[Cite as State v. Johnson, 196 Ohio App.3d 338, 2011-Ohio-2653.]



                                               COURT OF APPEALS
                                            RICHLAND COUNTY, OHIO
                                           FIFTH APPELLATE DISTRICT



THE STATE OF OHIO,                                                  JUDGES:
                                                                    Hon. W. Scott Gwin, P.J.
                    Appellee,                                       Hon. John W. Wise, J.
                                                                    Hon. Julie A. Edwards, J.
v.

JOHNSON,                                                            Case No. 10 CA 98

                    Appellant.                                      OPINION




CHARACTER OF PROCEEDING:                                           Criminal Appeal from the Court of Common
                                                                   Pleas, Case No. 09 CR 935H

JUDGMENT:                                                          Affirmed


DATE OF JUDGMENT ENTRY:                                            May 31, 2011




      James J. Mayer Jr., Richland County Prosecuting Attorney, and Andrew M.
Kvochick, Assistant Prosecuting Attorney, for appellee.

          Patricia O'Donnell Kitzler, for appellant.


          WISE, Judge.

          {¶ 1} Appellant, Nayyohn K. Johnson, appeals his conviction and sentence

entered in the Richland County Court of Common Pleas on one count of tampering with
evidence, one count of tampering with records, and one count of identity theft, following

a jury trial.

           {¶ 2} Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

           {¶ 3} In the early morning hours of September 3, 2009, the Mansfield Police

Department stopped appellant in his Chrysler 300 for having no front license plate and

no illumination on his rear license plate.        Appellant was found to be driving under

suspension and was arrested. A 16-year-old female was a passenger in appellant’s

vehicle. She was found to have consumed alcohol and was returned to her mother.

With no one at the scene to drive the car, it had to be towed. Pursuant to Mansfield

Police Department policies, Sergeant Doug Noblet and Officer Nelson Kilgore

conducted an inventory search of the vehicle. As a result of the search, the officers

discovered what was later determined to be 55.46 grams of powder cocaine in the

sunglasses compartment of appellant's car, near the seat where appellant had been

sitting.

           {¶ 4} After appellant’s arrest, the Richland County prosecuting attorney received

a notarized statement from a person claiming to be Andre Martin and professing to be

the owner of the drugs in question.

           {¶ 5} Upon receipt of the statement, Assistant Prosecuting Attorney Brent

Robinson asked the office investigator, Richard Duffey, to question Andre Martin in

person.

           {¶ 6} On October 22, 2009, appellant personally escorted "Andre Martin" to the

Richland County Prosecutor's Office.
      {¶ 7} In his statement to Duffey, “Andre Martin” stated that he saw the baggie in

question fall out of someone's pocket during an altercation, that he picked it up thinking

it was money, and that he walked for a while before he pulled it out of his pocket and

realized that it was drugs. He stated that he then walked to the home of his friend,

appellant, and asked to borrow appellant’s car. He stated that he drove the car around

but provided no details as to where he went or what he did. Finally, he claimed that he

returned the car to appellant and forgot to take the baggie of drugs that he had placed in

the sunglasses compartment for safekeeping. He advised Duffey that the amount of

cocaine was not "a handful" that he did not really know how many bags there were, that

he did not know how big it was, that he did not know how much it was, and that he did

not know how much it weighed.

      {¶ 8} Another investigator, Cindi Powers, thought that she recognized the man in

the lobby, but could not put a name to the face. Powers checked photographs on the

OHLEG database and established that the man was actually Willie Martin, not Andre

Martin. Powers informed Duffey and Robinson of her findings. They agreed that the

"Andre Martin" who had been in their office did not look like the real Andre Martin. It

was later discovered that the person claiming to be Andre Martin was in fact Willie

Martin, Andre Martin's brother.

      {¶ 9} As a result of the above events, both appellant Nayyohn Johnson and Willie

Martin were indicted by the Richland County Grand Jury.

