COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61302 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LUCILLE YOUNGLESS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-257406. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Cheryl L. Tuttle, Esq. Marion Building, No. 307 1276 West 3rd Street Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Lucille Youngless, appeals from her conviction for two counts of drug abuse in violation of R.C. 2925.11 and one count of trafficking in drugs in violation of R.C. 2925.03. The appellant's appeal involves the issues of a defective search warrant and failure to reveal the identity of a confidential informant. The appellant's appeal is not well taken. I. THE FACTS A. THE PURCHASE OF COCAINE FROM THE APPELLANT On January 17, 1990, a Special Agent employed by the Bureau of Criminal Investigation, State of Ohio, Attorney General's Office, and a confidential informant entered a Drug Mart store located at 44th Street and Clark Avenue, Cleveland, Ohio, as part of a pre- arranged plan for the purchase of cocaine from the appellant. The Special Agent and the confidential informant approached the appellant. In exchange for the sum of $160.00, the appellant provided the confidential informant with a plastic bag which contained two small packets of cocaine. B. THE SEARCH OF THE APPELLANT'S HOME On May 17, 1990, members of the Cleveland Police Department were preparing to execute a search warrant of a residential home located on Elton Avenue, Cleveland, Ohio, which was occupied by the appellant. The purpose of the search was to search and seize evidence of the sale and possession of cocaine by the appellant. -3- Prior to execution of the search warrant, the Cleveland Police observed the appellant exit her residential home and enter a white Pontiac Transam automobile. The appellant traveled to a residence located at the corner of Madison Avenue and West 61st Street, Cleveland, Ohio. The appellant was then stopped by the Cleveland Police and informed of the pending search warrant. Prior to being stopped, the appellant was observed to throw a pack of Marlboro cigarettes to the ground. Investigation of the cigarette pack revealed the existence of two packs of white powder which subsequently tested positive for cocaine. Execution of the search warrant at the residential home occupied by the appellant resulted in the seizure of the following items: 1) three razor blades; 2) two mirrors; 3) paper gem packs; and 4) two plastic bags. Upon examination of the seized items by the Forensic Laboratory of the Cleveland Police Department, one wooden mirror was found to be positive for cocaine. C. THE INDICTMENT IN CR-253341 AND CR-257406 On July 19, 1990, the appellant was indicted by the grand jury of Cuyahoga County, in CR-253341, for two counts of drug abuse (obtain, possess or use cocaine) in violation of R.C. 2925.11 and one count of possessing criminal tools (money and a 1978 Pontiac Transam) in violation of R.C. 2923.24. On September 21, 1990, the appellant was indicted by the grand jury of Cuyahoga County, in CR-257406, for one count of trafficking in drugs (sale of cocaine) in violation of R.C. 2925.03(A)(1) and one count of drug -4- abuse (obtain, possess or use cocaine) in violation of R.C. 2925.11. D. THE ARRAIGNMENT IN CR-253341 AND CR-257406 On August 6, 1990, the appellant was arraigned with regard to CR-253341 and a plea of not guilty was entered to the three counts of the indictment. On October 10, 1990, the appellant was arraigned with regard to CR-257406 and a plea of not guilty was entered to the two counts of the indictment. E. THE MERGER OF CR-253341 AND CR-257406 FOR PURPOSE OF TRIAL On December 13, 1990, a jury trial was commenced with regard to the pending offenses as found in CR-253341 and CR-257406. Both criminal cases were merged for the purpose of trial as a result of the prosecution's motion for merger as made pursuant to Crim. R. 8 and Crim. R. 13. At the conclusion of the prosecution's case-in-chief, the trial court granted the appellant's Crim. R. 29(A) motion to dismiss with regard to the offense of possessing criminal tools as found in CR-253341. The remaining counts of CR-253341 and CR-257406 were submitted to the jury. At the conclusion of the trial, the jury found the appellant guilty of count one (drug abuse) and not guilty of count two (drug abuse) in CR-253341. In addition, the jury found the appellant guilty of count one (trafficking in drugs) and guilty of count two (drug abuse) in CR-257406. F. THE