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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DONTEZ D. JOHNSON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607270-A

          ATTORNEY FOR APPELLANT Allison S. Breneman

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Adam M. Chaloupka Amy Venesile Assistant County Prosecutors Justice Center,

          BEFORE: Kilbane, P.J., S. Gallagher, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE:

         {¶1} Defendant-appellant, Dontez D. Johnson ("Johnson"), appeals from his conviction and sentence for drug trafficking, drug possession, and possessing criminal tools. For the reasons set forth below, we affirm.

         {¶2} In July 2016, Johnson was charged in an 18-count indictment related to two controlled buys of heroin and crack cocaine conducted by Cleveland police in June 2016. Johnson was indicted with eleven counts of trafficking, six counts of drug possession, and one count of possessing criminal tools.

         {¶3} In February 2017, this matter proceeded to a jury trial. The following evidence was adduced at trial. The first buy occurred on June 13, 2016. Cleveland Police Detective Thomas Klamert ("Detective Klamert") testified that he and his colleagues from the Cleveland Police Department narcotics unit met with a confidential reliable informant ("CRI") as part of his investigation of Johnson. Detective Klamert explained that his investigation began with the purpose of targeting a heroin dealer known as "Juice" and "D-Red, " who he later determined to be Johnson.

         {¶4} Cleveland Police Detective Scott Moran ("Detective Moran") explained that a confidential reliable informant is an individual who has previously worked with and provided reliable information to the detectives in the past. At Detective Klamert's direction, the CRI called Johnson to arrange to meet him. Detective Klamert drove the informant to the area of West 105th Street and Governor Avenue to meet Johnson and then gave the informant $80 of "buy money after carefully searching the informant for drugs or other contraband.

         {¶5} Cleveland Police Detectives John Dlugolinski ("Detective Dlugolinski") and Moran maintained surveillance on the CRI during the buy. The CRI entered a white Ford Taurus for a short period of time then exited the vehicle. Detective Klamert testified that he again searched the CRI after the buy was conducted. Detective Klamert retrieved heroin and crack cocaine from the CRI and further testified that the CRI no longer had the buy money on him. Detectives Dlugolinski and Moran followed the Ford Taurus and observed that Johnson was a passenger in the vehicle. The detectives terminated the surveillance and relayed this information to Detective Klamert to assist in his investigation.

         {¶6} A few days later, on June 15, 2016, Detective Klamert met with a different CRI with the plan of conducting a "buy-bust" operation to apprehend Johnson. The second CRI made a controlled phone call to Johnson to set up the drug deal. Detective Klamert then took the second CRI to the area of West 43rd Street and Robert Avenue where Johnson had told the CRI to meet him. Detective Klamert carefully searched the second CRI and then gave him $100 in photocopied "buy money."

         {¶7} Detective Dlugolinski had set up surveillance outside of the house where Johnson told the CRI to meet him. Detective Dlugolinski testified that Johnson met the CRI on the porch, then Johnson and the CRI went inside the house together. He explained that a short time later, the CRI left the house and returned to Detective Klamert's undercover vehicle.

         {¶8} Detective Klamert testified that CRI handed over heroin to him. He further testified that he searched the CRI, confirmed that the CRI no longer had the buy money, and advised his colleagues that the buy "was a good purchase." Detective Dlugolinski testified that approximately ten minutes later, Johnson, another man, and a woman got into a vehicle and drove away.

         {¶9} Cleveland police followed the vehicle. Police stopped the vehicle. The officers ordered the occupants out of the vehicle. Detective Moran testified that as he approached the vehicle, he observed Johnson, who was sitting in the front passenger seat, reach behind his seat and place something in between the door and the rear passenger seat.

         {¶10} Johnson was subsequently arrested then searched. Johnson had $236 cash on him, $100 of which included the photocopied buy money. Johnson also had mannitol and wax paper bags on him at the time of his arrest. Detective Moran testified that, from his experience and training as a narcotics officer, mannitol, a baby laxative, is commonly used by dealers as an additive to cut heroin. He further testified that, from his experience, the wax bags found on Johnson are commonly used to package heroin.

         {¶11} Detective Moran searched the vehicle and found plastic bags containing heroin and crack cocaine behind the passenger seat and three cell phones on the floor of the front passenger seat. At police headquarters, Detective Klamert called the number that he had both CRIs call to arrange the drug buys with Johnson. That number rang one of the cell phones recovered from the vehicle.

         {¶12} At the conclusion of the state's evidence, the defense moved under Crim.R. 29 for acquittal on each count of trafficking and drug possession. The trial court denied this motion.

         {¶13} The jury found Johnson guilty of nine counts of trafficking, four counts of drug possession, and one count of possessing criminal tools. After the jury announced its verdict, the trial court proceeded directly to sentence Johnson. The court imposed an eight-and-a-half-year prison sentence. It is from this order that Johnson now appeals, raising the following four assignments of error for our review:

         Assignment of Error One

         The jury found, against the manifest weight of the evidence, that [Johnson] committed the acts charged in the indictment.

         Assignment of Error Two

         The evidence was not legally sufficient to sustain a guilty verdict.

         Assignment of Error Three

         The trial court allowed impermissible testimony in which was not proper under [Ohio Evid.R. 404(B)].

         Assignment ...


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