State v. Brado

[Cite as State v. Brado, 2023-Ohio-1119.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

MELANIE BRADO,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0039

Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 20 CR 229

BEFORE:
Cheryl L. Waite, David A. D’Apolito, Mark A. Hanni, Judges.

JUDGMENT:
Affirmed.

Atty. J. Kevin Flanagan, Belmont County Prosecuting Attorney and Atty. Jacob A.
Manning, Assistant Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio
43950, for Plaintiff-Appellee

Atty. Katherine E. Rudzik, 26 Market Street, Suite 904, Youngstown, Ohio 44503, for
Defendant-Appellant.

Dated: March 30, 2023
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WAITE, J.

{¶1} Appellant Melanie Brado appeals a September 22, 2021 judgment entry of

the Belmont County Court of Common Pleas convicting her of several drug related

offenses. Appellant challenges a search warrant and supporting affidavit, and the

sufficiency and weight of the evidence produced against her at trial. She also argues that

the court improperly ordered her sentences to run consecutively. For the reasons

provided, Appellant’s arguments are without merit and the judgment of the trial court is

affirmed.

Factual and Procedural History

{¶2} This matter began as a simple traffic stop that did not involve Appellant. In

that incident, Z.D. was operating a vehicle under a suspended license, prompting Officer

Michael Duplaga to initiate a traffic stop of the vehicle. During the encounter, Officer

Duplaga discovered a hypodermic needle he believed constituted drug paraphernalia.

The record is not clear as to how Z.D. then became a confidential informant. At trial,

Officer Duplaga testified that Z.D. asked him whether he could avoid criminal charges if

he assisted law enforcement in pursuing larger drug targets. An affidavit in support of a

later search warrant states that Z.D. offered to become a confidential informant.

However, Officer Duplaga testified at the suppression hearing that he offered Z.D. the

opportunity to become a confidential informant, and told Z.D. his cooperation would make

his charges “disappear.” (Compare Motion to Suppress Hr., p. 13; Trial Tr., p. 192.)

Regardless, Z.D. signed a confidential informant agreement and immediately assisted

law enforcement in an investigation.

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{¶3} In what appears to be Z.D.’s second investigation assisting law

enforcement, the record again contains conflicting testimony from Officer Duplaga. At a

suppression hearing, Officer Duplaga testified that Z.D. approached him and named

Benjamin Cutlip and Appellant as potential targets. (Motion to Suppress Hrg., pp. 21-22.)

At trial in the matter, Officer Duplaga testified that he initiated contact with Z.D. and asked

him if he knew Cutlip. According to Officer Duplaga, Z.D. knew Cutlip from a prior

incarceration at the Belmont County Jail. (Trial Tr., p. 195.) In either event, Z.D. agreed

to conduct a controlled buy from Cutlip.

{¶4} David Wise provided testimony at trial regarding the location of the

controlled buy. Wise owns a significant amount of land in Belmont County and rents

trailer and camper spaces on his property for residential purposes. In June of 2021,

Appellant called Wise and asked about renting a spot to park a residential trailer. (Trial

Tr., p. 169.) According to Wise, Cutlip accompanied Appellant to the site and brought

what is referred to as a five-wheel camper and trailer. Cutlip paid Wise, and he and

Appellant resided on the property until the time of the buy. The record reveals that

Appellant also owned a house at a different location, however, it is unclear how much

time she spent in each location.

{¶5} As to the buy at issue, Z.D. contacted Cutlip and inquired about purchasing

methamphetamine. After some back and forth between the two men, they arranged to

meet at the trailer. According to Officer Duplaga, law enforcement previously knew the

address of the trailer’s location through their investigation.

{¶6} Z.D. first went to the police department where he was provided $300 to

purchase a “ball,” which is described as one-eighth of an ounce of methamphetamine.

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The amount of buy money was expected to be more than necessary, but Cutlip had not

quoted a price. The money was photographed to keep track of the serial numbers on the

bills. Officer Duplaga provided Z.D. with a fake fob, described as being similar to a vehicle

key with the accompanying buttons. The fob included both an audio and video recording

device. The idea was to allow Z.D. to record the encounter without having a detectable

or obvious device on his person. Z.D. was instructed to leave his actual vehicle key inside

his truck and bring the fake fob inside the trailer. Before Z.D. left, Officer T.J. Weyend

searched him and found no contraband. Officer Weyend followed Appellant to the trailer

location and parked a short distance away. Sergeant Randy Stewart had previously

driven to the area and parked in a place where he could see the trailer.

