COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70531 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : RICHARD COLLINS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 20, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-233052 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. KENNETH D. MYERS, ESQ. Cuyahoga County Prosecutor 701 Citizens Building L. CHRISTOPHER FREY, ESQ. Cleveland, Ohio 44114 Asst. County Attorney 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: The state indicted Richard Collins on four counts of drug trafficking and one count of possession of criminal tools. He moved to suppress the evidence based on the prosecutor's failure to disclose the identity of the state's confidential reliable informant. The trial court agreed and the state appealed. This court reversed the trial court. State v. Collins (Feb. 28, 1991), Cuyahoga App. No. 58003, 58004, unreported. Thereafter, a jury found Richard Collins guilty of three counts of drug trafficking and the possession of criminal tools count. He appealed and this court confirmed his conviction. State v. Collins (Mar. 10, 1994), Cuyahoga App. No. 62794, unreported. This appeal is from the trial court's denial of Collins' motion for a new trial based on newly discovered evidence. The newly discovered evidence, Collins claimed, challenged the validity of the original search warrant. The newly discovered evidence was identified as the testimony of Willie Marshall. Collins also challenges this court's ruling on the original search warrant. Apparently, the original search warrant return was signed by Francis Sweeney, who was a common pleas judge at the time. At the time of Collins' original appeal, Judge Sweeney was a member of the court of appeals, and participated on the appellate panel that reversed the trial court's decision to suppress the evidence. The original search warrant return was not in the file and not available to the attorney until this present appeal. -3- After hearing the legal arguments from both Collins and the State, the trial court heard testimony from Willie Marshall, whom Collins claims is his newly discovered evidence. Marshall testified the police had a search warrant. They came to the third floor where he lived, searched his residence and claimed they found "scales, reefer in a bag with money, guns, pipes." (Tr. 16) Marshall was arrested but never charged. Marshall testified that, on October 4, 1988, he sold a controlled substance to an individual. Marshall also testified he told the police Collins was not selling drugs and that he did not get the drugs from Collins. On cross examination, Marshall testified he never told the buyer to go up to the third floor and make the buy from "his boys." He claimed such a statement would be ridiculous because he lived on the 3rd floor. (Tr. 35) The trial court, thereafter, made a finding of fact based on Marshall's testimony. She overruled the motion for a new trial concluding Collins' evidence failed to meet the clear and convincing evidence standard, which must be met before a new trial is granted. Her approach was that the new evidence had to refute Officer Dale Robertson's sworn affidavit, and it did not. The court said "there is nothing to dispute the fact that the sale was made from Mr. Collins on the date it was said from him." [sic] (Tr. 42) In his first assignment of error, Collins argues the trial court erred in denying his motion for a new trial based upon newly discovered evidence. We disagree. -4- "To warrant the granting of a new trial in a criminal case based upon the ground of newly discovered evidence, it must be shown that the evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence." State v. King (1989), 63 Ohio App.3d 183, 191. See, also, Dayton v. Martin (1987), 43 Ohio App.3d 87. The standard for reviewing the denial of a motion for new trial is abuse of discretion. State v. Lane (1976), 49 Ohio St.2d 77. In this case, Collins presents the testimony of Marshall who believed he sold drugs to the CRI, and argues, the search warrant was invalid. However, the affidavit to the search warrant reveals that the CRI did not make a purchase of drugs from the third floor where Marshall lived. In fact, the CRI was told by the seller, "if I am not home, next time go up to the third floor to buy coke from one of my boys." On cross examination at the hearing for a new trial, Marshall said he never uttered those words to anyone. In fact, he said it would be ridiculous to say this since he lived on the third floor. No evidence exists that the person Marshall sold drugs to on October 4, 1988 was the CRI. Marshall's testimony does not undermine the validity of the search warrant, and it does not disclose a strong probability that the result of a new trial would be different. See King at 191, supra. Accordingly, the trial -5- court did not abuse its discretion in denying the motion for new trial. In his second assignment of error, Collins argues the trial court erred in not ruling the search warrant return was invalid. We disagree. The failure to comply with the search warrant return requirement under Crim.R. 41(E) does not make a search warrant invalid in the absence of evidence that the papers did not exist or that sufficient cause was not demonstrated by affidavit or oral testimony to justify the issuance of the search warrant. Columbus v. Wright (1988), 48 Ohio App.3d 107. In this case, Collins failed to prove that the papers did not exist and failed to demonstrate the police lacked sufficient cause for the issuance of a search warrant. Likewise, Collins' issue regarding Justice Sweeney is baseless. Justice Sweeney did not review the sufficiency or legality of the warrant. He merely executed the return of the warrant. Besides, this was not assigned as error. Accordingly, the failure to meet the return requirement for the search warrant in this case is not reversible error. Judgment affirmed. -6- 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. NAHRA, J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .