[Cite as State v. Johnson, 2019-Ohio-4733.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NOS. 2019-A-0013
         - vs -                                  :                  2019-A-0014

 DENNIS RAY JOHNSON a.k.a.                       :
 DENNIS RAY JOHNSON, JR.,
                                                 :
                  Defendant-Appellant.


 Criminal Appeals from the Ashtabula County Court of Common Pleas.
 Case Nos. 2018 CR 00308 & 2018 CR 00309.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047-1092 (For Plaintiff-Appellee).

 Eric D. Hall, P.O. Box 232, Medina, OH 44258 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

       {¶1}       Appellant, Dennis Ray Johnson (a.k.a. Dennis Ray Johnson, Jr.), appeals

from two sentencing entries issued by the Ashtabula County Court of Common Pleas on

January 4, 2019.         Appellant argues his convictions are not supported by sufficient

evidence and are against the manifest weight of the evidence. The convictions are

affirmed.
                                  Procedural History

      {¶2}   On May 16, 2018, in case number 2018 CR 00308, appellant was indicted

on two counts of Felonious Assault (F2) in violation of R.C. 2903.11(A)(2); one count of

Domestic Violence (F3) in violation of R.C. 2919.25(A)&(D)(4); and one count of

Aggravated Menacing (M1), in violation of R.C. 2903.21(A). On June 27, 2018, in case

number 2018 CR 00309, appellant was indicted on one count of Aggravated Possession

of Drugs (F5) in violation of R.C. 2925.11(A)&(C)(1)(a); and one count of Possessing

Criminal Tools (F5) in violation of R.C. 2923.24(A).

      {¶3}   The charges stemmed from the investigation of an assault that allegedly

occurred on or about the morning of April 19, 2018. The victim, a female adult referred

to as J.G. herein, accused appellant of assaulting her at gun and knife point at his home

in Ashtabula, Ohio, where she had spent the night with him. An arrest warrant for

appellant and a search warrant for his home were executed by members of the Ashtabula

Police Department and the Ashtabula Regional SWAT Team. Appellant failed to comply

with several verbal commands to exit the home, which led to the release of chemical

munitions. Appellant eventually exited and was arrested. The following items were

collected from the home as evidence: a digital scale with white powder residue; a glass

plate with drug residue (later found to contain trace amounts of methamphetamine); a

receipt book described as a drug ledger; drug paraphernalia; check weights; 16 white

oblong pills rolled into a bag; a DVR and security cameras; shotgun shells; and seven BB

guns of various makes and models, including a BB revolver with ammunition.




                                            2
      {¶4}   The indictments were joined for trial. The jury returned not guilty verdicts

on both Felonious Assault charges. The jury found appellant guilty of Domestic Violence,

Aggravated Menacing, Aggravated Possession of Drugs, and Possessing Criminal Tools.

      {¶5}   On January 4, 2019, the trial court sentenced appellant as follows: 36

months for Domestic Violence, 6 months for Aggravated Menacing, 12 months for

Aggravated Possession of Drugs, and 12 months for Possessing Criminal Tools. The

sentences were ordered to be served concurrently for a total of 36 months imprisonment.

      {¶6}   Appellant noticed an appeal from each sentencing entry, which have been

consolidated for review. He does not challenge his conviction for Aggravated Menacing.

With regard to the other three convictions, appellant raises two assignments of error:

             [1.] The evidence was insufficient to support the jury’s verdict of guilty
             as to domestic violence, aggravated possession of drugs, and
             possessing criminal tools.

             [2.] Appellant’s convictions as to domestic violence, aggravated
             possession of drugs, and possessing criminal tools were against the
             manifest weight of the evidence.

      {¶7}   We consider appellant’s assignments of error in a consolidated fashion.

Appellant argues the evidence was insufficient to support his convictions for Domestic

Violence, Aggravated Possession of Drugs, and Possessing Criminal Tools. He further

argues his convictions were against the manifest weight of the evidence.

