[Cite as State v. Johnson, 2017-Ohio-2932.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2016-L-103
        - vs -                                   :

BRIAN A. JOHNSON,                                :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2016 CR
000378.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Brian A. Smith, 755 White Pond Drive, Suite 403, Akron, OH 44320 (For Defendant-
Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Brian A. Johnson, appeals his convictions and

sentence for Rape, Aggravated Burglary, and Burglary, following a bench trial in the

Lake County Court of Common Pleas. The issues to be determined by this court are

whether a Rape conviction is supported by the weight of the evidence when the victim

gives conflicting statements about events, including her past relationship with the

defendant, and whether the trial court errs in issuing a sentence when it does not weigh
the victim’s credibility issues and considers the defendant’s past convictions for non-

sexual offenses. For the following reasons, we affirm the judgment of the lower court.

       {¶2}    On May 31, 2016, Johnson was indicted by the Lake County Grand Jury

for Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); Aggravated

Burglary, a felony of the first degree, in violation of R.C. 2911.11(A)(1); Burglary, a

felony of the second degree, in violation of R.C. 2911.12(A)(2); and Robbery, a felony of

the second degree, in violation of R.C. 2911.02(A)(2).

       {¶3}    A bench trial was held on July 25 and 26, 2016. The following testimony

was presented:

       {¶4}    Tina Shaw, a dispatcher with the Wickliffe Police Department, testified that

on March 29, 2016, at around 11:17 p.m., L.L. entered the police department lobby and

stated that she had been sexually assaulted. L.L. looked like she had been crying and

was “scared.”     Shaw contacted the Willoughby Hills Police Department, since the

incident took place in its jurisdiction, and asked officers to come to Wickliffe since L.L.

seemed “too upset to drive.”

       {¶5}    Patrolman Brett Peeples of the Wickliffe Police Department met with L.L.

at the police department and could tell she “had been crying,” was “pretty upset,” and

was “hyperventilating a little bit.”

       {¶6}    Patrolman Randy Mullenax of the City of Willoughby Hills Police

Department met with L.L., and observed that she was “crying very heavily,” “very

excited” and “hysterical.” L.L. stated that Johnson had come over to her house to buy

and smoke marijuana, and had “forced himself on her and he raped her.” Mullenax

noted bruises on L.L.’s leg and arm, which he photographed.




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       {¶7}    Mullenax testified that L.L. initially denied having prior sexual contact with

Johnson.      In a later interview, L.L. indicated that they had past consensual sexual

contact.

       {¶8}    L.L., who was 19 at the time of her testimony, became friends with

Johnson on Facebook and began to meet with him in person in the summer of 2015.

The two sent pictures via social media, including pictures of them smoking marijuana.

L.L. sent Johnson nude pictures because he requested them and she was “proud of

[her] body.” After L.L. received text messages from the mother of Johnson’s child, she

communicated to Johnson that she did not want to have a relationship or sexual activity

with him because she did not want to be a “home wrecker.”

       {¶9}    L.L. testified that she and Johnson had performed consensual oral sex on

each other in the past. The two had also had an “incident” in the winter of 2016 where

Johnson attempted intercourse and afterward L.L. told him she was not comfortable.

She stopped talking to Johnson in February 2016 because she had difficulty

communicating her feelings with him. In March 2016, Johnson made statements to L.L.

via Snapchat about wanting to engage in sexual acts with her. She responded, “I’m

sorry I just feel like I don’t want to do that anymore.”

       {¶10} On the night of March 29, 2016, L.L. agreed that Johnson could come to

her apartment. She testified that she did not want to have sex with him, noting that she

was on her period and in pain. When Johnson arrived around 10:30 p.m., L.L. went to

her bedroom to get a can of marijuana to take into the living room so the two could

smoke. Johnson entered L.L.’s bedroom and she attempted to get him to go to the

living room. Johnson “threw her” on the bed, and grabbed her. He held her down by




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her arms and began to pull down her pajama pants and underwear, which she

repeatedly tried to pull back up. She said, “I’m serious, I’m serious, stop.” She put her

knees up and put her hand “on her vagina and * * * kind of used it as a barricade.”

Johnson eventually was able to insert his penis into her vagina, but lost his erection. He

grabbed her hair and “forced [her] to give him oral for about 15 or 20 seconds” and

again pushed her onto the bed and began having intercourse. She suffered pain during

this incident and had bruises afterward.

       {¶11} Following the assault, L.L. went into the bathroom and Johnson ran out of

the apartment. L.L. noticed that he had taken the can of marijuana and her phone. She

chased him through the parking lot, while wearing just her t-shirt, but was unable to

catch him. She immediately went to the nearest police station.

       {¶12} Regarding the marijuana, L.L. testified that she would occasionally sell it

to friends but often would either smoke it herself or share with friends. At the time of the

attack, she was working full-time and going to school part-time but afterwards had to

quit school and was fired from her job.

       {¶13} On cross-examination, Johnson admitted that during her initial interview

with Mullenax she denied prior sexual contact between her and Johnson, although she

later told Detective Ron Parmertor that she had prior oral sex with Johnson.           She

explained that she believed “sexual contact” meant only intercourse.

       {¶14} Melissa Hickman, a sexual assault nurse examiner at Lake Health, noted

that, when she first encountered L.L., she was “quiet, tearful, [and] physically shaken.”

Hickman collected evidence and noted a bruise on L.L.’s arm. She also collected a

Kotex pad, which L.L. was wearing since she was menstruating.




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       {¶15} Kimberly Gibson, a forensic analyst at the Lake County Crime Laboratory,

tested a vaginal swab since it was indicated L.L. was menstruating and confirmed the

presence of blood on the swab.

       {¶16} Dr. Karen Zavarella, a forensic analyst with the Lake County Crime

Laboratory, testified that the major contributor to the DNA profile from sperm found on

the vaginal and anal swabs was Johnson.

       {¶17} Detective Ron Parmertor of the Willoughby Hills Police Department

investigated this case. Initially, when L.L. was interviewed, she denied prior sexual

contact with Johnson. After investigation, he was able to determine that L.L. had sent

nude photographs through Snapchat and that Johnson had nude photos and videos of

her on his phone.

       {¶18} Parmertor stated that, after reviewing the records, it “was clear that she

was having some type of intimate relationship with Mr. Johnson,” so he discussed with

her different types of sexual activity and explained them. She indicated that she did not

think oral sex was part of “sexual contact” that was discussed during her initial interview.

       {¶19} Prior to closing arguments, the court dismissed the Robbery charge due to

insufficient evidence. At the conclusion of the trial, the court found Johnson guilty of

Rape, Aggravated Burglary, and Burglary as charged in the Indictment. The verdict was

memorialized in an August 18, 2016 Judgment Entry.

       {¶20} A sentencing hearing was held on August 24, 2016. Johnson reiterated

his innocence, expressed his intention to appeal, and requested the minimum possible

sentence. The State asked that the court impose a ten-year sentence. It emphasized

the trauma to the victim and that Johnson took advantage of their friendship.




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      {¶21} The court explained that there was “a divergent recollection of the facts,”

but stated that it had found L.L.’s version of events to be credible. It stated that it had

considered the purposes and principles of sentencing and the R.C. 2929.12 factors, and

noted that there had been a past relationship between the parties. The court found

recidivism to be likely given Johnson’s past felony and misdemeanor convictions. The

court merged the Aggravated Burglary and Burglary convictions into the Rape

conviction and sentenced Johnson to a term of nine years in prison. Johnson was also

classified as a Tier III sex offender. A Judgment Entry of Sentence was filed on August

29, 2016, memorializing the sentence.

      {¶22} Johnson timely appeals and raises the following assignments of error:

      {¶23} “[1.]   Appellant’s convictions were against the manifest weight of the

evidence.

      {¶24} “[2.] Appellant’s sentence was not supported by the record.”

      {¶25} In his first assignment of error, Johnson argues that the convictions were

against the weight of the evidence based on several concerns with L.L.’s credibility and

the conflicting versions of events. He contends that the evidence supports a finding that

the sexual activity was consensual.

      {¶26} Manifest weight of the evidence “addresses the evidence’s effect of

inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541

(1997). “In other words, a reviewing court asks whose evidence is more persuasive--

the state’s or the defendant’s?” Id. An appellate court must consider all the evidence in

the record, the reasonable inferences, the credibility of the witnesses, and whether, “in




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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.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

        {¶27} The primary issue is whether the Rape conviction is supported by the

weight of the evidence since Johnson argues that the Rape was necessary to

demonstrate the elements of inflicting harm and/or committing a criminal act for the

purposes of Aggravated Burglary and Burglary.

        {¶28} For the purposes of Rape, it was necessary to prove that Johnson

“engage[d] in sexual conduct with another when [he] purposely compel[led] the other

person to submit by force or threat of force.” R.C. 2907.02(A)(2). L.L. testified that

Johnson grabbed her hair and forced her to perform oral sex, as well as had sexual

intercourse with her forcibly, although she asked him to stop and attempted to block him

from doing so. Immediately after Johnson left, L.L. went to police and submitted to a

sexual assault exam. The fact that sexual intercourse occurred was supported by DNA

evidence.

        {¶29} Johnson raises several arguments as to why L.L.’s testimony was

inconsistent or lacking credibility. First, he emphasizes that she initially told police she

had not previously had consensual sexual contact with L.L., although she later admitted

that she had.1 This alleged inconsistency, however, was explained at trial by L.L. and

Detective Parmertor. When L.L. was initially questioned about “sexual contact,” she did

not understand that it encompassed oral sex. Parmertor had to explain the different

1. Activities such as vaginal and oral sex are “sexual conduct” for the purposes of sexual offenses under
Revised Code Chapter 2907. R.C. 2907.01(A). “Sexual contact” was the term used by the prosecutor,
Detective Parmertor, and L.L., although they were actually discussing instances of oral sex.


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types of sexual activity to L.L. in a subsequent interview. Regardless, L.L. ultimately did

inform police of her prior sexual activities with Johnson and testified to these at trial,

giving the finder of fact a clear picture of the previous relationship between L.L. and

Johnson. It is necessary to emphasize that, in relation to each of Johnson’s arguments,

“[w]itness credibility rests solely with the finder of fact, and an appellate court is not

permitted to substitute its judgment for that of the fact-finder.” State v. Thompson, 11th

Dist. Portage No. 2015-P-0034, 2016-Ohio-5571, ¶ 20; State v. Awan, 22 Ohio St.3d

120, 123, 489 N.E.2d 277 (1986).

       {¶30} Johnson also points to L.L.’s attempts to “downplay” their prior sexual

activity and the nude photos she had sent him. L.L., at trial, was forthcoming with

testimony about the prior relationship between the parties. Further, regardless of their

prior relationship, it does not follow that she agreed to the sexual activity on the date in

question, which she clearly testified was not consensual.

       {¶31} L.L.’s contention that the sex was not consensual was also supported by

additional evidence and testimony. In Snapchat messages sent before the rape, she

told Johnson, who stated that he wanted to have sex: “I’m sorry I just don’t want to do

that anymore.” She also testified that she did not want to have sexual intercourse on

that night because she was menstruating and in pain, which was supported by the

presence of blood in the swab taken as well as the fact that she had been wearing a

pad when the sexual assault nurse examined her. Her mental state was confirmed by

several individuals who interacted with her just following the attack, and she was

described as “hysterical” and “crying.”




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       {¶32} Johnson contends that the evidence corroborates his “alternate theory of

the case,” that he came to buy drugs, the two had sex, and L.L. claimed she was raped

because Johnson stole her marijuana and phone. The evidence cited includes the fact

that L.L. bought marijuana, sometimes sold marijuana, and that the theft of the

marijuana impacted her financially, with her telling Mullenax that she may not be able to

pay her rent because she “lost everything that [she] had” after this incident.         The

foregoing evidence, however, neither proves nor disproves the ultimate question:

whether the sex was consensual. Again, the fact-finder ultimately determined that L.L.’s

testimony as to this critical issue was truthful.   The fact that L.L. may have had a

motivation to lie does not mean the finder of fact was required to accept Johnson’s

“theory of the case.”

