‘Much ado about nothing:’ Judge denies Hillsboro man’s motion for new trial in engaging in a pattern of corrupt activity case

Highland County Common Pleas Court Judge Rocky Coss rendered a decision Monday denying a motion for a new trial filed by a Hillsboro man convicted of engaging in a pattern of corrupt activity, after the judge called the defendant’s arguments “a load of crap” at a July 8 hearing.

As previously reported, the trial of Wesley A. Howard began on the morning of Aug. 22 and continued until Aug. 23 at 6 p.m. He was charged with engaging in a pattern of corrupt activity, a first-degree felony; aggravated trafficking in methamphetamine in the vicinity of a juvenile, a second-degree felony; aggravated trafficking in methamphetamine in the vicinity of a school zone, a second-degree felony; five counts of aggravated possession of methamphetamine, a third-degree felony; three counts of aggravated trafficking in methamphetamine, a third-degree felony; and a forfeiture specification. 

He was convicted of all charges after approximately three hours of deliberations by the jury Aug. 24, 2022, as the only exception in the entire indictment was one of Howard’s four vehicles not being found subject to forfeiture. Howard was sentenced to a total of 24.5 years in prison. The Fourth District Court of Appeals later affirmed the conviction.

Howard, 33, personally filed a motion requesting a new trial and petition for post conviction relief April 20. A month later, Alana Van Gundy was retained as his defense attorney.

Howard’s motion for leave to file a motion for a new trial was based on “evidence that has been obtained [that] reveals a material witness was being coerced by the State to testify falsely against” him, he alleged. Those accusations were based on an affidavit signed by the witness, which was also filed by Howard, as well as “a recorded conversation that was produced by the affidavit’s author that seems to validate the facts found in the affidavit and reveals much more,” Howard wrote. 

The witness in question was a confidential informant (CI) used by the Highland County Task Force who did not testify at Howard’s trial where he was ultimately convicted, nor at a previous trial that was later declared a mistrial.

Howard raised five issues in his motion: that the prosecutor “knew or should have known” why the CI was “unavailable to testify” and violated Howard’s rights by “actively [misleading] the Court and trial counsel;” that the prosecutor made a “false and unprovable statement” regarding the CI being “scared” to testify at trial “that would result in the ineffective assistance of counsel through government interference;” that Howard was “deprived of his right to the compulsory process” due to “the prosecutor’s misconduct in misleading defense counsel;” that the prosecutor committed “fraud upon the court” by “fabricating evidence of [the CI] being scared to death to testify;” and that the prosecutor “deliberately and maliciously misled defense counsel and the court which resulted in structural error.”

In his petition for post conviction relief, Howard alleged that Highland County Prosecutor Anneka Collins “deliberately misled this Court and defense counsel which resulted in many constitutional violations that should result in [Howard’s] conviction being vacated.” The petition included the affidavit signed by the CI, who alleged that he was asked by the state to “lie on the stand … by answering all questions with the answers that they provided.” The remainder of the 105-page petition was a transcript of the conversation from trial preparations secretly recorded by the CI.

Collins filed a 58-page response April 30 denying Howard’s “untimely” motions. 

A hearing on the motions was held July 8 before Coss, where Van Gundy began by calling Howard to the stand to testify about the CI’s recording. Howard said that he became aware of the recording “sometime between” the first trial in his case, which ended in a mistrial, and the second trial, where he was ultimately convicted. 

“Did the court prevent you from using it at trial?” Van Gundy asked.

“Yes,” Howard said. “My attorney didn’t want to use it, and the court said they didn’t want to hear it.”

Coss clarified “for purposes of the record,” the recording was brought up during Howard’s sentencing, at which point “the state offered to play it before sentencing, and I indicated I didn’t want to hear it.”

Howard testified that he “did not” know what the recording contained until it was transcribed and he “seen [sic] it.” Upon further questioning from Van Gundy, Howard said that in February 2026, he obtained the affidavit signed by the CI and used that in his motion for a new trial filed in April.

