[Cite as State v. Windland, 2024-Ohio-1760.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 00068 DUSTIN M. WINDLAND
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 2023 CR 00230
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 6, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JENNY WELLS BRIAN A. SMITH Licking County Prosecuting Attorney 123 S. Miller Road, Suite #250 Akron, Ohio 44333 KENNETH W. OSWALT Assistant Prosecuting Attorney 20 S. Second Street, 4th Street Newark, Ohio 43055 Licking County, Case No. 2023 CA 00068 2
Hoffman, J. {¶1} Defendant-appellant Dustin Windland appeals the judgment entered by the
Licking County Common Pleas Court convicting him following his pleas of no contest to
aggravated trafficking in methamphetamine (R.C. 2925.03(A)(2)(C)(1)(3)), aggravated
possession of drugs (R.C. 2925.11(A)(C)(1)(d)), trafficking in a fentanyl-related
compound (R.C. 2925.03(A)(2)(C)(9)(d)), possession of a fentanyl-related compound
(R.C. 2925.11(A)(C)(11)(c)), having weapons while under disability (R.C. 2923.13(A)(2)),
and possession of cocaine (R.C. 2925.11(A)(C)(4)(a)), with a firearm specification (R.C.
2941.141(A)) and a forfeiture specification (R.C. 2981.02(A)(1)(C), 2941.1417(A)), and
sentencing him to an aggregate prison term of nine to eleven and one-half years. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 21, 2023, detectives with the Central Ohio Drug Enforcement
Task Force were contacted by a confidential informant who told them Appellant was
selling large amounts of methamphetamine from 374 Seroco Avenue in Newark, Ohio.
The informant stated Appellant had a safe in the living room of the home, which contained
narcotics and firearms. The informant further advised three large pit bulls and a security
video camera protected the residence. Detective Kyle Boerstler verified the presence of
the camera. He conducted surveillance on the property from March 21 through March
30, 2023, and observed individuals entering through the rear entranceway to the
residence and exiting after short durations, consistent with drug trafficking activity.
{¶3} Kelow Jones was stopped in a motor vehicle leaving the residence on
March 21, 2023. He was arrested on a warrant, and methamphetamine was found in his Licking County, Case No. 2023 CA 00068 3
vehicle. Jones advised police he knew the occupant of the home as “Dustin,” and they
were friends on Facebook.
{¶4} Detective Boerstler received information from a confidential source on April
3, 2023, stating Appellant would be traveling to Columbus to pick up three ounces of
fentanyl and a pound of methamphetamine. The detective observed Appellant arrive at
the residence, exit his vehicle, and remove a padded grey tool box with a visible padlock
before entering the residence.
{¶5} Detective Boerstler obtained a search warrant for the residence on April 3,
2023. Appellant was detained in a traffic stop prior to execution of the warrant, and
agreed to return to the address to restrain his dogs. Police recovered a loaded handgun
from the residence. Police also recovered a safe from the residence, which contained
numerous baggies of a white powdery substance, a box of ammunition which would fit
the recovered handgun, digital scales, empty baggies, and a bag of marijuana. Appellant
admitted the safe, along with the drugs found inside, belonged to him. He admitted to
handling and moving the recovered firearm. The drugs were tested and determined to
be 227.5412 grams of methamphetamine, 5.7427 grams of fentanyl, and 3.3831 grams
of cocaine.
{¶6} Appellant was under a disability for possession of a firearm by virtue of prior
convictions of aggravated robbery and felonious assault. At the time of his arrest, he was
under parole supervision from prior convictions.
{¶7} Appellant was indicted by the Licking County Grand Jury with aggravated
trafficking in methamphetamine, aggravated possession of methamphetamine, trafficking
in a fentanyl-related compound, possession of a fentanyl-related compound, having a Licking County, Case No. 2023 CA 00068 4
weapon under disability, and possession of cocaine, with a firearm specification and a
forfeiture specification as to the firearm.
{¶8} Appellant filed a motion to suppress evidence taken from the search of his
home on the basis the information provided in the affidavit did not provide probable cause
to support the issuance of the search warrant. The trial court overruled the motion without
an evidentiary hearing. Appellant also moved to dismiss the charge of having a weapon
under disability and the firearm specification on the basis the charges violated his Second
Amendment right to bear arms. The trial court overruled the motion.
{¶9} Appellant entered pleas of no contest to all charges and was convicted. The
trial court found the convictions of aggravated trafficking and aggravated possession of
methamphetamine merged, and the State elected to have Appellant sentenced on
aggravated trafficking in methamphetamine. The trial court found the charges of
trafficking in a fentanyl-related compound and possession of a fentanyl-related compound
merged, and the State elected to have Appellant sentenced on the trafficking conviction.
The trial court sentenced Appellant to five to seven and one-half years incarceration for
aggravated trafficking in methamphetamine, one year incarceration for trafficking in a
fentanyl-related compound, one year incarceration for having a weapon under disability,
one year incarceration for possession of cocaine, and one year incarceration on the
firearm specification, to be served consecutively for an aggregate term of incarceration of
nine to eleven and one-half years. It is from the September 19, 2023 judgment of the trial
court Appellant prosecutes his appeal, assigning as error: Licking County, Case No. 2023 CA 00068 5
I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION TO DISMISS COUNT 5 AND THE FIREARM SPECIFICATION
FOUND IN THE INDICTMENT, IN VIOLATION OF APPELLANT’S RIGHT
TO BEAR ARMS UNDER THE SECOND AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 4 OF THE OHIO CONSTITUTION, BECAUSE R.C.
2923.13(A)(2) IS UNCONSTITUTIONAL, BOTH ON ITS FACE AND AS
APPLIED TO APPELLANT, FOR VIOLATING THE SECOND
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
I, SECTION 4 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION TO SUPPRESS, IN VIOLATION OF APPELLANT’S RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES UNDER THE
FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO
CONSTITUTION.
III. THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE
SENTENCES UNDER R.C. 2929.14(C)(4) WAS NOT SUPPORTED BY
THE RECORD.
I.
{¶10} In his first assignment of error, Appellant argues the trial court erred in
convicting him of having a weapon under disability and of the firearm specification, as the Licking County, Case No. 2023 CA 00068 6
statutes under which he was convicted are unconstitutional under the United States and
Ohio Constitutions, both facially and as applied to him.
{¶11} Whether a statute is unconstitutional is a question of law subject to de novo
review. Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 15,
citing Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 88 N.E.3d 900, ¶
16. In a de novo review, we review the merits of the case independently, without any
deference to the trial court. Sosic v. Stephen Hovancsek & Assocs., Inc., 8th Dist.
Cuyahoga No. 109993, 2021-Ohio-2592, ¶ 21.
Having a Weapon Under Disability
{¶12} Appellant filed a motion to dismiss challenging the constitutionality of R.C.
2923.13(A)(2), of which he was ultimately convicted:
(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any firearm
or dangerous ordnance, if any of the following apply:
(2) The person is under indictment for or has been convicted of any
felony offense of violence or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been
a felony offense of violence.
{¶13} Pursuant to New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1,
142 S.Ct. 2111, 213 L.Ed.2d 387, when a statute infringes on a person’s Second
Amendment right to bear arms, the burden is on the State to demonstrate the “regulation Licking County, Case No. 2023 CA 00068 7
is consistent with this Nation's historical tradition of firearm regulation.” Id. at 17, 142 S.Ct.
at 2126.
{¶14} In Bruen, the challenged statute prohibited a person from carrying a firearm
without a license, and to obtain a license the person must prove “proper cause,” defined
as demonstrating a special need for self-protection distinguishable from that of the
general community. In finding the “proper cause” requirement violated the Second
Amendment, the court held to justify a firearm regulation, the burden is on the government
to demonstrate the regulation is consistent with this Nation's historical tradition. 597 U.S.
