State v. EvansState v. Evans
Rendered on the 7th day of December, 2007.
WALTERS, J. (By assignment)
{¶ 1} The Defendant-Appellant, Michael Evans, appeals a judgment of the Montgomery County Common Pleas Court overruling his motion to disclose the identity of the State‘s confidential informant. Evans asserts that the trial court erred in denying his motion to disclose, claiming that the testimony of the confidential informant was crucial to establishing his defense of entrapment. Finding that Evans has waived
{¶ 2} After being informed by a confidential informant (“CI“) that an individual known as “Kevin” (later determined to be the defendant-appellant, Michael Evans) was selling crack cocaine, using his cell phone to negotiate the transactions, Detectives Emerson and House of the Dayton Police Department set up a buy-bust operation to arrest the seller. On the same date that they received this information, Emerson and House instructed the CI to call this person and order one ounce of crack cocaine. At approximately 6:45 p.m., the CI made the phone call and arranged a purchase that evening at a price of $875. Evans instructed the CI that the transaction was to take place at the Meadows of Catalpa apartment complex at Needmore and Philadelphia in the City of Dayton. Both detectives were present during this phone call, and they could hear both sides of the conversation. After the call, the detectives arranged the plan for the buy-bust with other detectives.
{¶ 3} At approximately 7:00 p.m., the CI called Evans again, asking for better directions to the buy location. Approximately five minutes later the CI again called Evans, telling him that he was having trouble finding the apartment complex, and suggested that they meet at the Elder-Beerman store at Westgate Shopping Center. Evans agreed to the change of location. At approximately 7:28 p.m., the CI again called Evans, telling him that he was at the location, parked in front of the Dollar Store and that he was driving a green Blazer. Evans acknowledged this information and told the CI that he would be driving a pink vehicle. The detectives were present during all three of these conversations and could hear both sides of them.
{¶ 4} At this time, Detective House exited the vehicle to join the other
{¶ 5} Evans then approached the passenger side of the CI‘s vehicle. Detective Emerson radioed the other officers to assist with the takedown, and he exited the driver‘s side, walking towards Evans. At this time, Evans began running. Before the officers tackled and arrested Evans, the officers observed Evans remove something from his pants pocket and place it in his mouth. Immediately upon taking Evans down, the officers removed a plastic baggie from Evans’ mouth containing what was later determined to be crack cocaine. They also recovered the cell phone that Evans used during the transaction. Evans was then arrested.
{¶ 6} Evans was indicted for trafficking in cocaine, possession of cocaine, and tampering with evidence. He entered a not guilty plea to the charges. On July 19, 2006, Evans filed two separate motions - a suppression motion and a motion to disclose the identity of the confidential informant. The trial court overruled both motions, and Evans entered a no contest plea. Evans was sentenced to four years imprisonment.
{¶ 7} Evans has filed this timely appeal, asserting a single assignment of error for our review.
{¶ 8} “THE TRIAL COURT ERRED IN REFUSING TO ORDER THE STATE
{¶ 9} As noted above, Evans was convicted on his plea of no contest to one count of tampering with evidence, one count of possession of cocaine and one count of trafficking in cocaine. The Rules of Criminal Procedure provide that a plea of no contest is not an admission of the defendant‘s guilt; instead, it is an admission of the truth of the facts alleged in the indictment, information, or complaint.
{¶ 10} Being an admission of the truth of the facts on which the charges against him are based, a no contest plea forecloses a defendant‘s right to challenge the truth of those facts in a subsequent appeal from his resulting conviction and sentence. State v. Bird (1998), 81 Ohio St.3d 582, 584, 692 N.E.2d 1013. However, “[t]he plea of no contest does not preclude a defendant from asserting on appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence.”
{¶ 12} Evans’ motion to compel the State to disclose the identity of its CI was grounded on his contention that the informant‘s testimony was material to his defense of entrapment. Specifically, in his memorandum attached to the motion, Evans’ counsel makes the bald statements that “Evans believes the evidence will show the informant called him repeatedly at the behest of police officers and tried to induce him into selling illegal narcotics[;] * * * [that] he always said no and always told the informant to not call him anymore[;] * * * [that] the officers directed the informant to harass him into selling narcotics.” That contention, however, is merely another way of saying that the evidence is material to a determination of the general issue, which in a criminal case is always the defendant‘s guilt or innocence of the offense or offenses alleged. Therefore, we find that the relief Evans requested was not proper for a
{¶ 13} Even if we were to conclude that Evans preserved his right to challenge the trial court‘s refusal to disclose the CI‘s identity, we find his argument unpersuasive. As we noted above, Evans’ defense of entrapment is based on the contention that he succumbed to the informant‘s police-directed harassment despite repeated requests that the informant stop calling him. There is no evidence before the court that would establish this claim. The only evidence provided is the cross examination of Detectives House and Emerson, which denies the allegation.
{¶ 14} The trial court, in overruling Evans’ motion, found that the telephone calls made by the CI were monitored by the police; that they were neither excessive nor harassing in nature. The trial court then concluded that the testimony of the CI would not be beneficial to Evans in preparing or making his defense, and that the benefit in disclosing his identity was outweighed by the danger to the CI if his identity were disclosed.
{¶ 15} Here, Evans bears the burden of establishing the need for disclosure. Something more than mere speculation about the possible usefulness of an informant‘s testimony is required. See State v. Parsons (1989), 64 Ohio App.3d 63, 69, 580 N.E.2d 800. The mere allegation of entrapment is not, alone, sufficient to require disclosure of a confidential informant‘s identity. State v. Butler (1984), 9 Ohio St.3d 156, 157, 459 N.E.2d 536.
{¶ 16} Evans presented no evidentiary material at the hearing or in his motion sufficient to support the defense of entrapment. While there was evidence of four
{¶ 17} Having found that his no contest plea forecloses the right to challenge the trial court‘s refusal to disclose the identity of the State‘s confidential informant, Evans’ sole assignment of error is overruled. The judgment of the Montgomery County Common Pleas Court is hereby affirmed.
BROGAN, J. and GRADY, J., concur.
(Hon. Sumner E. Walters retired from the Third District Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Michele D. Phipps
Alan D. Gabel
Hon. Frances E. McGee