State v. Johnson , 2017 Ohio 7264 ( 2017 )

[Cite as State v. Johnson, 2017-Ohio-7264.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27279
:
v. : Trial Court Case No. 2016-CR-119
:
JONATHON E. JOHNSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of August, 2017.
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MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle
NW, Kettering, Ohio 45429
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Jonathon E. Johnson, appeals from his conviction in
the Montgomery County Court of Common Pleas after the trial court found him guilty of
having weapons under disability with a firearm specification. In support of his appeal,
Johnson contends that there was insufficient evidence presented at his bench trial to
support his conviction. For the reasons outlined below, the judgment of the trial court
will be affirmed.
Facts and Course of Proceedings
{¶ 2} On January 21, 2016, the Montgomery County Grand Jury returned an
indictment charging Johnson with two counts of felonious assault, one count in violation
of R.C. 2903.11(A)(1) (serious harm), and the other count in violation of R.C.
2903.11(A)(2) (deadly weapon). Both of the felonious assault counts included a three-
year firearm specification and a repeat violent offender specification. Johnson was also
charged with one count of having weapons under disability in violation of R.C.
2923.13(A)(2), which also included a three-year firearm specification. The charges
stemmed from allegations that Johnson shot his girlfriend, Alexius Laster, in the groin
while she was sitting in the front-passenger seat of his vehicle.
{¶ 3} After pleading not guilty to the charges, on July 28, 2016, Johnson waived
his right to a jury trial on the weapons under disability charge. Accordingly, the case
proceeded to a jury trial on the two felonious assault charges and a bench trial on the
weapons under disability charge. The jury trial began on August 1, 2016, during which
the State presented testimony from various witnesses including, but not limited to, Laster;
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Laster’s attending physician, Dr. Garietta Falls; Montgomery County Sheriff’s Deputy
Douglas Gearhart; Detective Robert Schumacher; forensic DNA analyst Mary Cicco;
evidence technician David Cole; forensic firearm expert Chris Monturo; and firearm
operability examiner Aaron Davies.
{¶ 4} Laster, who at all relevant times was Johnson’s girlfriend, testified that during
the early morning hours of January 10, 2016, she and Johnson went to a bar after
attending his cousin’s birthday party. Laster testified that Johnson left her at the bar after
she got mad at him for flirting with the bartender. Since she was stranded at the bar,
Laster testified that she walked to her parents’ house, which was locked. Laster then
walked to a nearby residence where her friend Erica lived.
{¶ 5} After reaching Erica’s residence, Laster claimed that she sent Johnson a text
message instructing him to get her belongings from his apartment and to drop them off at
Erica’s house. Laster testified that when Johnson arrived at Erica’s house, she entered
the front-passenger side of Johnson’s vehicle in order to retrieve her belongings.
According to Laster, she and Johnson then began to argue inside the vehicle.
{¶ 6} Throughout her trial testimony, Laster maintained that she never physically
fought with Johnson while they were arguing. Instead, Laster testified that she refused
to get out of Johnson’s vehicle because she wanted him to give her a ride to her sister’s
house, and that Johnson responded by pulling out a gun and firing a shot near her head.
Laster claimed that because she was intoxicated and out of her senses, she stayed inside
the vehicle after the shot was fired and continued to beg Johnson for a ride to her sister’s
house. Thereafter, Laster claimed that Johnson pointed the gun at her groin and shot
her, causing severe, permanent injury to her leg.
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{¶ 7} At trial, Laster identified Johnson as the shooter and a photograph of the gun
he used during the shooting. Laster testified that Johnson’s gun was a blue .38 revolver.
Laster also testified that she saw Johnson every day during their relationship, and that
Johnson carried a gun “all the time.” Trial Trans. Vol. II (Aug. 2, 2016), p. 251.
{¶ 8} Deputy Douglas Gearhart testified that on January 10, 2016, he and
Detective Robert Schumacher executed a search warrant for the apartment where
Johnson resided at 2529 West Riverview Road in Dayton, Ohio. While searching the
apartment, Gearhart testified that he discovered a fully loaded blue .38 revolver in a
cabinet located in the apartment’s only bedroom. Gearhart also found a baggie with four
.38 caliber rounds in the living room of the apartment. In addition, Gearhart indicated
that he swabbed bloodstains on the front-passenger seat of Johnson’s vehicle and
submitted the swabs to the Miami Valley Regional Crime Lab for testing.
{¶ 9} Outside the presence of the jury, Gearhart further testified that two other
firearms were discovered at Johnson’s apartment. Gearhart indicated that he found a
loaded Bryco Arms Model 25 in the bedroom cabinet and that Detective Schumacher
found a loaded Jennings Model J-22 in the living room closet. Gearhart also testified
that he and Detective Schumacher found a variety of ammunition in the living room closet,
including many .9 millimeter rounds, .25 caliber rounds, .22 long caliber rounds, .22 short
caliber rounds, and .40 caliber rounds.
{¶ 10} Detective Schumacher also testified regarding the search of Johnson’s
apartment and confirmed that he was present when Deputy Gearhart found the blue .38
revolver in the bedroom cabinet. Schumacher further testified that he interviewed Laster
multiple times and received inconsistent statements from her regarding what happened
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on the night in question. However, Schumacher also indicated that on January 12, 2016,
Laster described Johnson’s gun as a small, blue revolver, and that she identified a
photograph of the blue .38 revolver found at Johnson’s apartment as the weapon Johnson
used during the shooting. Schumacher further testified that he was able to confirm that
the vehicle containing bloodstains was registered to Johnson.
{¶ 11} Forensic DNA analyst Mary Cicco testified that DNA from buccal swabs
taken from Laster matched the DNA from the blood samples collected from the front-
passenger seat of Johnson’s vehicle. Accordingly, Cicco was able to confirm that it was
Laster’s blood inside Johnson’s vehicle.
{¶ 12} Evidence technician David Cole testified that he removed a bullet fragment
from the interior front-passenger door panel of Johnson’s vehicle. The bullet fragment
was then examined by a forensic firearm tool mark examiner, Chris Monturo, who testified
that the fragment was a .38 caliber bullet. Monturo further testified that the blue .38
revolver found in Johnson’s apartment was operable and in good working condition.
{¶ 13} Laster’s attending physician, Dr. Garietta Falls, testified that Laster
presented with a gunshot wound to the groin and that her iliac artery was directly
damaged by a bullet. Falls also testified that Laster appeared intoxicated and
disoriented, as Falls indicated that she had difficulty communicating with Laster and could
not tell if Laster appreciated the severity of her medical condition.
{¶ 14} After presenting the aforementioned testimony and evidence to the jury, on
August 4, 2016, the State presented additional evidence to the trial court for the bench
trial on the weapons under disability charge. In doing so, the State recalled Detective
Schumacher who testified that Johnson was convicted for aggravated robbery with a
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deadly weapon and a three-year firearm specification in February 2008. Schumacher
also presented the trial court with a certified copy of the termination entry evidencing the
prior felony conviction.
{¶ 15} Schumacher further testified that the apartment where the three guns were
found was leased to Johnson’s brother, but that Johnson had been residing there for the
past two months while his brother was out of town. Schumacher also noted that
Johnson’s driver’s license was found on the living room coffee table and that mail
addressed to Johnson was discovered inside the bedroom cabinet where the .38 revolver
was found.
{¶ 16} The State also called Aaron Davies, a firearm operability tester, to testify at
the bench trial. Davies testified that he tested the Bryco Arms Model 25 and the Jennings
Model J-22 that were discovered in Johnson’s apartment and that both firearms were
operable.
{¶ 17} At the close of the proceedings, the jury returned a verdict finding Johnson
not guilty of the two felonious assault charges. The trial court, however, found Johnson
guilty of having weapons under disability with a three-year firearm specification. As a
result, on September 12, 2016, the trial court sentenced Johnson to serve a three-year
prison term for having weapons under disability and a three-year prison term for the
firearm specification. The trial court further ordered the prison terms to run consecutively
for an aggregate sentence of six years in prison.
{¶ 18} Johnson now appeals from his conviction, raising a single assignment of
error for review.
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Assignment of Error
{¶ 19} Johnson’s sole assignment of error is as follows:
THE TRIAL COURT’S VERDICT SHOULD BE REVERSED AS THERE
WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.
{¶ 20} Under his single assignment of error, Johnson contends that the State failed
to present sufficient evidence at his bench trial to support a conviction for having weapons
under disability with a three-year firearm specification. In crafting his argument, Johnson
implies that the trial court was not permitted to consider relevant evidence that was
presented during the jury trial on his related felonious assault charges. Rather, Johnson
maintains that the trial court was restricted to the evidence presented solely at the bench
trial. We disagree.
{¶ 21} Contrary to Johnson’s claim otherwise, “where a case is separated and the
same judge presided over both the jury and bench trial, the judge ha[s] the discretion to
consider the evidence from the jury trial in the bench trial.” Whitfield v. Internatl. Truck
& Engine Corp., 755 F.3d 438, 447 (7th Cir.2014), fn. 4, citing Walker v. Loop Fish &
Oyster Co., 211 F.2d 777, 780-781 (5th Cir.1954). Accord eTool Dev., Inc. v. Natl.
Semiconductor Corp., E.D. Texas No. 2:08-CV-196-WCB, 2011 WL 12677158, *1 (Dec.
12, 2011) (“Because the Court will be presiding over the jury trial and conducting the
bench trial, the Court in ruling on the equitable issues before it can consider any evidence
that is offered during the jury trial that the parties wish the Court to treat as part of the
record of the bench trial.”). See e.g., State v. Webb, 10th Dist. Franklin No. 10AP-289,
2010-Ohio-6122 ¶2-10, 37-48 (finding that defendant’s conviction for having weapons
under disability was supported by sufficient evidence under circumstances where the
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defendant chose to have a bench trial on the weapons under disability charge and a jury
trial on his other related charges, and the only testimony presented during the bench trial
concerned the defendant’s prior felony conviction with other relevant evidence being
drawn from the jury trial).
{¶ 22} If we were to accept Johnson’s argument—that the trial court was only
permitted to consider the evidence presented at the bench trial when ruling on the
weapons under disability charge—the State would have had to recall several witnesses
at the bench trial to elicit duplicative testimony that the judge had already heard at the
immediately preceding jury trial. Such a practice does not promote judicial economy and
we fail to see how considering the evidence from each proceeding in this case prejudices
Johnson.
{¶ 23} We now turn to Johnson’s argument challenging the sufficiency of the
evidence. A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to sustain the verdict as a
matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,
citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶ 24} In this case, the trial court found Johnson guilty of having weapons under
disability in violation of R.C. 2923.13(A)(2), which provides as follows:
(A) Unless relieved from disability under operation of law or legal process,
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no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
***
(2) The person is under indictment for or has been convicted of any felony
offense of violence or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been
a felony offense of violence.
{¶ 25} Johnson does not dispute that he was previously convicted for a felony
offense of violence, as he was convicted of aggravated robbery with a deadly weapon in
February 2008. Rather, Johnson claims the State failed to present sufficient evidence
establishing that he knowingly acquired, had, carried, or used a firearm. We disagree.
{¶ 26} “A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B).
{¶ 27} The victim, Laster, testified that on the night in question, Johnson shot at
her twice with a blue .38 revolver while she was sitting in the front-passenger seat of his
vehicle and that one of the shots hit her in the groin. Laster noted that she saw Johnson
every day and that he carried a firearm all the time. Laster identified a picture of the blue
.38 revolver in question, which Deputy Gearhart and Detective Schumacher testified was
found fully loaded during a search of the apartment where Johnson resided.
{¶ 28} In addition to finding the blue .38 revolver, the investigating officers testified
that they found two other firearms and a variety of ammunition at Johnson’s apartment.
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Each of the firearms recovered were tested and found to be operable. The evidence
also establishes that a bullet fragment was extracted from the interior front-passenger
door panel of Johnson’s vehicle and that bloodstains on the front-passenger seat of
Johnson’s vehicle matched Laster’s DNA. The evidence also established that Laster
received medical treatment for a gunshot wound to the groin.
{¶ 29} Although the jury ultimately found Johnson not guilty of the felonious assault
charges, when the evidence is viewed in the light most favorable to the State, there was
adequate evidence presented for the trial court to find Johnson guilty of having weapons
under disability. Based on Laster’s testimony and the testimony of the investigating
officers and forensic examiners, a rational trier of fact could have found beyond a
reasonable doubt that Johnson knowingly acquired, had, carried, or used a firearm on the
night in question. Specifically, Laster’s testimony that she saw Johnson pull out and
shoot a blue .38 revolver indicates that Johnson was aware of the fact that he had a gun,
which satisfies the “knowing” element that Johnson is challenging.
{¶ 30} For the three-year firearm specification, the State was required to set forth
evidence establishing that Johnson “had a firearm on or about [his] person or under [his]
control while committing the offense and displayed the firearm, brandished the firearm,
indicated that the offender possessed the firearm, or used it to facilitate the offense.”
R.C. 2941.145(A).
{¶ 31} As previously discussed, the State presented Laster’s testimony indicating
Johnson had a firearm and shot at her twice, hitting her once in the groin. The State also
presented Detective Schumacher’s testimony that Johnson had a prior conviction for
aggravated robbery with a deadly weapon. From this testimony, when viewed in the light
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most favorable to the State, a rational fact finder could have found that Johnson had a
firearm on his person or under his control and that he displayed, brandished, or used the
firearm while committing the offense of having weapons under disability.
{¶ 32} For the foregoing reasons, Johnson’s conviction for having weapons under
disability with a three-year firearm specification was supported by sufficient evidence.
Conclusion
{¶ 33} Johnson’s judgment of conviction is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Alice B. Peters
J. David Turner
Hon. Richard Skelton