                                  Standards of Review

      {¶8}   When reviewing whether sufficient evidence was presented to sustain a

conviction, “[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. Jenks, 61 Ohio St.3d




                                             3
259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307

(1979). Thus, a claim of insufficient evidence invokes a question of due process, the

resolution of which does not allow for a weighing of the evidence. State v. Habo, 11th

Dist. Portage No. 2012-P-0056, 2013-Ohio-2142, ¶14.

       {¶9}   To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether 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.’” State v. Thompkins, 78 Ohio St.3d 380, 387

(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A judgment of

a trial court should be reversed as being against the manifest weight of the evidence “‘only

in the exceptional case in which the evidence weighs heavily against the conviction.’” Id.,

quoting Martin, supra, at 175.

                                   Domestic Violence

       {¶10} In order to prove appellant committed Domestic Violence, the State had to

prove beyond a reasonable doubt that appellant knowingly caused or attempted to cause

physical harm to a family or household member. R.C. 2919.25(A). The parties stipulated

that appellant had previously pleaded guilty to or was convicted of two or more violations

or offenses of Domestic Violence as set forth in the indictment. R.C. 2919.25(D)(4).

                                  The Victim’s Testimony

       {¶11} J.G. testified that she met appellant in 2008. They had been engaged and

had lived together in the past. Appellant and J.G. dated off and on for several years; they

were dating at the time of the incident in April 2018. Sometimes J.G. stayed with appellant




                                             4
and kept some of her personal belongings at his residence. They intended to live together

again. On April 19, 2018, J.G. went to appellant’s home to clean. They slept in the

bedroom together that night.

       {¶12} Appellant woke J.G. around 1:00 or 2:00 a.m. to say her phone was “going

off.” J.G. told appellant it was his daughter messaging her, which made appellant angry.

Appellant began yelling and demanded that J.G. delete Facebook messenger, which she

refused to do. He threw money at J.G. and asked how much it would cost for her to

perform oral sex. Appellant then began to choke J.G. while she was lying in the bed. He

told her she was going to die a slow death that night and held her down with his knee on

her chest. Appellant then stopped choking J.G., began yelling, and grabbed a knife from

the dresser. Appellant told J.G. he was going to cut her up into pieces and no one would

find her.

       {¶13} Appellant then retrieved a gun from another dresser and told J.G. he was

going to end it all. He removed all of the bullets from the gun except for one, spun the

chamber, put the gun to his head, said “I’m going to end this,” and pulled the trigger.

Appellant repeated this a few more times then got on his knees in front of J.G. and told

her to pick up the gun. When she refused, appellant became angry and pointed the gun

at her face. Appellant pulled the trigger three or four times. J.G. believed she was going

to die. Although it was later determined that the gun was a nonfunctioning “BB gun,” J.G.

believed at the time that it was a real gun.

       {¶14} Appellant struck J.G. with the gun on the top and back of her head multiple

times, causing injury. She thought her head was going to “gash open.” Appellant

threatened to shoot her kneecaps and said he was going to call J.G.’s father to make her




                                               5
beg for mercy. Appellant threw the phone at J.G., hitting her in the face and arm, causing

bruises to her elbow.

       {¶15} Appellant then stopped abruptly and went downstairs. J.G. stayed in the

bed, afraid to move. When appellant returned to the bedroom, he told J.G. he wished

she had called the police so that he could have a “shoot out” with them. Appellant

eventually laid down and fell asleep. J.G. remained in the bed, afraid that if she moved,

he would begin to attack her again. J.G. finally fell asleep.

       {¶16} J.G. awoke the next morning before appellant. As she prepared to leave

the house, appellant asked what she was doing and if she was coming back. J.G. told

him she was going to pick up her daughter from a medical appointment and that she was

coming back. She was afraid to say otherwise. Appellant gave J.G. his keys.