at 17, 142 S.Ct. 2111. However, throughout the opinion the court repeatedly referred to
the Second Amendment's protection of the rights of law-abiding citizens. The court noted
the Second Amendment elevates above all other interests the right of law-abiding,
responsible citizens to use arms for self-defense. Id. at 26, 142 S.Ct. 2111. While the
court chose not to provide an exhaustive list of the features which would render a current
regulation relevantly similar to a historical regulation under the Second Amendment, the
court pointed toward two metrics: “how and why the regulations burden a law-abiding
citizen's right to armed self-defense.” Id. at 29, 142 S.Ct. 2111. The court took note of the
fact the petitioners in Bruen were ordinary, law-abiding, adult citizens. Id. at 31-32, 142
S.Ct. 2111. In reviewing New York's proper-cause requirement, the court noted apart from
a few outliers, American governments have not required law-abiding, responsible citizens
to demonstrate a special need for self-protection to possess a firearm. Id. at 70, 142 S.Ct.
2111. The ultimate holding of the court found New York's proper cause requirement
violates the Second Amendment in that it prevents law-abiding citizens of ordinary self- Licking County, Case No. 2023 CA 00068 8
defense needs from exercising their right to keep and bear arms. Id. at 71, 142 S.Ct.
2111.
{¶15} Concurring separately, Justice Alito noted the Bruen holding decided
nothing about who may lawfully possess a firearm, but merely decided the Second
Amendment protects the right of law-abiding people to carry a gun outside of their home
for self-defense. Id. at 72, 76, 142 S.Ct. 2111. Similarly, Justice Kavanaugh also
concurred separately, noting nothing in Bruen should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons. Id. at 81, 142 S.Ct.
{¶16} In State v. Jenkins, 5th Dist. Licking No. 2023 CA 00058, 2024-Ohio-1094,
this Court found the trial court did not commit plain error in convicting the defendant of
having a weapon under disability pursuant to R.C. 2923.13(A)(3), which precludes
possession of a firearm by a person under indictment for or convicted of a felony drug
offense, as the statute was not obviously unconstitutional. Likewise, the Eighth District
Court of Appeals found no plain error under the Second Amendment in convicting a
defendant a defendant of violating R.C. 2923.13(A)(2) and (3). State v. Johnson, 8th Dist.
Cuyahoga No. 113034, 2024-Ohio-1163, ¶ 30. It appears no post-Bruen case law exists
in Ohio on the constitutionality of any of the provisions of R.C. 2923.13, in a case where
the error was properly preserved for appeal, and thus not subject to plain error analysis.
{¶17} However, numerous federal courts have considered the constitutionality of
similar United States Code provisions. Although 18 USC 922 does not have a provision
which, like R.C. 2923.13(A)(2), prohibits gun possession by a person convicted of a felony
offense of violence, federal law does prohibit possession of a firearm by a person who Licking County, Case No. 2023 CA 00068 9
has been convicted of a crime punishable by more than a year in prison, and also prohibits
possession of a firearm by a person who is an unlawful user or addicted to any controlled
substance. 18 USC 922(g)(1),(3).
{¶18} A few federal cases have found these provisions of the United States Code
unconstitutional pursuant to the Bruen test. In United States v. Daniels, the Fifth Circuit
Court of Appeals found the ban on firearm possession unconstitutional in a case where
the defendant, who was sober when arrested, admitted to using marijuana multiple times
a month. 77 F. 4th 337 (Fifth Cir. 2023). The Fifth Circuit also held a federal statute
prohibiting firearm possession by a person subject to a domestic violence restraining
order unconstitutional. United States v. Rahimi, 61 F. 4th 443 (Fifth Circ. 2023). The Third
Circuit Court of Appeals found the provision prohibiting a felon from possessing a weapon
unconstitutional as applied to a person convicted of making a false statement to obtain
food stamps, but noted the decision was narrow, and only as applied to the defendant,
given his specific prior violation. Range v. Atty. Gen. United States of America, 69 F.4th
96, 106 (Third Cir. 2023).
{¶19} However, the overwhelming weight of federal authority upheld federal
prohibitions on possession of weapons by felons and/or persons using controlled
substances as constitutional under Bruen, as summarized by the United States District
Court for the Northern District of Iowa:
This Court is not alone in reaching the conclusion that Section
922(g)(3) does not violate the Second Amendment. Numerous other district
courts have reaffirmed the conclusion that Section 922(g)(3) is Licking County, Case No. 2023 CA 00068 10
constitutional after Bruen. See, e.g., United States v. Walker, 8:22-CR-291,
2023 WL 3932224, at *5 (D. Neb. June 9, 2023) (rejecting post-Bruen
challenge to Section 922(g)(3), finding the Seay case controlling); [United
States v. Le, [669 F.Supp.3d 754, –––– (S.D. Iowa 2023)] (rejecting a post-
Bruen constitutional challenge to Section 922(g)(3)); United States v.
Posey, [655 F.Supp.3d 762, –––– – ––––] (N.D. Ind. 2023) (denying as
applied and facial post-Bruen challenge to Section 922(g)(3)); United States
v. Lewis, [650 F.Supp.3d 1235, ––––] (W.D. Okla. 2023) (rejecting a post-
Bruen constitutional challenge to Section 922(g)(3)); United States v.
Sanchez, [646 F.Supp.3d 825, ––––] (W.D. Tex. 2022) (holding that Section
922(g)(3) is “consistent with this Nation's historical tradition of firearm
regulation”);[ Fried v. Garland, 640 F.Supp.3d 1252, 1263 (N.D.Fla. 2022)]
(“At bottom, the historical tradition of keeping guns from those the
government fairly views as dangerous—like alcoholics and the mentally ill—
is sufficiently analogous to modern laws keeping guns from habitual users
of controlled substances .... The challenged laws are consistent with the
history and tradition of this Nations’ [sic] firearm regulation.”); United States
v. Seiwert, Case No. 20 CR 443, 2022 WL 4534605, at *2 (N.D. Ill. Sept.
28, 2022) (holding that Section “922(g)(3) is relevantly similar to regulations
aimed at preventing dangerous or untrustworthy persons from possessing
and using firearms, such as individuals convicted of felonies or suffering
from mental illness”); United States v. Daniels, 610 F.Supp.3d 892, 897
(S.D. Miss. 2022) (finding Section 922(g)(3) constitutional after determining Licking County, Case No. 2023 CA 00068 11
that “analogous statutes which purport to disarm persons considered a risk
to society—whether felons or alcoholics—were known to the American legal
tradition”).
{¶20} United States v. Ledvina, 2023 WL 5279470, *6 (N.D. Iowa Aug. 16, 2023).
{¶21} In summary, the federal courts upholding the constitutionality of the federal
weapons under disability restrictions have pointed to the historical tradition of keeping
guns from individuals viewed as dangerous, including felons. We find this history
particularly applicable to the statute at issue in the instant case, which precludes the
possession of firearms by persons convicted of a felony offense of violence. We find the
trial court did not err in concluding R.C. 2923.13(A)(2) was not facially unconstitutional.1
{¶22} Appellant also argues the statute is unconstitutional as applied to him. In
an as-applied challenge, the challenger contends the statute's application violates his or
her constitutional rights under the circumstances of a particular case. United States v.
Christian Echoes Natl. Ministry, Inc., 404 U.S. 561, 565, 92 S.Ct. 663, 30 L.Ed.2d 716
(1972).
{¶23} We find Appellant has not demonstrated the statute is unconstitutional as
applied to him. As noted in our discussion of Appellant’s facial challenge to R.C.
2923.13(A)(2), federal case law has recognized the long history of regulating possession
of firearms by people who are considered dangerous. At the hearing in the instant case,
the State presented evidence Appellant had been convicted in 2006 in Franklin County
1 We further note Ohio’s ban on possession of a firearm by a person convicted of a felony offense of violence
is not necessarily a lifetime ban, as R.C. 2923.14 allows a person to seek relief from weapons disability under certain circumstances. Licking County, Case No. 2023 CA 00068 12
of two counts of aggravated robbery, one count including a firearm specification, and of
felonious assault in Ross County in 2014.
