State v. Johnson

[Cite as State v. Johnson, 2017-Ohio-6930.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-16-41
v.
AMOS K. JOHNSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2015 0169
Judgment Affirmed
Date of Decision: July 24, 2017
APPEARANCES:
Nikki Trautman Baszynski for Appellant
Terri L. Kohlrieser and Kenneth J. Sturgill for Appellee
Case No. 1-16-41
ZIMMERMAN, J.,
{¶1} Defendant-Appellant, Amos K. Johnson (“Johnson” or “Appellant”),
brings this appeal from the jury verdict of the Allen County Common Pleas Court
convicting him of three (3) counts of Kidnapping, three (3) counts of Felonious
Assault, one (1) count of Aggravated Robbery, and one (1) count of Having
Weapons While Under Disability. On appeal, Johnson asserts that: (1) the trial court
erred when it failed to merge his convictions for kidnapping and aggravated
robbery; (2) the trial court erred when it assessed Johnson the $25.00 appointed-
counsel application fee without making the ability-to-pay finding at Johnson’s
sentencing hearing; (3) the trial court erred when it imposed costs without proper
notification; and (4) the trial court erred when it imposed unauthorized costs of
prosecution. For the reasons that follow, we affirm Johnson’s convictions and
sentence.
Facts
{¶2} On April 21, 2015, Lacey Duckett (“Duckett”) had Jessyca
Shellenbarger (“Shellenbarger”) and Johnson as guests at her home in Lima, Ohio.
Also present in Duckett’s home was Shellenbarger’s four-year-old daughter, M.B.
Sometime during that evening, Duckett, Shellenbarger, and Johnson engaged in
illicit drug use. Later, at some point during the early morning hours of April 22,
2015, Johnson became suspicious of Duckett and Shellenbarger because his ring
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and unused drugs were missing. When neither Duckett nor Shellenbarger confessed
to taking the items, Johnson became angry and told them that no one could leave
the residence until his items were found and returned.1
{¶3} Johnson threatened Shellenbarger and her daughter, M.B., with a gun
in his attempt to get his items returned. Further, Johnson forced Duckett into the
bathroom and destroyed Shellenbarger’s phone after she attempted to call 9-1-1.
However, Shellenbarger and M.B. were able to escape Duckett’s house and get to a
neighbor’s home to call 9-1-1.
{¶4} When the authorities arrived (at Duckett’s home), Duckett and Johnson
were still in the home. After several requests to comply with police orders, Johnson
surrendered and was arrested. Law enforcement searched Duckett’s home and
discovered a firearm stuffed under a mattress. Ammunition was also found in
Johnson’s jacket.
Procedural History
{¶5} On June 11, 2015, Johnson was indicted by the Allen County grand jury
on eight criminal counts related to the incident. Specifically, Johnson was indicted
on: Count One, Kidnapping, in violation of R.C. 2905.01(A)(3), 2905.01(C)(1), a
felony of the first degree, with a three-year firearm specification pursuant to R.C.
1
Testimony during trial revealed that while Johnson thought that his ring was missing, it was actually on
his finger the entire evening. Attempts to inform Johnson that his ring was on his finger were futile. (See,
05/24/16 Tr., Vol. II, at 410).
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2941.145(A); Count Two, Kidnapping, in violation of R.C. 2905.01(A)(3),
2905.01(C)(1), a felony of the first degree, with a three-year firearm specification
pursuant to R.C. 2941.145(A); Count Three, Kidnapping, in violation of R.C.
2905.01(A)(3), 2905.01(C)(1), a felony of the first degree; Count Four, Aggravated
Robbery, in violation of R.C. 2911.01(A)(1), 2911.01(C), a felony of the first
degree, with a three-year firearm specification pursuant to R.C. 2941.145(A); Count
Five, Felonious Assault, in violation of R.C. 2903.11(A)(2), 2903.11(D)(1)(a), a
felony of the second degree, with a three-year firearm specification pursuant to R.C.
2941.145(A); Count Six, Felonious Assault, in violation of R.C. 2903.11(A)(2),
2903.11(D)(1)(a), a felony of the second degree, with a three-year firearm
specification pursuant to R.C. 2941.145(A); Count Seven, Felonious Assault, in
violation of R.C. 2903.11(A)(2), 2903.11(D)(1)(a), a felony of the second degree,
with a three-year firearm specification pursuant to R.C. 2945.145(A); and Count
Eight, Having Weapons While Under Disability, in violation of R.C. 2923.13(A)(3),
2923.13(B), a felony of the third degree.
{¶6} On May 23, 2016 the matter proceeded to a jury trial. At the close of
the State’s case Johnson requested the charges be dismissed pursuant to Crim.R. 29,
which the trial court denied. Thereafter, and at the close of the evidentiary portion
of the trial, Johnson renewed his Rule 29 Motion to Dismiss, which was again
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denied by the trial court. Thereafter, the jury found Johnson guilty on all eight
counts and all firearm specifications contained in the indictment.
{¶7} On July 18, 2016 the trial court conducted Johnson’s sentencing
hearing. At sentencing the trial court found that Counts One and Five merged; that
Counts Two and Six merged; and that Counts Three and Seven merged with one
another. Thus, the State elected to proceed to sentencing on Counts One, Two, and
Three. The trial court then sentenced Johnson as follows: Count One, (Kidnapping)
six years plus a mandatory three years for the firearm specification; Count Two,
(Kidnapping) six years plus a mandatory three years for the firearm specification;
Count Three, (Kidnapping) six years; Count Four, (Aggravated Robbery) four years
plus a mandatory three years for the firearm specification; and Count Eight,
(Weapons While Under Disability) twenty-four months. All sentences were ordered
to run consecutively, resulting in an aggregate sentence of thirty-three years in
prison.
{¶8} At sentencing, Johnson was also ordered to pay the costs of prosecution,
court costs, and the court-appointed attorney application fee of $25.00. Johnson did
not object to the imposition of court costs, prosecution costs, or the court-appointed
counsel application fee by the trial court at the sentencing hearing.
{¶9} From the trial court’s entry of conviction and sentence Johnson timely
appeals, and asserts the following assignments of error:
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ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE
MR. JOHNSON’S CONVICTIONS FOR KIDNAPPING AND
AGGRAVATED ROBBERY.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT ASSESSED THE
$25.00 APPOINTED-COUNSEL APPLICATION FEE
WITHOUT MAKING THE ABILITY-TO-PAY FINDING AT
MR. JOHNSON’S SENTENCING HEARING.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED WHEN IT IMPOSED COSTS
WITHOUT PROPER NOTIFICATION.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED WHEN IT IMPOSED
UNAUTHORIZED COSTS OF PROSECUTION.
{¶10} On appeal, Johnson contends that: (1) the trial court erred when it
failed to merge Johnson’s convictions for Kidnapping and Aggravated Robbery
because the offenses contain the same victim, animus, and conduct; (2) the trial
court erred when it assessed Johnson a $25.00 appointed-counsel application fee
without making an ability-to-pay finding at the sentencing hearing; (3) the trial court
erred when it imposed costs without proper notification, failing to notify Johnson at
sentencing that the failure to pay court costs could result in community service; and
(4) the trial court erred when it imposed the costs of prosecution.
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{¶11} Before we commence our review, we note that Appellant concedes in
his reply brief that Assignment of Error III only applies to sentences that involve
the imposition of community-control sanctions, which Johnson did not receive.
Thus, Johnson has withdrawn Assignment of Error III. Accordingly, we will only
address Assignments of Error I, II, and IV.
First Assignment of Error
{¶12} In his first assignment of error, Johnson contends that the trial court
erred by failing to merge his convictions for kidnapping and aggravated robbery.
Specifically, Johnson contends that his taking of Shellenbarger’s phone (which
resulted in an Aggravated Robbery charge – Count Four) also resulted in the
restraint of Shellenbarger (which comprised the Kidnapping charge in Count Three)
and, as such, the charges should have merged. For the following reasons, we find
this argument without merit.
Standard of Review
{¶13} “‘A defendant bears the burden of proving that the offenses for which
he has been convicted and sentenced constitute allied offenses of similar import.’”
State v. Vanausdal, 3rd Dist. Shelby No. 17-16-06, 2016-Ohio-7735, ¶ 17, quoting
State v. Campbell, 12th Dist. Butler No. CA2014-06-137, 2015-Ohio-1409, ¶ 18,
citing State v. Luong, 12th Dist. Butler No. CA2011-06-110, 2012-Ohio-4520, ¶ 46.
Additionally, a reviewing court may look to the information contained in the record
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to make its allied offense determination. Id. An appellate court then reviews de
novo the question of whether offenses are allied offenses of similar import. State v.
Potts, 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 93 (3rd Dist.), citing State v. Stall, 3rd
Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3rd Dist.
Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36.
R.C. 2941.25, Allied Offenses of Similar Import
Ohio’s multiple-count statute, codified in R.C. 2941.25, states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of
all of them.
R.C. 2941.25.
{¶14} In State v. Ruff, the Supreme Court promulgated the following three-
part test for determining whether offenses merged: “[u]nder R.C. 2941.25(B), a
defendant whose conduct supports multiple offenses may be convicted of all the
offenses if any one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were committed with separate
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animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 (2015),
paragraph three of the syllabus. An affirmative answer to any of the preceding
questions will permit separate convictions. Id. at ¶ 31.
