[Cite as State v. Johnson, 2011-Ohio-3469.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95816




                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   LOUIS JOHNSON
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-525279
      BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.

    RELEASED AND JOURNALIZED:                 July 14, 2011
ATTORNEY FOR APPELLANT

Thomas A. Rein
940 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
      Edward D. Brydle
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, Louis Johnson, appeals his convictions for drug

trafficking and drug possession. After a thorough review of the record and

relevant law, we affirm.

      {¶ 2} On June 15, 2009, appellant was indicted for drug trafficking of

benzylpiperazine (“ecstasy”) in violation of R.C. 2925.03(A)(1), in an amount

equal to or exceeding five times the bulk amount but less than 50 times the

bulk amount, a felony of the second degree; drug trafficking of ecstasy in

violation of R.C. 2925.03(A)(2), five times the bulk amount but less than 50
times the bulk amount, a felony of the second degree; drug possession in

violation of R.C. 2925.11(A), a felony of the second degree; and possession of

criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree.

      {¶ 3} On September 13, 2010, the case was called for trial.         At trial,

Detective Michael Engelhart, of the Cuyahoga County Sheriff’s Narcotics

Unit, testified that on October 24, 2008, he received information from a

confidential informant about a male who was selling ecstasy.                    The

confidential informant only knew the male by the name “Woody.” Woody

was later identified as appellant’s co-defendant, Fabian Berbick.

      {¶ 4} On October 24, 2008, the confidential informant was utilized to

stage a controlled buy of 200 ecstasy pills from Berbick for $1,300.            Det.

Engelhart testified that the confidential informant was outfitted with an

audio transmitter, which allowed Det. Engelhart to listen to the transaction

from his surveillance vehicle. Once the deal was completed, the confidential

informant turned the pills over to Det. Engelhart. Lab tests performed by

the Ohio Bureau of Criminal Investigation and Identification confirmed that

the pills sold to the confidential informant were ecstasy.

      {¶ 5} Based on the success of the October 24, 2008 controlled buy, Det.

Engelhart decided to utilize the confidential informant for a second controlled

buy from Berbick.       On November 7, 2008, the confidential informant

contacted Berbick and requested 500 ecstasy pills at a price of $3,250. The
parties agreed to meet at the same location as the first controlled buy. As in

the first controlled buy, Det. Engelhart outfitted the confidential informant

with an audio transmitter and positioned his team to observe the transaction

from an unmarked police vehicle. Det. Engelhart testified that he waited for

Berbick to enter the confidential informant’s vehicle before sending takedown

units in to make an arrest. Upon arresting Berbick, detectives recovered two

clear plastic baggies from the area where Berbick was seated, which

collectively contained 495 ecstasy pills.

      {¶ 6} The record reflects that appellant arrived at the scene of the

second controlled buy with Berbick and remained in Berbick’s vehicle while

the drug transaction took place. Once Berbick was arrested, Det. Englehart

approached Berbick’s vehicle and removed appellant from the passenger seat

of the vehicle.   Det. Engelhart testified that he retrieved a clear plastic

baggie containing 284 ecstasy pills from the seat where appellant was sitting.

 Further, Det. Engelhart removed $1,940 from appellant’s pants pocket.

      {¶ 7} Berbick testified as a condition of his plea agreement and stated

that appellant supplied him with the 500 ecstasy pills purchased by the

confidential informant at the second controlled buy. Berbick indicated that

appellant insisted on accompanying him to the location of the buy so that he

could ensure that he would be paid immediately.
           {¶ 8} At the conclusion of the state’s case, appellant moved the court

 for acquittal pursuant to Crim.R. 29, which the court subsequently denied.

  On September 17, 2010, appellant was found guilty of drug trafficking in

    violation of R.C. 2925.02(A)(2) and drug possession in violation of R.C.

2925.11(A). The trial court moved directly to sentencing, and appellant was

   sentenced to a three-year term of incarceration on each count, to be run

concurrently.Appellant raises four assignments of error for review.1Law and

                                      Analysis

                         I.   Sufficiency of the Evidence




      1    Appellant’s assignments of error are included in the appendix to this
opinion.
      {¶ 9} In his first assignment of error, appellant argues that the state

failed to present sufficient evidence to sustain his convictions for drug

possession and drug trafficking. The test an appellate court must apply in

reviewing a challenge based on a denial of a Crim.R. 29 motion is the same as

a challenge based on sufficiency of the evidence to support a conviction.

State v. Lopez, Cuyahoga App. No. 94312, 2011-Ohio-182.              When an

appellate court reviews a record upon a sufficiency challenge, “the relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt.” State v. Leonard, 104 Ohio

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶77, quoting State v. Jenks (1991),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

      {¶ 10} After a review of the evidence presented at trial, we find that the

prosecution presented substantial competent and credible evidence upon

which the trier of fact could have reasonably concluded that the state proved

the essential elements of drug trafficking and drug possession beyond a

reasonable doubt.
                               Drug Possession

       {¶ 11} Appellant was convicted of drug possession in violation of R.C.

2925.11.   In order to convict appellant of drug possession, the state was

required to prove beyond a reasonable doubt that appellant knowingly

possessed, obtained, or used a controlled substance. R.C. 2925.01(K) defines

“possession” as “having control over a thing or substance.”       Possession of

drugs can be either actual or constructive.” State v. Fogle, Portage App. No.

2008-P-0009, 2009-Ohio-1005, ¶28, citing State v. Rollins, Paulding App. No.

11-05-08, 2006-Ohio-1879, ¶22.         “Actual possession exists when the

circumstances indicate that an individual has or had an item within his

immediate physical possession.      Constructive possession exists when an

individual is able to exercise dominion or control of an item, even if the

individual does not have the item within his immediate physical possession.”

State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633,

¶13.

       {¶ 12} The evidence adduced at trial reveals that the ecstasy confiscated

by Det. Engelhart was within appellant’s immediate physical possession and

control.   Det. Engelhart testified that when appellant was removed from

Berbick’s car, he observed that appellant had been sitting on a clear plastic

baggie containing a large quantity of ecstasy pills. Appellant’s possession of

the quantity of drugs was corroborated by Berbick’s testimony that appellant
kept the remaining ecstacy pills on his person once appellant separated 500

pills for Berbick to sell to the confidential informant.

      {¶ 13} Appellant correctly notes that the mere presence in the vicinity of

illicit drugs is not sufficient to prove the element of possession.           See

Cincinnati v. McCartney (1971), 30 Ohio App.2d 45, 281 N.E.2d 855; State v.

Haynes (1971), 25 Ohio St.2d 264, 267 N.E.2d 787.           In the instant case,

however, the evidence goes well beyond mere presence in the vicinity of the

controlled substance. See, generally, State v. Pruitt (1984), 18 Ohio App.3d

50, 480 N.E.2d 499.

      {¶ 14} Given the testimony of Det. Engelhart and Berbick, we find that a

reasonable trier of fact could conclude that appellant possessed the drugs that

he was sitting on when Det. Engelhart removed him from the vehicle.

                               Drug Trafficking

      {¶ 15} Appellant was further convicted of drug trafficking in violation of

R.C. 2925.03(A)(2).    In order to convict appellant for drug trafficking, the

state was required to prove beyond a reasonable doubt that appellant

knowingly prepared for shipment, shipped, transported, delivered, prepared

for distribution, or distributed a controlled substance with the intent to sell.

      {¶ 16} Appellant argues that his conviction for drug trafficking was not

supported by sufficient evidence because the conviction was based on the

testimony of his codefendant, Berbick.       Appellant contends that Berbick’s
testimony was unreliable based on his motivation to receive a favorable plea

agreement from the state. While we recognize that Berbick received a plea

agreement in exchange for his testimony in this case, the weight to be given

to the credibility of witnesses is reserved for the trier of fact.     State v.