       {¶17} After discussing the night’s events with her daughter, J.G. decided to go to

the hospital. J.G. called the hospital first to say she was coming in, because she was

afraid appellant would find her if she had to wait in the waiting room. When she arrived,

J.G. asked hospital personnel to call the police.      An examination revealed multiple

bruises, bite marks and red marks on her neck, and lumps on the top and back of her

head. She did not have any medical reports from the hospital at trial.

       {¶18} J.G. was transported to the police station where she gave a statement.

While there, appellant attempted to contact her by phone call and text message. J.G.

eventually answered and said that her daughter was in the hospital. Appellant began to

yell that he wanted his keys back, but J.G. said she was not leaving.

       {¶19} After giving her statement, an officer took J.G. to her daughter’s home. She

then picked up her car and went to her father’s house.




                                             6
       {¶20} Appellant later contacted J.G. from a different phone number. Appellant

told her he was in jail because she had lied and that she needed to “straighten that out.”

                                 The Officers’ Testimony

       {¶21} Lieutenant Daniel Gillespie responded to J.G.’s domestic violence report at

the emergency room. He observed red marks around her neck and that she was visibly

upset. J.G. was also complaining of an injury to the back of her head. Lt. Gillespie

photographed her injuries.      J.G. showed the lieutenant her phone, and he took

photographs of the messages from appellant’s daughter that precipitated the assault.

J.G. stated she wanted to pursue charges against appellant, and Lt. Gillespie transported

her to the police station.

       {¶22} Detective Michael Polinkas testified that during J.G.’s interview at the police

station, she appeared fearful and scared from the altercation that occurred the night

before. She was also visibly upset and scared when appellant was repeatedly calling her

phone.    Appellant sounded angry when J.G. answered the phone.              The detective

observed injuries to J.G.’s neck and the messages on her phone from appellant’s

daughter.

       {¶23} Detective Douglas Hollis responded to appellant’s residence, along with

other members of the Ashtabula Regional SWAT Team and the Ashtabula Police

Department, to effectuate the arrest and search warrants.         When appellant did not

respond to the officers’ commands to exit, chemical munitions were projected into the

house. Appellant let his dog out of the house and began taunting the officers, but he still

refused to exit. The officers continued with the chemical munitions until appellant finally

exited and surrendered.




                                             7
       {¶24} Upon searching appellant’s residence, Det. Hollis located a BB gun in the

kitchen. He described the BB gun as a “facsimile firearm,” i.e., “It’s a BB gun but it looked

very, very real.” When the detective first observed the BB gun, he believed it was a real

firearm. He also located a bag of shotgun shells in a kitchen cupboard, although no real

guns were located in appellant’s residence.

       {¶25} Detective Polinkas also participated in the search of appellant’s residence.

A security system DVR was seized from the living room. Multiple BB guns were located

in the home that had the feel, weight, and/or appearance of real guns. One had an

inscription of “Big Honky,” appellant’s nickname. One was located on a dresser in

appellant’s bedroom. The officers never located a CO2 cartridge for the BB guns, which

Det. Polinkas testified is necessary for BB guns to dispel a projectile.

                                  Appellant’s Testimony

       {¶26} Appellant testified that his relationship with J.G. had ended in October 2015,

but they occasionally saw each other after that. A few weeks before the night in question,

they had been seeing each other more frequently and decided to move in together. At

the time, they were also both seeing other people.

       {¶27} Appellant testified that J.G. took him to the emergency room on the evening

of April 18, 2018, where he was treated for kidney stones. He was released around

midnight and left with J.G. He was given pain medication at the hospital, Percocet and

Dilaudid, that made him “pass out.” The couple attempted to have sex, but appellant was

too heavily medicated. J.G. woke him up in the morning to give him a pain pill and made

him breakfast. J.G. told appellant she had to take her daughter to dialysis. When she

left, he “passed out” again. Appellant said he did not give her his keys. When he woke




                                              8
up later that afternoon, he discovered his keys were missing. Appellant began calling

J.G.’s phone in order to locate his keys so that he could make a 4:00 p.m. probation

appointment.

       {¶28} According to appellant, he did not realize the SWAT team was at his

residence until he saw his dog running back and forth. He was listening to music through

headphones and playing video games, so he did not hear their initial command to come

outside. Appellant thought J.G. had come home, but then he realized it was the police.

He did not know why they were there. Appellant stated he tried to surrender, but a gas

cannister came through his front door and shot him in the face, knocking him to the floor.

       {¶29} Appellant also testified about the revolver style BB gun that J.G. accused

him of using during the assault. He stated the BB gun was not functional because he did

not have a CO2 cartridge, which is required to fire the BB gun. He denied everything J.G.

had accused him of—he said he never held the BB gun to his head, pulled the trigger, hit

J.G. in the head with the BB gun or the phone, held a knife to her throat, or choked her.

Instead, he testified that J.G. consented to the activity that left the red marks on her neck,

that she liked being choked and bitten during sex. Appellant stated J.G. made the

accusations because he was seeing another woman and because she did not want

appellant to expose her own infidelity.

         Aggravated Possession of Drugs and Possessing Criminal Tools

       {¶30} In order to prove appellant committed Aggravated Possession of Drugs, the

State had to prove beyond a reasonable doubt that appellant knowingly obtained,

possessed, or used a controlled substance—specifically, a compound, mixture,

preparation, or substance included in schedule I or II, with the exception of marihuana,




                                              9
cocaine, L.S.D., heroin, any fentanyl-related compound, or hashish—or a controlled

substance analog. R.C. 2925.11(A) & (C)(1).

       {¶31} In order to prove appellant Possessed Criminal Tools, the State had to

prove beyond a reasonable doubt that appellant possessed or had under his control any

substance, device, instrument, or article, with purpose to use it criminally.           R.C.

2923.24(A).

                                 The Officers’ Testimony

       {¶32} During the search of appellant’s residence, in the spare bedroom, Detective

Polinkas observed a 100-gram check weight and a glass plate engraved with appellant’s

nickname, “Big Honky.” There was a razor blade and drug residue on the plate, which

BCI later confirmed was methamphetamine. The officers also seized plastic “sandwich

baggies” and a cut straw, which are consistent with the packaging and ingestion of

methamphetamine.

       {¶33} More check weights were discovered in the mud room. The officers also

located a digital scale, the tray of which contained a white powder residue, and a bag

containing 16 white oblong pills. The scale suggested trafficking of narcotics.

       {¶34} Finally, in appellant’s bedroom, the detective observed a metal tin, which

contained a receipt book. The detective testified that, in his experience, the writing in the

receipt book documented prices and amounts of drug activity.

                                  Appellant’s Testimony

       {¶35} Appellant denied possessing methamphetamine. He testified that the items

found with methamphetamine residue did not belong to him and that many items in his




                                             10
home had belonged to his deceased father. He admitted the scale was his, which he

testified can be purchased at a post office.

                                       Conclusion

       {¶36} Upon review of the evidence outlined above, we conclude there was not

only sufficient, but abundant, evidence to support appellant’s convictions of Domestic

Violence, Aggravated Possession of Drugs, and Possessing Criminal Tools.

       {¶37} Further, we do not conclude that the jury lost its way or created a manifest

miscarriage of justice by finding appellant guilty. Appellant asserts J.G. had motive to

fabricate her accusations, was unable to remember details of her hospital encounter, and

gave conflicting testimony. However, the prosecution’s evidence that appellant choked,

beat, and threatened to kill J.G. clearly outweighed appellant’s testimony that she lied to

the police because either she or appellant, or both, were dating other people. And the

evidence that appellant possessed methamphetamine and criminal tools in his residence,

including residue found on a plate with an engraving of appellant’s nickname, outweighed

appellant’s testimony that those items belonged to his deceased father. The convictions

are not against the manifest weight of the evidence.

       {¶38} Appellant’s first and second assignments of error are without merit.

       {¶39} The judgments of the Ashtabula County Court of Common Pleas are

affirmed.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




                                               11
