[Cite as State v. Johnston, 2016-Ohio-4553.]




                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                     No. 15AP-512
v.                                               :                (C.P.C. No. 13CR-6756)

Lonnie Johnston, II,                             :            (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                           D E C I S I O N

                                      Rendered on June 23, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee.

                 On brief: Clark Law Office and Toki M. Clark, for
                 appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Lonnie Johnston, II, appeals a judgment of the
Franklin County Court of Common Pleas which sentenced him to serve ten years in prison
based on a jury verdict by which he was found guilty of aggravated robbery and felonious
assault and on a bench verdict that followed finding him guilty of having a weapon while
under disability. He argues that the trial court erred in ordering him to serve consecutive
sentences for firearm specifications related to the aggravated robbery and felonious
assault counts and in permitting the introduction of a photo array identification during
trial. He also argues that his convictions are against the manifest weight of the evidence
and not supported by legally sufficient evidence. Because we find each of Johnston's
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No. 15AP-512
assignments of error fall short, we overrule all of them and affirm the judgment of the trial
court.
I. FACTS AND PROCEDURAL POSTURE
         {¶ 2} On December 27, 2013, a Franklin County Grand Jury indicted Johnston for
aggravated robbery, felonious assault, and possessing a weapon while under disability.
Both the aggravated robbery and felonious assault counts included specifications for
possession and use of a firearm.       Johnston pled "not guilty" on December 31, 2013.
(Dec. 31, 2013 Plea Form.)
         {¶ 3} On March 24, 2015, Johnston waived his right to a jury trial on only the
weapon under disability charge. Shortly thereafter, on April 13, 2015, the trial began. At
trial six witnesses testified: Cortez Harris (the victim), Robert Kamara (a fact witness),
Corporal Michael Weiner (lead detective on the case), Detective James Plumb (assisting
detective on the case), a Columbus Police Department patrol officer, and the landlord of
the property where the events took place.
         {¶ 4} Both Harris and Kamara testified that they had been spending time together
on November 20, 2013, driving around and smoking some marijuana. Near in time to
6:00 p.m., Harris received a call from Johnston, a friend whom he had known for two or
three years and regarded as a little brother, asking to meet up. With Harris at the wheel,
Harris and Kamara drove to a residence at 2230 Aberdeen Avenue where Harris had met
with Johnston on other occasions.
         {¶ 5} Harris and Kamara differed about the exact sequence of events at this point.
Harris testified, for example, that after they pulled into the driveway at 2230 Aberdeen
Avenue, Johnston got in the car with them for a moment before returning to the house
saying he forgot something. Kamara remembered no such incident. However, both
Harris's and Kamara's testimony establish that, at some point, Johnston and another man
(who has never been identified) got into the back seat of Harris's car. Johnston sat behind
Harris (the driver) and toward the middle of the car. The other man sat behind Kamara.
         {¶ 6} Harris testified that as the four sat talking in the driveway of 2230 Aberdeen
Avenue, he began to feel that something was wrong about the situation. At this point,
according to Harris, Johnston pulled out a gun and said, "Cuz, this is a robbery." (Apr. 13,
2015 Tr. Vol. 1 at 54.) Harris testified that Kamara ran but that he, Harris, reached
toward the back seat to try to take away the gun. However, Johnston yanked the gun back
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No. 15AP-512
and fired.   Harris testified that when the shot hit him he lost feeling in his lower
extremities and felt like he was floating on air, not sitting on anything. The bullet, as it
turned out, had entered Harris's back and lodged against his spine, causing permanent
paralysis.
       {¶ 7} Harris explained that after shooting him in the back, Johnston and the
other man got out of the car and went to the front passenger door which Kamara had left
open when he escaped. They reached in and dragged Harris's paralyzed body across the
passenger seat leaving bloody stains on both seats. Harris testified that he got a good look
at Johnston and the other man when they were in the car and the dome light was
illuminated, as well as later when he lay on the ground paralyzed, and the two robbers
went through his pockets and attempted to remove his jewelry. The two men were in the
process of attempting to remove Harris's earrings when the approaching sound of sirens
caused them to flee.
       {¶ 8} Kamara's testimony was similar to that offered by Harris, except that
Kamara, who was using Instagram on his cell phone when the robbery began, and who
fled just as the shot was fired, never clearly saw which person had the gun, Johnston or
the unidentified second man. After Kamara fled, he watched for a few moments to see if
Harris was still living. However, he soon ran in search of help and borrowed the cell
phone of a passerby in order to telephone the police.
       {¶ 9} Corporal Weiner testified that when he arrived at the scene, he interviewed
Kamara, who gave him the name of the shooter as "Lonnie." (Apr. 15, 2015 Tr. Vol. 2 at
169.) After speaking with Mifflin Township officers who were present at the scene (which
was within Mifflin Township), Weiner developed a hypothesis that "Lonnie" referred to
Lonnie Johnston, II. He, therefore, obtained a photograph of Johnston and prepared a
six-photograph array. He delivered the photo array to Detective Plumb who was unaware
that Johnston had been identified as a suspect.
       {¶ 10} Detective Plumb testified that at the time he showed the photo arrays
prepared by Corporal Weiner to Kamara and Harris, he did not know Johnston's name or
what he looked like. Detective Plumb also testified that he read the line-up instructions
off the card to the witnesses. He showed the photo line-up first to Kamara shortly before
9:00 p.m., and Kamara identified Johnston as one of the robbers. He then showed it to
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No. 15AP-512
Harris who also identified Johnston.           Both Kamara and Harris repeated their
identification of Johnston in court.
       {¶ 11} Shortly after 5:00 p.m. on the final day of trial, the jury retired to deliberate.
The following morning, at 11:33 a.m., the jury announced a verdict of "guilty" on all
counts and specifications that had been submitted to it. (Apr. 15, 2015 Tr. Vol. 2 at 366-
69.) Following the announcement of the jury's verdict, the trial court, based on the
evidence it heard during the trial and stipulations to Johnston's prior record, additionally
found Johnston guilty of possessing a weapon while under disability.
       {¶ 12} On April 20, 2015, the trial court held a sentencing hearing. The defense
conceded that the Ohio Revised Code permitted and might even have required that
Johnston serve the weapon specifications consecutively, but the defense argued that the
aggravated robbery and felonious assault counts should merge. The trial court ultimately
did not merge any counts. It sentenced Johnston to serve two years for the aggravated
robbery, four years for the felonious assault, three years for possessing a weapon while
under disability, and three years for each of the two weapon specifications. The trial court
permitted Johnston to serve each of the sentences on the three counts concurrently with
each other but ordered Johnston to serve each of the two weapon specification
enhancements consecutively to each other and consecutively to the other sentences in the
case. Thus, the total prison term imposed was ten years.
       {¶ 13} Johnston now timely appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 14} Johnston asserts three alleged errors for our review:
               [1.] THE VERDICT OF GUILTY IS NOT SUPPORTED BY
               LEGALLY SUFFICIENT EVIDENCE AND IS AGAINST THE
               MANIFEST WEIGHT OF EVIDENCE.

               [2.] THE TRIAL COURT ERRED BY IMPOSING
               CONSECUTIVE SENTENCES PURSUANT TO R.C.
               §§2929.14.

               [3.] A TRIAL COURT COMMITS REVERSIBLE ERROR BY
               ALLOWING      TESTIMONY   ON    PHOTO    ARRAY
               IDENTIFICATION, WHEN THAT PHOTO ARRAY WAS NOT
               CONDUCTED BY A BLIND ADMINISTRATOR.
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No. 15AP-512
III. DISCUSSION
   A. First Assignment of Error–Sufficiency and Weight
       {¶ 15} In his first assignment of error, Johnston alleges that his convictions were
not supported by sufficient evidence and that they were against the manifest weight of the
evidence. The Supreme Court of Ohio has "carefully distinguished the terms 'sufficiency'
and 'weight' * * * declaring that 'manifest weight' and 'legal sufficiency' are 'both
quantitatively and qualitatively different.' " Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph
two of the syllabus.
       {¶ 16} Sufficiency is:
               "a term of art meaning that legal standard which is applied to
               determine whether the case may go to the jury or whether the
               evidence is legally sufficient to support the jury verdict as a
               matter of law." * * * In essence, sufficiency is a test of
               adequacy. Whether the evidence is legally sufficient to sustain
               a verdict is a question of law.
Id. at ¶ 11, quoting Thompkins at 386; Black's Law Dictionary 1433 (6th Ed.1990). "In
reviewing a record for sufficiency, '[t]he 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.
Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus.
       {¶ 17} By contrast:
               Weight of the evidence concerns "the inclination of the
               greater amount of credible evidence, offered in a trial, to
               support one side of the issue rather than the other. It indicates
               clearly to the jury that the party having the burden of proof
               will be entitled to their verdict * * * . Weight is not a question
               of mathematics, but depends on its effect in inducing belief."
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's at 1594. In manifest
weight analysis, "the appellate court sits as a 'thirteenth juror' and disagrees with the
jury's resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v. Fla.,
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
                                                                                           6
No. 15AP-512
miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id.
at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 18} Although manifest weight is a different standard from sufficiency, because
the evidence against Johnston does not come close to failing either measure of sufficiency
or weight, we find it effective to analyze these assignments of error together.
       {¶ 19} In Ohio, the offense of aggravated robbery is defined, in relevant part, as
follows:
               (A) No person, in attempting or committing a theft offense
               * * * shall do any of the following:

               (1) 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;

               ***
               (3) Inflict, or attempt to inflict, serious physical harm on
               another.
R.C. 2911.01(A)(1) and (3). At trial, both Kamara and Harris testified that Johnston told
Harris something to the effect of, "Cuz, this is a robbery." (Apr. 13, 2015 Tr. Vol. 1 at 54;
Apr. 15, 2015 Tr. Vol. 1A at 24.) Harris testified that both Johnston and his accomplice
were trying to steal his jewelry and going through his pockets when the sound of sirens
scared them off. It is undisputed that Harris was shot in the back.
       {¶ 20} Felonious assault is set forth in Ohio by the following prohibition:
               (A) No person shall knowingly do either of the following:

               (1) Cause serious physical harm to another * * * ;

               (2) Cause or attempt to cause physical harm to another * * *
               by means of a deadly weapon * * * .
R.C. 2903.11(A)(1) and (2). Kamara testified that someone in the back seat pulled out a
gun, that Harris fought for it, and that a shot was fired. Harris testified that Johnston
pulled out a gun, that Harris fought for it, and that Johnston pulled the gun back and shot
him. As mentioned, it is undisputed that Harris was shot in the back.
       {¶ 21} Finally, the offense of having a weapon while under a disability is provided
by R.C. 2923.13(A)(2), which provides:
               [N]o person shall knowingly acquire, have, carry, or use any
               firearm or dangerous ordnance, if * * * [t]he person * * * has
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No. 15AP-512
               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.
See also R.C. 2901.01(A)(9)(a). Harris testified that Johnston pulled out a gun, a chrome
revolver, and ultimately shot him with it. The parties stipulated to Johnston's prior
juvenile record.
       {¶ 22} There was sufficient and weighty evidence on every element of each crime
charged. In fact, at the trial, the defense did not even seek to challenge whether the
crimes had taken place in the manner described. Rather, the defense offered at trial was
one of mistaken identity–that Johnston was not the person who committed the offenses.
However, Kamara and Harris both identified Johnston from photo arrays within hours of
the shooting and both repeated that identification in court in the presence of the jury.
Both Kamara and Harris testified that they knew Johnston prior to the shooting on
November 20, 2013. Kamara had met Johnston approximately one a week earlier. Harris
had known Johnston for years, seen him more times than he could estimate, and, prior to
this circumstance, regarded him as a brother. Further, Detective Plumb testified that he
read the instructions for conducting photo arrays verbatim to each witness and that he
was, himself, unaware of Johnston's name or appearance when he administered the photo
line-ups from the arrays Corporal Weiner had prepared.
       {¶ 23} Johnston's first assignment of error is overruled.
   B. Second Assignment of Error–Whether the Trial Court Erred in
      Imposing Consecutive Sentences
       {¶ 24} On the trial court's sentences on the jury's findings on the firearm
specifications (that a firearm was used in the commission of the offenses), R.C.
2929.14(B)(1) provides, in relevant part as follows:
               (a) [I]f an offender who is convicted of or pleads guilty to a
               felony also is convicted of or pleads guilty to a specification of
               the type described in section * * * 2941.145 of the Revised
               Code, the court shall impose on the offender one of the
               following prison terms:

               ***
               (ii) A prison term of three years if the specification is of the
               type described in section 2941.145 of the Revised Code that
               charges the offender with having a firearm on or about the
               offender's person or under the offender's control while
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No. 15AP-512
               committing the offense and displaying the firearm,
               brandishing the firearm, indicating that the offender
               possessed the firearm, or using it to facilitate the offense[.]
       {¶ 25} The same section limits the imposition of consecutive sentences on firearm
specifications as follows:
               Except as provided in division (B)(1)(g) of this section, a court
               shall not impose more than one prison term on an offender
               under division (B)(1)(a) of this section for felonies committed
               as part of the same act or transaction.
R.C. 2929.14(B)(1)(b). However, the section also provides an exception to the limitation,
which reads in relevant part:
               If an offender is convicted of or pleads guilty to two or more
               felonies, if one or more of those felonies are * * * aggravated
               robbery, [or] felonious assault, * * * and if the offender is
               convicted of or pleads guilty to a specification of the type
               described under division (B)(1)(a) of this section in
               connection with two or more of the felonies, the sentencing
               court shall impose on the offender the prison term specified
               under division (B)(1)(a) of this section for each of the two
               most serious specifications of which the offender is convicted
               or to which the offender pleads guilty and, in its discretion,
               also may impose on the offender the prison term specified
               under that division for any or all of the remaining
               specifications.
(Emphasis added.) R.C. 2929.14(B)(1)(g).
       {¶ 26} "In statutory construction, * * * the word 'shall' shall be construed as
mandatory unless there appears a clear and unequivocal legislative intent that [it] receive
a construction other than [its] ordinary usage." Dorrian v. Scioto Conservancy Dist., 27
Ohio St.2d 102 (1971), paragraph one of the syllabus; State v. Schoenberger, 10th Dist.
No. 15AP-451, 2015-Ohio-4870, ¶ 8. Because Johnston was convicted of both aggravated
robbery and felonious assault, each with firearm specifications, whether or not they were
"felonies committed as part of the same act or transaction," the trial court was required by
statute to impose separate and consecutive prison terms for both specifications. State v.
Lee, 10th Dist. No. 14AP-1009, 2016-Ohio-122, ¶ 20-21; State v. Dennison, 10th Dist. No.
12AP-718, 2013-Ohio-5535, ¶ 86-90.
       {¶ 27} Johnston's second assignment of error is overruled.
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No. 15AP-512
   C. Third Assignment of Error–Whether the Trial Court Erred in
      Admitting the Results of the Photo Array Line-up or in Failing to Give a
      Cautionary Instruction to the Jury
       {¶ 28} Johnston argues that the photo array line-up was not conducted by a blind
administrator and that, thus, a cautionary jury instruction was needed.         A " 'blind
administrator' " is defined in the Ohio Revised Code as a line-up administrator who "does
not know the identity of the suspect." R.C. 2933.83(A)(2). Thus, Johnston is essentially
arguing that the person who displayed the photo array to Kamara and Harris should not
have known that he was a suspect. However, the testimony at trial showed that a blind
administrator was indeed used.
       {¶ 29} Corporal Weiner testified that he became aware of the possibility that
Johnston was the shooter based on information provided by Kamara and Mifflin
Township police officers when he arrived at the scene. Based on this he obtained a
photograph of Johnston and prepared a six-photo array. He did not show the array to any
witnesses, however. Instead, he delivered the photo array to Detective Plumb who was
unaware that Johnston had been identified as a suspect.
       {¶ 30} Detective Plumb confirmed that at the time he showed the photo arrays
prepared by Corporal Weiner to Kamara and Harris, he did not know Johnston's name or
what he looked like. Detective Plumb also testified that he read the line-up instructions
off the card to the witnesses, including the admonition that the suspect "may or may not"
be in the photo line-up. (Apr. 15, 2015 Tr. Vol. 2 at 230.) He showed the photo line-up
first to Kamara shortly before 9:00 p.m., and Kamara identified Johnston as one of the
robbers. He then showed it to Harris who also identified Johnston.
       {¶ 31} Johnston argues that, having shown the photo array to Kamara who made
an identification, Detective Plumb was no longer "blind" when he showed it subsequently
to Harris. However a " 'blind administrator' " under the Ohio Revised Code is someone
who "does not know the identity of the suspect." R.C. 2933.83(A)(2). For all Detective
Plumb knew, Kamara could have been mistaken in identifying Johnston. The evidence
does not support a conclusion that Detective Plumb "knew" that Johnston was a suspect
after Kamara selected his photo as matching the identity of the shooter. We find no basis
in the law to require that a single witness's selection from a line-up confers knowledge of
who the suspect is such that the administrator is no longer "blind" within the meaning of
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No. 15AP-512
R.C. 2933.83(A)(2); see State v. George, 2d Dist. No. 24889, 2012-Ohio-3597 (affirming a
judgment of the trial court holding that photo line-ups were not unduly suggestive where
two "blind administrators" each showed the photo arrays to multiple witnesses). The
record does not support a conclusion that the line-up in content or process was suggestive
or unreliable. Further, both witnesses knew Johnston prior to the incident and, therefore,
could have identified him without the photo array; thus, any perceived irregularity would
be harmless.
      {¶ 32} Johnston's third assignment of error is overruled.
IV. CONCLUSION
      {¶ 33} Finding no error on the part of the trial court and that Johnston's conviction
on each count was amply supported by the evidence adduced at trial, we overrule each of
Johnston's assignments of error and affirm the judgment of the Franklin County Court of
Common Pleas.
                                                                     Judgment affirmed.
                      TYACK and LUPER SCHUSTER, JJ., concur.