{¶24} Finally, Appellant argues the Ohio Constitution provides greater protection
for arms’ possession than the United States Constitution, and his conviction violates the
Ohio Constitution. This argument was not raised in the trial court, and this Court has
previously rejected a claim of plain error based on the Ohio Constitution:
The language of the Second Amendment to the United States
Constitution provides, “ ‘[a] well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall
not be infringed.’ ” Article I, Section 4 of the Ohio Constitution sets forth a
similar guarantee: “The people have the right to bear arms for their defense
and security; but standing armies, in time of peace, are dangerous to liberty,
and shall not be kept up; and the military shall be in strict subordination to
the civil power.” In the past, the Ohio Supreme Court has distinguished its
analysis of claims arising under the Ohio Constitution on the basis that,
unlike the United States Constitution, Ohio's Constitution guaranteed the
right to bear arms to individual citizens. Arnold v. Cleveland, 67 Ohio St.3d
35, 616 N.E.2d 163 (1993). However, even prior to Bruen, the United States
Supreme Court has found the Second Amendment likewise guarantees the
right to bear arms to individual citizens. See District of Columbia v. Heller,
554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (holding the
Second Amendment guarantees the right to keep and bear arms to Licking County, Case No. 2023 CA 00068 13
individuals); McDonald v. Chicago, 561 U.S. 742, 750, 130 S.Ct. 3020, 177
L.Ed.2d 894 (2010) (holding the Second Amendment is fully applicable to
the States by application of the Fourteenth Amendment). Because the
United States Constitution now equally protects the right of the individual to
bear arms, we see no obvious distinction between the Ohio Constitution and
the United States Constitution. For the reasons stated in our consideration
of Appellant's claims under the United States Constitution, we find Appellant
has not demonstrated R.C. 2923.13(A)(3) is obviously unconstitutional
under the Ohio Constitution, and we therefore find no plain error.
{¶25} State v. Jenkins, 5th Dist. Licking No. 2023 CA 00058, 2024-Ohio-1094, ¶
28.
{¶26} For the reasons set forth in Jenkins, we find no plain error in the trial court’s
failure to sua sponte find Appellant’s conviction violates the Ohio Constitution.
Firearm Specification
{¶27} Appellant also argues the trial court erred in failing to dismiss the firearm
specification as a violation of his right to bear arms under the United States and Ohio
Constitutions. The firearm specification assessed an additional penalty of one year
incarceration because Appellant “had a firearm on or about the offender's person or under
the offender's control while committing the offense.”
{¶28} The language of the Second Amendment to the United States Constitution
provides, “ ‘[a] well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.’ ” Article I, Section 4 of Licking County, Case No. 2023 CA 00068 14
the Ohio Constitution sets forth a similar guarantee: “The people have the right to bear
arms for their defense and security; but standing armies, in time of peace, are dangerous
to liberty, and shall not be kept up; and the military shall be in strict subordination to the
civil power.” At the outset, we question whether the enhancement of a sentence for
possession of firearm while committing a crime is an “infringement” on the right of people
to keep and bear arms.
{¶29} However, assuming arguendo the possession of a firearm while committing
a crime is implicated by the Second Amendment to the United States Constitution and
Article I, Section 4 of the Ohio Constitution, for the reasons set forth in our discussion of
Appellant’s argument concerning the constitutionality of R.C. 2913.23(A)(2), we find the
penalty enhancement for having a weapon on the offender’s person or under the
offender’s control while committing an offense is constitutional under the United States
and Ohio Constitutional provisions protecting the right to bear arms. Because we have
found historical support for the limitation on the right to bear arms by those who have
committed felonies of violence, we find the same historical support permits the statutory
sentence enhancement for possession of a firearm while committing a crime. In ruling on
a claim the federal statute which enhances the level of an offense when the offender
possessed a firearm violates Bruen, the United States District Court for the North District
of Indiana held:
Bruen is rife with historical observations that would exclude from
Second Amendment protections individuals that carry firearms to facilitate
crime. Id. at 2145 (observing that colonial firearm laws “prohibit bearing Licking County, Case No. 2023 CA 00068 15
arms in a way that spreads ‘fear’ or ‘terror’ among the people”); 2150
(“[u]nder the common law, individuals could not carry deadly weapons in a
manner likely to terrorize others”); 2152 (citing an 1866 South Carolina law
providing “no disorderly person, vagrant, or disturber of the peace, shall be
allowed to bear arms”); 2156 (noting that reasonable, well-defined
restrictions on firearm possession include those that limit “the intent for
which one could carry arms”); 2162 (“nothing in our opinion should be taken
to cast doubt on the longstanding prohibitions on the possession of firearms
by felons and the mentally ill”) (quoting Heller, 554 U.S. at 626–27, 128
S.Ct. 2783). And, as the Government's supplemental authority notes, “the
people” whose right to bear arms is protected by the Second Amendment
are the “law-abiding,” responsible citizens, not those who would violate the
nation's laws. Range v. Attorney Gen. U.S., 53 F.4th 262, 283–84 (3d Cir.