Thomas (1982), 70 Ohio St.2d 79, 434 N.E.2d 1356.          Further, the record

reflects that the trial court gave proper jury instructions on evaluating the

credibility and weight of an accomplice’s testimony, and it is presumed that

the jury followed the trial court’s instructions. State v. Jones, 90 Ohio St.3d

403, 2000-Ohio-187, 739 N.E.2d 300.

      {¶ 17} At trial, Berbick testified that appellant was his supplier for the

second controlled buy with the confidential informant. The record reflects

that on November 7, 2008, Berbick contacted appellant and asked whether he

could supply the 500 ecstasy pills requested from the confidential informant.

When appellant indicated that he could supply the pills, he instructed

Berbick to pick him up at his home so that he could accompany Berbick to the

site of the drug transaction.

      {¶ 18} Berbick testified that when he arrived at appellant’s home,

appellant brought a large plastic baggie containing approximately 800 ecstasy

pills into the vehicle. Berbick stated that while he was driving, appellant

prepared the pills for the transaction by separating 500 of the 800 pills into

two smaller plastic baggies.    Berbick testified that the pills brought and
prepared by appellant were the pills subsequently sold to the confidential

informant.

      {¶ 19} Once Berbick was arrested, he gave a statement to the police

indicating that he was the middleman in the whole procedure and that

appellant supplied the ecstasy pills to him with the intent that he would sell

the pills to the confidential informant.

      {¶ 20} Based on Berbick’s testimony and the large amount of ecstasy

retrieved from appellant’s possession, we find that the state’s evidence

demonstrated that appellant was not merely present at the crime scene, but

was an active participant in the drug transaction. Accordingly, appellant’s

conviction for drug trafficking was supported by sufficient evidence.

      {¶ 21} Appellant’s first assignment of error is overruled.

                   II.   Manifest Weight of the Evidence

      {¶ 22} In his second assignment of error, appellant argues that his

convictions were against the manifest weight of the evidence.              In

determining whether a conviction is against the manifest weight of the

evidence, the appellate court sits as a “thirteenth juror” and disagrees with

the factfinder’s resolution of the conflicting testimony. State v. Thompkins,

78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 54, citing Tibbs v. Florida

(1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. The reviewing court

must examine the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether

the jury “clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” Id.

       {¶ 23} The appellate court may not merely substitute its view for that of

the jury, and reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.”

 Id.

       {¶ 24} In this matter, after examining the entire record and weighing

the evidence and all reasonable inferences, we cannot say that appellant’s

convictions were against the manifest weight of the evidence. The evidence

presented at trial demonstrated that appellant provided Berbick with

approximately 500 ecstasy pills with the intent to have Berbick sell them to

the confidential informant. Once Berbick was apprehended, Det. Engelhart

removed appellant from the vehicle and found that appellant was in

possession of approximately 284 ecstasy pills.        Consequently, the state

presented evidence that, if believed, provided proof of each of the essential

elements of drug possession and drug trafficking.          Moreover, we have

carefully examined the entire record and fail to find any indication that the

jury lost its way or that injustice resulted.

       {¶ 25} Appellant’s second assignment of error is overruled.
      {¶ 26} Upon further review of the transcript and record, appellant

conceded the remaining arguments raised in this appeal.              Therefore,

appellant’s third and fourth assignments of error are overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant 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

convictions 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.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR


                                    APPENDIX

Appellant’s assignments of error:

I.   “The state failed to present sufficient evidence to sustain a conviction
against appellant.”

II.   “Appellant’s convictions are against the manifest weight of the
evidence.”
III. “The trial court committed reversible error when it failed to give the
jury the accomplice testimony instruction.”

IV. “Appellant was denied effective assistance of counsel as guaranteed by
Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth
Amendments of the U.S. Constitution.”