SENTENCE OF THE TRIAL COURT On January 4, 1991, the trial court sentenced the appellant to incarceration within the Ohio Reformatory for Women, Marysville, -5- Ohio as follows: 1) one and one-half years as to count one (drug abuse) in CR-253341; 2) one and one-half years as to count one (trafficking in drugs) in CR-257406; and 3) one and one-half years as to count two (drug abuse) in CR-257406. The trial court further ordered that each sentence of incarceration, as found in 1 CR-253341 and CR-257406, run consecutive to each other. G. THE APPELLANT'S APPEAL Thereafter, the appellant timely brought the instant appeal from her conviction for one count of trafficking in drugs and two counts of drug abuse. II. THE FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: THE TRIAL COURT WAS INCORRECT IN DENYING MS. YOUNGLESS' MOTION TO SUPPRESS EVIDENCE BECAUSE THE EVIDENCE SEIZED BY THE CLEVELAND POLICE WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. A. ISSUE RAISED: A DEFECTIVE SEARCH WARRANT REQUIRED GRANTING OF THE MOTION TO SUPPRESS 1 It should be noted that a discrepancy exists with regard to the sentence of incarceration as imposed by the trial with regard to the offense of trafficking in drugs. A review of the transcript of proceedings demonstrates that the trial court sentenced the appellant to a term of incarceration of two years with regard to the offense of trafficking in drugs as found in CR-257406 (Tr. 319). The trial court's journal entry, as found at Vol. 988, Pg. 700, however, reveals a sentence of only one and one-half years with regard to the offense of trafficking in drugs as found in CR-257406. Since a trial court speaks only through its journal, the sentence of one and one-half years is the court's sentence of incarceration which must be applied to the appellant with regard to the offense of trafficking in drugs. See Crim. R. 32(B). -6- The appellant, through her initial assignment of error, argues that the trial court erred as a result of denying the appellant's motion to suppress. Specifically, the appellant argues that the search warrant, which enabled the police to search the appellant's residential home and seize suspected contraband, was defective thus mandating that the trial court grant the motion to suppress. The appellant's first assignment of error is not well taken. B. APPELLANT ARGUES THAT SEARCH WARRANT WAS DEFECTIVE SINCE IT DID NOT PARTICULARLY DESCRIBE THE PLACE TO BE SEARCHED In the case sub judice, the appellant argues that the search warrant, which was obtained by the Cleveland Police and executed at the appellant's residential home, was defective. The appellant argues that the search warrant failed to particularly describe the place to be searched since the search warrant did not correctly list the appellant's residential address. Herein, the search warrant listed the appellant's residential address as 7710 Elton, Cleveland, Ohio while in reality the appellant's residential address was 7708 Elton, Cleveland, Ohio. Thus, the appellant argues that the search warrant was defective. C. A SEARCH WARRANT IS NOT VOID AB INITIO BECAUSE IT FAILS TO INCLUDE A "CORRECT" ADDRESS This court, however, has held that a search warrant which incorrectly lists a street address but otherwise correctly describes the premises to be searched is valid. Appellant argues that the trial court erred in overruling the motion to suppress evidence obtained as a result of an invalid -7- search warrant. Appellant contends that the warrant is invalid because a number "7" was incorrectly typed instead of a number "3," making the street address "3474" instead of "3434." This argument is without merit. In determining if a warrant particularly describes the place to be search[ed] as required by the Fourth Amendment, courts consider ". . . whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant." Commonwealth v. Rugaber (Mass. 1976), 343 N.E.2d 865, 867; Steele v. United States (1925), 267 U.S. 498, 503. In the present case, the warrant correctly described with particularity the premises to be searched. Thus, the officers were not bound by the incorrect street address. Moreover, the executing officer, Detective Young, knew the particular home described in the warrant since he had made a purchase of cocaine two days earlier from that home and intended to obtain a search warrant for that home. Thus, there was no danger that another premises might be mistakenly searched which was not the one intended to be searched under the search warrant. Under these