{¶7} A review of the audio and video of the controlled buy is challenging, as Z.D.

repeatedly rattled his keys which were attached to the fob, making it difficult to hear the

audio at times. In addition, loud music playing in the background further hinders review

of the audio. Because Z.D. was rattling his keys, the camera erratically travels around

the room aimlessly, and so the video is also hard to watch. The only time the camera is

stable is when it is pointed at a counter top. However, the following excerpts can be heard

and are relevant and significant.

{¶8} When Z.D. arrived at the trailer, three people were apparently present:

Cutlip, Appellant, and a woman named Robin Brown who may have also lived at the

trailer. Shortly after Z.D. arrived, one of the women, either Appellant or Brown, left. The

question at trial was whether the person who remained with Cutlip was Brown or

Appellant. Officer Duplaga concluded that it was Appellant who remained.

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{¶9} While no female appears on video at any time during the recording,

women’s voices can be heard. One woman says, “see you in a couple of hours, my

friend.” (7/8/20 Controlled Buy Video at 20:57.) A different female voice can be heard

roughly two minutes later. At the time, Z.D. and Cutlip are discussing a price for the drug

and Cutlip is heard telling someone that Z.D. “asks me if [inaudible] ball was three. Will

you tell the new zip?” (7/8/20 Controlled Buy Video at 21:07:52.) This female voice

responds “uh…twenty-five.”

{¶10} After the men converse for some time, Z.D. breached the confidential

informant agreement and used a hypodermic needle to inject methamphetamine into his

vein. It is difficult to hear much of the audio, but the woman seemed to express anger

with Cutlip’s carelessness in leaving contraband in plain sight. At one point, Cutlip says

to Z.D., “I want you to meet Melanie, that way she knows, gets an idea.” (7/8/20

Controlled Buy Video at 21:30:39.) Cutlip can be heard telling the woman “come here,

Robin is going to be in here in a second to rattle your cage.” (7/8/20 Controlled Buy Video

at 21:32:33.) Cutlip asked Z.D. “you see how she’s acting?” (7/8/20 Controlled Buy Video

at 21:32:42.) The female responded “I’m worried about the front door getting kicked in

and everything’s out.” (7/8/20 Controlled Buy Video at 21:32:51.) Almost immediately

after this, Cutlip can be heard saying “this is Zack and this is Melanie.” (7/8/20 Controlled

Buy Video at 21:32:51.) These exchanges seem to support Officer Duplaga’s conclusion

that Appellant remained in the trailer during the buy.

{¶11} Shortly thereafter, Z.D. left the trailer and contacted Officer Weyend. They

met a short distance from the trailer and Z.D. handed the officer $100 of the $300 he was

given to complete the transaction and a baggie of methamphetamine. The remaining

Case No. 21 BE 0039
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money matched the serial numbers of the buy money he was given. Officer Weyend

conducted a search of Z.D. subsequent to the buy and found no other contraband. Officer

Duplaga remained at the police department throughout the process and drafted a search

warrant and affidavit.

{¶12} Officer Duplaga obtained a signed search warrant on July 8, 2020 at 10:50

p.m. We note that at trial, Appellant contested the fact that the warrant authorized a no-

knock nighttime search even though the application did not make such request. The

officers did execute the search at nighttime, but the no-knock provision was unnecessary

as Appellant and Cutlip were outside of the trailer when officers arrived.

{¶13} The search warrant video began by showing officers take Cutlip to the

ground and handcuff him. Appellant was also handcuffed, but Robin Brown was not. The

search warrant authorized a search for “Meth or any other illegal drug, any illegal drug

paraphernalia, cell phones, or any other item that would be used to aide in 2925.03 or

any other 2925 offense.” (7/8/20 Search Warrant.) The warrant permitted a search of

the entire trailer with no restrictions.

{¶14} The search produced the following contraband: six bags of

methamphetamine (6.2 oz.), four bags of methamphetamine (3 oz.), five green baggies

of methamphetamine (.7 oz.), one zip lock bag of methamphetamine (.4 oz.), five bags of

methamphetamine (2.6 oz.), seven multicolored baggies of methamphetamine (1 oz.),

sixteen multicolored baggies of methamphetamine (2.3 oz.), one bag of

methamphetamine (1g.), two white pills labeled “RP 89,” three orange and white pills

labeled “S489 30mg,” a small Rubbermaid container with a spoon containing the

aforementioned .4 oz. zip lock bag, a counterfeit $100 bill, four $1 bills, non-scheduled

Case No. 21 BE 0039
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medication, six electronic scales, four cells phones, $200 of the controlled buy money,

$3,500 cash, baggies, methamphetamine pipes, syringes, and other drug paraphernalia.

