[Cite as State v. Brownlee, 2018-Ohio-3308.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106395



                                               STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                        EDDIE D. BROWNLEE

                                                          DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-15-601477-A

        BEFORE: S. Gallagher, J., Stewart, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: August 16, 2018
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, #613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Hannah Smith
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

        {¶1} Eddie Brownlee appeals his conviction for three counts of drug trafficking under

R.C. 2925.03 and three counts of possession of criminal tools that accompanied each of the

individual trafficking counts (a 2006 Dodge Durango, a digital scale, money, and Pyrex

glassware were used for the purpose of drug trafficking).             All of Brownlee’s convictions

stemmed from three separate controlled-drug buys conducted over a period of weeks. Brownlee

was sentenced to a one-year prison term on each of the six counts, which are to be served

consecutively.

        {¶2} The city of Euclid police officers arrested two drug dealers. Upon being arrested,

the two offenders became confidential informants and agreed to assist police officers in

apprehending their supplier, Brownlee. On three separate occasions, the confidential informants

participated in police-supervised purchases of less than five grams of cocaine from Brownlee or

his accomplice. In the first two transactions, Brownlee handled the sale. On the third one,

Brownlee’s accomplice conducted the transaction, but when police officers arrested Brownlee

immediately after the sale, he possessed the marked bills that were used by the informants to

purchase the drugs.

        {¶3} In the first assignment of error, Brownlee claims that one of the surveilling officers

who testified at trial should not have been permitted to discuss his observations of the drug

transaction because those observations were inadmissable under Evid.R. 801(C).                That

evidentiary rule precludes the admission of statements other than one made by the declarant

while testifying at trial that are offered to prove the truth of the matter asserted.
        {¶4} Brownlee did not object to that portion of the officer’s testimony, and therefore,

Brownlee has waived all but plain error. Plain error, however, is not to be invoked except in the

“utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, ¶ 23. This is not that case in light of the limited nature of the officer’s testimony regarding

the methods and procedures used during controlled-drug purchases. More to the point, the

jurors viewed the video surveillance depicting the controlled purchases in which Brownlee was

identified as the seller or acting through an accomplice, and a police officer’s firsthand

observations of illicit conduct in controlled-buy situations are generally admissible. See, e.g.,

State v. Tomlinson, 8th Dist. Cuyahoga No. 83411, 2004-Ohio-3295, ¶ 22; State v. Locke, 11th

Dist. Lake No. 2014-L-053, 2015-Ohio-1067, ¶ 62. The first assignment of error is overruled.

        {¶5} In the second assignment of error, Brownlee claims there is insufficient evidence

linking him to the three drug transactions in which he or his accomplice sold cocaine to the

confidential informants. 1 Brownlee contends that because the confidential informants were

criminals and there was inconsistent testimony regarding Brownlee’s involvement, his

convictions are not supported by sufficient evidence. He also argues that the state failed to

introduce the weight of the cocaine for the purpose of supporting the felony-level offense.

        {¶6} A claim of insufficient evidence raises the question of whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d

380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he relevant

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


        1
         Brownlee also discusses the sufficiency of the evidence with respect to the manufacturing drugs count, but
he was acquitted of that charge.
rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus.

       {¶7} R.C. 2925.03(A)(1) provides that no person shall knowingly sell or offer to sell a

controlled substance.    If that controlled substance is cocaine or a compound, mixture,

preparation, or substance containing cocaine, whoever violates division (A) of R.C. 2925.03 is

guilty of trafficking cocaine, which defaults as a fifth-degree felony offense unless greater than

five grams of the cocaine compound or mixture are involved.               R.C. 2925.03(C)(4)(a).

Brownlee was convicted of trafficking under R.C. 2925.03(C)(4)(a), and therefore, his claim that

the felony-level offense must be reduced to a misdemeanor because there was limited testimony

on the amounts of the cocaine he sold to the confidential informants is without merit. Brownlee

was convicted of the lowest level felony offense for trafficking cocaine, and regardless, there was

evidence that each purchase involved a little over three grams (about an eighth of an ounce) of

cocaine. Although the trace amounts of cocaine found on the criminal tools were not weighed,

Brownlee was not convicted of the possession, or for the sale, of those trace amounts.

