion. State v. Petty, 2023-Ohio-1146, ¶ 6 (8th Dist.), citing State v. Garcia, 1995 Ohio App. LEXIS
3467 (8th Dist. Aug. 24, 1995).
Generally, in cases in which a confidential informant conducts
controlled buys from the defendant and that information is only relevant to the
search warrant that leads to the discovery of the charged conduct, disclosure of the
identity is foreclosed. State v. Richard, 2002-Ohio-9 (8th Dist.) (disclosure not
required because the informant participated in the controlled buys leading to the
discovery of drugs at the defendant’s residence, and therefore, his testimony would
be irrelevant to the charged offenses); Petty, 2023-Ohio-1146, at ¶ 24 (8th Dist.)
(reversing the trial court’s compelling disclosure because the informant only
participated in controlled buys and was not a witness to the charged conduct).
Byrd claims that line of authority is inapplicable and instead relies on
a line of cases in which the informant actually witnessed the charged conduct,
making the informant a primary witness to the elements of the crime. See, e.g., State
v. McKoy, 2010-Ohio-522, ¶ 14 (8th Dist.) (concluding the trial court erred in
denying a motion to compel disclosure because the informant was the only witness
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[Cite as State v. Byrd, 2025-Ohio-5857.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 115014 v. :
JEREMY BYRD, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: December 31, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-695828-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew W. Moretto, Assistant Prosecuting Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, Jennifer J. Pritchard, Assistant Public Defender, for appellee.
SEAN C. GALLAGHER, P.J.:
The State appeals the trial court’s interlocutory decision compelling
it to disclose the identity of a nonwitness to the factual allegations: the confidential
informant who provided information used to obtain a warrant leading to the search of Jeremy Byrd’s residence. Byrd has not challenged the legality of the search, the
fruit of which is the basis of the underlying drug-related charges. For the following
reasons, we reverse the trial court’s decision and remand for further proceedings.
In light of the interlocutory nature of this appeal, the underlying facts
are sparse. Byrd was the subject of a surveillance operation that used a confidential
informant to execute several controlled buys of illegal drugs from Byrd. This led
investigating officers and detectives to obtain a search warrant for Byrd’s residence.
The search revealed and secured 77 grams of cocaine; multiple scales, including one
with flurofentanyl residue; multiple cell phones; drug packaging materials; and
$6,534.00 in currency. The drug-trafficking and related charges in the current
indictment are solely based on the contraband discovered during the search. The
indictment also includes forfeiture of Byrd’s vehicle, which is alleged to have been
used in, or obtained from the proceeds of, the underlying charges. There are no
charges related to the controlled buys, which appear to have been investigatory tools
used to secure the warrant.
Several weeks before trial, Byrd, through counsel, filed a motion to
compel the State to disclose the identity of the confidential informant identified in
the search warrant. In that motion, Byrd generically claimed that the controlled
buys were integral to the probable-cause determination underlying the warrant and
that the confidential informant’s credibility “is a cornerstone of the prosecution’s
case, and as such, the defense must be able to investigate any potential biases,
motivations, or unreliability that may undermine the informant’s information.” The problem with both arguments starts with the fact that Byrd has
never challenged the legality of the warrant or the ensuing search that led to the
charges in the indictment. The underpinnings of the warrant are irrelevant to the
trial. Further, the State’s discovery response does not list the confidential informant
as a potential trial witness and the State’s certification of nondisclosure of discovery
materials, as required under Crim.R. 16(D), only identifies telephone records as
being discovery material withheld by the State. In other words, the State was not
withholding the identity of a trial witness or one who had any information related to
the charged conduct.
The State filed a brief in opposition arguing that
[t]he Defendant in this case has not demonstrated that the information is vital to establish an element of the offense (the controlled buys were not charged); nor has he established that the CI’s identity would be helpful or beneficial to his defense. The Defendant is only charged with drugs found because of the execution of a search warrant. The informant did not directly participate in the charged conduct, nor will the conduct between the informant and the defendant be introduced at trial.
Nonetheless, the trial court granted Byrd’s motion to compel without a hearing, and
this interlocutory appeal followed. See Crim.R. 12(K); State v. Port Clinton
Fisheries, 12 Ohio St.3d 114 (1984), syllabus.
“The common law recognizes a qualified privilege for law-
enforcement investigatory information, including confidential sources, surveillance
information, and law-enforcement techniques and procedures.” J&Cmarketing,
L.L.C. v. McGinty, 2015-Ohio-1310, ¶ 17. The “identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to
establishing an element of the crime or would be helpful or beneficial to the accused
in preparing or making a defense to criminal charges.” State v. Williams, 4 Ohio
St.3d 74, 77 (1983), syllabus.
If, however, the informant’s role is limited to providing information
concerning the offense, disclosure is not permitted. State v. Bays, 87 Ohio St.3d 15,
25 (1999). “[W]here the informant merely provided information concerning the
offense,” the courts “have quite consistently held that disclosure is not required.”