(Search Warrant Return.)

{¶15} The methamphetamine pipes, empty baggies, syringes, and digital scales

were located in the bedroom near where most of the methamphetamine was discovered.

Officers located suboxone and other non-controlled pills near the headboard of the bed.

A locked bookbag found in the bedroom contained some of the baggies of

methamphetamine, scales, and other drug paraphernalia. Officers located a locked

deposit bag underneath a pillow containing cash and several Speedway gift cards. Two

safes were discovered, one underneath the bed and one next to the bed. In the safe

underneath the bed, officers located 6.2 oz. of methamphetamine and a pill bottle with

Cutlip’s name on it. The other safe held 3.1 oz. of methamphetamine. The Rubbermaid

container was found underneath the bed and the cell phones were found near the bed.

In the living room area of the trailer, officers located a small baggie of methamphetamine

and Robin Brown’s purse, which contained two small “cut straw snort tubes” with white

residue. In a vehicle on the premises which had been reported as stolen, officers located

hypodermic needles and methamphetamine pipes.

{¶16} As a result of the search, Appellant and Cutlip were arrested. It is unclear

why Robin Brown was not also arrested. On September 3, 2020, Appellant was indicted

on: one count of aggravated trafficking in drugs, a felony of the first degree in violation of

R.C. 2925.03(A)(2), (C)(1)(f); one count of aggravated possession of drugs, a felony of

the first degree in violation of R.C. 2925.11(A), (C)(1)(E); and one count of aggravated

trafficking in drugs, a felony of the third degree in violation of R.C. 2925.03(A)(1),

Case No. 21 BE 0039
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(C)(1)(C). The felony one aggravated trafficking count included a specification for

forfeiture of money in a drug case ($3,700) in accordance with R.C. 2941.1417(A) and a

major drug offender specification in accordance with R.C. 2942.1410(A). The aggravated

possession count included a major drug offender specification. The felony three

aggravated trafficking included a specification for forfeiture of money in a drug case

($3,700) in accordance with R.C. 2941.1417(A).

{¶17} Appellant and Cutlip were separately tried, with the state electing to first try

Cutlip. Cutlip’s convictions and sentence were affirmed by this Court in State v. Cutlip,

7th Dist. Belmont No. 21 BE 0032, 2022-Ohio-3524. The state subsequently tried

Appellant in a three-day jury trial. Appellant was convicted on all counts on a complicity

theory. On September 22, 2021, the court sentenced Appellant to an aggregate sentence

having a minimum of fourteen years of incarceration and a maximum of nineteen and

one-half years. The court credited Appellant with 318 days served. We note that the trial

court sentenced Appellant to the maximum sentences in accordance with the major drug

offender specification. It is from this entry that Appellant timely appeals.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S

MOTION TO SUPPRESS.

{¶18} Appellant argues that the trial court erroneously denied her motion to

suppress, as the search warrant affidavit failed to establish probable cause. However,

the substance of Appellant’s argument focuses on the officers’ reliance on information

obtained from an informant where reliability and veracity was not established. Appellant

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points to Officer Duplaga’s admission that the affidavit lacked information as to the

informant’s trustworthiness or reliability. Appellant contends that the good-faith exception

does not apply, here, because the officer’s reliance is entirely unreasonable. Finally,

Appellant argues that Officer Duplaga testified to his belief that the warrant was

boundless, meaning the entire camper could properly be searched pursuant to the

warrant. Appellant’s exact argument in this regard is unclear, however, she appears to

take issue with the scope of the warrant.

{¶19} In response, the state emphasizes that the affidavit was based on a

controlled buy, not the informant’s description of what might be found on the premises.

Thus, neither reliability nor veracity need be established. Further, the search warrant was

obtained shortly after the buy and the warrant was executed within hours. As to whether

law enforcement properly searched containers in the trailer, the state argues that a search

of containers is permissible if a search of the general area is permitted and it is possible

that the containers could contain contraband believed to be on the premises.

{¶20} “The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution secure an individual's right to be free from unreasonable

searches and seizures and require warrants to be particular and supported by probable

cause.” State v. Telshaw, 195 Ohio App.3d 596, 2011-Ohio-3373, 961 N.E.2d 223, ¶ 12

(7th Dist.). In order for a search or seizure to be lawful, there must be probable cause to

believe evidence of criminal activity will be found and the search or seizure must be

executed pursuant to a warrant, unless an exception to the warrant requirement exists.

State v. Ward, 7th Dist. Columbiana No. 10 CO 28, 2011-Ohio-3183, ¶ 33.

Case No. 21 BE 0039
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{¶21} In determining the sufficiency of probable cause in an affidavit submitted for

a search warrant, a trial judge or magistrate must make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit, including the

veracity and basis of knowledge of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a particular place. State

v. Quin, 5th Dist. Licking No. 2021 CA 00044, 2021-Ohio-4205, ¶ 8, citing State v.

George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1980), at paragraph one of the syllabus;

Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

{¶22} “When oral testimony is not offered in support of a search-warrant affidavit,

the magistrate determines the sufficiency by ‘evaluating only [the facts alleged within] the

four corners of the affidavit and [applying] an objective reasonableness standard.’ ” State

v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 39, citing United

States v. Richards, 659 F.3d 527, 559 (6th Cir. 2011), fn. 11 (Moore, J., concurring in

judgment only); United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996).

{¶23} “[I]t is clear that ‘only the probability, and not a prima facie showing, of

criminal activity is the standard of probable cause.’ ” (Emphasis deleted.) State v.

George, 45 Ohio St.3d 325, 329, 544 N.E.2d 640 (1989), citing Spinelli v. United States,

393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The task of the issuing magistrate is simply to make a practical, common-

sense decision whether, given all the circumstances set forth in the affidavit

before him, including the “veracity” and “basis of knowledge” of persons

supplying hearsay information, there is a fair probability that contraband or

evidence of a crime will be found in a particular place.

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George at 329, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983).

{¶24} The Ohio Supreme Court has cautioned reviewing courts that the standard

of review is not de novo, but instead the court must conduct a review of whether the

issuing magistrate or judge had a “ ‘substantial basis for * * * conclude[ing]’ that probable

cause existed.” George at 329.

{¶25} “A reviewing court affords great deference to the issuing judge's probable

cause determination, and marginal cases are to be resolved in favor of upholding the

warrant.” State v. Johnson, 7th Dist. Mahoning No. 17 MA 0099, 2018-Ohio-2780, ¶ 16,

citing Castagnola at ¶ 14; George, paragraph two of syllabus. “[T]he reviewing court is

concerned exclusively with the statements contained within the affidavit itself.”

Castagnola at ¶ 39, citing United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996).

{¶26} We have previously addressed the affidavit in this case in Cutlip’s direct

appeal. Similar to Cutlip, Appellant argues that the affidavit failed to establish the veracity

and reliability of the confidential informant on which law enforcement relied. In Cutlip, we

acknowledged that the affidavit failed to satisfy the “indicia of veracity” requirement of

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Cutlip at ¶ 45.

We also acknowledged that the affidavit failed to acknowledge the completion of several

procedures and protocols that must be followed, such as audio and visual recording and

traceable money. We found significant the fact that the confidential informant returned

from the trailer with methamphetamine which provided strong corroboration. Id. Thus,

despite the deficiencies there was sufficient corroboration by independent police work.

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{¶27} Appellant repeats Cutlip’s argument that the affidavit failed to establish

probable cause that contraband would be found at the location in question. In Cutlip, this

Court held that “the affidavit states [Cutlip] was ‘staying’ at the camper at the time; he told

the informant to go to this location; and the controlled drug buy occurred at that same

camper, which resulted in the informant returning with methamphetamine.” Id. at ¶ 53.

Thus, we have already determined this issue in regard to this search warrant affidavit.

{¶28} Finally, Appellant appears to take issue with the scope of the warrant, which

permitted a search of the entire trailer. Appellant is not specific in her arguments, but

based on her motion to suppress filed at the trial court, it appears she takes issue with

the search of a locked book bag, locked safes, and closed containers. The court in this

case permitted a search of the trailer because that was where the controlled buy occurred,

making it likely that contraband would be found. It is important to note that this is a one-

story trailer that appears to consist of only a bedroom and a living room/kitchen area. As

such, it is not unreasonable for the court to authorize a search of the entire trailer.

{¶29} As to the containers:

Courts addressing the particularity requirement of the Fourth Amendment

are concerned with two issues. The first issue is whether the warrant

provides sufficient information to “guide and control” the judgment of the

executing officer in what to seize. United States v. Upham, 168 F.3d 532,

535 (1st Cir.1999). The second issue is whether the category as specified

is too broad in that it includes items that should not be seized. See United

States v. Kow, 58 F.3d 423, 427 (9th Cir.1995).