Relevant Statutes
{¶15} Johnson was convicted in Count Three of Kidnapping, a felony of the
first degree, in violation of R.C. 2905.01(A)(3), 2905.01(C)(1), which provides, in
part:
No person, by force, threat, or deception, * * * shall remove another
from the place where the other person is found or restrain the liberty
of the other person, for any of the following purposes: * * * to
terrorize, or to inflict serious physical harm on the victim or another.
* * * Whoever violates this section is guilty of kidnapping. Except as
otherwise provided in this division, * * * kidnapping is a felony of the
first degree.
R.C. 2905.01(A)(3), 2905.01(C)(1). Johnson was also convicted of Aggravated
Robbery, a felony of the first degree, in R.C. 2911.01(A)(1), 2911.01(C), which
provides in pertinent part:
No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after
the attempt or offense, shall do any of the following: have a deadly
weapon on or about the offender’s person or under the offender’s
control and either display the weapon, brandish it, indicate that the
offender possesses it, or use it. * * * Whoever violates this section is
guilty of aggravated robbery, a felony of the first degree.
R.C 2911.01(A)(1), 2911.01(C).
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Analysis
{¶16} Addressing the first Ruff factor, whether “the conduct constitutes
offenses of dissimilar import,” the Ohio Supreme Court has held that “two or more
offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the
defendant’s conduct constitutes offenses involving separate victims or if the harm
that results from each offense is separate and identifiable.” Ruff, 143 Ohio St.3d
114, 2015-Ohio-995, 34 N.E.3d 892, paragraph two of the syllabus. Similar to this
Court’s analysis in Vanausdal, we find that while each count involved the same
victim, the harm that resulted from each offense is separate and identifiable. See
Vanausdal, 3rd Dist. Shelby No. 17-16-06, 2016-Ohio-7735, ¶ 13 (Victim in that
case suffered physical and emotional harm as a result of her rape; separately and
identifiably, the victim also suffered emotional, mental, and psychological harm by
Vanausdal’s possession of sexually oriented material).
{¶17} In our review of the record we find that evidence was presented by the
State supporting that Shellenbarger suffered emotional, mental, and/or
psychological harm while being restrained by Johnson. (See 05/24/2016 Trial Tr.,
Vol. II, at 407-08; 428. “He threatened me that he would kill me. And he walked up
right beside my daughter, if not touching her head with the gun, was right next to
her head with the gun and told me to shut her up or he would kill her. * * * Told
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me I wasn’t going anywhere. And he told me to sit down and keep my ass on the
couch.” “* * * I had my daughter in my arms and I was scared * * *.”).
Shellenbarger’s testimony supports that Johnson restrained her liberty by
commanding her to remain on the couch and by terrorizing her and her daughter
with a gun. These acts understandably caused Shellenbarger fear which we find to
be consistent with her suffering a psychological, mental, or emotional harm due to
Johnson’s criminal conduct.
{¶18} In contrast, as to Johnson’s aggravated robbery conviction, we find
that Shellenbarger suffered a separate and different harm, that being the loss of her
personal property, her cell phone, due to Johnson’s additional criminal conduct.
Shellenbarger testified that Johnson took her phone and rendered it inoperable. (See
id. at 418. * * * [A]nd he came from the back and pulled it like that (indicating)
and snapped it like that. * * * And I’m still not even sure on what exactly happened
to it. I know it couldn’t be used * * *.”). Thus, Shellenbarger suffered property
damage to her cell phone through Johnson’s destruction of it which we find is
separate and distinguishable from the emotional, mental, and/or psychological harm
that she suffered when Johnson restrained her liberty and terrorized her with a gun.
{¶19} Accordingly, we answer the first Ruff question in the affirmative
because the victim (Shellenbarger) in Counts Three and Four suffered separate and
identifiable harms at the hands of Johnson. With this affirmative answer to the first
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Ruff factor, separate convictions are permissible as to Counts Three and Four and
we need not address the second and third Ruff factors. Accordingly, Johnson’s first
assignment of error is overruled.
Second Assignment of Error
{¶20} In Appellant’s second assignment of error, Johnson contends that the
trial court erred when it imposed costs without proper notification. Specifically,
Johnson contends that the trial court improperly imposed the $25.00 appointed-
counsel application fee without making the required “ability-to-pay” finding at his
sentencing hearing. Johnson also asserts that the trial court failed to notify him of
this obligation (to pay the $25.00 fee) at his sentencing hearing. For the following
reasons, we disagree.
{¶21} Johnson’s assertion that R.C. 2947.23 governs the imposition of the
$25.00 application fee for court-appointed counsel is misplaced, as R.C. 120.36,
entitled “Application fee; Reports,” is the proper statute addressing such process.
R.C. 120.36 states, in part:
(A)(1) Subject to division (A)(2), (3), (4), (5), or (6) of this section, if
a person who is a defendant in a criminal case or a party in a case in
the juvenile court requests or is provided a state public defender, a
county or joint county public defender, or any other counsel appointed
by the court, the court in which the criminal case is initially filed or
the juvenile court, whichever is applicable, shall assess, unless the
application fee is waived or reduced, a non-refundable application fee
of twenty-five dollars.
