[Cite as State v. Suber, 2016-Ohio-7497.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsERIC E. SUBER 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 16 CA 14 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 15 CR 831 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 26, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

BRIAN T. WALTZ ROBERT C. BANNERMAN 

ASSISTANT PROSECUTOR Post Office Box 77466 

20 South Second Street, 4th Floor Columbus, Ohio 43207 

Newark, Ohio 43055 
Licking County, Case No. 16 CA 14 2

Wise, J. 

{¶1} Defendant-appellant Eric E. Suber appeals his conviction entered in the 

Licking County Court of Common Pleas on one count of aggravated trafficking in drugs 

following a jury trial. 

{¶2} Appellee is the State of Ohio 

STATEMENT OF THE CASE AND FACTS 

{¶3} On or about September 15, 2015, Appellant Eric E. Suber sold 

methamphetamine to a confidential informant, hereinafter “CI”, working with the Central 

Ohio Drug Enforcement Task Force. The CI contacted Appellant via phone and arranged 

to meet him at 290 W. National, Newark, Licking County, Ohio. When the CI arrived at 

this residence, Appellant contacted someone named Shawn Moyer and asked him to 

bring the drugs to be sold. Moyer arrived at the residence, entered, and per the CI, handed 

the drugs to Appellant. Appellant then provided the CI with the drugs, in exchange for 

$800 in recorded buy money. The drugs were collected and tested by BCI and were found 

to be 11.87 grams of methamphetamine, a Schedule II controlled substance. Bulk amount 

for methamphetamine is 3 grams, so this amount exceeded the bulk amount, but was 

less than five (5) times bulk amount. 

{¶4} Appellant was arrested in December, 2015. He was Mirandized and 

interviewed. He denied selling methamphetamine, but did admit to using 

methamphetamine. 

{¶5} Appellant was indicted on one count of Aggravated Trafficking in Drugs, in 

violation of R.C. §2925.03(A)(l)(C)(l)(c), a felony of the 3rd degree, punishable by a 

mandatory prison term of up to three (3) years in prison. 
Licking County, Case No. 16 CA 14 3

{¶6} Appellant had at least two (2) prior convictions for felony drug offenses. As 

charged in the single count of the indictment, the charge carried with it a maximum fine 

of $10,000, and a mandatory minimum fine of $5,000. Additionally, Appellant was subject 

to a driver's license suspension of between six (6) months and five (5) years. 

{¶7} Appellant was tried before a jury on the 1st and 2nd days of March, 2016. 

{¶8} At trial, the State put on evidence which consisted of audio recordings of 

the drug buy by the confidential informant "CI", and testimony by the police officers 

directing the buy. The CI did not appear at trial and could not be cross examined by 

Appellant. 

{¶9} Following deliberations, the jury found Appellant guilty of Aggravated 

Trafficking in Drugs (Methamphetamine), in violation of R.C. §2925.03(A)(I)(C)(1)(c), a 

felony of the third degree; and that the amount of Methamphetamine involved at the time 

of the offense was equal to or in excess of the bulk amount but less than five times the 

bulk amount. 

{¶10} The trial court sentence Appellant to a mandatory prison term of thirty (30) 

months, running consecutively with the sentence in an unrelated case. No fine was 

imposed, and Appellant's driver’s license was suspended for two years. Appellant was 

also sentenced to three years of post-release control. 

{¶11} Appellant now appeals, assigning the following error for review: 

ASSIGNMENT OF ERROR 

{¶12} “I. APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS 

VIOLATED.” 

 
Licking County, Case No. 16 CA 14 4

I. 

{¶13} In his sole Assignment of Error, Appellant contends that the trial court erred 

when it permitted the State to introduce the audio recordings of the undercover drug buy 

into evidence. More specifically, Appellant argues his right to confront the witnesses 

against him was violated because the audio tapes the trial court admitted contained 

hearsay as they contained out-of-court statements made by a confidential informant who 

was never identified and did not appear or testify at trial. Appellant argues that pursuant 

to the U.S. Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 

1354, 158 L.Ed.2d 177 (2004), the confidential informant’s taped statements should have 

been excluded by the trial court as inadmissible hearsay. 

{¶14} Hearsay is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted. Evid.R. 801(C). Hearsay is generally not admissible, except as provided by the 

U.S. or Ohio Constitutions, by statute or court rule. Evid.R. 802. We review a trial court's 

evidentiary rulings for an abuse of discretion, provided an objection is made at trial. State 

v. Cunningham, 2d Dist. Clark No. 11CA 0032, 2012–Ohio–2333, ¶ 22. 

{¶15} The Sixth Amendment's Confrontation Clause provides, “In all criminal 

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses 

against him.” “The United States Supreme Court has held that the right to confrontation 

is violated when an out-of-court statement that is testimonial in nature is admitted into 

evidence without the defendants having had the opportunity to cross-examine the 

declarant. Crawford, 541 U .S. 36, 68.” State v. Syx, 190 Ohio App.3d 845, 2010–Ohio–

5880, 944 N.E.2d 722, ¶ 23 (2d Dist.). The Crawford court stated that “the core class of 
Licking County, Case No. 16 CA 14 5

testimonial statements includes statements ‘that were made under circumstances which 

would lead an objective witness reasonably to believe that the statement would be 

available for use at a later trial.’ Id. at 52.” Syx at ¶ 23. 