circumstances, we find that the search warrant was sufficient despite the inaccurate address. Accordingly, the trial court did not err in denying appellant's motion to suppress the evidence. State v. Campbell (April 16, 1992), Cuyahoga App. No. 60178, unreported, at 2. D. THE SEARCH WARRANT IN THE PRESENT APPEAL WAS NOT DEFECTIVE The record before this court clearly demonstrates that the search warrant, absent the correct address, described the appellant's residential premises with particularity. In -8- addition, the police officer, who obtained the search warrant, had personally observed the appellant's residential premises on several occasions. The record clearly shows that the appellant's residential home was indeed the premises which was described with particularity in the search warrant despite an improper address. Thus, the search warrant was not defective and the trial court did not err as a result of denying the motion to suppress evidence which was seized from the appellant's home. The appellant's first assignment of error is not well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: THE TRIAL COURT DENIED LUCILLE YOUNGLESS' RIGHT TO A FAIR TRIAL AND HER RIGHT TO CONFRONT HER ACCUSERS AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY ITS RULING THAT THE STATE WAS NOT REQUIRED TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT FOR THE PURPOSE OF SUPPORTING THE DEFENDANT'S DEFENSE. A. ISSUE RAISED: TRIAL COURT ERRED BY REFUSING TO ALLOW THE IDENTIFICATION OF A CONFIDENTIAL INFORMANT The appellant, through her second assignment, argues that the trial court erred by failing to require the prosecution to reveal the identity of a confidential informant. Specifically, the appellant argues that the failure to reveal the identity of the confidential informant resulted in a denial of the constitutional guarantees of confrontation and a fair trial. -9- The appellant's second assignment of error is not well taken. B. THE APPELLANT SOUGHT THE IDENTITY OF THE CONFIDENTIAL INFORMANT During the course of trial, the appellant sought the identity of the confidential informant who participated in the purchase of cocaine from the appellant on January 17, 1990. The appellant sought the identity of the confidential informant on the basis of the right to confront her accuser and the right to a fair trial. C. STANDARD OF REVIEW APPLICABLE TO IDENTIFICATION OF A CONFIDENTIAL INFORMANT In State v. Williams (1983), 4 Ohio St.3d 74, the Supreme Court of Ohio established that the identification of a confidential informant hinges upon the right of a defendant to confront his accusers versus the protection of the public and the furtherance of effective law enforcement. In State v. Phillips (1971), 27 Ohio St. 294 [56 O.O.2d 174], we held that resolution of the question of whether the identity of an informant must be disclosed involves the balancing of competing interests. With respect to the criminal defendant, the fairness of the trial of an accused depends, in large part, on the ability of the defendant to confront his accusers. A fundamental component of the right to confront one's accusers is the opportunity to cross-examine the witness against him. Pointer v. Texas (1965), 380 U.S. 400. Despite the importance of the right of confrontation, under certain circumstances that right will be subject to the state's right to preserve the anonymity of informants. The underlying rationale for this "informant's privilege" was well-stated by Justice Corrigan in State v. Roe (1971), 26 Ohio St. 2d 2343, 246 [55 O.O.2d 480]: -10- "*** The purpose of the privilege is the furtherance and protection of the public in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials, and, by preserving their anonymity, encourage them to perform that obligation." See Roviaro v. United States (1957), 353 U.S. 53, 59. Generally, when the degree of participation of the informant is such that the informant virtually becomes a state's witness, the balance swings in favor of requiring disclosure of the informant's identity. Conversely, where disclosure would not be helpful or beneficial to the accused, the identity of the informant need not be revealed. State v. Beck (1963), 175 Ohio St. 73 [23 O.O.2d 377], reversed on other grounds (1964), 379 U.S. 89; State v. Roe, supra, at page 247; State v. Phillips, supra, at page 298. Accord Roviaro v. United States, supra. The balance which must be struck between these competing interests is indeed a fine and delicate one which of necessity dictates a case by