Id., quoting 3 LaFave & Israel, Criminal Procedure, Section 23.3 (1984). The
defendant bears the burden of establishing the need for disclosure. State v. Mays,
2003-Ohio-6949 (8th Dist.), citing State v. Brown, 64 Ohio St.3d 649, 653 (1992).
“In meeting this burden, the defendant must set forth more than mere speculation
that ‘the informer might somehow be of some assistance in preparing the case.’”
State v. Steward, 2003-Ohio-1337, ¶ 13 (8th Dist.), quoting State v. Parsons, 64
Ohio App.3d 63, 69 (4th Dist. 1989); see also State v. Evans, 2015-Ohio-1022, ¶ 27
(8th Dist.). This is because if speculation was sufficient to defeat the privilege
against disclosure, all defendants would be entitled to the identity of the informant.
There is a strong presumption against lifting the privilege.
J&Cmarketing, L.L.C. at ¶ 18, citing In re New York City, 607 F.3d 923, 929 (2d Cir.
2010). Nonetheless, appellate review of the trial court’s decision granting or
denying a motion to compel disclosure is reviewed for abuse of discretion. State v. Petty, 2023-Ohio-1146, ¶ 6 (8th Dist.), citing State v. Garcia, 1995 Ohio App. LEXIS
3467 (8th Dist. Aug. 24, 1995).
Generally, in cases in which a confidential informant conducts
controlled buys from the defendant and that information is only relevant to the
search warrant that leads to the discovery of the charged conduct, disclosure of the
identity is foreclosed. State v. Richard, 2002-Ohio-9 (8th Dist.) (disclosure not
required because the informant participated in the controlled buys leading to the
discovery of drugs at the defendant’s residence, and therefore, his testimony would
be irrelevant to the charged offenses); Petty, 2023-Ohio-1146, at ¶ 24 (8th Dist.)
(reversing the trial court’s compelling disclosure because the informant only
participated in controlled buys and was not a witness to the charged conduct).
Byrd claims that line of authority is inapplicable and instead relies on
a line of cases in which the informant actually witnessed the charged conduct,
making the informant a primary witness to the elements of the crime. See, e.g., State
v. McKoy, 2010-Ohio-522, ¶ 14 (8th Dist.) (concluding the trial court erred in
denying a motion to compel disclosure because the informant was the only witness
to the criminal conduct underlying the charges in the indictment). There is no
allegation, or even an argument, that the informant in this case witnessed the drug-
trafficking charges related to the 77 grams of cocaine and trafficking paraphernalia
found in Byrd’s residence, a place the informant is not even alleged to have entered.
Richard and Petty control under the alleged facts of this case, not the McKoy line of
authority. Byrd’s motion to compel the disclosure of the confidential informant’s
identity did not carry his burden to demonstrate the necessity of the information.
See Petty. Byrd has not claimed that the informant has any exculpatory information
or was a witness to the underlying charges. In his motion, he offered nothing more
than mere speculation regarding the basis of the unchallenged search warrant and
the nature of the confidential informant’s role in the then-upcoming trial. In this
appeal, Byrd shifts his focus and claims that the confidential informant’s identity is
needed for the State to establish the forfeiture of the vehicle included in the
indictment, but even that claim is speculative in light of the lack of a factual
foundation. Byrd further cites no authority supporting the proposition that
divulging the identity of a confidential informant, who will not testify at trial,
extends to situations in which the information may be beneficial for the State’s
burden on proving the forfeiture of a criminal tool.
The identity of an informant must be revealed to a criminal defendant
when the testimony of the informant is necessary to establish an element of the
crime or is helpful or beneficial to the accused in preparing or making a defense to
criminal charges. Forfeiture of the vehicle alleged to have been used in the drug-
trafficking operation is not a criminal offense. Forfeiture of criminal tools or
property used in or derived through commission of the offense is classified as a fine
or sanction for criminal misconduct; it “is a form of punishment for a specified
offense” and not itself a criminal offense. State v. Howze, 2025-Ohio-2630, ¶ 17
(7th Dist.), citing State v. Hill, 70 Ohio St.3d 25, 32-35 (1994). Byrd has not demonstrated, let alone provided any relevant authority establishing, that
information pertaining to forfeiture itself is a basis to compel the disclosure of
privileged information. App.R. 16(A)(7). In light of the limited argument presented
for the first time in this appeal, we cannot offer relief. See State v. Wintermeyer,
2019-Ohio-5156, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997) (“A
first principle of appellate jurisdiction is that a party ordinarily may not present an
argument on appeal that it failed to raise below.”).
Because Byrd’s motion to compel was facially deficient as a matter of
law, the trial court erred by compelling the disclosure of the confidential informant.
See Johnson v. Abdullah, 2021-Ohio-3304, ¶ 39 (a trial court lacks discretion to
commit errors of law). The trial court had been provided no argument or
information sufficient to overcome the presumptive privilege against disclosing the
identity of the confidential informant.
The order compelling disclosure is reversed, and the matter
remanded for further proceedings.
It is ordered that appellant recover from appellee 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. A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
__ _ SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and DEENA R. CALABRESE, J., CONCUR