State v. Brado
| Decision Date | 30 March 2023 |
| Docket Number | 21 BE 0039 |
| Citation | 2023 Ohio 1119 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MELANIE BRADO, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 20 CR 229
Atty J. Kevin Flanagan, Belmont County Prosecuting Attorney and Atty. Jacob A. Manning, Assistant Prosecuting Attorney, Ohio 43950, for Plaintiff-Appellee
Atty Katherine E. Rudzik, Ohio 44503, for Defendant-Appellant.
BEFORE: Cheryl L. Waite, David A. D'Apolito, Mark A. Hanni, Judges.
OPINION AND JUDGMENT ENTRY
{¶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.
{¶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.
{¶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. 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.
{¶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. (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 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 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,...
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