      {¶ 10} Appellant’s indictment included the following charges:

      {¶ 11} Count One: drug possession in violation of R.C. 2925.11(A);

      {¶ 12} Count Two: obstruction of justice, in violation of R.C. 2921.32(A)(5);
       {¶ 13} Count Three: tampering with evidence, in violation of R.C. 2921.12(A)(2);

       {¶ 14} Count Four: tampering with evidence, in violation of R.C. 2921.12(A)(2),

       {¶ 15} Count Five: tampering with records, in violation of R.C. 2913.42(A)(1);

       {¶ 16} Count Six: identity fraud, in violation of R.C. 2913.49(B)(1).

       {¶ 17} Appellant filed a motion to suppress evidence of the drugs. The trial court

found that the drugs were revealed during a lawful inventory search of appellant's

vehicle.

       {¶ 18} Appellant’s trial commenced on July 12, 2010, and continued on July 13,

July 15, and July 16, 2010.

       {¶ 19} At trial, the state of Ohio presented testimony from Sgt. Doug Noblet,

Officer Nelson Kilgore, and Metrich Officer Perry Wheeler from the Mansfield Police

Department, Anthony Tambasco of the Mansfield Forensic Science Laboratory,

appellant’s former defense counsel, attorney Dale Musilli, investigator Richard Duffey,

investigator Lucinda Powers, Willie Martin, and Willie Martin’s wife, Debbie Martin.

       {¶ 20} At trial, in addition to hearing the testimony of the Mansfield police officers,

investigators and forensic scientist, the jury heard testimony from appellant’s former

defense counsel, Dale Musilli, who testified that appellant had brought Willie Martin to

his office, that Willie Martin presented himself as Andre Martin, and that Martin informed

him that the cocaine found in appellant’s car actually belonged to him. He testified that

based on Martin’s statements to him, he had Martin prepare a written statement. Musilli

explained that he then had his assistant notarize the statement and then he faxed it to

the prosecutor’s office that day.
       {¶ 21} The jury also heard from Willie Martin, who testified that he was not

named or known as Andre Martin and that his "confession" had been false. He testified

that he had made a deal with appellant to have appellant forgive a $1,200 debt he owed

appellant, plus receive an additional $5,000, if he would tell the police that the drugs

found in appellant’s car were his. He explained that the reason he got the details about

the drugs wrong was because he had never actually seen the drugs. He further testified

that he was actually in Indianapolis, Indiana, at the time of appellant’s traffic stop and

that he had been there for months. Willie Martin’s wife Debbie corroborated that he had

been in Indianapolis.

       {¶ 22} Appellant produced five witnesses to attempt to rebut Willie Martin's claim

that he was in Indiana on the day of the car stop. All the defense witnesses were

friends and family of appellant.

       {¶ 23} At the conclusion of the state’s case, the trial court dismissed the

obstruction-of-justice count, finding that appellant could not legally be guilty of

obstructing justice in scheming to cover up something that appellant himself had done.

       {¶ 24} After hearing all the evidence and arguments, the jury found appellant

guilty of one count of tampering with evidence, a felony of the third degree, one count of

tampering with records, a felony of the third degree, and one count of identity fraud, a

felony of the fifth degree.

       {¶ 25} Citing appellant's extensive criminal history, which included seven prior

felony convictions, the trial court sentenced appellant to two years on the tampering-

with-evidence charge and one year concurrent on the counts of tampering with records

and identity theft, for an aggregate sentence of three years in prison.
       {¶ 26} Appellant now appeals to this court, assigning the following errors for

review:

                              ASSIGNMENTS OF ERROR

       {¶ 27} “I. Appellant’s conviction for Counts III, V, and VI are contrary to the

manifest weight and sufficiency of evidence presented at trial, thus denying appellant a

fair trial and due process of law under the Fifth and Fourteenth Amendments to the U.S.

Constitution and under Article 1, Section 16 of the Ohio Constitution.

       {¶ 28} “II. Appellant’s conviction and sentence for both Count III (tampering with

evidence) and Count V (tampering with records) constitute Double Jeopardy as

prohibited by the Fifth Amendment to the U.S. Constitution and Section 10 Article 1 of

the Ohio Constitution.