case analysis. We find that the facts of the case at bar do not compel disclosure of the identity of this informant. In State v. Phillips, supra, we required disclosure of an informant's identity in the context of an illegal drug transaction. However, Phillips clearly represents a situation distinct from the instant cause and does not mandate a similar result. The key difference between Phillips and today's case is that in Phillips, the informant and the accused completed the drug transaction in a motel room out of the sight of the police. In that case, the state attempted to base a prosecution solely on the testimony of a police officer who saw the informant enter the motel room with marked money and exit with narcotics supposedly purchased therein, without disclosing the identity of the informant. One can easily see the inherent dangers in a situation where: the informant has made a drug purchase in association with -11- a police investigation, the state seeks to preserve the identity of the informant, and there are no other possible witnesses to the transaction other than the informant and the accused. The case sub judice presents no such inherent dangers. In the case at bar, the testimony of Mr. K is in no way as critical as that of the informant in Phillips. Here, the transaction between appellee and the informant was witnessed, in its entirety, by a police officer in close proximity to the event. Moreover, the police officer testified that, at all times, Mr. K's hands were in plain sight so as to eliminate the possibility that Mr. K may have switched the packet given him by appellee for one containing cocaine. Thus, this is not a situation where proof of an element of the crime is dependent upon the testimony of the informant. It therefore cannot be said that this informant, without testifying, was actually a witness for the prosecution who was not subject to cross- examination. State v. Williams, supra, at 75. In addition, the Supreme Court of Ohio in State v. Butler (1984), 9 Ohio St. 3d 156, dealt with the issue of the identity of a confidential informant and held that: The issue presented in this appeal is whether the identity of the police informant who negotiated the transaction resulting in appellee's arrest and conviction must be revealed in light of State v. Williams (1983), 4 Ohio St. 3d 74, and its predecessors. We hold that Williams does not require divulgence of this informant's identity, and thus reverse the judgment of the court of appeals. In State v. Williams, supra, this court held: "The identity of an informant must be revealed to a criminal defendant when the testimony of the informant *** would be helpful or beneficial to the accused in -12- preparing or making a defense to criminal charges." In Williams, we ruled that such testimony was not critical because the crime took place in full view of the police officer. We distinguished State v. Phillips (1971), 27 Ohio St. 2d 294 [56 O.O.2d 174], where divulgency was ordered, by the fact that in Phillips only the informant was present with the defendant when the time allegedly occurred. The Williams and Phillips standards necessarily require an analysis of each case's facts and circumstances as to whether the proffered reasons for abrogating the informant's confidentiality are valid. State v. Butler, supra, at 157. D. THE IDENTIFICATION OF THE CONFIDENTIAL INFORMANT WAS NOT MANDATED The record before this court fails to demonstrate that the identity of the confidential informant was critical to the appellant's defense or the presentation of the prosecution's case. Testimony was adduced at trial from a police officer who directly participated in the purchase of cocaine from the appellant. In addition, identification of the confidential informant would not have established any of the elements of the charged offense nor would such an identification have contributed toward the appellant's defense since the drug transaction in question was entirely viewed by a police officer who testified at trial. Cf. State v. Parsons (1989), 64 Ohio App.3d 63; State v. Gover (1989), 61 Ohio App.3d 330. Applying the balancing test of Williams to the present appeal, this court can but find that the trial court did not err by refusing to allow the identification of the confidential -13- informant. Thus, the appellant's second assignment of error is not well taken. Judgment affirmed. not well taken. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. and HARPER, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .