[Cite as State v. Johnson, 2011-Ohio-2142.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 91701




                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 STEVEN JOHNSON
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-509170

        BEFORE:           Rocco, J., S. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: May 5, 2011

                                              -i-
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ATTORNEYS FOR APPELLANT

Robert Tobik
Chief Public Defender

BY:   John T. Martin
      Cullen Sweeney
      Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Thorin O. Freeman
      Daniel T. Van
      Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
                                                  3

KENNETH A. ROCCO, J.:

        {¶ 1} This       case has been remanded to this court for further

determination from the Ohio Supreme Court pursuant to State v. Johnson,

128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347 (“Johnson II”).

        {¶ 2} The underlying facts of this case were set forth previously in

State v. Johnson, Cuyahoga App. No. 91701, 2009-Ohio-3101 (“Johnson I”).1

This court relied on the supreme court’s decision in State v. Clay, 120 Ohio

St.3d    528,    2008-Ohio-6325,            900    N.E.2d       1000,     in   determining          that

defendant-appellant Steven Johnson’s conviction, after a jury found him

guilty of having a weapon while under disability (“HWD”), required reversal

due to structural flaws in the indictment and trial.

        {¶ 3} In     making        the     foregoing      determination,         this    court      was

constrained to follow Clay; it did not anticipate the precedent set in Clay

would be so short-lived. The supreme court, however, rethought its position

in Clay, decided it had been “imprecise,” reversed this court’s determination,

and remanded this case for this court to consider Johnson’s other

assignments of error.2


        1Consequently,   the circumstances that led to Johnson’s conviction need not be restated.

        2This court also relied on State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d
917, and State v. Colon, 119 Ohio St.3d 304, 2008-Ohio-3749, 893 N.E.2d 169. It may now be
stated that Colon is dead (118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917). Long live Colon
                                                 4

          {¶ 4} Johnson’s first three assignments of error 3 take issue with

certain instructions the trial court provided to the jury, and the admission of

certain statements into evidence.

          {¶ 5} Upon a review of the record, Johnson’s other assignments of error

lack merit. Since Johnson II overruled his fourth assignment of error, his

conviction is affirmed.

          {¶ 6} Johnson’s first three assignments of error state:

          {¶ 7} “I.      The trial court erred when it instructed the jury that

it could not find that both the state had proven its prima facie case

and the defendant had proven his affirmative defense and when it

further suggested that the affirmative defense in this case pertained

solely to motive.

          {¶ 8} “II.      The trial court erred when it permitted the jury to

consider the possession of a counterfeit substance as a disabling

conviction.

          {¶ 9} “III.      The trial court plainly erred when it permitted the


(Cuyahoga App. No. 87499, 2006-Ohio-5335).

          3Johnson’s   fourth assignment of error, which the supreme court determined lacked merit,
stated:
        “IV. The trial was structurally flawed because the indictment failed to allege, and the jury
failed to consider, whether the defendant was aware that he had been convicted of a crime that
prevented him from possessing a firearm.”
                                      5

investigating detective to comment on the evidence and on the

defendant’s truthfulness.”

      {¶ 10} Johnson argues in his first assignment of error that the trial

court provided improper jury instructions. He complains that the trial court

misinformed the jury on the relevant burdens of proof in this case, especially

with respect to his affirmative defense.     The record demonstrates defense

counsel acquiesced to the court’s instructions.

      {¶ 11} Crim.R. 30(A) provides in pertinent part:

      {¶ 12} “On appeal, a party may not assign as error the giving or the

failure to give any instructions unless the party objects before the jury retires

to consider its verdict, stating specifically the matter objected to and the

grounds of the objection.”

      {¶ 13} Pursuant to this rule, the failure to object to a jury instruction in

a timely manner generally constitutes a waiver of any claimed error relative

to the instructions. State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d

1364. Under Crim.R. 52(B), however, this court has the power to recognize

plain error or defects involving substantial rights even if they are not brought

to the attention of the trial court. State v. Moreland (1990), 50 Ohio St.3d

58, 62, 552 N.E.2d 894. Johnson asserts plain error occurred.

      {¶ 14} A reviewing court, however, should invoke the plain error
                                      6

doctrine with the utmost caution, under exceptional circumstances, and only

to prevent a miscarriage of justice. State v. Jenks (1991), 61 Ohio St.3d 259,

282, 574 N.E.2d 492; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804,

paragraph three of the syllabus. Thus, plain error does not exist unless, but

for the error, the outcome of the proceeding would have been different. Jenks

at 282; Moreland at 62; Long at paragraph two of the syllabus.

      {¶ 15} Johnson complains that the following instructions constituted

plain error that compromised his right to a fair trial:

      {¶ 16} “All right.   Burden of proof.     Now, you know that anyone

accused of an offense is presumed innocent until proven guilty beyond a

reasonable doubt.     So a defendant must be acquitted unless the State

produced evidence which convinced you beyond a reasonable doubt of every

essential element of the crime charged.”

      {¶ 17} After defining “reasonable doubt” and each of the elements of

HWD, the court explained that “disability” meant “a person who has

previously been convicted of an offense involving the illegal possession, use,

sale, distribution or trafficking in any drug of abuse. (Emphasis added.) ”

      {¶ 18} The court then proceeded:

      {¶ 19} “ * * * [T]here has been a stipulation that Steven Johnson with

counsel on or about the 10th day of August 1994, in Cuyahoga County
                                       7

Common Pleas Court case number 311364 had been convicted of the crime of

drug possession and in violation of R.C. 2925.11. And that on September 4th,

2003 in the Court of Common Pleas, Cuyahoga County case number 434414

had been convicted of the crime of possession of counterfeit controlled

substance in violation of 2925.37.

      {¶ 20} “Now, does everybody understand this charge of having weapon

while under disability? They have to prove on that date, in this county, in

this State, this defendant violated all four elements. * * * .

      {¶ 21} “ * * * So if you find the State proved beyond a reasonable doubt

all the essential elements your duty is to find the defendant guilty.

      {¶ 22} “If you find the State failed to prove beyond a reasonable doubt

any one or more of the essential elements of the crime, then your duty is to

find the defendant not guilty.

      {¶ 23} “Now, there is an affirmative defense claimed here.          The

defendant claims that * * * he acquired the .38 caliber firearm at issue while

disarming [another person]. He denies bringing the gun to the apartment or

having the weapon until he was assaulted and took it from her.

      {¶ 24} “The burden of proving this affirmative defense is on the

defendant. He must establish such a defense by the preponderance of the

evidence.
                                       8

      {¶ 25} “Remember I gave you the burden of proof.      The burden of proof

in all criminal cases is proof beyond a reasonable doubt. * * * And the burden

of proof of the offense always remains with * * * the State of Ohio in a felony

criminal case.

      {¶ 26} “But if someone puts on a defense, an affirmative defense * * *

the level of proof is that they must establish such a defense by, it’s called by a

preponderance of the evidence.        It’s a different standard, it’s a lower

standard than proof beyond a reasonable doubt.

      {¶ 27} “ * * * Consider all the evidence.   In determining whether or not

an affirmative defense has been proved by a preponderance of the evidence,

you should consider all of the evidence bearing upon that affirmative defense

regardless of who produced it.

      {¶ 28} “If the weight of the evidence is equally balanced or if you are

unable to determine which side of an affirmative defense has the

preponderance, then the defendant has not established such a defense.

      {¶ 29} “ * * * Now, if the defendant fails to establish his defense, the

State still must prove to you beyond a reasonable doubt all of the elements

charged. * * *

      {¶ 30} “ * * * If that [affirmative defense] fails, * * * you concentrate on

did the State prove * * * having weapon while under disability. Everybody
                                      9

follow that concept?

      {¶ 31} “But if you find the defense proved the affirmative defense by a

preponderance of the evidence, then you must find the defendant not guilty.

      {¶ 32} “If, however, you find that he knowingly acquired, had, used, a

firearm and was disabled from doing so because of a previous conviction

under 2925.11 or 2925.37 of the Ohio Revised Code, then the defendant failed

to prove by a preponderance of the evidence and you find the defendant failed

to prove by the preponderance of the evidence the affirmative defense, then you

must find the defendant guilty of having a weapon while under disability.

      {¶ 33} “Does everybody follow that? * * * [T]he State has the higher

[burden of proof], and it always remains with the State. But if the defense

wants to put on an affirmative defense, they can do so and * * * they must

prove theirs in order to carry the day on the affirmative defense by a

preponderance of the evidence.

      {¶ 34} “Now, let’s * * * go back to the hypothetical [of a case of robbery],

the affirmative defense [of alibi] fails and let’s say the jury didn’t have the

evidence that the guy [the State] accused was the guy under the mask at the

bank robbery. What does the jury do? Right, not guilty. [The State] still

has the burden of proof.

      {¶ 35} “But [in the hypothetical,] if they find that the State proved he
                                     10

was the guy under the mask, that’s the only issue.            I used the simple

hypothetical on film with ten witnesses, it’s simple * * * .      If [the State]

proves it was him, then you have to find him guilty, right?

      {¶ 36} “But if [the State’s] only evidence is that the alibi failed, then

their case also fails, too, the State’s case also fails. Both can happen [in the

hypothetical]; the alibi can fail and the State’s case can fail.     Everybody

understand? Failure of an affirmative defense does not mean guilty of the

offense. [In the hypothetical,] [t]wo separate burdens of proof, but only one

can be proven. You can’t have both; can’t have the State prove their case [of

identity] and an affirmative defense [of alibi]. [In the hypothetical,] [b]oth

can fail, only one can be proved. One meets the burden, either the State or

the defense. Everybody follow that? All right. (Emphasis added.)”