2022). Section 2D1.1(b)(1) punishes firearm possession only when it occurs
in relation to a federal drug offense. Definitionally, then, it applies only to
those who are actively violating the nation's drug laws. The guideline falls
well-within this nation's historical limitations of gun ownership and passes
constitutional muster.
{¶30} United States v. Love, 647 F.Supp.3d 664, 670(N.D. Indiana 2022).
{¶31} The first assignment of error is overruled. Licking County, Case No. 2023 CA 00068 16
II.
{¶32} In his second assignment of error, Appellant argues the trial court erred in
overruling his motion to suppress. He argues the affidavit in support of the warrant was
insufficient to establish probable cause because the confidential sources were not
identified in any manner, the affidavit fails to establish how the confidential sources
obtained the information, and the affiant did not personally corroborate the information
provided by the confidential sources. He argues the affidavit was so lacking in probable
cause as to render the “good faith” exception to the exclusionary rule inapplicable.
{¶33} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial Licking County, Case No. 2023 CA 00068 17
court's findings of fact is subject to a de novo standard of review. Ornelas, supra.
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶34} Appellant has raised legitimate legal concerns about whether the affidavit
established probable cause for the warrant issued in this case. The detective generally
vouched for the credibility of the informant or informants, and conducted limited
surveillance of the residence. The detective confirmed the residence had a security
camera as represented by the informant; however, security cameras are common on
homes, and not necessarily indicative of drug activity. Further, while Kelow Jones was
found to have methamphetamine in his car after leaving the residence, and identified the
occupant of the home as “Dustin,” the affidavit does not link the drugs found in the vehicle
to a purchase made from the residence, nor does the affidavit represent Jones identified
“Dustin” as a drug dealer. However, we need not address whether the affidavit provided
probable cause to support the issuance of a warrant if we find the police relied on the
warrant in good faith.
{¶35} The “good faith exception” to the exclusionary rule is set forth in United
States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and adopted by
the Ohio Supreme Court in State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986).
Under the “good faith exception,” the exclusionary rule should not be applied so as to bar
the use in the prosecution's case-in-chief evidence obtained by officers acting in
objectively reasonable reliance on a search warrant issued by a detached and neutral
magistrate, but ultimately found to be unsupported by probable cause. State v. George,
45 Ohio St.3d 325, 330, 544 N.E.2d 640 (1989), citing Leon, supra at 918-23, 926, 104 Licking County, Case No. 2023 CA 00068 18
S.Ct. 3405. However, even under the “good faith exception,” suppression of evidence is
appropriate where any of the following occurs:
* * the magistrate or judge * * * was misled by information in an
affidavit that the affiant knew was false or would have known was false
except for his reckless disregard of the truth * * *; (2) * * * the issuing
magistrate wholly abandoned his judicial role * * *; (3) an officer purports to
rely upon * * * a warrant based upon an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable; or (4) * * * depending on the circumstances of the particular
case, a warrant may be so facially deficient-i.e. in failing to particularize the
place to be searched or the things to be seized-that the executing officers
cannot reasonably presume it to be valid.
{¶36} State v. Quin, 5th Dist. Licking No. 2021 CA 00044, 2021-Ohio-4205, ¶ 15,
citing Leon, supra at 923, 104 S.Ct. 3405.