Under cross examination, Collins asked Howard, “Your testimony today is that you asked to bring the recording into the trial and the court ordered that not to happen?” 

“No, I advised my attorney of it, and he didn’t want to, I guess,” Howard said.

“Have you listened to the recording?” Collins asked.

“No,” Howard said. “I’ve only seen the transcripts.”

“So what do you think it contains that is going to get your case reversed?” Collins asked.

“I don’t know,” Howard said. 

In the middle of that line of questioning, Coss issued to a warning to onlookers in the back of the courtroom, saying, “No more comments back there or you’ll be thrown out.”

Collins repeatedly asked Howard why it mattered if the recording was used or not and how it would purportedly help his case. He continually answered, “I don’t know,” before finally saying “there’s multiple things” in the transcript and asked to have a copy for reference.

“Why are you wasting the court’s time with this motion?” Collins asked.

“Because I know it holds information in it,” Howard said.

“What?” Collins asked. “Give us a synopsis, a summary, anything?”

“[The CI] saying he has never seen me, saying he will not lie for that after being asked multiple times,” Howard said. 

“After being asked multiple times to lie?” Collins asked.

“After being asked the same question multiple times, he felt as if —” Howard said.  

“You can’t tell how he felt,” Collins said. “Point to the evidence.”

“I can’t point to anything,” Howard said. “I’m cuffed.”

Under redirect examination, Van Gundy referred Howard to a page in the transcript and asked him to read a line aloud where the CI said “And I’m not going to lie for them.” On another page, Howard read a quote from the CI saying “it wasn’t Wes driving,” and he confirmed that those were “the two comments” he was referring to under cross examination.

“How do you feel that would have changed the outcome of your trial?” Van Gundy asked.

“He obviously said it wasn’t me driving,” Howard said.

“Was that used as testimony in your trial, that you were driving a car?” Van Gundy asked.

“Yes,” Howard said.

“Was the other comment that you read used at your trial against you?” Van Gundy asked.

“Yes,” Howard said.

Coss then asked Howard how he became aware of the recording between the two trials.

“It was sent to me,” Howard said. He initially said he didn’t “remember” who sent it, then said, “I guess [codefendant Christopher] Hertzler.” He then again testified later that he "did not remember." 

Under additional questions from Van Gundy, Howard reiterated that he provided the recording to his attorney and felt like he was “prevented from using it” at trial.

Van Gundy then called the CI to the stand. The CI confirmed that he communicated with Collins prior to the trial and had been asked to testify but chose not to.

“I thought it was wrong,” the CI said. “I have never really had anything to do with his case except one occurrence, and I’ve never seen the man in person until like now and a few other times, but had nothing to do with the case or drugs or anything.”

The CI testified that he “left a hotel … the morning of the trial” because “I didn’t want to testify.”

Collins referred the CI to a copy of a text message from the CI to a Highland County Task Force officer asking the officer to “pick [the CI] up at the hotel.” The CI said he did not remember sending that.

“I wasn’t texting anybody,” the CI said. “I didn’t text you guys that morning, nobody. U.S. Marshals called my phone.”

Collins asked if the CI gave a copy of “the recording that you made in the office,” or a copy of the questions, to Howard or a relative of Howard. The CI testified that he “didn’t provide it to either one of them” and that he has “no idea” how they got it.

Collins also asked the CI about the affidavit. He testified that he typed it and met with a notary as well as relatives of Howard. 

“Everything contained in that affidavit, it’s your testimony, is true, correct?” Collins asked.

“If it’s the affidavit, yes,” the CI said.

“Have you listened to the recording that you made and passed around?” Collins asked.

“It’s been so long,” the CI said. 

“Well, in your affidavit, you state that Sheriff Sanders and Prosecutor Anneka Collins wanted you to life on the stand in Wesley Howard’s trial under oath by answering all questions with the answers that they provided,” Collins said. 

“Correct,” the CI said.

Collins provided the CI with a transcript of the recording and asked him to “find in there where you were told to lie.”