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Castagnola at ¶ 79.

{¶30} The permissible scope of a search was described in a Fourth District case:

“a search warrant must be limited ‘to the specific areas and things for which there is

probable cause to search’ and ‘carefully tailored to its justifications.’ Id. The scope of a

lawful search is therefore ‘defined by the object of the search and the places in which

there is probable cause to believe that it may be found.’ ” State v. Hobbs, 4th Dist. Adams

No. 17CA1054, 2018-Ohio-4059, ¶ 67, citing United States v. Ross, 456 U.S. 798, 824,

102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

{¶31} The Ross Court explained in greater detail that:

A lawful search of fixed premises generally extends to the entire area in

which the object of the search may be found, and is not limited by the

possibility that separate acts of entry or opening may be required to

complete the search. Thus, a warrant that authorizes an officer to search a

home for illegal weapons also provides authority to open closets, chests,

drawers, and containers in which the weapon might be found. A warrant to

open a footlocker to search for marihuana would also authorize the opening

of packages found inside. A warrant to search a vehicle would support a

search of every part of the vehicle that might contain the object of the

search. When a legitimate search is under way, and when its purpose and

its limits have been precisely defined, nice distinctions between closets,

drawers, and containers, in the case of a home, or between glove

compartments, upholstered seats, trunks, and wrapped packages, in the

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case of a vehicle, must give way to the interest in the prompt and efficient

completion of the task at hand.

Id. at 820-821.

{¶32} It is clear that the goal of the search was to locate methamphetamine which

would likely be, and was in fact, stored inside of containers. It is not unreasonable for law

enforcement to believe that evidence of drug trafficking and drug possession would be

found in places such as safes, back packs, and underneath a bed. Thus, this search did

not exceed the scope of the warrant. Appellant’s first assignment of error is without merit

and is overruled.

ASSIGNMENT OF ERROR NO. 2

APPELLANT'S CONVICTOIN [SIC] WAS AGAINST THE WEIGHT OF THE

EVIDENCE.

ASSIGNMENT OF ERROR NO. 3

APPELLANT'S CONVICTION WAS NOT SUFFICENT [SIC] TO SUPPORT

HER CONVICTION.

{¶33} Appellant concedes that there is sufficient evidence that the various crimes

were committed. However, she argues that there is insufficient evidence to show that

she participated in the crimes. While not conceding that the female voice in the recordings

was her own, she urges that, at best, the evidence shows she is a drug addict who may

have been present during a drug deal and merely may have stated the current price of

drugs. Appellant argues that there is no evidence that she had access to the drugs or

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money, which were in a locked safe. She contends that Robin Brown, who also

associated with Cutlip, was present during the sale and had paraphernalia in her purse

and a key to the safe containing the drugs and money.

{¶34} In response, the state provides an extensive bullet point list of the evidence

presented at trial demonstrating Appellant’s guilt. Among the evidence, the state lists

evidence that: Appellant called to inquire about renting the trailer, Cutlip turned to

Appellant to verify the price of methamphetamine, and Appellant can be heard on the

audio worrying that the door might get kicked in during the transaction. The state also

points to evidence that Cutlip repeatedly used terms such as “we,” “our”, and “she,”

suggesting the involvement of a female. Almost all of the methamphetamine seized

during the search was found in the bedroom, along with pipes, baggies, a digital scale,

and the money used to complete the controlled buy. Importantly, the state also highlights

several jail-house phone calls where Appellant admitted that the seized, funds belonged

to her, that she met the informant, a seized counterfeit bill came from her purse, and that

the voice on the audio during the controlled buy was hers.

{¶35} “Sufficiency of the evidence is a legal question dealing with adequacy.”

State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49

(7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

“Sufficiency is a term of art meaning that legal standard which is applied to determine

whether a case may go to the jury or whether evidence is legally sufficient to support the

jury verdict as a matter of law.” State v. Draper, 7th Dist. Jefferson No. 07 JE 45, 2009-

Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).

When reviewing a conviction for sufficiency of the evidence, a reviewing court does not

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determine “whether the state's evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.” State v. Rucci, 7th Dist.

Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt, 7th Dist. Jefferson

No. 09-JE-26, 2011-Ohio-1468, ¶ 34.

{¶36} In reviewing a sufficiency of the evidence argument, the evidence and all

rational inferences are evaluated in the light most favorable to the prosecution. State v.

Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed

on the grounds of sufficiency unless the reviewing court determines no rational juror could

have found the elements of the offense proven beyond a reasonable doubt. Id.

{¶37} In contrast, weight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather than

the other.” (Emphasis deleted.) Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. It is

not a question of mathematics, but depends on the effect of the evidence in inducing

belief. Id. Weight of the evidence involves the state's burden of persuasion. Id. at 390,

678 N.E.2d 541 (Cook, J. concurring). The appellate court reviews the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way

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

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing

Thompkins, at 387, 678 N.E.3d 541, 678 N.E.2d 541. This discretionary power of the

appellate court to reverse a conviction is to be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction. Id.

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{¶38} “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-

6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to weigh

the evidence and judge the witnesses' credibility by observing their gestures, voice

inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984). The jurors are free to believe some, all, or none of each witness'

testimony and they may separate the credible parts of the testimony from the incredible

parts. State v. Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing

State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). When there are two

fairly reasonable views of the evidence or two conflicting versions of events, neither of

which is unbelievable, we will not choose which one is more credible. State v. Gore, 131

Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

{¶39} Under a complicity theory, a defendant can be prosecuted and punished as

if he were a principal offender, even if the charge is stated in terms of the principal offense.

State v. Heard, 7th Dist. Mahoning No. 17 MA 0064, 2019-Ohio-1227, ¶ 16, citing R.C.

2923.03(F). “A person is complicit if, acting with the kind of culpability required for the

commission of an offense, he aids or abets another in committing the offense.” State v.

Henderson, 2018-Ohio-5124, 125 N.E.3d 235, ¶ 48 (7th Dist.), citing R.C. 2923.03(A)(2).

{¶40} Aiding and abetting exists where the defendant “supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of the

crime * * *.” Henderson at ¶ 48, citing State v. Johnson, 93 Ohio St.3d 240, 245, 754

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N.E.2d 796 (2001). “Participation in criminal intent may be inferred from presence,

companionship and conduct before and after the offense is committed.” Id. at 245.

{¶41} Again, Appellant does not contest that the crimes were committed. Instead,

she argues that the state failed to establish she was complicit in committing those

offenses. Here, the evidence concerning the identity of the female present during the

transaction is found within the video of the controlled buy. We note that Z.D. testified

against Cutlip but did not testify against Appellant. According to the state, Z.D. had

reported a fever at the time of trial.

{¶42} Appellant argues, here, that the state’s failure to present Z.D.’s testimony

casts doubt on the state’s conclusion that the voice belongs to her. It is noted that

Appellant did not object to the state’s assertion that it would not call Z.D. and she did not

attempt to call him herself, despite the fact that he had been served with a subpoena.

Regardless, there is no evidence that Z.D. ever told law enforcement that Appellant was

inside the trailer at the time of the buy.

{¶43} Again, it appears that when Z.D. arrived at the trailer, three people were

present: Cutlip, Robin Brown, and Appellant. Before the actual buy occurred, a female

voice can be heard saying “see you in a couple of hours, my friend.” (7/8/20 Controlled

Buy Video at 20:57.) The state alleged that the person who made this statement and

subsequently left the trailer is Robin Brown, leaving Cutlip and Appellant with Z.D..

{¶44} A different female voice can be heard roughly two minutes later as Z.D. and

Cutlip are discussing price and Cutlip is heard saying that Z.D. “asks me if [inaudible] ball

was three. Will you tell the new zip?” (7/8/20 Controlled Buy Video at 21:07:52.) The

female voice responds “uh…twenty-five.”

Case No. 21 BE 0039
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{¶45} Around ten minutes later, Cutlip said to Z.D., “I want you to meet Melanie

that way she knows, gets an idea.” (7/8/20 Controlled Buy Video at 21:30:39.) It is difficult

to hear much of the audio but it appears that the woman was unhappy with Cutlip’s

openness and carelessness. Cutlip can then be heard saying “come here, Robin is going

to be in here in a second to rattle your cage.” (7/8/20 Controlled Buy Video at 21:32:33.)

Cutlip asked Z.D. “you see how she’s acting?” (7/8/20 Controlled Buy Video at 21:32:42.)

The female voice responded “I’m worried about the front door getting kicked in and

everything’s out.” (7/8/20 Controlled Buy Video at 21:32:51.) Almost immediately after

this, Cutlip can be heard saying “this is Zack and this is Melanie.” (7/8/20 Controlled Buy

Video at 21:32:51.)

