[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.”