State v. Johnson

[Cite as State v. Johnson, 2021-Ohio-3220.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 20AP-469
v. : (C.P.C. No. 18CR-5330)
James Johnson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 16, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: Todd W. Barstow, for appellant. Argued: Todd W.
Barstow.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, James Johnson, appeals from a judgment of conviction
and sentence entered by the Franklin County Court of Common Pleas pursuant to a jury
verdict finding him guilty of aggravated burglary, a first-degree felony; felonious assault, a
second-degree felony; and having a weapon under disability, a third-degree felony. For the
reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} On October 26, 2018, appellant was indicted on six counts: one count of
aggravated burglary, in violation of R.C. 2911.11, a first-degree felony; one count of
aggravated robbery, in violation of R.C 2911.01, a first-degree felony; one count of robbery,
in violation of R.C. 2911.02, a second-degree felony; one count of felonious assault, in
violation of R.C. 2903.11, a second-degree felony; one count of robbery, in violation of R.C.
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2911.02, a third-degree felony; and one count of having a weapon under disability ("WUD"),
in violation of R.C. 2923.13, a third-degree felony. Each count except the WUD included a
three-year firearm specification pursuant to R.C. 2941.145(A). The indictment alleged the
foregoing offenses occurred on or about September 19, 2018. (Oct. 26, 2018 Indictment.)
Appellant entered a not guilty plea to the charges and requested a jury trial.
{¶ 3} On August 24, 2020, a jury trial commenced at which the following evidence
was adduced. On September 19, 2018, at approximately 8:50 in the morning, Officers Don
McCray and Stephen Conkel of the Columbus Police Department responded to a report of
a shooting at 1210 East 21st Avenue, Columbus, Ohio. The dispatch arose from a 911 call
by a female. Upon arrival, the officers found the victim, Mr. Hinson, on the couch of the
living room of his apartment with a bullet wound injury to his lower right leg. A female
was sitting next to him on the couch. Both Mr. Hinson and the female provided a
description of the individual suspected in the incident. Based on what was reported by
Mr. Hinson, the officers also called for a robbery detective.
{¶ 4} Mr. Hinson was transported to OSU main hospital. While at the hospital, Mr.
Hinson was briefly interviewed by Detectives Jason Wood and Shawn Lent of the Columbus
Police Department. Mr. Hinson told them that somebody came into his home, tried to sell
him a camera, and then pulled out a gun and shot him. Detectives Wood and Lent then
responded to the scene of the incident. A female by the name of Elianna Woods was
present at the scene, and the detectives briefly interviewed her. Her remarks coincided
generally with what Mr. Hinson reported as to what happened.
{¶ 5} Several weeks later, the detectives conducted a more at-length interview
with Mr. Hinson. At that point in time, Mr. Hinson stated that the person who shot and
robbed him was known to him from the neighborhood, but he did not know his name.
Ultimately, Columbus Police received an anonymous tip that directed them to appellant
as a possible suspect. Detectives created a photographic array which included a
photograph of appellant. A blind administrator presented the array to Mr. Hinson, who
selected appellant as the perpetrator.
{¶ 6} At trial, Mr. Hinson initially testified on direct examination that he knew
appellant only as a panhandler from the neighborhood. On cross-examination by defense
counsel, he admitted he knew appellant better than he initially stated, that appellant had
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been to Mr. Hinson's apartment several times in the past, and that they "partied" together
occasionally, including drinking and smoking weed together. (Tr. at 267-69.) Mr. Hinson
later explained that he did not tell police about his partying with appellant because "[t]hat's
a stupid thing to say to somebody, to a police officer, that you smoked weed or drank a beer
with them." Id. at 303-04.
{¶ 7} Mr. Hinson testified that several hours before the incident central to this case
occurred, appellant came to Mr. Hinson's apartment with a camera which appellant wanted
Mr. Hinson to buy so appellant would have cash to buy some drugs. Mr. Hinson declined
to buy the camera. Mr. Hinson further testified that appellant returned very early in the
morning on the day in question and knocked on his door. When the door was opened by
Mr. Hinson, appellant brandished a pistol, pushed his way into the apartment and fired
several times in the direction of Hinson's feet, with one of the bullets striking him in the
foot. Appellant then took some of Mr. Hinson's property and fled.
{¶ 8} Appellant testified at trial. He stated he had known Hinson for many years
and that the two had "partied" together, using drugs, on numerous occasions. (Tr. at 389-
92; 394.) Appellant testified that earlier in the morning on the day in question, he had been
to Hinson's apartment several times, the first two times to use drugs together. Appellant
stated that on the third visit that day, he sold a camera to Mr. Hinson. Appellant admitted
that the camera was stolen and that the proceeds of the alleged sale were to be used to buy
more narcotics.
{¶ 9} Appellant further testified that he went back to Mr. Hinson's apartment a
fourth time, and this time he brought a pistol which he wanted to try to sell to Mr. Hinson
to get more money or trade for drugs and also because appellant was getting ready to start
a rehabilitation program for substance abuse and he did not want to leave his gun at his
house while he was absent because his small children lived there. Appellant testified he
knew he was prohibited from possessing a firearm but that he needed it for protection. He
testified that when he entered the apartment, Hinson began grabbing at the gun; that the
two were wrestling around the apartment with both men trying to get the gun; and that the
gun discharged. Appellant stated that he took the gun with him and fled the scene.
Appellant denied taking anything else with him.
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{¶ 10} At the conclusion of the trial, the jury returned a verdict finding appellant
guilty of aggravated burglary with firearm specification, a first-degree felony; felonious
assault with firearm specification, a second-degree felony; and having weapons while under
disability, a third-degree felony. (Sept. 10, 2020 Jgmt. Entry). On September 10, 2020,
the trial court issued a judgment entry which reflected the verdict of the jury and imposed
a 15-year prison sentence. Id.
{¶ 11} This timely appeal followed.
II. Assignment of Error
{¶ 12} Appellant asserts the following assignment of error for our review:
The trial court erred and deprived appellant of due process of
law as guaranteed by the Fourteenth Amendment to the United
States Constitution and Article One Section Ten of the Ohio
Constitution by finding him guilty of aggravated burglary and
felonious assault, as those verdicts were not supported by
sufficient evidence and were also against the manifest weight
of the evidence.
III. Discussion
A. Sufficiency of the Evidence and Manifest Weight of the Evidence
{¶ 13} Appellant asserts in his sole assignment of error that the verdicts of
aggravated burglary and felonious assault were not supported by sufficient evidence and
were against the manifest weight of the evidence. We find no merit in either of appellant's
contentions.
{¶ 14} In reviewing a challenge to the sufficiency of the evidence, an appellate court
must determine "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 (1991), paragraph
two of the syllabus. In conducting a review of the sufficiency of the evidence, " 'an appellate
court does not engage in a determination of witness credibility; rather it essentially assumes
the state's witnesses testified truthfully and determines if that testimony satisfies each
element of the crime.' " State v. Flood, 10th Dist. No. 18AP-206, 2019-Ohio-2524, ¶ 16,
quoting State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4, citing State v.
Woodward, 10th Dist. No. 03AP-398, 2004-Ohio-4418, ¶ 16.
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{¶ 15} Comparatively, "[w]hile sufficiency of the evidence is a test of adequacy
regarding whether the evidence is legally sufficient to support the verdict as a matter of law,
the criminal manifest weight of the evidence standard addresses the evidence's effect of
inducing belief." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881 ¶ 38, citing
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25, citing State v. Thompkins, 78
Ohio St.3d 380, 386 (1997). "When a court of appeals reverses a judgment of a trial court
on the basis that the verdict is against the weight of the evidence, the appellate court sits as
a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting
testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). " 'The court,
reviewing 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 and a new trial ordered.' " Id., quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983). This discretionary authority " 'should be exercised
only in the exceptional case in which the evidence weighs heavily against the conviction.' "
Id., quoting Martin at 175.
{¶ 16} Furthermore, " '[w]hile the jury may take note of inconsistencies and resolve
or discount them accordingly, * * * such inconsistences do not render defendant's
conviction against the manifest weight or sufficiency of the evidence.' " State v. Gullick,
10th Dist. No. 13AP-317, 2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th Dist. No.
95APA09-1236 (May 28, 1996). "A jury, as the finder of fact and the sole judge of the weight
of the evidence and the credibility of the witnesses, may believe or disbelieve all, part, or
none of a witness's testimony." Id., citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 17} A conviction is not against the manifest weight of the evidence simply because
the jury believed the state's version of events over the appellant's version. Gullick at ¶ 11,
citing State v. Houston, 10th Dist. No. 04AP-875, 2005-Ohio-449, ¶ 38, rev'd and
remanded in part on other grounds. Rather, a reviewing court must give great deference
to the jury's determination of witness credibility. Id., citing State v. Chandler, 10th Dist.
No. 05AP-415, 2006-Ohio-2070, ¶ 19. This is so because the jury " ' "is best able to view
the witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony." ' " State v. Huber, 10th
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Dist. No. 18AP-668, 2019-Ohio-1862, ¶ 32, quoting State v. Cattledge, 10th Dist. No. 10AP-
105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. Inc. v. Cleveland, 10 Ohio St.3d 77, 80
(1984).
{¶ 18} Appellant challenges his conviction on one count of felonious assault, in
violation of R.C. 2903.11, and one count of aggravated burglary, in violation of R.C. 2911.11.
R.C. 2903.11 defines felonious assault and provides, in relevant part:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's
unborn;
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous
ordnance.
In turn, "serious physical harm" is defined as:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;
(d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;
(e) Any physical harm that involves acute pain of such duration
as to result in substantial suffering or that involves any degree
of prolonged or intractable pain.
R.C. 2901.01(A)(5).
{¶ 19} Aggravated burglary is defined in R.C. 2911.11, which provides in relevant
part:
(A) No person, by force, stealth, or deception, shall trespass in
an occupied structure or in a separately secured or separately
occupied portion of an occupied structure, when another
person other than an accomplice of the offender is present, with
purpose to commit in the structure or in the separately secured
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or separately occupied portion of the structure any criminal
offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict
physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance
on or about the offender's person or under the offender's
control.
(B) Whoever violates this section is guilty of aggravated
burglary, a felony of the first degree.
{¶ 20} In his challenge to the sufficiency of the evidence, appellant argues his
testimony was more credible than that of Mr. Hinson's, and, therefore, the jury should
have believed him instead of Mr. Hinson. More specifically, appellant asserts that
initially, Mr. Hinson was not entirely forthcoming as to how well he knew appellant, and
only upon cross-examination did he admit to the nature of his relationship with appellant.
Appellant further asserts that Mr. Hinson's testimony of the events was inconsistent.
Neither contention supports appellant's position regarding the sufficiency of the
evidence.
{¶ 21} First, our review of the transcript of the testimony of Mr. Hinson and
appellant readily reveals that neither witness provided crystal clear timelines and details
of the events that unfolded on September 19, 2018, and the testimony elicited from both
men was at times internally unclear and inconsistent.
{¶ 22} Moreover, although appellant challenges the sufficiency of the evidence in his
sole assignment of error, his entire argument relates to the credibility of the victim witness.
But "in a sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state's witnesses
testified truthfully and determines if that testimony satisfies each element of the crime."
Bankston, 2009-Ohio-754, at ¶ 4. Under this standard there is sufficient evidence in this
case to support appellant's convictions for both aggravated burglary and felonious assault.
{¶ 23} The manifest weight of the evidence also supports appellant's convictions for
aggravated burglary and felonious assault. Under this portion of appellant's argument, in
essence he asserts that Mr. Hinson's testimony is not credible because he initially lied about
how well he knew appellant. But the jury was free to believe the victim's testimony in spite
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of this fact, and it is well-settled that " 'the testimony of one witness, if believed by the jury,
is enough to support a conviction.' " State v. Steward, 10th Dist. No. 19AP-35, 2019-Ohio-
5258, ¶ 17, quoting State v. Patterson, 10th Dist. No. 15AP-1117, 2016-Ohio-7130, ¶ 33.
{¶ 24} As set forth above, under a manifest weight of the evidence analysis, although
we are able to consider the credibility of the witnesses in conducting our review, "we are
guided by the presumption that the jury * * * ' is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proferred testimony.' " Cattledge, 2010-Ohio-4953, at ¶ 6, quoting
Seasons Coal Co. Inc. 10 Ohio St.3d 77 (1984). Appellant admitted he was high and
confused at the time of the incident. (Tr. at 393, 404-05.) And, as argued by the state, the
jury could reasonably infer that appellant brought the gun to Hinson's apartment to get
drugs or money from Hinson "but, instead, ended up shooting him when Hinson was not
cooperative." (Brief of Appellee at 6.) Further, the jury was entirely free to discount
appellant's testimony that Mr. Hinson caused the gun to go off when Mr. Hinson was trying
to grab the gun and instead believe Mr. Hinson's version of the events.
{¶ 25} In short, the jury was entirely free to believe Mr. Hinson, the victim, rather
than appellant, and appellant's convictions are not against the manifest weight of the
evidence merely because the jury found his testimony credible. See Gullick, 2014-Ohio-
1642, at ¶ 11. In engaging in the limited weighing of the evidence which we are permitted,
we cannot say the jury clearly lost its way when it found appellant guilty of aggravated
burglary and felonious assault beyond a reasonable doubt. Accordingly, we find that the
manifest weight of the evidence supports appellant's convictions.
{¶ 26} In sum, appellant has failed to demonstrate that the evidence was
insufficient or that the jury clearly lost its way and created such a manifest miscarriage of
justice that his convictions on the counts of aggravated burglary, felonious assault, and
having a weapon while under disability must be reversed and a new trial ordered. Because
appellant's convictions were supported by sufficient evidence and were not against the
manifest weight of the evidence, his assignment of error is overruled.
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IV. Disposition
{¶ 27} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.