[Cite as State v. Johnson, 2017-Ohio-7264.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27279
                                                    :
 v.                                                 :   Trial Court Case No. 2016-CR-119
                                                    :
 JONATHON E. JOHNSON                                :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                            Rendered on the 18th day of August, 2017.

                                               ...........

MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle
NW, Kettering, Ohio 45429
      Attorney for Defendant-Appellant

                                              .............




WELBAUM, J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, Jonathon E. Johnson, appeals from his conviction in

the Montgomery County Court of Common Pleas after the trial court found him guilty of

having weapons under disability with a firearm specification. In support of his appeal,

Johnson contends that there was insufficient evidence presented at his bench trial to

support his conviction. For the reasons outlined below, the judgment of the trial court

will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On January 21, 2016, the Montgomery County Grand Jury returned an

indictment charging Johnson with two counts of felonious assault, one count in violation

of R.C. 2903.11(A)(1) (serious harm), and the other count in violation of R.C.

2903.11(A)(2) (deadly weapon). Both of the felonious assault counts included a three-

year firearm specification and a repeat violent offender specification. Johnson was also

charged with one count of having weapons under disability in violation of R.C.

2923.13(A)(2), which also included a three-year firearm specification.       The charges

stemmed from allegations that Johnson shot his girlfriend, Alexius Laster, in the groin

while she was sitting in the front-passenger seat of his vehicle.

       {¶ 3} After pleading not guilty to the charges, on July 28, 2016, Johnson waived

his right to a jury trial on the weapons under disability charge. Accordingly, the case

proceeded to a jury trial on the two felonious assault charges and a bench trial on the

weapons under disability charge. The jury trial began on August 1, 2016, during which

the State presented testimony from various witnesses including, but not limited to, Laster;
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Laster’s attending physician, Dr. Garietta Falls; Montgomery County Sheriff’s Deputy

Douglas Gearhart; Detective Robert Schumacher; forensic DNA analyst Mary Cicco;

evidence technician David Cole; forensic firearm expert Chris Monturo; and firearm

operability examiner Aaron Davies.

       {¶ 4} Laster, who at all relevant times was Johnson’s girlfriend, testified that during

the early morning hours of January 10, 2016, she and Johnson went to a bar after

attending his cousin’s birthday party. Laster testified that Johnson left her at the bar after

she got mad at him for flirting with the bartender. Since she was stranded at the bar,

Laster testified that she walked to her parents’ house, which was locked. Laster then

walked to a nearby residence where her friend Erica lived.

       {¶ 5} After reaching Erica’s residence, Laster claimed that she sent Johnson a text

message instructing him to get her belongings from his apartment and to drop them off at

Erica’s house. Laster testified that when Johnson arrived at Erica’s house, she entered

the front-passenger side of Johnson’s vehicle in order to retrieve her belongings.

According to Laster, she and Johnson then began to argue inside the vehicle.

       {¶ 6} Throughout her trial testimony, Laster maintained that she never physically

fought with Johnson while they were arguing. Instead, Laster testified that she refused

to get out of Johnson’s vehicle because she wanted him to give her a ride to her sister’s

house, and that Johnson responded by pulling out a gun and firing a shot near her head.

Laster claimed that because she was intoxicated and out of her senses, she stayed inside

the vehicle after the shot was fired and continued to beg Johnson for a ride to her sister’s

house. Thereafter, Laster claimed that Johnson pointed the gun at her groin and shot

her, causing severe, permanent injury to her leg.
                                                                                        -4-


       {¶ 7} At trial, Laster identified Johnson as the shooter and a photograph of the gun

he used during the shooting. Laster testified that Johnson’s gun was a blue .38 revolver.

Laster also testified that she saw Johnson every day during their relationship, and that

Johnson carried a gun “all the time.” Trial Trans. Vol. II (Aug. 2, 2016), p. 251.

       {¶ 8} Deputy Douglas Gearhart testified that on January 10, 2016, he and

Detective Robert Schumacher executed a search warrant for the apartment where

Johnson resided at 2529 West Riverview Road in Dayton, Ohio. While searching the

apartment, Gearhart testified that he discovered a fully loaded blue .38 revolver in a

cabinet located in the apartment’s only bedroom. Gearhart also found a baggie with four

.38 caliber rounds in the living room of the apartment. In addition, Gearhart indicated

that he swabbed bloodstains on the front-passenger seat of Johnson’s vehicle and

submitted the swabs to the Miami Valley Regional Crime Lab for testing.

       {¶ 9} Outside the presence of the jury, Gearhart further testified that two other

firearms were discovered at Johnson’s apartment. Gearhart indicated that he found a

loaded Bryco Arms Model 25 in the bedroom cabinet and that Detective Schumacher

found a loaded Jennings Model J-22 in the living room closet. Gearhart also testified

that he and Detective Schumacher found a variety of ammunition in the living room closet,

including many .9 millimeter rounds, .25 caliber rounds, .22 long caliber rounds, .22 short

caliber rounds, and .40 caliber rounds.

       {¶ 10} Detective Schumacher also testified regarding the search of Johnson’s

apartment and confirmed that he was present when Deputy Gearhart found the blue .38

revolver in the bedroom cabinet. Schumacher further testified that he interviewed Laster

multiple times and received inconsistent statements from her regarding what happened
                                                                                        -5-


on the night in question. However, Schumacher also indicated that on January 12, 2016,

Laster described Johnson’s gun as a small, blue revolver, and that she identified a

photograph of the blue .38 revolver found at Johnson’s apartment as the weapon Johnson

used during the shooting. Schumacher further testified that he was able to confirm that

the vehicle containing bloodstains was registered to Johnson.

       {¶ 11} Forensic DNA analyst Mary Cicco testified that DNA from buccal swabs

taken from Laster matched the DNA from the blood samples collected from the front-

passenger seat of Johnson’s vehicle. Accordingly, Cicco was able to confirm that it was

Laster’s blood inside Johnson’s vehicle.

       {¶ 12} Evidence technician David Cole testified that he removed a bullet fragment

from the interior front-passenger door panel of Johnson’s vehicle. The bullet fragment

was then examined by a forensic firearm tool mark examiner, Chris Monturo, who testified

that the fragment was a .38 caliber bullet. Monturo further testified that the blue .38

revolver found in Johnson’s apartment was operable and in good working condition.

       {¶ 13} Laster’s attending physician, Dr. Garietta Falls, testified that Laster

presented with a gunshot wound to the groin and that her iliac artery was directly

damaged by a bullet.        Falls also testified that Laster appeared intoxicated and

disoriented, as Falls indicated that she had difficulty communicating with Laster and could

not tell if Laster appreciated the severity of her medical condition.

       {¶ 14} After presenting the aforementioned testimony and evidence to the jury, on

August 4, 2016, the State presented additional evidence to the trial court for the bench

trial on the weapons under disability charge. In doing so, the State recalled Detective

Schumacher who testified that Johnson was convicted for aggravated robbery with a
                                                                                          -6-


deadly weapon and a three-year firearm specification in February 2008. Schumacher

also presented the trial court with a certified copy of the termination entry evidencing the

prior felony conviction.

       {¶ 15} Schumacher further testified that the apartment where the three guns were

found was leased to Johnson’s brother, but that Johnson had been residing there for the

past two months while his brother was out of town.           Schumacher also noted that

Johnson’s driver’s license was found on the living room coffee table and that mail

addressed to Johnson was discovered inside the bedroom cabinet where the .38 revolver

was found.

       {¶ 16} The State also called Aaron Davies, a firearm operability tester, to testify at

the bench trial. Davies testified that he tested the Bryco Arms Model 25 and the Jennings

Model J-22 that were discovered in Johnson’s apartment and that both firearms were

operable.

       {¶ 17} At the close of the proceedings, the jury returned a verdict finding Johnson

not guilty of the two felonious assault charges. The trial court, however, found Johnson

guilty of having weapons under disability with a three-year firearm specification. As a

result, on September 12, 2016, the trial court sentenced Johnson to serve a three-year

prison term for having weapons under disability and a three-year prison term for the

firearm specification. The trial court further ordered the prison terms to run consecutively

for an aggregate sentence of six years in prison.

       {¶ 18} Johnson now appeals from his conviction, raising a single assignment of

error for review.
                                                                                          -7-


                                  Assignment of Error

       {¶ 19} Johnson’s sole assignment of error is as follows:

       THE TRIAL COURT’S VERDICT SHOULD BE REVERSED AS THERE

       WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.

       {¶ 20} Under his single assignment of error, Johnson contends that the State failed

to present sufficient evidence at his bench trial to support a conviction for having weapons

under disability with a three-year firearm specification. In crafting his argument, Johnson

implies that the trial court was not permitted to consider relevant evidence that was

presented during the jury trial on his related felonious assault charges. Rather, Johnson

maintains that the trial court was restricted to the evidence presented solely at the bench

trial. We disagree.

       {¶ 21} Contrary to Johnson’s claim otherwise, “where a case is separated and the

same judge presided over both the jury and bench trial, the judge ha[s] the discretion to

consider the evidence from the jury trial in the bench trial.” Whitfield v. Internatl. Truck

& Engine Corp., 755 F.3d 438, 447 (7th Cir.2014), fn. 4, citing Walker v. Loop Fish &

Oyster Co., 211 F.2d 777, 780-781 (5th Cir.1954). Accord eTool Dev., Inc. v. Natl.

Semiconductor Corp., E.D. Texas No. 2:08-CV-196-WCB, 2011 WL 12677158, *1 (Dec.

