State v. Johnston
2014 Ohio 353
Ohio Ct. App.2014Background
- Eric Michael Johnston was indicted for one count of breaking and entering (R.C. 2911.13(A)), a fifth-degree felony, for allegedly removing aluminum gutters, siding, and spouting from a shed on a weekend property.
- He pleaded not guilty, waived a jury trial after consulting with counsel, and elected a bench trial.
- At trial the property owner testified the materials were stored in the shed and later missing; a neighbor testified she saw Johnston removing the materials from the shed, loading them into a truck, and that he told her he had permission.
- The trial court found Johnston guilty after the bench trial and sentenced him to three years community control, fines, restitution, costs, and fees.
- Johnston appealed, asserting (1) insufficient evidence as to the trespass element of breaking-and-entering and (2) ineffective assistance of counsel because defense counsel called him to testify and prior convictions were revealed on cross-examination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for breaking-and-entering (trespass element) | State: testimony showed items were stored in the shed and neighbor saw Johnston removing them from the shed, supporting trespass | Johnston: neighbor didn’t testify she saw him enter the shed and her credibility was inconsistent | Court: Evidence, viewed favorably to State, was sufficient; neighbor’s testimony supported trespass and credibility is for the trier of fact |
| Ineffective assistance for calling defendant to testify | State: tactical decision to let defendant testify; no coercion alleged and no showing of prejudice; judge presumed to consider only proper evidence in a bench trial | Johnston: counsel should not have called him because cross-examination revealed multiple prior theft convictions that could prejudice the court | Court: No Strickland violation—decision to testify is tactical, no coercion alleged, and no affirmative showing the judge improperly relied on prior convictions |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency of evidence review)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance of counsel)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (distinguishing sufficiency of the evidence from weight/credibility issues)
- State v. Colegrove, 140 Ohio App.3d 306 (Ohio Ct. App. 2000) (presumption that a judge in a bench trial considers only relevant, competent evidence)