{¶37} Appellant argues the warrant was based upon an affidavit so lacking in
probable cause as to render official belief in its existence entirely unreasonable. An
affidavit lacks the requisite indicia of probable cause if it is a “bare bones” affidavit. United
States v. Ward, 967 F.3d 550, 554 (6th Cir. 2020), citing United States v. White, 874 F.3d
490, 496 (6th Cir. 2017). A bare-bones affidavit is commonly defined as one which states
only “suspicions, beliefs, or conclusions, without providing some underlying factual
circumstances regarding veracity, reliability, and basis of knowledge.” United States v. Licking County, Case No. 2023 CA 00068 19
White, 874 F.3d 490, 496, citing United States v. Laughton, 409 F.3d 744, 748 (6th Cir.
2005) “Put more simply, a bare-bones affidavit is a conclusory affidavit, one that asserts
‘only the affiant's belief that probable cause existed.’” Id.
{¶38} In the affidavit, Detective Boerstler averred on March 21, 2013, he was
contacted by a confidential source, who has “previously and consistently provided reliable
information,” who reported Appellant was selling large amounts of methamphetamine
from a residence. The informant provided the address and a description of the outside of
the house, and stated a safe in the living room contained narcotics and firearms. The
informant advised there were three pit bull canines and security video cameras on the
residence. Detective Boerstler verified the presence of a security camera over the rear
door, and during surveillance observed vehicles stopping, individuals entering through
the rear entrance to the residence, and exiting after a short duration.
{¶39} The affidavit further stated a vehicle was stopped leaving the home on
March 21, 2023. Kelow Jones, an occupant of the vehicle who was known to the detective
as a drug-involved individual, was arrested on a warrant. Methamphetamine was
recovered from the vehicle, and Jones told police he knows the occupant of the home as
“Dustin.”
{¶40} The affidavit stated on April 3, 2023, the affiant received a text message
from a confidential source, who has previously provided reliable information, stating
Appellant would be leaving to travel to Columbus to pick up fentanyl and
methamphetamine. The informant provided the combination for the safe in the home
where the drugs would be stored. The informant previously purchased drugs from
Appellant, has previously been inside the residence, and was aware of the existence of Licking County, Case No. 2023 CA 00068 20
firearms in the residence. The informant advised at least two other individuals stay at the
residence and sell drugs under Appellant’s direction. The detective saw Appellant arrive
at the residence on April 3, 2023, exit the vehicle, and remove a padded grey tool box
with a visible padlock.
{¶41} We find the affidavit is not so lacking in in indicia of probable cause as to
render official belief in its existence entirely unreasonable. The affidavit included an
assertion the informant(s) had provided reliable information in the past. The informant
who provided the April 3, 2023 tip stated he or she had been inside the residence, and
had purchased drugs in the past from Appellant. Police conducted some surveillance of
the residence, observing people coming and going with visits of short duration, and
confirming the existence of a security camera. Jones was stopped and arrested leaving
the house with methamphetamine in his car. Jones was known by police to be involved
with drugs, and while Jones did not state he purchased the drugs from the house, he did
identify the person inside as “Dustin,” whom Jones was friends with on Facebook. We
find the affidavit was not a bare bones affidavit, and the police could rely on the affidavit
in good faith. We find the trial court did not err in overruling Appellant’s motion to
suppress.
{¶42} The second assignment of error is overruled.
III.
{¶43} In his third assignment of error, Appellant argues the trial court’s imposition
of consecutive sentences was not supported by the record. He argues the reason he has
spent most of his adult life in prison is because when he is released, he is not provided
with resources, and ends up returning to crime to survive. He argues the prison system Licking County, Case No. 2023 CA 00068 21
has failed him in its purpose of rehabilitation, and the way to prevent him from committing
future offenses is to provide him with treatment and with assistance for housing and
employment rather than by imposing longer prison terms.
{¶44} R.C. 2929.14(C)(4) provides:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds 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,
and if the court also finds any of the following:
(a)The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct. Licking County, Case No. 2023 CA 00068 22
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶45} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings, nor must it recite certain talismanic words or phrases
in order to be considered to have complied. State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, syllabus.