{¶16} The State argues that the taped statements of the C.I. and Appellant which 

were admitted into evidence during trial were not hearsay because they were not offered 

for the truth of the matter asserted. Furthermore, because the statements are not 

testimonial, the State asserts that Appellant’s Sixth Amendment right to confrontation was 

not violated. 

{¶17} A recording of a criminal defendant's own actions or reactions does not 

implicate the Confrontation Clause. State v. Graves, Lorain App. No. 08CA9397, 2009-

Ohio-1133, at ¶ 8. Our Third District colleagues recently held that the comments of the 

confidential informant are not hearsay as they give context to a defendant's statements 

and are not offered to prove the truth of the matter asserted. See State v. Stewart, Seneca 

App. No. 13-08-18, 2009-Ohio-3411, at ¶ 90. These rulings are consistent with other 

jurisdictions that have considered the admissibility of recorded drug purchases postCrawford. See e.g. United States v. Jones (C.A.6 2006), 205 Fed. Appx. 327, 342; Turner 

v. Kentucky (Ky. 2008), 248 S.W.3d 543, 545-546; Connecticut v. Smith (CT 2008), 289 

Conn. 598, 960 A.2d 993, 1011-1012; State v. Jones, 2010-Ohio-865 citing State v. 

Graves, 2009-0hio-1133 (a recording of a criminal defendant's own actions or reactions 

does not implicate the Confrontation Clause); State v. Waver, 2016-0hio-5092 (finding 

defendant's statements from the recording made by a CI during a drug transaction to not 

be barred by the Confrontation Clause); and Davis v. Washington, 547 U.S. 813, 825 
Licking County, Case No. 16 CA 14 6

(2006)("statements made unwittingly to a Government informant" are "clearly 

nontestimonial"). 

{¶18} The State also relies on the case of U.S. v. Sexton, 119 Fed.Appx. 735 

(C.A.6 2005), in which several defendants were convicted of conspiracy to distribute 

cocaine. Prior to any arrests in the case, the police used confidential informants to 

conduct controlled drug buys from the defendants. Each undercover drug buy was 

audiotaped. One of the police informants, Eddie Goins, made several of the undercover 

drug buys from two of the defendants. Id. at 741–742. The drug buys were audiotaped 

using a hidden recorder supplied by the police to Goins. Most of the tapes of the drug 

buys, as well as the accompanying transcripts, were admitted into evidence over the 

objections of the defendants. Id. at 742. Goins, however, did not testify at trial. Similar to 

the instant case, the government introduced the tapes through the testimony of the police 

officers who participated in the operation who were specifically questioned about the 

circumstances surrounding the audio recordings. Id.

{¶19} On appeal, the Sexton court concluded that Goins' taped statements were 

not hearsay because they were not offered to prove the truth of the matter asserted. 

Rather, Goins' statements were offered “to give meaning to the admissible responses of 

[defendants].” Id. The court also held that Goins' statements did not violate the 

defendants' Sixth Amendment rights under the Confrontation Clause because they were 

not testimonial in nature as defined by the U.S. Supreme Court in Crawford. Id; see State 

v. Smith, 162 Ohio App.3d 208, 2005–Ohio–3579, 832 N.E.2d 1286, ¶ 14, 16 (8th Dist.) 

(an informant's taped statements were not offered for the truth of the matter asserted, but 
Licking County, Case No. 16 CA 14 7

provided “a context within which to understand” the encounter; statements were not 

testimonial and did not violate the defendant's constitutional right to confrontation). 

{¶20} In the case sub judice, with respect to the controlled drug buy on September 

15, 2015, the jury was permitted to hear audio recordings of the telephone calls between 

the C.I. and Appellant. In the recorded phone call made prior to the actual drug buy, the 

C.I. and Appellant can both be heard arranging the location where the transaction is to 

occur. In the second call, the C.I. and Appellant can be heard discussing the amount (a 

half-ounce) and price ($800) of the methamphetamine to be bought. 

{¶21} Upon review, we conclude that the recorded statements made by the C.I. 

during the drug buy were not offered for their truth, but rather to provide a context within 

which to understand Appellant’s admissible statements. We therefore find said 

statements were not hearsay under Evid.R. 801(C). Further, as the C.I.'s statements were 

not hearsay, they were not testimonial, and Crawford is inapplicable. We therefore 

conclude that the admission of the C.I.’s statements does not violate Appellant's Sixth 

Amendment right to confrontation. 

{¶22} Furthermore, we find nothing amiss with police testifying as to the 

confidential informant's comments. Those comments provided context to the use of the 

informant and the recorded controlled purchase. 

 
Licking County, Case No. 16 CA 14 8

{¶23} Appellant’s Assignment of Error is overruled. 

{¶24} For the foregoing reasons, the judgment of the Licking County Court of 

Common Pleas is affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Delaney, J., concur. 

JWW/d 1004