[Cite as State v. Johnson, 2017-Ohio-5498.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 26961
                                                    :
 v.                                                 :   T.C. NO. 15-CR-2353
                                                    :
 KEITH L. JOHNSON                                   :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                Rendered on the ___23rd ___ day of _____June_____, 2017.

                                               ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
      Attorney for Defendant-Appellant

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

FROELICH, J.

        {¶ 1} Keith L. Johnson was found guilty by a jury in the Montgomery County Court

of Common Pleas of one count of kidnapping (Count One), two counts of aggravated

burglary (Counts Two and Three), and three counts of felonious assault (Counts Four,

Five, and Six). Each of the counts included a firearm specification. The trial court
                                                                                          -2-


merged the aggravated burglary counts, two of the felonious assault counts (Counts Four

and Five), and several of the firearm specifications, and it imposed a combination of

consecutive and concurrent mandatory sentences totaling 22 years in prison.

       {¶ 2} Johnson appeals from his convictions. In his initial appellate brief, Johnson

claims that his convictions for aggravated burglary (Counts Two and Three) and one of

the felonious assault charges (Count Six) were based on insufficient evidence and were

against the manifest weight of the evidence. In a supplemental brief, Johnson also

claims that the trial court erred when it failed to merge Counts Five and Six, both of which

charged felonious assault (deadly weapon). For the following reasons, the trial court’s

judgment will be affirmed.

                             I. Factual and Procedural History

       {¶ 3} The State’s evidence at trial established the following facts.

       {¶ 4} Johnson and Cynthia Steen1 have known each other for approximately 28

years, and they have four children together, ranging in age from 6 to 23 years old. They

lived together in Detroit, Michigan, until Cynthia moved with the children to the Dayton

area in 2013.

       {¶ 5} In August 2015, Cynthia lived with three of her children and her brother, Willie

Steen, in a single-family home in Huber Heights. Johnson did not live in the area and he

did not have a key to Cynthia’s residence, but he had previously been to Cynthia’s home

to visit his children. In the afternoon of August 2, 2015, Cynthia was home with her

brother and two minor children.



1
 Because the two complainants, Cynthia Steen and Willie Steen, share the same last
name, we will refer to them by their first names for the sake of clarity.
                                                                                      -3-


      {¶ 6} Shortly before 2:00 p.m. on August 2, 2015, Johnson drove to Cynthia’s

residence; he had not been invited, and neither Cynthia nor Willie was aware that Johnson

was coming. Fred Brock, who lives a couple of houses away, saw Johnson’s vehicle go

to Cynthia’s home, but Brock could not see the driver because the driver was “slumped

down” behind the wheel. Johnson exited his vehicle and went around to the back of

Cynthia’s house.

      {¶ 7} According to Cynthia, she was talking on the telephone in the restroom when

Johnson came through the bathroom door and put a black handgun to her head. When

Cynthia asked Johnson what he was doing, he responded that Cynthia was “going to try

to take [his] kids from [him].” Johnson told Cynthia to get dressed to go out; Cynthia

responded that she was not going anywhere. Johnson then instructed Cynthia to go into

her bedroom (next to the bathroom). Johnson took Cynthia’s phone as she proceeded

out of the bathroom. Upon entering in the bedroom, Johnson put the phone on the

dresser and pushed Cynthia onto the bed. Johnson got on top of her and started choking

her. Johnson also repeatedly hit her in the head with the handgun, causing severe pain.

After the assault, Cynthia had pain in her mouth, the side of her jaw, and her forehead;

her face and jaw were swollen and her lip was “busted.”

      {¶ 8} Willie, who was sleeping in another bedroom, was awakened by a noise and

went down the hall to Cynthia’s bedroom. Upon opening the door, he found Johnson

holding Cynthia down by her throat. Willie testified that he went to push Johnson off of

Cynthia. Johnson turned and fired two shots at Willie, striking Willie in the chest and

throat. Cynthia grabbed the arm with which Johnson was holding the gun, and she told

Willie to go and call 911. Willie left the bedroom, got the home’s cordless phone from
                                                                                          -4-


the living room, and headed outside to call the police. He collapsed near the front door

before he was able to make the call.

       {¶ 9} After Willie had left the bedroom, Cynthia and Johnson struggled over the

gun, while Cynthia told Johnson to give it to her. During the struggle, the gun went off,

shooting Johnson in his lower right abdomen. Johnson let go of the gun and laid on the

bed. Cynthia got up and ran to find her brother. As Cynthia tended to Willie, Johnson

came out the front door, got into his vehicle and drove away. Johnson sought assistance

at a Dayton fire station; Johnson told Firefighter Bernadette Ryan that he and his girlfriend

were arguing over a gun and it accidentally went off.

       {¶ 10} Both Willie and Johnson were transported (separately) to the hospital,

where they were treated for their injuries.

       {¶ 11} On August 21, 2015, Johnson was indicted on seven charges: kidnapping

(Count One); aggravated burglary (deadly weapon) (Count Two); aggravated burglary

(serious physical harm – Willie Steen) (Count Three); felonious assault (serious physical

harm – Willie Steen) (Count Four); felonious assault (deadly weapon – Willie Steen)

(Count Five); felonious assault (deadly weapon – Cynthia Steen) (Count Six); and

possession of a defaced firearm (Count Seven). Counts One through Six each included

a firearm specification.

       {¶ 12} After a jury trial, Johnson was convicted of Counts One through Six and the

accompanying specifications. Johnson was acquitted of Count Seven (possession of a

defaced firearm). As stated above, after merging several counts and specifications, the

trial court imposed a combination of consecutive and concurrent mandatory sentences

totaling 22 years in prison.
                                                                                          -5-


                   II. Sufficiency and Manifest Weight of the Evidence

       {¶ 13} In his initial brief, Johnson claims that his convictions for aggravated

burglary (Counts Two and Three) and for the felonious assault charge related to Cynthia

Steen (Count Six) are based on insufficient evidence and are against the manifest weight

of the evidence.

       {¶ 14} 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.

       {¶ 15} In contrast, an argument based on the weight of the evidence “challenges

the believability of the evidence and asks which of the competing inferences suggested

by the evidence is more believable or persuasive.”        Wilson at ¶ 12; see Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight

of the evidence’ refers to a greater amount of credible evidence and relates to

persuasion”). When evaluating whether a conviction is against the manifest weight of

the evidence, the appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial
                                                                                          -6-

ordered.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

        {¶ 16} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.    State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997).       However, we may determine which of several competing

inferences suggested by the evidence should be preferred.            Id.   The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be

reversed as being against the manifest weight of the evidence only in exceptional

circumstances. Martin at 175.

                                       A. Aggravated Burglary

        {¶ 17} Johnson was convicted of one count of aggravated burglary in violation of

R.C. 2911.11 (A)(1) (Count Three) and one count of aggravated burglary in violation of

R.C. 2911.11(A)(2) (Count Two). The aggravated burglary statute reads, in relevant

part:

        (A) No person, by force, stealth, or deception, shall trespass in an occupied

        structure or in a separately secured or separately occupied portion of an

        occupied structure, when another person other than an accomplice of the

        offender is present, with purpose to commit in the structure or in the

        separately secured or separately occupied portion of the structure any

        criminal offense, if any of the following apply:

        (1) The offender inflicts, or attempts or threatens to inflict physical harm on
                                                                                      -7-


      another;

      (2) The offender has a deadly weapon or dangerous ordnance on or about

      the offender’s person or under the offender's control.

(Emphasis added.) Johnson claims that the State failed to present sufficient evidence

that he entered Cynthia’s residence by stealth or force. (The State did not argue, and

the jury was not instructed on, deception.)

      {¶ 18} The term “stealth” is not defined in the Revised Code, but we and other Ohio

appellate courts have defined it to mean “any secret, sly or clandestine act to avoid

discovery and to gain entrance into or to remain within a residence of another without

permission.” State v. Reeves, 2d Dist. Montgomery No. 16987, 1999 WL 129469 (Mar.

12, 1999), quoting State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168 (3d

Dist.1993), quoting State v. Lane, 50 Ohio App.2d 41, 47, 361 N.E.2d 535 (10th

Dist.1976). See also, e.g., State v. Vidal, 11th Dist. Portage No. 2016-P-0018, 2016-

Ohio-8115, ¶ 28; State v. Belcher, 6th Dist. Lucas Nos. L-13-1250, L-13-1252, 2014-Ohio-

5596, ¶ 33; State v. Stewart, 8th Dist. Cuyahoga No. 86396, 2006-Ohio-1072, ¶ 17.

      {¶ 19} In Reeves, we noted that evidence that a defendant entered through a back

entry secluded from view was sufficient to establish the element of stealth. Reeves at

*6. In State v. Shelly, 9th Dist. Wayne No. 10CA32, 2011-Ohio-4301, the Ninth District

concluded that the State had presented sufficient evidence that the defendant entered

the house by stealth when, after knocking on the front door and receiving no answer, the

defendant entered through the back door, which was not visible from the street. Id. at ¶

13. The Eighth District used similar reasoning in State v. Williams, 8th Dist. Cuyahoga

No. 92668, 2009-Ohio-6826, stating:
                                                                                       -8-


      Although there was no testimony as to how Williams gained entrance to

      [the] house, circumstantial evidence supports the inference he gained

      entrance by stealth. Williams and his co-defendant did not attempt to gain

      entrance via the front or side doors. Instead, the door in the back of the

      house was forced off its hinges.      Although we cannot discern whether

      Williams or his co-defendant forced the door open, there is no question that

      entry was made in the back of the home to prevent detection by neighbors.

      Because circumstantial evidence is given the same weight as direct

      evidence, sufficient evidence was presented that Williams committed the

      burglary with stealth.

Williams at ¶ 12.

      {¶ 20} Here, Johnson drove to Cynthia’s home in the afternoon of August 2.

Although Brock (Cynthia’s neighbor) saw Johnson drive down the street and park in

Cynthia’s driveway, he was unable to get a good look at Johnson as he drove up the

street, because Johnson was “slumped down” in his seat. Upon exiting the vehicle,

Johnson went to the rear of Cynthia’s residence, which was not visible from the street,

where he apparently gained entry to the home; Johnson did not ring the doorbell, knock

on the door, call out, or otherwise make his presence known before entering. Cynthia

testified that she had not invited Johnson to her house and did not know he was coming

and that Johnson did not have a key.        Upon entering the home, Johnson did not

announce his presence until he located Cynthia in the bathroom and pointed a gun at her.

The State’s evidence was sufficient for the jury to reasonably conclude that Johnson

entered Cynthia’s residence by stealth, and we cannot find that the jury lost its way when
                                                                                          -9-


it convicted Johnson of aggravated burglary.

       {¶ 21} In its appellate brief, the State asserts that Johnson trespassed by force by

threatening Cynthia with a gun after entering the house. Even if we did not find that there

was sufficient evidence that Johnson entered Cynthia’s home by stealth, we would find

that there was sufficient evidence that he trespassed by force. “Trespass” is defined in

terms of the following: “No person, without privilege to do so, shall * * * [k]nowingly enter

or remain on the land or premises of another [.]”              (Emphasis added.)        R.C.

2911.21(A)(1); State v. Perry, 2d Dist. Montgomery No. 26421, 2015-Ohio-2181, ¶ 27.

“Force” is defined as “any violence, compulsion, or constraint physically exerted by any

means upon or against a person or thing.” R.C. 2901.01(A)(1). “Force” is satisfied by

“any effort physically exerted.” State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-175,

947 N.E.2d 1281, ¶ 18 (9th Dist.).

       {¶ 22} Cynthia testified that, while she was on the telephone in her bathroom, “the

door opened and he [Johnson] came in and he had a gun. And I was sitting on the

commode and he put the gun to my head.” Based on Cynthia’s testimony, the jury could

have concluded that Johnson used force to trespass in a separately occupied area of the

residence when, without permission, he opened the door to the bathroom and entered.

                             B. Felonious Assault (Count Six)

       {¶ 23} Johnson claims that his conviction for felonious assault related to Cynthia

was based on insufficient evidence and against the manifest weight of the evidence,

because “[n]o evidence was presented to show that Appellant used the gun to bludgeon

her with deadly force or intent, nor was any proof put forth to show that her injuries were

in any way severe or life threatening.” In his supplemental brief, Johnson further claims
                                                                                          -10-


that the gun in this case “was so small that it could not possibly cause death if it were

used to pistol whip a person.”

       {¶ 24} R.C. 2903.11, the felonious assault statute, provides that “[n]o person shall

knowingly do either of the following: * * * (2) Cause or attempt to cause physical harm to

another or to another’s unborn by means of a deadly weapon or dangerous ordnance.”

R.C. 2903.11(A)(2). “Deadly weapon” means “any instrument, device, or thing capable

of inflicting death, and designed or specially adapted for use as a weapon, or possessed,

carried, or used as a weapon.” R.C. 2923.11(A).

       {¶ 25} A firearm that is used as a bludgeon constitutes a deadly weapon. State

v. Jackson, 92 Ohio St.3d 436, 440, 751 N.E.2d 946 (2001). In Jackson, the Ohio

Supreme Court held that testimony that the defendant had struck the victim over the head

with his handgun, causing her to fall to her knees bleeding, was sufficient to establish “the

essential elements of the crime of felonious assault under R.C. 2903.11(A)(2) in that a

firearm used as a bludgeon is ‘capable of inflicting death.’ ” Id., citing State v. Gaines, 46

Ohio St.3d 65, 68, 545 N.E.2d 68 (1989). See also, e.g., State v. Keil, 5th Dist. Richland

No. 16CA28, 2017-Ohio-593, ¶ 33-35 (defendant committed felonious assault when he

hit victim in the head with a handgun, causing a laceration).

       {¶ 26} In addition, contrary to Johnson’s argument, R.C. 2903.11(A)(2) does not

require that the defendant cause severe or life-threatening injuries to the victim. Rather,

R.C. 2903.11(A)(2) requires the State to present evidence of “physical harm.” “Physical

harm to persons” is defined as “any injury, illness, or other physiological impairment,

regardless of its gravity or duration.” R.C. 2901.01(A)(3).

       {¶ 27} Here, the State presented evidence that Johnson pushed Cynthia onto her
                                                                                          -11-


bed and struck her repeatedly in the face with his handgun. Cynthia testified that, on a

scale of one (low) to ten (high), her pain level was a ten as she was being struck by the

gun. She further testified that, after the assault, she had pain in her mouth, the side of

her jaw, and her forehead. She indicated that her face and jaw were swollen and her lip

was “busted” as a result of Johnson’s hitting her. The State introduced photographs

showing Cynthia’s injured face.

       {¶ 28} Officer Robert Hartman, an evidence technician, recovered a Davis

Industries 380 semiautomatic handgun (as well as a .380 caliber bullet and .380 caliber

shell casings) from Cynthia’s residence. We reject Johnson’s assertion that, as a matter

of law, the smaller size of the firearm rendered it incapable of inflicting death if used as a

bludgeon. Moreover, the jury was able to view the weapon and evaluate whether it met

the definition of a deadly weapon.

       {¶ 29} Cynthia’s testimony was sufficient to establish that Johnson committed

felonious assault, in violation of R.C. 2903.11(A)(2), when he repeatedly struck her in the

face with a handgun. Moreover, upon review of the entire record, Johnson’s conviction

for felonious assault (Count Six) was not against the manifest weight of the evidence.

       {¶ 30} Johnson’s first assignment of error is overruled.

                           III. Allied Offense of Similar Import

       {¶ 31} In his supplemental brief, Johnson claims that the trial court erred when it

failed to merge Counts Five and Six, both of which charged felonious assault (deadly

weapon).

       {¶ 32} Ohio’s allied offense statute, R.C. 2941.25, provides that:

       (A) Where the same conduct by defendant can be construed to constitute
                                                                                       -12-


      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.

      (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.

      {¶ 33} “ ‘As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three

questions when defendant’s conduct supports multiple offenses: (1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? An affirmative answer to any of the

above will permit separate convictions. The conduct, the animus, and the import must

all be considered.’ ” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,

¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

      {¶ 34} The Supreme Court further explained:

             At its heart, the allied-offense analysis is dependent upon the facts

      of a case because R.C. 2941.25 focuses on the defendant’s conduct. The

      evidence at trial or during a plea or sentencing hearing will reveal whether

      the offenses have similar import. When a defendant’s conduct victimizes

      more than one person, the harm for each person is separate and distinct,

      and therefore, the defendant can be convicted of multiple counts. Also, a
                                                                                          -13-


       defendant's conduct that constitutes two or more offenses against a single

       victim can support multiple convictions if the harm that results from each

       offense is separate and identifiable from the harm of the other offense. We

       therefore hold that two or more offenses of dissimilar import exist within the

       meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes

       offenses involving separate victims or if the harm that results from each

       offense is separate and identifiable.

Ruff at ¶ 26.

       {¶ 35} In this case, the Counts Five and Six – both felonious assault (deadly

weapon) – involved separate victims. Count Five related to the felonious assault on

Willie, whereas Count Six related to the felonious assault on Cynthia. The harm for each

victim is separate and distinct. Accordingly, the trial court did not err in failing to merge

these offenses as allied offenses of similar import.

       {¶ 36} The supplemental assignment of error is overruled.

                                      IV. Conclusion

       {¶ 37} The trial court’s judgment will be affirmed.

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

HALL, P.J. and TUCKER, J., concur.

Copies mailed to:

Andrew T. French
Jeffrey T. Gramza
Hon. Steven K. Dankof