      {¶ 37} This court must review jury instructions in the context of the

entire charge. State v. Hardy (1971), 28 Ohio St.2d 89, 92, 276 N.E.2d 247.

In Hardy, the court held:

      {¶ 38} “In determining the question of prejudicial error in instructions to

the jury, the charge must be taken as a whole, and the portion that is claimed

to be erroneous or incomplete must be considered in its relation to, and as it

affects and is affected by the other parts of the charge. If from the entire

charge it appears that a correct statement of the law was given in such a
                                      11

manner that the jury could not have been misled, no prejudicial error

results.”

      {¶ 39} Taken as a whole and in context, this court cannot find the trial

court’s instructions amounted to error, plain or otherwise. The trial court

defined each element of the offense the state was required to prove beyond a

reasonable doubt, and instructed the jury that, in this case, the state was

required to prove its case before the jury could consider whether Johnson met

his lower burden of proof on his affirmative defense. The trial court merely

made a comparison to demonstrate a jury’s duty would be different in another

type of case.

      {¶ 40} Therefore, the jury instructions were appropriate, and Johnson’s

first assignment of error is overruled.

      {¶ 41} Johnson next argues that the trial court erred when it allowed

into evidence proof of his previous conviction for possession of counterfeit

drug of abuse. Johnson concedes he stipulated to this prior conviction, but

contends he did so under protest.         At any event, Johnson was accused of

violating R.C. 2923.13, which states in pertinent part:

      {¶ 42} “(A) Unless relieved from disability * * * , no person shall

knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if

any of the following apply:
                                      12

      {¶ 43} “ * * *

      {¶ 44} “(3) The person * * * has been convicted of any offense involving

the illegal possession, use, sale, administration, distribution, or trafficking in

any drug of abuse * * * .” (Emphasis added.)

      {¶ 45} R.C. 2925.01 states in pertinent part:

      {¶ 46} “G) ‘Drug abuse offense’ means any of the following:

      {¶ 47} “(1) A violation of division (A) of section 2913.02 that constitutes

theft of drugs, or a violation of section 2925.02, 2925.03, 2925.04, 2925.041,

2925.05, 2925.06, 2925.11, 2925.12, 2925.13, 2925.22, 2925.23, 2925.24,

2925.31, 2925.32, 2925.36, or 2925.37 of the Revised Code;

      {¶ 48} “(H) ‘Felony drug abuse offense’ means any drug abuse offense

that would constitute a felony under the laws of this state, any other state, or

the United States.” (Emphasis added.)

      {¶ 49} The record reflects Johnson previously had been convicted of a

violation of R.C. 2925.11, and for violation of R.C. 2925.37. The state was

required to prove each element of R.C. 2923.13 in order to secure a conviction

against Johnson in this case. Since, when the statutes are read in context,

both of these offenses are defined in R.C. 2925.01 as felony offenses involving

a drug of abuse as set forth in R.C. 2923.13(A)(3), the trial court committed no

error in allowing Johnson’s stipulations into evidence.       See, e.g., State v.
                                         13

Jones (May 2, 1995), Franklin App. No. 94APA08-1209.

      {¶ 50} Accordingly, Johnson’s second assignment of error also is

overruled.

      {¶ 51} In his third assignment of error, Johnson argues the trial court

improperly permitted the investigating detective to testify about his

experiences with defendants who made voluntary statements.               Johnson

contends the detective made a comment on Johnson’s credibility in violation

of State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220.

      {¶ 52} The record reflects that during cross-examination of the detective,

Johnson asked whether the detective sought to obtain statements close in

time to the incident because they were “usually * * * more reliable.” Johnson

then proceeded by his questions to contrast his own statement with the trial

testimony    the   state’s   witnesses    gave   concerning   the   circumstances

surrounding the incident. Thus, Johnson “opened the door” to the testimony

of which he now complains. State v. Uselton, Ashland App. No. 03COA032,

2004-Ohio-2385, ¶119; cf., State v. Dzelajlija, Cuyahoga App. No. 88805,

2007-Ohio-4050.

      {¶ 53} At the conclusion of his redirect examination of the detective, the

prosecutor asked, without objection, whether the detective remembered

Johnson’s question, and whether the detective had “ever had a defendant lie
                                     14

to [him]?”    Johnson apparently realized the prosecutor’s question was

justified, because Johnson raised no objection.    See, e.g., State v. Essinger,

Hancock App. No. 5-03-15, 2003-Ohio-6000, ¶27; State v. Shafer, Cuyahoga

App. No. 79758, 2002-Ohio-6632, ¶53-55.

      {¶ 54} Consequently, Johnson’s third assignment of error also is

overruled.

      {¶ 55} Johnson’s fourth assignment of error having been rejected by the

Ohio Supreme Court in Johnson II, his conviction is, therefore, affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



______________________________
KENNETH A. ROCCO, JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