{¶46} In deciding whether to impose consecutive sentencing, the trial court is to
consider the aggregate term of incarceration which will result from consecutive
sentencing. State v. Gwynne, 2022-Ohio-4607, 2022 WL 17870605, ¶¶14-15. In
Gwynne, the Ohio Supreme Court clarified the standard of review this Court is to use on
review of consecutive sentences:
It is important to understand that the standards referenced above
have very specific meanings and fall into one of two categories—either a
standard of review or an evidentiary standard of proof. “Abuse of discretion,”
“clearly erroneous,” and “substantial evidence” are traditional forms of
appellate-court deference that are applied to a trial court's decisions. They
are standards of review that are applied by a reviewing court to certain
decisions that are made by a fact-finder. They are, in essence, screens
through which reviewing courts must view the original fact-finder's decision. Licking County, Case No. 2023 CA 00068 23
In contrast, “preponderance,” “clear and convincing,” and “beyond a
reasonable doubt” are evidentiary standards of proof. These standards
apply to a fact-finder's consideration of the evidence. R.C. 2953.08(G)(2)’s
requirement that appellate courts apply the clear-and-convincing standard
on review indicates that the legislature did not intend for appellate courts to
defer to a trial court's findings but to act as a second fact-finder in reviewing
the trial court's order of consecutive sentences.
In this role as a finder of fact, the appellate court essentially functions
in the same way as the trial court when imposing consecutive sentences in
the first instance. There are three key differences, however. The first
difference, which is discerned from the language of R.C. 2953.08(G)(2), is
that the appellate court is constrained to considering only the findings in
R.C. 2929.14(C)(4) that the trial court has actually made. In other words, a
reviewing court cannot determine for itself which of the three permissible
findings within R.C. 2929.14(C)(4)(a)-(c) might apply to satisfy the third
required finding for imposing consecutive sentences, as the trial court is
permitted to do. The second difference involves the standard of proof.
Whereas the trial court's standard of proof under R.C. 2929.14(C)(4) is a
preponderance of the evidence—i.e., that when considered as a whole, the
evidence demonstrates that the proposition of fact represented by the
finding is more likely true, or more probable, than not—an appellate court
applies a clear and convincing evidence standard of proof. And the third
difference is the inversion of the ultimate question before the court. Licking County, Case No. 2023 CA 00068 24
Whereas the trial court is tasked with determining whether the proposition
of fact represented by each finding is more likely—or more probably—true
than not, an appellate court's task is to determine whether it has a firm belief
or conviction that the proposition of fact represented by each finding is not
true on consideration of the evidence in the record.
Thus, when viewed in its proper context, the deference that a trial
court's consecutive-sentence findings receive comes from the language of
R.C. 2953.08(G)(2), which imposes a higher evidentiary standard to reverse
or modify consecutive sentences. It does not stem from any statutory
requirement that the appellate court defer to the trial court's findings when
considering whether reversal or modification is appropriate under R.C.
2953.08(G)(2).
{¶47} Id. at ¶¶20-22.
{¶48} The trial court found consecutive sentences are necessary to protect the
public from future crime or to punish Appellant, consecutive sentences are not
disproportionate to the seriousness of Appellant’s conduct and to the danger Appellant
poses to the public, Appellant committed one or more of the multiple offenses while
Appellant was under parole supervision, and Appellant’s criminal history demonstrates
consecutive sentences are necessary to protect the public from future crime by Appellant.
{¶49} Appellant argues his lengthy criminal history weighs against the imposition
of consecutive sentences because the prison system has not achieved its purpose of
rehabilitation during his past periods of incarceration. He argues the mandatory sentence Licking County, Case No. 2023 CA 00068 25
on the firearm specification is sufficient punishment for having the weapon, and thus his
sentence for having the weapon under disability should not be imposed consecutively.
{¶50} A plain reading of R.C. 2929.14(C)(4) reflects a legislative purpose to allow
the trial court to impose consecutive sentences on offenders with a lengthy criminal
history and a high rate of recidivism. In this case, not only has Appellant engaged in the
commission of criminal offenses for the majority of his adult life, but he was on supervision
from a prior offense at the time the instant offenses were committed. We find the record
supports the trial court’s findings imposing consecutive sentences.
{¶51} The third assignment of error is overruled.
{¶52} The judgment of the Licking County Common Pleas Court if affirmed.
By: Hoffman, J. Delaney, P.J. and King, J. concur