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State v. McClellan

Court of Appeals of Ohio, Fifth District, Stark

June 19, 2017

STATE OF OHIO Plaintiff-Appellee

         Criminal appeal from the Stark County Court of Common Pleas, Case No.2016CR0465


          For Defendant-Appellant DONOVAN HILL

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.


          Gwin, P.J.

         {¶1} Appellant Levander McClellan appeals his conviction after a jury trial in the Stark County Court of Common Pleas. Appellee is the State of Ohio.

         Facts & Procedural History

         {¶2} On April 5, 2016, appellant was indicted on one count of trafficking in cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(f), a felony of the first degree. A jury trial was held beginning on June 28, 2016.

         {¶3} Andrew Hayden ("Hayden") an FBI agent, testified he met Cleveland Thomas ("Thomas"), a career drug trafficker, in 2015 when he went to the Wayne County Jail after Thomas was apprehended on drug trafficking charges. Hayden stated Thomas was facing quite a few years in prison and Hayden learned Thomas wanted to provide the FBI with intelligence. Hayden determined Thomas would be a useful source, so he spoke to the local prosecutor, who recommended Thomas' release from jail to work as an FBI informant.

         {¶4} On January 29, 2016, Thomas worked with the FBI as a confidential informant for a controlled purchase of cocaine. Hayden testified about the procedures used when making a controlled purchase with a confidential informant, including: providing the source with audio and video recording devices; providing the source money for the transaction; providing surveillance; and meeting the source at a secondary location for debriefing. Hayden stated a confidential informant cannot go anywhere else after they meet with agents before they go to the location to make the purchase or after they make the purchase before they debrief with the agents. The agents know where the source is going from the time they meet them until the time the transaction is over because the agents follow them and conduct surveillance. Prior to the purchase and after the purchase, an agent checks the informant and their vehicle for drugs and money.

         {¶5} Hayden testified that on January 29, 2016, after Thomas contacted appellant to set up a drug buy, Hayden met Thomas in a local parking lot to initiate the controlled buy. When Thomas first went to appellant's house that day, he was unable to complete the buy because the cocaine was not ready. Thomas returned the funds to Hayden that the FBI provided for the buy.

         {¶6} Approximately two or three hours later, Hayden again met Thomas in a local parking lot to initiate a controlled buy. Hayden spoke to Thomas about the plan, placed the recording device on Thomas, gave him $1, 450 to buy one ounce of cocaine, searched Thomas, searched Thomas' vehicle, and began surveillance of Thomas. Hayden stated Thomas was under surveillance from the time he left the parking lot to when he arrived at appellant's home, an approximate ten minute drive. Hayden testified Thomas made no stops on his way to appellant's house. Further, Thomas made no stops on his return from appellant's house to the debriefing site.

         {¶7} When Thomas arrived at the debriefing site, he gave Hayden one ounce of cocaine. Hayden testified his partner searched Thomas and his vehicle. Hayden reviewed the video from Thomas' recording device and confirmed the conversation Thomas relayed to him. Hayden saw appellant on the video and identified appellant as the individual he saw on the video giving cocaine to Thomas. Hayden informed Wayne County prosecutors that Thomas worked with the FBI and was successful in helping with a controlled purchase.

          {¶8} On cross-examination, Hayden stated he did not check under the dashboard of Thomas' car. Further, that while Thomas was facing eleven years in prison, his prison sentenced was reduced to three years. Hayden did not feel it was necessary to record the phone conversation between appellant and Thomas to set up the buy because Hayden knew he would use video and audio if a controlled purchase occurred. The money given to Thomas was not photographed, but was digitally traced. The money was not recovered from appellant. Hayden stated there was no video of Thomas walking into appellant's home, but the agents were following Thomas and he was under surveillance.

         {¶9} On re-direct, Hayden stated appellant was not arrested on January 29, 2016 because the FBI wanted to see if they could find his supplier and thus Hayden did not expect to find the money when they arrested appellant two weeks later. Hayden testified he uses confidential sources a lot, and when a confidential source sets up a deal, it is usually outside the FBI's presence due to the confidential source's lifestyle and because it takes days to develop these relationships. Further, the FBI does not have the time or assets to do twenty-four hour surveillance of all confidential informants. However, the FBI uses audio and video recording when the actual transaction occurs because that is where and when the criminal offense occurs.

         {¶10} Timothy Alvord ("Alvord"), an FBI agent, testified he was with Hayden on January 29, 2016, he witnessed Hayden give the money to Thomas, took notes during the surveillance, and searched Thomas and his vehicle. Alvord did not search Thomas or his vehicle when he returned from appellant's home the first time since no purchase was made. The second time Thomas went ...

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