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The court shall direct the person to pay the application fee to the clerk
of court. The person shall pay the application fee to the clerk of court
at a time the person files an affidavit of indigency or a financial
disclosure form with the court, a state public defender, a county or
joint county public defender, or any other counsel appointed by the
court or within seven days of that date. If the person does not pay the
application fee within that seven-day period, the court shall assess the
application fee at sentencing or at the final disposition of the case.
(Emphasis added). R.C. 120.36(A)(1).
{¶22} Contrary to Johnson’s assertion that the trial court needed to make an
“ability-to-pay” finding prior to assessing a $25.00 application fee, our review of
R.C. 120.36 reveals that no such finding requirement exists. We do find, however,
that the application fee under R.C. 120.36 may be waived by the trial court. See
generally, State v. Kurth, 6th Dist. Lucas Nos. L-15-1238, L-15-1239, 2016-Ohio-
7698, ¶ 4 (trial court waived the $25.00 application fee after finding that such a fee
would result in an undue hardship). However, the record contains no such request
for a waiver by Johnson. Thus, we find that the trial court complied with the
statutory requirements of R.C. 120.36 by requiring Johnson to pay the $25.00 fee at
sentencing, and because Johnson never requested a waiver of such fee, we find no
error present. Accordingly, we overrule Johnson’s second assignment of error.
Fourth Assignment of Error
{¶23} In his fourth assignment of error, Johnson contends that the trial court
erred when it imposed upon him the costs of prosecution. Specifically, Johnson
states that the assessment of a $33.00 fee for a subpoena issued to M.B., the four-
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year-old child victim of one of his charges, was impermissible because, as a matter
of law, M.B. was not competent to testify due to her age.
{¶24} Johnson’s argument lacks merit. Initially, we note that Johnson never
objected to the imposition of court costs and the costs of prosecution, but instead,
raises this issue for the first time on appeal. (07/18/16 Tr. at 27, 30). “An
appellant’s failure to raise an issue with the trial court constitutes a waiver of that
issue absent plain error.” State v. Stiles, 3rd Dist. Allen No. 1-08-12, 2009-Ohio-
89, ¶ 31, citing State v. Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332, (1983).
The Ohio Supreme Court has held, pursuant to Crim.R. 52(B), that “‘[t]he plain
error rule is to be invoked only in exceptional circumstances to avoid a miscarriage
of justice.’” State v. Long, 53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978), quoting
United States v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971). “Plain error does
not exist unless it can be said that but for the error, the outcome of the trial would
clearly have been otherwise.” State v. Wickline, 50 Ohio St.3d 114, 120, 552 N.E.2d
913 (1990).
{¶25} In our review of this assignment, we find that Johnson has failed to
demonstrate plain error. Pursuant to R.C. 2947.23(A)(1)(a), “[i]n all criminal cases,
including violations of ordinances, the judge or magistrate shall include in the
sentence the cost of prosecution, including costs under section 2947.231 of the
Revised Code, and render a judgment against the defendant for such costs.”
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(Emphasis added). R.C. 2947.23(A)(1)(a). Thus, the trial court followed the
mandates of R.C. 2947.23 in assessing Johnson the subpoena cost relative to M.B.
{¶26} Further, Johnson’s argument that the State could have never called
M.B. as a witness also lacks merit. Johnson contends that M.B. couldn’t have been
called as a witness because she was incompetent to testify pursuant to Evid.R.
601(A). Evid.R. 601(A) states: “[e]very person is competent to be a witness except:
those of unsound mind, and children under ten years of age, who appear incapable
of receiving just impressions of the facts and transactions respecting which they are
examined, or of relating them truly.” Evid.R. 601(A). However, the Ohio Supreme
Court has provided the following guidance on this issue:
In determining whether a child under ten is competent to testify, the
trial court must take into consideration (1) the child’s ability to receive
accurate impressions of fact or to observe acts about which he or she
will testify, (2) the child’s ability to recollect those impressions or
observations, (3) the child’s ability to communicate what was
observed, (4) the child’s understanding of truth and falsity and (5) the
child’s appreciation of his or her responsibility to be truthful.
State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). Accordingly, we
find that Evid. R. 601(A) does not stand for the proposition, as suggested by
Johnson, that a child under ten years of age may never testify, but rather that a child
under ten may be competent to testify if so found by a trial court upon its proper
inquiry under Frazier.
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{¶27} Accordingly, we find that it was not plain error for the trial court to
require Johnson to pay for the costs associated with the issuance of M.B.’s subpoena
under the presented facts of this appeal. Johnson’s fourth assignment of error is
overruled.
{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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