12, 2011) (“Because the Court will be presiding over the jury trial and conducting the

bench trial, the Court in ruling on the equitable issues before it can consider any evidence

that is offered during the jury trial that the parties wish the Court to treat as part of the

record of the bench trial.”). See e.g., State v. Webb, 10th Dist. Franklin No. 10AP-289,

2010-Ohio-6122 ¶2-10, 37-48 (finding that defendant’s conviction for having weapons

under disability was supported by sufficient evidence under circumstances where the
                                                                                         -8-


defendant chose to have a bench trial on the weapons under disability charge and a jury

trial on his other related charges, and the only testimony presented during the bench trial

concerned the defendant’s prior felony conviction with other relevant evidence being

drawn from the jury trial).

       {¶ 22} If we were to accept Johnson’s argument—that the trial court was only

permitted to consider the evidence presented at the bench trial when ruling on the

weapons under disability charge—the State would have had to recall several witnesses

at the bench trial to elicit duplicative testimony that the judge had already heard at the

immediately preceding jury trial. Such a practice does not promote judicial economy and

we fail to see how considering the evidence from each proceeding in this case prejudices

Johnson.

       {¶ 23} We now turn to Johnson’s argument challenging the sufficiency of the

evidence.    A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a

matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶ 24} In this case, the trial court found Johnson guilty of having weapons under

disability in violation of R.C. 2923.13(A)(2), which provides as follows:

       (A) Unless relieved from disability under operation of law or legal process,
                                                                                             -9-


       no person shall knowingly acquire, have, carry, or use any firearm or

       dangerous ordnance, if any of the following apply:

       ***

       (2) The person is under indictment for or has been convicted of any felony

       offense of violence or has 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.

       {¶ 25} Johnson does not dispute that he was previously convicted for a felony

offense of violence, as he was convicted of aggravated robbery with a deadly weapon in

February 2008. Rather, Johnson claims the State failed to present sufficient evidence

establishing that he knowingly acquired, had, carried, or used a firearm. We disagree.

       {¶ 26} “A person acts knowingly, regardless of purpose, when the person is aware

that the person’s conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B).

       {¶ 27} The victim, Laster, testified that on the night in question, Johnson shot at

her twice with a blue .38 revolver while she was sitting in the front-passenger seat of his

vehicle and that one of the shots hit her in the groin. Laster noted that she saw Johnson

every day and that he carried a firearm all the time. Laster identified a picture of the blue

.38 revolver in question, which Deputy Gearhart and Detective Schumacher testified was

found fully loaded during a search of the apartment where Johnson resided.

       {¶ 28} In addition to finding the blue .38 revolver, the investigating officers testified

that they found two other firearms and a variety of ammunition at Johnson’s apartment.
                                                                                        -10-


Each of the firearms recovered were tested and found to be operable. The evidence

also establishes that a bullet fragment was extracted from the interior front-passenger

door panel of Johnson’s vehicle and that bloodstains on the front-passenger seat of

Johnson’s vehicle matched Laster’s DNA. The evidence also established that Laster

received medical treatment for a gunshot wound to the groin.

      {¶ 29} Although the jury ultimately found Johnson not guilty of the felonious assault

charges, when the evidence is viewed in the light most favorable to the State, there was

adequate evidence presented for the trial court to find Johnson guilty of having weapons

under disability. Based on Laster’s testimony and the testimony of the investigating

officers and forensic examiners, a rational trier of fact could have found beyond a

reasonable doubt that Johnson knowingly acquired, had, carried, or used a firearm on the

night in question. Specifically, Laster’s testimony that she saw Johnson pull out and

shoot a blue .38 revolver indicates that Johnson was aware of the fact that he had a gun,

which satisfies the “knowing” element that Johnson is challenging.

      {¶ 30} For the three-year firearm specification, the State was required to set forth

evidence establishing that Johnson “had a firearm on or about [his] person or under [his]

control while committing the offense and displayed the firearm, brandished the firearm,

indicated that the offender possessed the firearm, or used it to facilitate the offense.”

R.C. 2941.145(A).

      {¶ 31} As previously discussed, the State presented Laster’s testimony indicating

Johnson had a firearm and shot at her twice, hitting her once in the groin. The State also

presented Detective Schumacher’s testimony that Johnson had a prior conviction for

aggravated robbery with a deadly weapon. From this testimony, when viewed in the light
                                                                                           -11-


most favorable to the State, a rational fact finder could have found that Johnson had a

firearm on his person or under his control and that he displayed, brandished, or used the

firearm while committing the offense of having weapons under disability.

       {¶ 32} For the foregoing reasons, Johnson’s conviction for having weapons under

disability with a three-year firearm specification was supported by sufficient evidence.



                                       Conclusion

       {¶ 33} Johnson’s judgment of conviction is affirmed.

                                     .............



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Alice B. Peters
J. David Turner
Hon. Richard Skelton