{¶46} After the woman left the trailer, Cutlip can clearly be heard introducing Z.D.

to Melanie, which is Appellant’s name. There is no evidence that the first woman returned

before this introduction. Logically, it would appear that the woman who remained is

Appellant. In addition, Cutlip told the woman “come here, Robin is going to be in here in

a second to rattle your cage.” It seems unlikely Cutlip would refer to the woman he was

talking to in the third person. Cutlip also quipped to Z.D. “you see how she’s acting?”

This was clearly made in reference to the remaining woman. During a jail-house call after

her arrest, Appellant can be heard discussing the matter with Cutlip:

[Appellant]: You were talking shit on me to cheese eater [Z.D.] twice.

[Cutlip]: I remember saying look how mad she gets, or crazy or something.

Look at how she’s acting.

Case No. 21 BE 0039
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[Appellant]: You said that, and some other things. That I’m a liar, that I lied

to you about your title, and I’m keeping stuff from you and all kind of shit

you were telling him about me.

(Exh. 49 10:52.)

{¶47} From these interactions, it can be gleaned with reasonable probability that

Robin Brown is the woman who left the trailer and Appellant remained with Cutlip during

the buy. Appellant argues that even if she was present, there is no evidence that she

assisted Cutlip’s efforts. However, the state presented evidence that Appellant arranged

for the trailer to be placed at its location, despite the fact that she admittedly owns a house

nearby. She can also be heard naming a price for the drug and voicing her concerns

about law enforcement kicking down the door and finding evidence laying in the open.

The woman is clearly nervous and uncomfortable, not with the transaction itself, but with

Cutlip’s carelessness and the possibility of being caught in the act. Appellant also made

incriminating comments in a jailhouse call. This record reflects the state presented

sufficient, credible evidence that Appellant assisted in Cutlip’s efforts. As such,

Appellant’s second and third assignments of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN APPLYING CONSECUTIVE SENTENCES.

{¶48} Appellant argues that although the trial court recited the statutory language

of R.C. 2929.14(C)(4), there is no evidence to support those findings. Appellant contends

she does not have a serious criminal record and there is no evidence that the crime was

Case No. 21 BE 0039
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so great or unusual as to justify consecutive sentences. Appellant argues that the court

relied only on the nature of the crimes and that she refused to confess to these crimes.

{¶49} The state responds by arguing that a trial court is not required to state its

findings. Here, the state contends the record supports the court’s finding that the offenses

were committed as a course of conduct, the harm was unusual or great, and that

Appellant’s history of criminal conduct demonstrates the need for consecutive sentences.

{¶50} Pursuant to R.C. 2929.14(C)(4), before a trial court can impose consecutive

sentences on a defendant, the court must find:

[T]hat the consecutive service is necessary to protect the public from future

crime or to punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to the

danger the offender poses to the public, and if the court also finds any of

the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

Case No. 21 BE 0039
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(c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

{¶51} A trial court must make the consecutive sentence findings at the sentencing

hearing and must additionally incorporate the findings into the sentencing entry. State v.

Williams, 2015-Ohio-4100, 43 N.E.3d 797, 806, ¶ 33-34 (7th Dist.), citing State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The court is not required to

state reasons in support nor is it required to use any “magic” or “talismanic” words, so

long as it is apparent that the court conducted the proper analysis. Williams at ¶ 34, citing

State v. Jones, 7th Dist. Mahoning No. 13 MA 101, 2014-Ohio-2248, ¶ 6; State v. Verity,

7th Dist. Mahoning No. 12 MA 139, 2013-Ohio-1158, ¶ 28-29.

{¶52} The Ohio Supreme Court has recently readdressed consecutive sentence

review. State v. Gwynne, -- Ohio St. 3d --, 2022-Ohio-4607, -- N.E.3d --. As to the

standard of review, the Gwynne Court held that:

The evidentiary standard for changing the trial court's order of consecutive

sentences is not deference to the trial court; the evidentiary standard is that

the appellate court, upon a de novo review of the record and the findings,

has a “firm belief” or “conviction” that the findings—the criteria mandated by

the legislature to be met before the exception to concurrent sentences can

apply—are not supported by the evidence in the record.

Id. at ¶ 23, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22; see also Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).

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R.C. 2953.08(G)(2) does not require the high level of deference that comes

with an abuse-of-discretion standard of review. This type of deference

would permit a court of appeals to modify a defendant's sentence or to

vacate the sentence and remand only when no sound reasoning process

can be said to support the decision, or where the trial court exhibited an

arbitrary or unconscionable attitude when it imposed the consecutive

sentences.