       {¶33} Johnson argues that the physical evidence suggests a consensual

encounter, since there was limited physical injury. The record showed L.L. had a small

cut and a few bruises.      We emphasize that “a physical injury is not a condition

precedent to a conviction for rape; not all rape victims exhibit signs of physical injury.”

State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 46. L.L. did not

testify that Johnson hit her or otherwise tried to injure her in a manner that would have

created evident outward physical injuries.      Further, while L.L. may have expressed

uncertainty or confusion to police about whether she obtained the bruises during the

Rape, this does not mean she was being untruthful.

       {¶34} To the extent that Johnson references his version of events from a

statement discussed during sentencing, this is irrelevant. It is not evidence that was




                                            9
before the court in making a finding of guilt and thus cannot provide “context” for

weighing the evidence.

       {¶35} A review of the record, including L.L.’s testimony, which the trial court was

entitled to find credible, as well as the testimony showing L.L.’s demeanor and acts

following the assault, demonstrates that the Rape conviction was supported by the

manifest weight of the evidence. Given that Johnson argues only that the remaining

convictions were invalid because a rape did not occur, the foregoing analysis applies to

these arguments as well.

       {¶36} The first assignment of error is without merit.

       {¶37} In his second assignment of error, Johnson disputes the trial court’s

weighing of pertinent sentencing factors.

       {¶38} The standard of review for felony sentences is provided by R.C.

2953.08(G)(2).   State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 9-23. “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.”     R.C. 2953.08(G)(2).       “Applying the plain language of R.C.

2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” Marcum at ¶ 1.

       {¶39} As the Supreme Court of Ohio has held, R.C. 2929.12 does not require

judicial fact-finding. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

¶ 42; State v. Macko, 11th Dist. Lake No. 2016-L-022, 2017-Ohio-253, ¶ 75. Under




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R.C. 2929.12(B) and (C), the court must consider factors relating to whether “the

offender’s conduct is more serious than conduct normally constituting the offense,” or

“less serious than conduct normally constituting the offense.”      The court must also

consider factors relating to whether the offender is “likely to commit future crimes.” R.C.

2929.12(D) and (E).

      {¶40} Johnson argues that the trial judge erred in weighing the seriousness

factors by finding none of them to be applicable, since, pursuant to R.C. 2929.12(C)(4),

there were “substantial grounds to mitigate the offender’s conduct, although the grounds

are not enough to constitute a defense.” In making this argument, he contends that

L.L.’s inconsistent testimony and evidence in support of his explanation of the events

creates substantial grounds in mitigation.

      {¶41} Johnson’s arguments that L.L.’s version of events was inaccurate or

inconsistent were necessarily rejected by the trial court. In fact, the court noted at the

sentencing hearing that it found L.L.’s version to be credible. Given that the weight of

the evidence supports Johnson’s conviction, Johnson’s argument would require this

court to hold both that he was properly convicted of committing Rape but also that his

version of the events was accurate, which would amount to a finding that he did not

commit Rape. The trial court had no reason to find mitigating circumstances as to this

issue or that any of the mitigating circumstances under R.C. 2929.12(C) were present.

Further, the lack of physical evidence argued by Johnson here has been addressed

above.

      {¶42} Johnson also argues that, although he had past convictions, his criminal

history included only property and drug-related offenses, not sex offenses.           R.C.




                                             11
2929.12(D)(2) allows the court to consider, as a factor showing the defendant is likely to

commit future crimes, that “the offender has a history of criminal convictions.” It does

not specify that the offenses must be of the same type for which the defendant is

presently convicted, nor does Johnson cite any authority for this proposition. The trial

court properly weighed the criminal history in reaching its sentence, which includes

several prior criminal offenses. It also considered other pertinent factors, including the

impact on the victim. Given these factors, and for the reasons outlined above, we find

no error in sentencing or in the court’s consideration of the R.C. 2929.12 factors.

       {¶43} The second assignment of error is without merit.

       {¶44} For the foregoing reasons, Johnson’s convictions and sentence in the

Lake County Court of Common Pleas are affirmed. Costs to be taxed against appellant.



TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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