State v. McIntosh, 2018 Ohio 5343

Background

Confidential informant Joshua Edwards made multiple controlled buys at a Gallia County pool hall in Sept. 2015; he testified appellant (aka “TO”) was present and sometimes received money placed in a bowl while another (Stan) retrieved drugs.
Law enforcement executed search warrants at the pool hall and appellant’s residence area; officers found three tied plastic bags of drugs (cocaine, heroin, meth) stuffed in a sock a few yards from appellant’s house, plus cash and phones inside. DNA on the sock matched appellant.
Heather Gibson, present during a search of her property, told officers (after Miranda warnings) that appellant would not keep drugs inside his house but would hide them outside; agents relayed this testimony at trial.
Jury convicted appellant on ten counts including trafficking, possession, aggravated trafficking, and engaging in a pattern of corrupt activity; court merged some counts and imposed an aggregate 33-year sentence.
On appeal, appellant argued (1) Confrontation Clause/hearsay error from admission of Gibson’s out-of-court statements; (2) convictions against manifest weight for some counts; (3) improper circumstantial-evidence instruction; (4) failure to merge allied offenses; (5) excessive/cruel and unusual sentence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McIntosh)	Held
Admissibility / Confrontation Clause for Gibson’s statements	Testimony was harmless; plenty of independent evidence connecting appellant to drugs (informant testimony, DNA, drugs near residence).	Gibson’s statements were testimonial hearsay admitted without confrontation; admission violated Sixth Amendment and materially affected convictions.	Court: Gibson’s statements were hearsay and testimonial; admitting them violated the Confrontation Clause. Reversed convictions and vacated sentences as to counts 4–10; counts 1–2 affirmed.
Harmlessness of Confrontation error	Any error was harmless given other evidence (DNA on sock, proximity, cash, informant).	Error was not harmless because Gibson’s statement directly linked appellant to large-quantity drugs and likely affected jury.	Court: Error was not harmless as to counts involving the large stash (counts 4–10); a reasonable probability the outcome would differ without Gibson’s testimony.
Manifest weight challenge to counts 1–2 (controlled buys)	N/A (State relied on informant testimony and other evidence).	Informant unreliable; no direct corroboration that appellant took money from bowl in controlled buys; lab test of one purchased item negative.	Court: Overruled; substantial, credible evidence (informant’s account including offer to pay in drugs) supported trafficking and complicity convictions for Sept. 10–11 buys (counts 1–2).
Jury instruction on circumstantial evidence	N/A (State did not contest on appeal).	Trial court gave outdated circumstantial-evidence instruction (Kulig-based), which misstates law post-Jenks.	Court: Forfeited by absence of timely objection; any error was harmless and did not warrant reversal.

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars testimonial out-of-court statements unless witness unavailable and defendant had prior chance to cross-examine)
Davis v. Washington, 547 U.S. 813 (2006) (‘‘primary purpose’’ test: statements nontestimonial when aimed at resolving an ongoing emergency)
Michigan v. Bryant, 562 U.S. 344 (2011) (consider all circumstances in determining whether statement’s primary purpose was testimonial)
Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009) (testimonial nature of certain out-of-court forensic/certificates and Confrontation rights)
Williams v. Illinois, 567 U.S. 50 (2012) (objective test for primary purpose of statements)
State v. Ricks, 136 Ohio St.3d 356 (Ohio 2013) (police investigatory-step testimony inadmissible where it connects accused to the crime)
State v. Clinton, 153 Ohio St.3d 422 (Ohio 2017) (police testimony recounting victim’s identification that connected defendant to rape was inadmissible hearsay)
State v. McKelton, 148 Ohio St.3d 261 (Ohio 2016) (law-enforcement investigatory-step statements may be nonhearsay only under strict limits)
State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (circumstantial evidence instruction standards; no special instruction required if reasonable-doubt instruction adequate)