Gwynne at ¶ 19, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990); Huffman v. Hair Surgeon, Inc., 19

Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).

{¶53} The Court then provided “practical guidance on consecutive-sentence

review.” Id. at ¶ 24. The Court explained that a consecutive sentence review is two-fold:

first, whether the record contains the requisite R.C. 2929.14(C) findings. Id. at ¶ 25.

Second, “[i]f the appellate court determines that the R.C. 2929.14(C)(4) consecutive-

sentence findings have been made, the appellate court may then determine whether the

record clearly and convincingly supports those findings.” Id. at ¶ 26.

The point here is that if even one of the consecutive-sentence findings is

found not to be supported by the record under the clear-and-convincing

standard provided by R.C. 2953.08(G)(2), then the trial court's order of

consecutive sentences must be either modified or vacated by the appellate

court.

Id., citing R.C. 2953.08(G)(2).

Case No. 21 BE 0039
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{¶54} “When reviewing the record under the clear-and-convincing standard, the

first core requirement is that there be some evidentiary support in the record for the

consecutive-sentence findings that the trial court made.” Id. at ¶ 28. “The second

requirement is that whatever evidentiary basis there is, that it be adequate to fully support

the trial court's consecutive-sentence findings. This requires the appellate court to focus

on both the quantity and quality of the evidence in the record that either supports or

contradicts the consecutive-sentence findings.” Id. at ¶ 29. It is noted that Gwynne was

released after briefing concluded in this matter, thus the parties do not cite Gwynne or

apply its law.

{¶55} Appellant takes issue with the court’s determination that her criminal record,

which consisted of misdemeanors and traffic violations, was sufficient to find that her

history of criminal conduct demonstrates consecutive sentences are necessary to protect

the public from future crime. She also challenges whether sufficient evidence existed to

demonstrate the harm here was so great or unusual as to justify the imposition of

consecutive sentences.

{¶56} An offender’s criminal history need not necessarily involve felonies for

purposes of consecutive sentences. There is no legal precedent stating that

misdemeanors cannot serve as the basis for consecutive sentences. Appellant has a

criminal record involving two juvenile incidents and twenty-four charged offenses as an

adult. Although mostly misdemeanors, Appellant does have a significant criminal record.

We note that Appellant faced a separate set of charges for felony drug trafficking involving

an incident committed mere months after the instant arrest which the court declined to

consider, favoring Appellant to some degree.

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{¶57} Appellant contends that the court relied only on the nature of the charges

and her failure to confess. However, the state explained at the sentencing hearing that

more than 400 grams of methamphetamine was recovered in this case, which likely would

have been distributed within the community. (Sentencing Hrg. Tr., p. 9.) The record

contains evidence of the large amount of drugs that were found at the trailer after the

controlled buy. Again, that evidence included: six bags of methamphetamine (6.2 oz.),

four bags of methamphetamine (3 oz.), five green baggies of methamphetamine (.7 oz.),

one zip lock bag of methamphetamine (.4 oz.), five bags of methamphetamine (2.6 oz.),

seven multicolored baggies of methamphetamine (1 oz.), sixteen multicolored baggies of

methamphetamine (2.3 oz.), one bag of methamphetamine (1g.), two white pills labeled

“RP 89,” three orange and white pills labeled “S489 30mg,” a small Rubbermaid container

with a spoon containing the aforementioned zip lock bag, a counterfeit $100 bill, four $1

bills, non-scheduled medication, six electronic scales, four cell phones, $200 of the

controlled buy money, $3,500 cash, baggies, methamphetamine pipes, syringes, and

other drug paraphernalia. (Search Warrant Return.)

{¶58} It is clear from the amount of drugs and from instruments associated with

trafficking drugs (digital scales, baggies, and large amounts of cash) that this was a

significant enterprise and involved at least a moderate level of drug sales. This provides

evidence that the harm was so great or unusual as to justify the imposition of consecutive

sentences. As such, Appellant’s fourth assignment of error is also without merit and is

overruled.

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Conclusion

{¶59} Appellant contests the search warrant and supporting affidavit used in her

arrest, and challenges the sufficiency and weight of the evidence asserted at trial. She

also argues that the court improperly ordered her sentences to run consecutively. For

the reasons provided, Appellant’s arguments are without merit and the judgment of the

trial court is affirmed.

D'Apolito, P.J., concurs.

Hanni, J., concurs.

Case No. 21 BE 0039
[Cite as State v. Brado, 2023-Ohio-1119.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.