[Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY

State of Ohio Court of Appeals No. WM-16-008

Appellee Trial Court No. 16CR000076 v.

William F. Johnson, Jr. DECISION AND JUDGMENT

Appellant Decided: February 9, 2018

*****

Katherine J. Zartman, Williams County Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a July 25, 2016 judgment of the Williams County

Court of Common Pleas, finding appellant guilty following a jury trial on seven counts of

rape, in violation of R.C. 2907.02(A)(1)(b), and sentencing appellant to a mandatory term of life imprisonment. The two victims of these offenses were appellant’s six-year-old

and nine-year-old stepdaughters. For the reasons set forth below, this court affirms the

judgment of the trial court.

{¶ 2} Appellant, William F. Johnson Jr., sets forth the following four assignments

of error:

One: Appellant was denied a fair trial and due process due to the trial

court’s denial of his motion in limine.

Two: Appellant’s convictions were unsupported by sufficient evidence and

were against the manifest weight of the evidence.

Three: Trial counsel rendered ineffective assistance for failing to request

lesser- included offense instructions.

Four: The trial court erred by imposing payment of attorney fees without a

finding of ability to pay.

{¶ 3} The following undisputed facts are relevant to this appeal. This case arises

from the discovery and investigation of appellant’s commission of approximately 70

instances of multiple categories of rape over the course of several years against his six-

year-old and nine-year-old stepdaughters during their periods of visitation at appellant’s

mobile home located in Bryan, Ohio.

{¶ 4} In 2005, appellant married the mother of the older, nine-year old victim

(“J”). J was born to appellant’s wife during a prior marriage. In 2008, the marriage

between appellant and J’s mother ended in divorce. Appellant was subsequently

incarcerated following an unrelated felony conviction.

2. {¶ 5} In 2011, appellant was released from prison. Following appellant’s release

from incarceration, appellant’s ex-wife began permitting visitation between appellant, the

two children born during their marriage, and J.

{¶ 6} In October 2011, appellant’s ex-wife acquired a mobile home for appellant

to reside in located in Bryan, Ohio. Appellant’s two daughters, born while he was

married to his ex-wife, as well as J, went to appellant’s mobile home on weekends and

several times during the week for visitation with appellant.

{¶ 7} In May 2012, J began to exhibit new, highly concerning behavior. J was

often extremely agitated, bullied other children, began to do very poorly in school, and

began to defecate in corners of the family home, rather than in the bathroom.

{¶ 8} Given the onset of these behaviors, appellant’s ex-wife placed J in therapy.

J subsequently refused to continue in visitation with appellant. Ultimately, J disclosed

that appellant had committed acts of rape against her and would entice her by exchanging

candy, cookies, and money, with the girl prior to committing the sexual offenses against

her.

{¶ 9} In June 2014, appellant began a relationship with a new woman.

Appellant’s new girlfriend eventually moved into appellant’s mobile home along with her

three minor children from a prior relationship. One of these three children is the younger,

six-year-old victim (“K”).

{¶ 10} Notably, shortly after appellant’s new girlfriend moved into his home with

her six-year-old daughter, appellant downloaded on his smart phone information such as

3. the statute of limitations chart for sexual offense crimes, the felony sentencing tables for

the state of Ohio, and a PDF download describing the warning signs of sexual

misconduct.

{¶ 11} On April 12, 2015, less than a year after moving into appellant’s home,

appellant’s girlfriend walked into the doorway of K’s bedroom and discovered appellant

pinning the victim down to her bed while having his right hand inserted into her pants up

to his wrist. The girlfriend screamed at appellant, appellant then denied what had just

been plainly witnessed, after which the victim then yelled to her mother that appellant

was lying and had committed the action.

{¶ 12} Appellant’s girlfriend next examined her daughter and observed red

markings around her nipple area. Appellant then conceded that he had placed his hand

inside the girl’s pants and was “rubbing her pubic bone.” However, when the police

arrived shortly thereafter, appellant immediately conveyed to them, “I ain’t saying a

fucking thing.”

{¶ 13} During a videotaped interview with the investigating detectives, appellant’s

version of events evolved once again. Appellant now attributed blame upon the victim,

maintaining that he had his hands all over the victim because she had been having a

tantrum. Appellant ended cooperation with the investigators. The interview ceased.

{¶ 14} On April 12, 2015, appellant was arrested and charged with the first of the

eight total rape charges ultimately filed against him in connection to these events. On

June 5, 2015, while incarcerated at CCNO, appellant unsuccessfully attempted suicide

utilizing a bed sheet. This event was captured on the prison’s video surveillance system.

4. {¶ 15} The record reflects that during appellant’s incarceration at CCNO while

awaiting trial, appellant engaged in literally hundreds of phone calls to various persons.

Significantly, during portions of these recorded phone calls made from prison, appellant

apologized to K for his actions. In addition, appellant told countless incongruous

versions of events, depending upon the audience. During one particularly candid moment

during a conversation with K’s mother, appellant confessed and referred to himself as a

monster.

{¶ 16} During subsequent phone calls with K’s mother, appellant now

unpersuasively suggested that he had done what he had done to punish K in order to get

her to listen and obey. Shortly thereafter, appellant yet again changed course and

unequivocally exclaimed, “I did it * * * [T]here’s no way you can possibly forgive me, I

broke something deep inside me, I broke our wedding vows, I hate myself, I’m supposed

to be her guardian and I failed, I have so much guilt.”

{¶ 17} In subsequent telephone conversations, appellant unconvincingly again

attempted to attribute blame for these events upon the victim, claiming that the victim

had put Barbie doll parts inside her pants and appellant was simply inside the young

girl’s pants trying to retrieve pieces of her dolls. Appellant subsequently admitted in

another recorded conversation that he had been lying when he relayed the fabricated

Barbie doll parts story.

{¶ 18} During the investigation, BCI investigators recovered male amylase from

inside K’s underwear. Although the amount of DNA recovered was inadequate to

5. conduct a full comparison to appellant’s DNA, the DNA recovered from inside the

victim’s underwear did not exclude appellant.

{¶ 19} The sexual assault nurse examiner (“SANE”) who examined the victim

after these events observed redness, tenderness, and abrasions on the victim’s labia. In

addition, the SANE nurse confirmed that blunt force trauma injuries had occurred to the

victim’s labia and hymen.

{¶ 20} At trial, expert witness Dr. Randall Schlievert consistently testified that K

had suffered acute, penetrating internal injuries to her vagina that could have only been

caused by direct penetrating trauma consistent with the victim having suffered from

sexual assault such as rape.

{¶ 21} The older victim, J, gave extensive, direct testimony at trial. J testified that

appellant would touch her vagina with his hands, mouth, and penis. J further elaborated

that appellant would painfully rub her vagina with his hands, would lick her vagina with

his mouth, and would push his penis inside her vagina which was very painful. She gave

detailed testimony describing the various criminal sexual acts which appellant compelled

her to perform upon him. J confirmed that all of the sexual offenses occurred during

visitation at appellant’s mobile home.

{¶ 22} J testified that these criminal sexual offenses occurred, “[T]oo many times

to count.” In addition, J conveyed that appellant directly threatened her to never reveal

these events to anyone. Appellant would hold his fist up to her face while telling her that

she would be sorry if she disclosed these events.

6. {¶ 23} Dr. Schlievert testified that J’s sudden acting out behaviors, including

defecating in the corners of her home rather than the bathroom, reflected that J had

sustained psychological trauma. Dr. Schlievert testified that J’s medical examination also

revealed physical trauma such as extreme thinning, damage, and scar tissue on her hymen

consistent with tears occurring via penetrating trauma only possible through sexual

contact.

{¶ 24} At the conclusion of the jury trial, appellant was convicted on seven of the

eight rape counts pending against him. A presentence investigation was conducted.

Appellant was subsequently sentenced to a mandatory term of life imprisonment. This

appeal ensued.

{¶ 25} In the first assignment of error, appellant maintains that the trial court

committed prejudicial error and abused its’ discretion in the admission of the non-audio

video footage of appellant’s suicide attempt while incarcerated at CCNO shortly after

being arrested and charged with rape. We do not concur.

{¶ 26} It is well-established that the trial court is vested with broad discretion on

the admission or exclusion of evidence. State v. Jenks,

,

(1991). In conjunction with this, demonstration of an abuse of discretion requires

more than showing a mere error of law or judgment. It requires establishing that the

disputed trial court action was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore,

,

(1983).

7. {¶ 27} As specifically applied in the context of appellant’s first assignment of

error, Ohio courts have routinely held that evidence of a suicide attempt transpiring in the

same timeframe as the offense can properly be admitted into evidence as suggestive of

potential guilt. State v. Tvaroch,

,

, ¶ 18 (11th Dist.).

{¶ 28} In the instant case, the record reflects that appellant attempted suicide

shortly after the initial, underlying rape arrest. The record further reflects that the state

requested, and the court properly instructed the jury that, “You are instructed the

defendant’s suicide attempt alone does not raise a presumption of guilt, but it may tend to

indicate the defendant’s consciousness or awareness of guilt.” This instruction was

communicated to the jury by the trial court immediately prior to the jury’s viewing of the

disputed videotape and also prior to jury deliberations.

{¶ 29} The record further reflects an abundance of separate, compelling evidence

of appellant’s guilt regardless of consideration of the disputed videotape. There was

direct testimony of the younger victim’s mother walking in while the girl was being

sexually assaulted by appellant. There was extensive direct testimony from the older

victim regarding the ongoing acts of oral, digital and penile rape committed by appellant

against her over the course of several years.

{¶ 30} In collaboration with the above evidence, the record further reflects

unequivocal expert testimony demonstrating the extensive direct sexual penetration

trauma injuries sustained by the victims, as well as collaborating testimony from the

treating SANE personnel.

8. {¶ 31} Lastly, the record reflects recorded conversations in which appellant, at

various times, confessed his guilt to these crimes and expressed remorse to one of the

victims and the victim’s mother.

{¶ 32} Given a wealth of evidence in support of appellant’s convictions, even in

the absence of the disputed admission of the videotape, appellant cannot demonstrate

prejudice.

{¶ 33} The record does not reflect the disputed trial court evidentiary decision to

be unreasonable, arbitrary or unconscionable. Wherefore, we find appellant’s first

assignment of error not well-taken.

{¶ 34} In appellant’s second assignment of error, appellant maintains that his

convictions regarding J, the older victim, were not supported by sufficient evidence, and

that his convictions regarding both victims were against the manifest weight of the

evidence. We do not concur.

{¶ 35} It is well-established that when assessing sufficiency of the evidence

claims, an appellate court must consider whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the elements

of the crime proven beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 36} R.C. 2907.02 (A)(1)(b) establishes in relevant part, “[N]o person shall

engage in sexual conduct with another who is not the spouse of the offender * * * [W]hen

the other person is less than 13 years of age, whether or not the offender knows the age of

the other person.”

9. {¶ 37} R.C. 2907.01 defines “sexual conduct” to include, “[V]aginal intercourse

between a male and female; anal intercourse, fellatio, and cunnilingus between persons

regardless of sex * * * Penetration, however slight, is sufficient to complete vaginal or

anal intercourse.”

{¶ 38} The record reflects, as specifically pertaining to appellant’s convictions on

offenses committed against J, the older victim, that the trial court heard extensive,

detailed and compelling direct evidence from the victim. The victim clearly testified in

detail that appellant had committed acts against her when she was under the age of 13

constituting oral intercourse, digital penetration, and vaginal intercourse. The testimony

reflected that these offenses took place over the course of three years, “[T]oo many times

to count.”

{¶ 39} In conjunction with the above evidence, the record further reflects that J’s

mother furnished collaborating testimony, and Dr. Schlievert also furnished extensive

expert testimony regarding the overwhelming medical evidence that J had sustained

extreme hymen damage consistent with penetrating sexual trauma, and had exhibited

behaviors during the same timeframe, such as defecating in the corners of the family

home and no longer using the bathroom, consistent with extreme psychological trauma

such as sexual abuse and rape.

{¶ 40} The record reflects ample evidence from which a rational trier of fact could

have found the essential elements of the crimes committed against J by appellant proven

beyond a reasonable doubt.

10. {¶ 41} Appellant further maintains that all of the underlying convictions against

him involving both victims were against the manifest weight of the evidence. The record

of evidence does not comport with this claim.

{¶ 42} When assessing whether a disputed conviction is against the manifest

weight of the evidence, the appellate court must review the record, weigh the evidence

and all reasonable inferences, consider witness credibility and decide whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way so as to cause a

manifest miscarriage of justice. State v. Prescott,

, 2010-Ohio-

6048,

(6th Dist.).

{¶ 43} In applying this standard to the instant case, we note that the record of

evidence reflects extensive medical expert testimony demonstrating that both victims

sustained penetration sexual trauma injuries consistent with the offenses during the

relevant timeframe. The record further reflects that the mother of K walked in on

appellant assaulting her daughter, interrupted the incident, and gave direct testimony to

the trial court. The record reflects that J furnished extensive, direct testimony

establishing numerous acts of rape perpetrated against her by appellant over the course of

several years.

{¶ 44} In conjunction with the above, the record further reflects that appellant was

recorded during telephone conversations during his CCNO incarceration confessing to

the crimes, apologizing to K, apologizing to K’s mother, and expressing extreme

remorse, referring to himself as a “monster.” The record further reflects that appellant

unsuccessfully attempted suicide shortly after being arrested on these matters.

11. {¶ 45} We find that the record of evidence encompasses ample, compelling

evidence of appellant’s guilt of these offenses. The record is devoid of any evidence that

the jury lost its way in this matter or caused a manifest miscarriage of justice.

{¶ 46} Wherefore, we find that the record of evidence clearly reflects that

appellant’s convictions were supported by sufficient evidence and were not against the

manifest weight of the evidence. We find appellant’s second assignment of error not

well-taken.

{¶ 47} In the third assignment of error, appellant contends that trial counsel was

ineffective by not requesting jury instructions on a lesser included offense with regard to

the charges involving J. We do not concur.

{¶ 48} In order to prevail on a claim of ineffective assistance of counsel, it must be

demonstrated both that trial counsel was deficient in certain respects, and that but for the

deficiencies the outcome of the case would have been different. Strickland v.

Washington,

, 687

,

(1984).

{¶ 49} In support of the third assignment of error, appellant maintains that trial

counsel was ineffective in connection to victim J for declining to request instructions on a

lesser included offense.

{¶ 50} Given our determination above that the record of evidence reflects

sufficient evidence of appellant’s guilt of all convictions against both victims, and that

the convictions were not against the manifest weight of the evidence, appellant cannot

demonstrate that the outcome of this matter would have been different but for the alleged

12. deficiency in requesting lesser included offense instructions in connection to an offense

for which ample, sufficient evidence of guilt of the offense as charged was presented to

the trial court.

{¶ 51} Wherefore, we find appellant’s third assignment of error not well-taken.

{¶ 52} In appellant’s fourth assignment of error, appellant contends that the trial

court erred in imposing the cost of attorney’s fees against appellant. We do not concur.

{¶ 53} R.C. 2941.51(D) establishes that, “[I]f the person represented has, or

reasonably may be expected to have, the means to meet some part of the cost of the

services rendered to the person, the person shall pay the county an amount that the person

reasonably can be expected to pay.”

{¶ 54} This court has consistently held that the imposition of costs of counsel

requires the trial court to consider appellant’s ability to pay. Although a separate hearing

is not required, the imposition of the costs must be supported by clear and convincing

evidence. State v. Maloy, 6th Dist. Lucas No. L-10-1350,

, ¶ 14.

{¶ 55} As applied to the instant case, the record of evidence reflects, and the

presentence investigation report confirms, that appellant was 41 years of age at the time

of sentencing, possessed a GED, was not suffering from any significant physical health

ailments, possessed a valid driver’s license, and was receiving monthly social security

benefit payments.

{¶ 56} Given these facts and circumstances, the record reflects clear and

convincing evidence in support of the disputed ruling that appellant exhibited an ability

to pay fees for counsel. We find appellant’s fourth assignment of error not well-taken.

13. {¶ 57} Based upon the foregoing, we find that substantial justice has been done in

this matter. The judgment of the Williams County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, P. J. JUDGE CONCUR. _______________________________ JUDGE

14.