       {¶ 29} “III. Appellant was deprived of Due Process as guaranteed by the Ohio

and U.S. Constitutions, as a result of ineffective assistance of counsel, or in the

alternative, plain error.”

                                            I

       {¶ 30} In his first assignment of error, appellant claims that his convictions are

against the manifest weight and sufficiency of the evidence. We disagree.

       {¶ 31} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a 13th juror and “ ‘in 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 miscarriage of justice that the conviction must

be reversed and a new trial ordered.’ ” State v. Thompkins (1997), 78 Ohio St.3d 380,
387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717.

       {¶ 32} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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 (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

       {¶ 33} In the instant case, appellant was convicted of aiding or abetting another

in tampering with evidence, aiding or abetting another in tampering with records, and

identity fraud.

       {¶ 34} The elements of tampering with evidence are set forth in R.C. 2921.12,

which provides:

       {¶ 35} “(A) No person, knowing that an official proceeding or investigation is in

progress, or is about to be or likely to be instituted, shall do any of the following:

       {¶ 36} “* * *

       {¶ 37} “(2) Make, present, or use any record, document, or thing, knowing it to be

false and with purpose to mislead a public official who is or may be engaged in such

proceeding or investigation, or with purpose to corrupt the outcome of any such

proceeding or investigation.”

       {¶ 38} The elements of tampering with records are set forth in R.C.

2913.42(A)(1), which provides:
       {¶ 39} “(A) No person, knowing the person has no privilege to do so, and with

purpose to defraud or knowing that the person is facilitating a fraud, shall do any of the

following:

       {¶ 40} “(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any

writing, computer software, data, or record.”

       {¶ 41} The elements of identity fraud are set forth in R.C. 2913.49(B)(1), which

provides:

       {¶ 42} “(A) As used in this section, “personal identifying information” includes, but

is not limited to, the following: the name, address, telephone number, driver's license,

driver's license number, commercial driver's license, commercial driver's license

number, state identification card, state identification card number, social security card,

social security number, birth certificate, place of employment, employee identification

number, mother's maiden name, demand deposit account number, savings account

number, money market account number, mutual fund account number, other financial

account number, personal identification number, password, or credit card number of a

living or dead individual.

       {¶ 43} “(B) No person, without the express or implied consent of the other

person, shall use, obtain, or possess any personal identifying information of another

person with intent to do either of the following:

       {¶ 44} “(1) Hold the person out to be the other person.”

       {¶ 45} Based on the testimony of Musilli and Willie Martin, as set forth in detail

above in the recitation of the facts, the jury in this case could have reasonably
concluded that appellant aided and/or abetted Willie Martin in committing the crimes of

tampering with evidence, tampering with records, and identity fraud.

       {¶ 46} Martin’s testimony alone regarding the use of his brother’s identity, the

preparation of the false written statement, and the false information given to the

investigators presented the jury with sufficient evidence to find that appellant had

committed the crimes.

       {¶ 47} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant had committed the crimes of tampering with evidence, tampering with records,

and identity fraud. We hold, therefore, that the state met its burden of production

regarding each element of the crime and, accordingly, there was sufficient evidence to

support appellant's convictions.

       {¶ 48} “A fundamental premise of our criminal trial system is that ‘the jury is the

lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis

added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining

the weight and credibility of witness testimony, therefore, has long been held to be the

‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna

Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891).”

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267, 140

L.Ed.2d 413.

       {¶ 49} Appellant cross-examined the state’s witness and further put on his own

witnesses in an attempt to rebut the state’s case.
       {¶ 50} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d

180.

       {¶ 51} The jury was free to accept or reject any and all of the evidence offered by

appellant and the state and assess the witness's credibility. “ ‘While the jury may take

note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.’ ” State v. Craig (Mar. 23, 2000), Franklin App. No.

99AP739, quoting State v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236.

Indeed, the jurors need not believe all of a witness's testimony, but may instead accept

only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958,

at ¶ 1, citing State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548; State v. Burke,

Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79 Ohio

App.3d 667, 607 N.E.2d 1096. Although the evidence may have been circumstantial,

we note that circumstantial evidence has the same probative value as direct evidence.