       {¶8} Inasmuch as Brownlee challenges the credibility of the police officers and the

confidential informants, who themselves are drug dealers, we cannot consider such concerns

within the context of a sufficiency analysis. A claim that a jury verdict is against the weight of

the evidence, however, involves a separate and distinct test that is much broader than the test for

sufficiency, including challenges to the credibility of the state’s evidence. State v. Drummond,

111 Ohio St.3d 4, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193.              When reviewing a claim

challenging the manifest weight of the evidence, the court, reviewing the entire record, must

weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered. Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541. Reversing a

conviction as being against the manifest weight of the evidence should be reserved for only the

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

       {¶9} Even if we construed Brownlee’s argument under the weight of the evidence

standard of review, this is not the exceptional case in which the evidence weighs against the

conviction. Brownlee sold drugs to confidential informants as part of a controlled-drug buy

operation conducted by police officers on three separate occasions. His and his accomplice’s

actions were memorialized on video recordings. Brownlee was identified as the seller for two of

the transactions and implicated in the third transaction because he was arrested carrying the

marked bills used to purchase the narcotic. Further, the trier of fact reviewed the recorded

surveillance of the transactions in which the confidential informants exchanged money for the

drugs with Brownlee or his accomplice. His convictions are not against the weight of the

evidence.

       {¶10} Finally, in the third assignment of error, Brownlee claims that the three convictions

for possession of criminal tools must merge with each of the related drug trafficking convictions

as being allied offenses of similar import.        According to Brownlee, the trafficking and

possession of criminal tools convictions for each of the separate controlled-buy transactions were

based on the same conduct.

       {¶11} Under R.C. 2941.25, and based on the arguments advanced in this particular case,

courts use a three-part inquiry to determine whether a defendant can be convicted of multiple

offenses if those offenses arose from the same act or transaction:
       (1) Were the offenses dissimilar in import or significance? (2) Were they

       committed separately? and (3) Were they committed with separate animus or

       motivation? An affirmative answer to any of the above will permit separate

       convictions. The conduct, the animus, and the import must all be considered.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.            In addition, “a

defendant’s conduct that constitutes two or more offenses against a single victim can support

multiple convictions if the harm that results from each offense is separate and identifiable from

the harm of the other offense.” Id. at ¶ 26. The test is stated in the disjunctive form: the

existence of any one prong suffices for the imposition of separate sentences. State v. Esner, 8th

Dist. Cuyahoga No. 104594, 2017-Ohio-1365, ¶ 6. Thus, in order to reverse a conviction, the

defendant has to address all prongs of Ruff. It is no longer sufficient to focus on the offender’s

conduct in isolation on appeal. State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d

266, ¶ 11 (the conduct-based analysis from State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, has been rendered obsolete); see also State v. Dennis, 8th

Dist. Cuyahoga No. 104742, 2017-Ohio-4437, ¶ 21.

       {¶12} Brownlee did not object to the imposition of the separate sentences for trafficking

and possession of criminal tools at sentencing. He therefore forfeited all but plain error with

respect to the arguments advanced in this appeal. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,

38 N.E.3d 86, at ¶ 21.      On three separate days, Brownlee sold drugs to the confidential

informants and had criminal tools in his possession at each transaction. Although the two

related crimes were committed on the same respective day, the proximity within which the

crimes were committed is not dispositive. Drug trafficking under R.C. 2925.03(A)(1) provides

that no person shall knowingly sell or offer to sell a controlled substance. Possessing criminal
tools under R.C. 2923.24(A) provides that “[n]o person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it criminally.” Thus,

the dispositive issue is the conduct that underlies each offense.

       {¶13} The two crimes, trafficking cocaine and the possession of criminal tools, such as

the vehicle, scale, or glassware, were inherently committed with separate conduct. The drugs

Brownlee sold were not the basis of the possession of criminal tools counts. See, e.g., State v.

McDonald, 8th Dist. Cuyahoga No. 105276, 2018-Ohio-484, ¶ 43 (possession of criminal tools is

not the same conduct as trafficking or possessing drugs); State v. Hurley, 3d Dist. Hardin No.

6-13-02, 2014-Ohio-2716, ¶ 65, citing State v. Dammons, 8th Dist. Cuyahoga Nos. 94878 and

94879, 2011-Ohio-2908, ¶ 24. The conduct underlying the possession of criminal tools was,

therefore, separate from the conduct underlying the sale of cocaine for the purposes of the Ruff

analysis. There is no error, plain or otherwise.

       {¶14} The convictions are 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.



SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR
