[Cite as State v. Johnson,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : Patricia A. Delaney, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2012 CA 00054 : : DAVID M. JOHNSON : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2011 CR 1733

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 29, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO ANTHONY KOUKOUTAS Prosecuting Attorney 116 Cleveland Avenue, N.W. Stark County, Ohio 808 Courtyard Centre Canton, Ohio 44702 BY: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South, Suite 510 Canton, Ohio 44702-1413 [Cite as State v. Johnson,

.]

Edwards, J.

{¶1} Appellant, David Johnson, appeals a judgment of the Stark County

Common Pleas Court convicting him of aggravated burglary with a firearm specification

(R.C. 2911.11(A)(2)), aggravated robbery with a firearm specification (R.C.

2911.01(A)(1)) and one count of disrupting public services (R.C. 2909.04(A)(1)).

Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} During the morning of April 24, 2007, Allen Hollar let his Sheltie out the

back door of his home on 18th Street in Canton. He waited for the dog to “do his

business,” let the dog in, and then fell asleep in a chair near the back door. He did not

lock the door when he returned inside with the dog.

{¶3} Hollar woke up when he felt a gun pointed to the side of his head. He saw

two black males in his home wearing hoodies, gloves and ski masks. The man holding

the gun to his head was wearing a black ball cap. The man said to Hollar, “We need all

your cash or I’m going to blow your head off.” He repeated this several times. He then

frisked Hollar, finding Hollar’s billfold containing about $55.00 in cash, credit cards and

his driver’s license. The man kept asking Hollar for more money. Hollar ran a limousine

service out of his home and was known to be paid in cash.

{¶4} The two men quietly went through the house. A family friend was sleeping

in another part of the house and did not wake up. While the dog normally “barks and

carries on,” he “just kind of laid there and watched what was going on.” Tr. 96.

{¶5} Hollar could hear one of the men rummaging through the bedroom closet.

The man unplugged the cordless phone in the home and put the handset in his jacket. Stark County App. Case No. 2012 CA 00054 3

The robber also went through a filing cabinet before going upstairs. The man holding

the gun to Hollar’s head kept threatening Hollar, saying that he knew there was more

money. He then flipped the dining room table, stuck Hollar’s cell phone in his pocket

and said, “We know where you live, I’ll be back.” They then left through the back door.

The men spent 15-20 minutes in the house and left with cash, a watch, a bracelet, a

necklace, a pinky ring, Hollar’s billfold, and two phones.

{¶6} Hollar watched the men leave by a small path between his garage and the

neighbor’s garage. The path was surrounded by hedges and a chain link fence. Hollar

had a fax machine and a phone disguised as a Cleveland Browns helmet which the

robbers had not discovered. He plugged in the fax machine and dialed 911.

{¶7} While searching the path where the men retreated, police found a black

ball cap identified by Hollar as the cap the robber holding the gun was wearing. The hat

was dry, in new condition and untouched by the elements. Police found wet, fresh spit

on the path and the tips of two cigars. Police also found fresh shoe prints.

{¶8} The DNA profile taken from the ball cap and from the spit both came from

the same person and, when the profiles were entered into CODIS, they came back with

a match to a person named David Johnson. No arrest was made at the time. However,

while appellant was incarcerated pending trial on a felonious assault charge in 2011, a

search warrant was obtained for his DNA. Appellant’s DNA was compared to the items

submitted in the 2007 burglary and was found to be a match for the ball cap, the spit

and one of the cigarette filters. He also was identified as a possible contributor of DNA

found on the second cigarette filter. Stark County App. Case No. 2012 CA 00054 4

{¶9} The case proceeded to jury trial in the Stark County Common Pleas Court.

At the time, appellant was serving a fourteen year sentence for felonious assault with a

violent offender specification. Following trial, appellant was convicted of all charges.

The trial court merged the two firearm specifications and sentenced him to nine years

for aggravated burglary, five years for aggravated robbery, three years for the firearm

specification and one year for disrupting public services. He was ordered to serve the

sentences for aggravated burglary and aggravated robbery consecutively to each other

but concurrently with the sentence for disrupting public services. He assigns two errors

on appeal:

{¶10} “I. THE JURY’S FINDINGS OF GUILT WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶11} “II. THE TRIAL COURT ERRED BY ORDERING APPELLANT TO SERVE

CONSECUTIVE SENTENCES.”

I

{¶12} In his first assignment of error, appellant argues his convictions are

against the manifest weight and sufficiency of the evidence. He argues no one

identified him as one of the robbers inside the home, and the items found in the alley

with his DNA are only evidence that he was outside the home.

{¶13} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly Stark County App. Case No. 2012 CA 00054 5

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’” State v. Thompkins,

, 387,

,

, quoting State v. Martin,

,

(1983).

{¶14} An appellate court's function when reviewing the sufficiency of the

evidence is to 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,

,

, paragraph two of the syllabus (1991).

{¶15} The elements of an offense may be established by direct evidence,

circumstantial evidence or both. State v. Durr,

,

(1991).

Circumstantial evidence is defined as, “‘[t]estimony not based on actual personal

knowledge or observation of the facts in controversy, but of other facts from which

deductions are drawn, showing indirectly the facts, sought proved. * * * ‘ “. State v.

Nicely,

,

(1988), quoting Black's Law Dictionary

(5th Ed. 1979) 221. Circumstantial and direct evidence are of equal evidentiary value.

State v. Jenks,

,

(1991).

{¶16} Appellant was convicted of aggravated burglary in violation of R.C.

2911.11:

{¶17} “(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 or Stark County App. Case No. 2012 CA 00054 6

separately occupied portion of the structure any criminal offense, if any of the following

apply:

{¶18} “(2) The offender has a deadly weapon or dangerous ordnance on or

about the offender's person or under the offender's control.”

{¶19} Appellant was convicted of aggravated robbery in violation of R.C.

2911.01:

{¶20} “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:

{¶21} “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[.]”

{¶22} Appellant was also convicted of disrupting public services in violation of

R.C. 2909.04:

{¶23} “(A) No person, purposely by any means or knowingly by damaging or

tampering with any property, shall do any of the following:

{¶24} “(1) Interrupt or impair television, radio, telephone, telegraph, or other

mass communications service; police, fire, or other public service communications;

radar, loran, radio, or other electronic aids to air or marine navigation or

communications; or amateur or citizens band radio communications being used for

public service or emergency communications[.]”

{¶25} Appellant is correct in noting that Hollar was unable to identify appellant as

the man who held a gun to his head, and the evidence in this case is circumstantial. Stark County App. Case No. 2012 CA 00054 7

However, Hollar was able to identify the cap found on the secluded path behind his

home as the one worn by the man who held the gun to his head. Appellant’s DNA was

on the hat, which looked new and had not been exposed to the elements as if it had

been on the path for a long time. Further, police found fresh spit on the same path

which DNA testing revealed to be from appellant. The area was not a public area, and

from the DNA evidence collected with the path, coupled with Hollar’s testimony as to

what occurred in the house and his identification of the hat, the jury could have

concluded that appellant and his cohort invaded the home after Hollar left the door

unlocked when he let the dog out.

{¶26} In State v. James, 5th Dist. No. 11CAA050045,

, this Court

upheld a conviction for burglary where the evidence linking the appellant to the crime

was his DNA found on a discarded cigarette butt in the driveway, and the condition of

the butt indicated that it had been left there recently. Similarly, in the instant case the

evidence found in the pathway behind Hollar’s home was fresh and the DNA found on

the items linked appellant to the crime.

{¶27} The first assignment of error is overruled.

II

{¶28} In his second assignment of error, appellant argues that the court erred in

sentencing him consecutively without making the required findings mandated by R.C.

2929.14(C).

{¶29} H.B. No 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection

(C)(4)] and subsection (A) of R.C. 2929.41, effective September 30, 2011, which now

respectively provide: Stark County App. Case No. 2012 CA 00054 8

{¶30} “(C)(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

{¶31} “(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

{¶32} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

{¶33} “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.

{¶34} “(A) Except as provided in division (B) of this section, division (E) of

section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison

term, jail term, or sentence of imprisonment shall be served concurrently with any other

prison term, jail term, or sentence of imprisonment imposed by a court of this state,

another state, or the United States. Except as provided in division (B)(3) of this section, Stark County App. Case No. 2012 CA 00054 9

a jail term or sentence of imprisonment for misdemeanor shall be served concurrently

with a prison term or sentence of imprisonment for felony served in a state or federal

correctional institution.”

{¶35} The State argues that appellant was not entitled to be sentenced pursuant

to H.B. 86 because the crime was committed in April of 2007, before the effective date

of the bill. Appellant was sentenced on February 29, 2012, after the September 30,

2011, effective date.

{¶36} Contained within H.B. 86 at Section 4 is the specific legislative intent not

to make the changes retroactive:

{¶37} “The amendments* * *apply to a person who commits an offense specified

or penalized under those sections on or after the effective date of this section and to a

person to whom division (B) of section 1.58(B) of the Revised Code makes the

amendments applicable.”

{¶38} R.C. 1.58(B) provides: “If the penalty, forfeiture, or punishment for any

offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture,

or punishment, if not already imposed, shall be imposed according to the statute as

amended.”

{¶39} The State argues that R.C. 1.58(B) does not apply here because House

Bill 86 increases the maximum sentence for a first degree felony to eleven years.

However, this Court has held that a defendant who committed his crime before the

effective date of H.B. 86 but was sentenced after the effective date could not be

sentenced to consecutive sentences in the absence of the judicial findings of fact

mandated by R.C. 2929.14(C). State v. Williams, 5th Dist. No. 11–CA–115, 2012-Ohio- Stark County App. Case No. 2012 CA 00054 10

3211. We concede that Williams was not a case where the duration of the offender’s

sentence was to be determined under the prior law. However, assuming arguendo that

H.B.86’s requirement, that a court make specific findings prior to consecutive

sentencing, applies to the instant case, the judge made enough findings to support

imposition of a consecutive sentence.

{¶40} The First District Court of Appeals has observed, “The consecutive-

sentence findings required by R.C. 2929.14(C) are not the same as those required by

former R.C. 2929.19(B)(2), which provided that the trial court ‘shall impose a sentence

and shall make a finding that gives its reasons for selecting the sentence * * * (c) If it

imposes consecutive sentences .’(Emphasis added.) See State v. Comer,

, 2003–Ohio–4165,

, ¶ 14–16. In 2003, the Ohio Supreme Court

held that the requirement that a trial court gives its reasons for selecting consecutive

sentences was ‘separate and distinct from the duty to make the findings, and it imposed

an obligation on trial courts to articulate the reasons supporting their findings at the

sentencing hearing.

at ¶ 19–20,

. The trial court's obligation to “give

its reasons” is now gone from the sentencing statutes. Gone with it, we hold, is the

requirement that the trial court articulate and justify its findings at the sentencing

hearing. A trial court is free to do so, of course. But where, as here, there is no statutory

requirement that the trial court articulate its reasons, it does not commit reversible error

if it fails to do so, as long as it has made the required findings. See Phillips, 1st Dist. No.

C–960898,

,

.” State v. Alexander, 1st

Dist. Nos. C-110828, C-110829,

. Accord, State v. Frasca, 11th

Dist. 2011-T-0108,

, ¶ 57. Stark County App. Case No. 2012 CA 00054 11

{¶41} The trial court is not required to recite any “magic” or “talismanic” words

when imposing consecutive sentences provided it is “clear from the record that the trial

court engaged in the appropriate analysis.” State v. Nowlin, 5th Dist. No. CT2012–0015,

. An appellate court may only sustain an assignment of error

challenging the imposition of consecutive sentences under R.C. 2929.14 if the appellant

shows that the judgment was clearly and convincingly contrary to law. R.C. 2953.08(G).

{¶42} In the instant case, the court made the following statement from the bench

during sentencing:

{¶43} “THE COURT: All right. The - - unless there’s something further, the court

would - - of course I’ve examined the purposes and principles relative to the - - as far as

the statues are concerned as to the matters that were involved here.

{¶44} “There’s a lengthy record as to criminal activity. And with the strong

likelihood of recidivism in this matter, he has not responded favorable, in the past, to

any matters that he has been involved in, and I have to consider the fact that the

sentence has to take into consideration that the seriousness of the crime - - crimes,

together with the use of the firearm, cannot impose something that’s demeaning to the

seriousness of the conduct involved. And we need - - the public, of course, has to be

protected in this manner also.

{¶45} “Any sentence imposed would be consecutive sentences, would be

consecutive to the prison time or sentence currently being served. And the - - also as a

part of the sentence, there’s a five year period of post-release control that will be part of

the sentence, and it will - - go into the terms of that subsequently.” Tr. 302-303. Stark County App. Case No. 2012 CA 00054 12

{¶46} The court stated that the public needed to be protected, and noted that

appellant had a long record and a strong likelihood of recidivism. The court also noted

the seriousness of the crimes and the use of a firearm. These findings are sufficient to

support consecutive sentences pursuant to R.C. 2929.14(C)(4)(c).

{¶47} The second assignment of error is overruled.

{¶48} The judgment of the Stark County Common Pleas Court is affirmed.

By: Edwards, J.

Delaney, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES Stark County App. Case No. 2012 CA 00054 13

JAE/r0912 [Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : DAVID M. JOHNSON : : Defendant-Appellant : CASE NO. 2012 CA 00054

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs to assessed to

appellant.

_________________________________

_________________________________

_________________________________

JUDGES