State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492.

       {¶ 52} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that appellant was guilty of the crimes

charged in the indictment. The jury heard the witnesses, evaluated the evidence, and

was convinced of appellant's guilt.

       {¶ 53} We conclude that the trier of fact, in resolving the conflicts in the evidence,

did not create a manifest injustice requiring a new trial.
       {¶ 54} Based on the foregoing, appellant's first assignment of error is not well

taken, and is hereby overruled.

                                            II

       {¶ 55} In his second assignment of error, appellant argues that tampering with

evidence and tampering with records are allied offenses of similar import and that his

convictions on both constitutes double jeopardy. We disagree.

       {¶ 56} R.C. 2941.25 defines allied offenses of similar import as follows:

       {¶ 57} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

       {¶ 58} “(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

       {¶ 59} Recently, the Ohio Supreme Court addressed the issue raised herein in

State v. Johnson, 2010–Ohio–6314, holding as follows:

       {¶ 60} “Under R.C. 2941.25, the court must determine prior to sentencing

whether the offenses were committed by the same conduct. Thus, the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger.

       {¶ 61} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and
commit the other with the same conduct, not whether it is possible to commit one

without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) (‘It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses.’ [Emphasis sic] ).          If the offenses

correspond to such a degree that the conduct of the defendant constituting commission

of one offense constitutes commission of the other, then the offenses are of similar

import.

      {¶ 62} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 2008–

Ohio–4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

      {¶ 63} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

      {¶ 64} “Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R .C. 2941.25(B), the offenses will not merge.”

      {¶ 65} Based upon the test set forth in Johnson, we do not find tampering with

evidence and tampering with records to be allied offenses of similar import. We find

that while both offenses could be committed simultaneously, in this case, there was a

separate animus for each distinct act committed: the act of informing Musilli that he had
found the person who claimed to be the owner of the drugs and escorting that person to

Musilli’s office to have him prepare a false statement that was then sent to the

prosecutor’s office; and then later escorting Willie Martin to the prosecutor’s office to

continue the charade and commit another crime by making a false, taped statement, all

the while knowing that Willie Martin was not Andre Martin nor was he the owner of the

drugs.

         {¶ 66} Based on the foregoing, we find that the evidence supports a finding that

the counts of tampering with evidence and tampering with records were committed as

two separate acts, and the court did not err in sentencing appellant to consecutive

sentences. We therefore find that appellant’s double-jeopardy rights were not violated.

         {¶ 67} Based on the foregoing, appellant's second assignment of error is not well

taken, and we hereby overrule it.

                                             III

         {¶ 68} In his third assignment of error, appellant claims that he was denied the

effective assistance of counsel. We disagree.

         {¶ 69} A claim of ineffective assistance of counsel requires a two-pronged

analysis. The first inquiry is whether counsel's performance fell below an objective

standard of reasonable representation involving a substantial violation of any of defense

counsel's essential duties to appellant. The second prong is whether appellant was

prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113

S.Ct. 838, 122 L .Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
         {¶ 70} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any

given case, a strong presumption exists that counsel's conduct fell within the wide range

of reasonable, professional assistance. Id.

         {¶ 71} In order to warrant a reversal, appellant must additionally show he was

prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors

were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable.

Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052. The burden is upon the defendant to

demonstrate that there is a reasonable probability that but for counsel's unprofessional

errors, the result of the proceeding would have been different. Id.; Bradley at paragraph

three of the syllabus. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Strickland; Bradley.

         {¶ 72} Appellant asserts trial counsel was ineffective for failing to raise a double-

jeopardy argument with regard to Counts III and IV and that the failure amounts to plain

error.

         {¶ 73} Having found appellant’s double-jeopardy argument to be without merit,

we do not find that appellant’s defense counsel’s performance was deficient for failing to

raise it.

         {¶ 74} Appellant’s third assignment of error is denied.

         {¶ 75} For the foregoing reasons, the judgment of the Court of Common Pleas,

Richland County, Ohio, is affirmed.
                                  Judgment affirmed.



GWIN, and EDWARDS, JJ., concur.