“Can I ask what recording this is?” the CI asked.

“That’s the original one that you made and passed around,” Collins said.

“Oh, you mean the one that I recorded everybody when we was [sic] up in the courthouse room?” the CI asked. “Because that has nothing, that was, no.”

“What do you mean ‘no?’” Collins asked. “That’s why we’re here today.”

“Because of this?” the CI asked.

“Yes,” Collins said.

The CI said he had “no idea” where in the transcript it said he was asked to lie. Upon further questioning by Collins, he also confirmed that assistant prosecutor Adam King, not Collins, went over trial preparation with him in the recording. 

Collins then asked about the quote Van Gundy highlighted where the CI said Howard was not driving a vehicle. The CI confirmed that he said he had “never physically seen him,” referring to Howard.

“And Mr. King says, ‘Right,’ and you said, ‘I’m not going to lie for them,’” Collins said. “Well, who asked you to lie?”

“It was just the way everything was written, like a yes, no, like you’re going to get on stage or get on the stand, my bad, and say yes or no to this and this and this,” the CI said.

“Do you know how many times you were told to tell the truth during this recording?” Collins asked. “What if I told you no less than three times you were told not to lie?”

“OK,” the CI said.

Collins then went back to the affidavit written by the CI, where he said that a female CI “did cooperate and testify, giving the answers provided by the prosecutor.”

“On what basis do you have to say that she gave the answers provided by the prosecutor?” Collins asked. 

“The basis is that you had given her a deal that she would get her divorce in return for doing what you wanted them to do, wanted her to do on this case,” the CI said.

“She told you that the deal was that she did I wanted and that I would help her with a divorce?” Collins asked.

“Correct,” the CI said.

After more questioning about Facebook messages, Collins told the CI, “I’ll ask you the same thing I asked Mr. Howard. What makes a difference why you did or did not testify? The bottom line is you didn’t show up, correct?”

“Correct,” the CI said.

“And you didn’t get any testimony against this defendant, did you?” Collins asked.

“No,” the CI said.

“And he was convicted anyway, correct?” Collins asked.

“Correct,” the CI said.

After similar questions, the CI repeated that he didn’t testify because he “didn’t feel it was right, bottom line.”

“So nothing you did played a part in Mr. Howard getting convicted, correct?” Collins asked.

“I mean, the whole county of Highland County seems to think so,” the CI said. “I’ve been through hell and back over this case, and I didn’t even show up to convict him.”

“Well, maybe you put yourself in that position,” Collins said.

Under redirect examination, Van Gundy asked the CI, “What made you feel like you had to lie?”

“Just the way the things was [sic] worded in the paperwork that was given to me, between me and Mr. King, like they’re going to ask you this, you’re going to say yes, or you’re just going to say no to the questions,” the CI said. “I didn’t feel like that was right.”

In response to a question from Coss, the CI agreed that “I was involved in purchasing drugs” related to the case but did not appear to testify for either trial.

“Had you testified at trial, would you have testified to what was in the recording that you did not see Mr. Howard?” Van Gundy asked.

“Yes,” the CI said.

“Just for the record, I think that there was never any claim that [Howard] was seen in the car because the car had tinted windows, and the officers all testified they couldn’t see it,” Coss said.

After the CI’s testimony, Van Gundy rested, and Collins called the female CI to the stand. 

This particular CI did testify at Howard’s trial, and Collins asked her to speak about how she prepared for trial at the prosecutor’s office. The CI said that they reviewed recordings of drug transactions.

“We met in a room,” the female CI said. “We pretty much just listened to previous recordings, video, audio stuff from the case and everything that went down. 

“That way we could refresh our memories because it had been two years prior.”

“Did we go through a question and answer, back and forth?” Collins asked.

“Yes,” the female CI said.

“Were you provided prepared questions after the meeting?” Collins asked.

“Yes,” the female CI said.

“In the prepared questions, are there answers under the questions?” Collins asked.

“No,” the CI said, then added that after meeting with the prosecutors, “my answers” were added under the questions.  

Collins asked if the female CI was ever told to lie.

“No,” the CI said, adding that she was told “to always be sure to tell the truth.”

In response to further questions, the female CI denied that she was “promised a divorce” for her testimony and also refuted the male CI’s affidavit saying that the female CI gave “the answers provided by the prosecution.”

“Who gave the answers?” Collins asked.

“I did,” the female CI said.

Collins’ second witness was Chris Bowen of the Highland County Task Force. He confirmed that the task force paid for a hotel room for the male CI and that he “wasn’t there” when Bowen went to pick him up for the first trial. He and Collins reviewed messages between the CI and the task force officers.

Bowen also testified that he “never ever heard” the CI indicate a reluctance to testify. 

In response to further questions from Collins, Bowen said that he was present for “most” of the trial preparation for the male CI.

“Do you recall any time that myself or then-investigator Sanders instructed [the male CI] to lie?” Collins asked.

“Absolutely not,” Bowen said. He also confirmed listening to the recording and said that Bowen himself was among those telling the CI to “tell the truth.”

Highland County Sheriff Randy Sanders, who was still employed with the Task Force at the time of the investigation and trial, was the third witness called by Collins. He testified that the task force and prosecutor’s office engaged in “normal trial prep” with the CIs. 

Sanders confirmed that the male CI was “never” told to lie but was “told to tell the truth more than once,” while he also confirmed the female CI was never told to lie nor “promised anything in exchange for her cooperation.”

Sanders also testified that the male CI had told Sanders about “being in contact with” members of Howard’s family and “staying with” them “instead of coming to testify.”

Under cross examination, Van Gundy asked questions about the trial preparation, including who was present.

“The prosecutor had stated multiple times that there was no explicit question as to asking [the male CI] to lie, correct?” Van Gundy asked.

“He was told not to lie,” Sanders said. “He was told to tell the truth.”

Collins rested after her third witness, at which point exhibits were admitted and the attorneys made their closing statements.

“The standard for this trial that we have to meet is that the Mr. Howard was unavoidably prevented from using this recording,” Van Gundy said in her closing argument. “It came at some point in time between the first and second [trials]. He presented that to the attorney. It was not used, so he was prevented at that point in time. It was presented by Miss Collins. The court chose not to hear it.”

Van Gundy said that after the trial, Howard was also “unavoidably prevented from using” the recording because he lacked access to legal resources, including money to pay for transcription services, nor did he have access to the male CI for his affidavit until February.

“There was absolutely no way that he could have had this evidence at his trial,” Van Gundy argued. “This evidence is clearly stating that Mr. Howard was not seen, and also that [the male CI] testified himself that he was not scared and that was not the reason he didn’t show up to testify.” 

In her closing argument, Collins said she was “glad” to have the hearing for the opportunity for the recording to “be put to bed.

“This has been a nuisance for the state and investigating officers since it happened,” Collins said. “I think that this defendant, [the male CI] and half the defendants in Highland County think that they've got some golden egg with this recording. But if you listen to the recording, or you read the transcript — an actual, correct transcript, done by a court reporter — you’ll see that not only is the [male CI] not told to lie, he’s told to tell the truth multiple times, by multiple people in the room.”

Collins pointed out that not only was the male CI “never told to lie,” it would not have mattered anyway because “he didn’t show up.

“Nothing that he said during the trial impacted this case whatsoever because her didn’t say anything at trial,” Collins said. “This defendant was convicted based on the videos and the testimony of the officers and of [the female CI]. 

“[The male CI] really has no bearing on this.”

Collins concluded that “Mr. Howard needs to take responsibility for his actions. His family needs to understand that he was convicted, and that’s that. There is a sentence associated with that, and here we are.” 
  
After Van Gundy’s second closing argument — which included a warning from the judge about straying from the evidence presented at the hearing — Coss said that the motions were “much ado about nothing” and “absolutely a load of crap.”

The judge explained that the deadline for a motion for post conviction relief had passed in February 2024. 

“If there’s newly discovered evidence after that date, then there is a a provision under the statute for leave to be granted,” Coss said. “However, Mr. Howard testified that he had the tapes. It’s evident that he had the tape. It sounds like there were dozens of people on Facebook who had the tape or at least know what was on it.

“What you're complaining about is your attorney wouldn't use it. Well, good for him, because it wasn't admissible. It was nothing.”

Van Gundy attempted to interrupt, but Coss shushed her and said, “Be quiet. This isn’t a discussion. 

“I’m making a decision,” the judge said. “You be quiet.”

Coss continued that not only did the male CI not testify, but the transcripts of the recording provided by both attorneys do not “suggest any misconduct.

“I'm sure that's why the attorney decided not to use it, but here’s the deal, you knew he didn’t use it,” Coss told Howard. “You've said that, and your [current] attorney says you were prevented it because your attorney wouldn't use it. OK, well, then you should have filed for ineffective assistance of counsel within 365 days of the February 8, 2023 deadline because you knew about that. 

“This isn’t ‘newly discovered.’ You knew about it before the second trial and your attorney refused to use it, and for good cause, because it was nothing. There's nothing on there that suggests in the slightest way that the state did anything improper.”

Regarding the male CI’s testimony and affidavit, Coss said he “didn’t find his testimony to be too credible” but spoke about the male CI’s comments regarding not seeing Howard in the car as he said it was “a circumstantial evidence case.

“Nobody ever said he was in the car,” Coss said. “The officers testified at trial that he wasn't in the car. They couldn't see through the Ford Taurus with tinted windows. I remember it quite clearly.”

Coss continued that Howard’s argument about the recording is “a big fat nothing.

“Your position is ludicrous,” Coss said. “This is just standard trial prep — very thorough trial prep, by the way — and obviously, the fact that [the male CI] recorded it suggests would make the reasonable inference he was already working with Mr. Howard to try to undermine the prosecution in other ways, and it didn’t succeed.

“The tape had nothing on it that is of any benefit whatsoever to your claims.” 

Coss denied Howard’s motion for leave to file the motion for new trial and for post conviction relief as it is not newly discovered evidence.

“In fact, it ain’t even evidence,” Coss said. “It’s nothing. The transcript isn’t the evidence. You had the tape. You had the recording. The transcript is just the whoever types it, their belief as to what was said.”

Coss added that there is “simply no legal basis nor any evidence that would allow the court to even have a hearing” for post conviction relief.  

In his entry dated July 13, Coss wrote that “the Court finds that neither the affidavit nor the hearing testimony of [the male CI] is credible. 

“Based upon the fact that he surreptitiously recorded the trial preparation meeting with the State and then sent it to the defendants in this case and perhaps others, it seems likely that he had been influenced to work on behalf of the defendant … to undermine the State’s case at trial by not appearing and providing the recording of the trial preparation to defendants,” Coss wrote. 

Coss added that “there is no evidence whatsoever that at any time during the trial preparation meeting the Prosecuting Attorney, Assistant Prosecuting Attorney or any of the law enforcement officers asked [the male CI] to lie.

“It is clear to the Court that the trial counsel’s refusal to try to use the tape was not wrong,” Coss wrote. “It contained nothing that was admissible at the second trial. [The male CI] did not testify. There is no evidence in the recording that would support its admissibility at the trial. 

“It was not ineffective assistance of counsel to make the obviously correct decision not to call [the male CI] a defense witness.”

Coss concluded that “as a matter of law, [Howard] did not prove by clear and convincing evidence that he was unavoidably prevented from obtaining any evidence” and that Howard failed to meet “either requirement” of the law that would allow him to file his petition for post-conviction relief two years past the deadline. 

“Furthermore, the Court finds that the alleged evidence that was discovered does not contain any evidence that would demonstrate that there was any constitutional error, or that no reasonable fact-finder would have found him guilty of the three offenses set forth in counts two, four and six,” Coss wrote. “Therefore, [Howard] has not met his burden of proof by clear and convincing evidence on this claim.”

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