State v. JohnsonState v. Johnson
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
* * * * *
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, which sentenced appellant, Alfred Andre Johnson, Sr., to serve an indefinite prison sentence of seven to ten and one-half years after a jury convicted him of robbery. For the reasons set forth below, this court affirms the judgment of the trial court.
- There was insufficient evidence to convict Mr. Johnson.
- Mr. Johnson’s conviction was against the manifest weight of the evidence.
- The court admitted prejudicial evidence which should have been excluded pursuant to
Evid.R. 403(A) regarding testimony concerning a theft at Family Dollar. - Mr. Johnson was denied his Constitutional right to proceed pro se.
I. Background
{¶ 3} This appeal originated from a felony indictment issued on July 1, 2021, by a Lucas County Grand Jury against appellant for robbery, a violation of
{¶ 4} The jury trial commenced on March 8, 2022. The jury heard testimony from seven witnesses, and the trial court admitted 15 exhibits into evidence. Following a three-day trial and deliberations, on March 10, 2022, the jury found appellant guilty of robbery. Sentencing occurred on April 1, 2022, during which the trial court reviewed the 49-year-old appellant’s lengthy criminal history that included five felonies and 15
I did try to get you to address your mental health issues on the two previous cases I had in front of you and you failed to do that. I no longer believe that your criminal conduct is a result of mental health issues. I believe your criminal conduct is a result of you not caring about how your actions affect other people, and while you haven’t done anything horribly violent, you did cross the line when you laid hands on that store clerk who was just doing his job and trying to stop theft from the store, and I believe that you are a danger to the community because of this extensive record. I think you’re just going to continue to steal things and commit crimes when you’re out in public. * * * You’ve shown no remorse, and * * * I have no reason to believe that you are going to change.
{¶ 5} The trial court sentenced appellant to serve an indefinite prison sentence of seven to ten and one-half years. Appellant timely appealed.
{¶ 6} Appellant’s first assignment of error argues appellee failed to meet its burden to produce sufficient evidence to convict him of robbery because “the only eye witness to events could not identify” him. Specifically, appellant argues “he was convicted because he wore clothes commonly sold in the neighborhood that appeared in a video during a theft.” He further argues that no eye witness testified to seeing his face during the incident because the perpetrator wore a face mask. Appellant concludes that his conviction should be reversed because of insufficient identification evidence.
{¶ 7} Appellee responds that the evidence is more than sufficient to permit the jury to find the elements of robbery, including appellant’s identification as the perpetrator, were proven beyond a reasonable doubt. We agree.
{¶ 8} Appellant specifically challenges the sufficiency of the Dollar Tree store assistant manager1 eye witness to identify appellant as the robber. The employee testified at trial that a customer notified him of a person wearing a brown coat shoplifting by placing items in the coat. It was near store closing time on May 28, 2021. Appellant was unknown to the employee. The employee observed the perpetrator’s Carhartt coat, worn in the mild warmth of May, bulging unnaturally, and when confronted, the perpetrator struck the employee in the face and knocked off the employee’s eyeglasses, without which he could not clearly see the perpetrator’s facial features beyond his white face
{¶ 9} At trial the employee witness positively identified appellant’s gender, height, skin color not covered by the face mask, black-white-grey camouflage hat, heavy brown khaki/Carhartt coat, khaki pants, and distinctive dark shoes with red shoestrings as matching the perpetrator. When asked if he was able to see the perpetrator who hit him, the witness responded, “Yes, I was able to see him.” The employee testified the perpetrator wearing the dark-colored shoes with red shoe laces “was the feature that popped the most to me.” In addition, the employee found it was odd the perpetrator wore a heavy, dark-brown coat on May 28, “Because, I mean like I said, the weather was not that cold out, in my opinion.”
{¶ 10} The employee’s descriptions of appellant as the perpetrator were corroborated by the indoor and outdoor store security camera recordings. The sky still had light at the time of the incident. At no time did the perpetrator pay for the items that were hidden in his coat, spilled to the ground, or the items he scooped up before fleeing on his bike. Never before the incident with the perpetrator had the store employee seen anyone enter the store wearing the combination of dark shoes with red shoelaces,
{¶ 11} Additional corroborating evidence was admitted at trial. Two other witnesses testified they personally knew appellant and immediately recognized appellant from a still photo, taken from the store surveillance footage, posted by Toledo Police on its Facebook page, which showed the perpetrator as a black male wearing a brown/tan Carhartt coat, khaki pants, camouflage hat, dark shoes with red laces, and a white face mask. The Toledo Police Facebook photo was admitted into evidence. Each witness also positively identified appellant in the courtroom. The first witness testified that appellant’s camouflage hat was “the one thing that always stood out to me” whenever she saw appellant in person. Although she could not see appellant’s face in the Facebook post because of the face mask, “I recognize what he always wore.” The second witness testified that she paid attention to appellant’s clothing when she routinely saw him in person: “He always had a Carhartt coat on. Camouflage hat.” The second witness testified that she knew appellant was the person in the photo in the Toledo Police Facebook post, “Because that’s the same outfit he wears” when she sees him in person. She continued, “But there’s times he would wear a mask and there’s times he would wouldn’t and I’ll never forget them eyes.” Their descriptions of appellant’s gender, skin color, eyes, camouflage hat, and black shoes with red shoelaces matched the evidence admitted at trial.
{¶ 13} The Toledo police officer who responded to the crime scene testified at trial of the store employee’s injuries. The officer’s body camera footage, which recorded the investigation interviews of witnesses, was admitted into evidence. The officer testified that from his investigation the description of the perpetrator was: “A black male. He was wearing a * * * big, brown coat, had on khaki pants. He had on a camouflage hat and he had black shoes with red shoe strings. And he was wearing a white face mask. * * * [He arrived on] a bike * * * possibly a dark-colored bike.”
{¶ 14} Almost two weeks later, the same Toledo police officer arrested appellant. The officer recognized appellant as matching the perpetrator’s description from the May 28 incident: the witnesses “said it was a black male with a camouflage hat on a red bike.” Following his arrest on June 10, 2021, appellant was booked into the jail wearing the camouflage hat and black shoes with red shoelaces, but with khaki shorts and without a
The test for sufficiency of the evidence 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.” “‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person’s own affairs.” A sufficiency-of-the-evidence challenge asks whether the evidence adduced at trial “is legally sufficient to support the jury verdict as a matter of law.” (Citations omitted.)
State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 57.
{¶ 16} We must determine if any rational trier of fact viewing the evidence at trial, when viewed in a light most favorable to appellee, could have found the essential elements of robbery proven beyond a reasonable doubt. We do from the admitted evidence.
In order to be convicted of robbery,
R.C. 2911.02(A)(2) , the state was required prove that “in attempting or committing a theft offense” appellant inflicted, attempted to inflict, or threatened to inflict physical harm on another. The theft offense element prohibits a “person, with purpose to deprive the owner of property or services,” from knowingly
obtaining or exerting control over either the property or services without the owner’s consent, beyond the scope of the consent, by deception, by threat, or by intimidation.
R.C. 2913.02 .
State v. Gunn, 6th Dist. Lucas No. L-20-1034, 2021-Ohio-2253, ¶ 37.
{¶ 17} We find that sufficient evidence was submitted to the jury such that, after viewing the evidence in a light most favorable to appellee, any rational trier of fact could have found the essential elements of the crime of robbery proven beyond a reasonable doubt: that on May 28, 2021, at a Dollar Tree retail store in Toledo, Lucas County, Ohio, appellant knowingly attempted to commit theft of merchandise from the store and to deprive the owner of the merchandise without the store’s consent, and in the course of doing so inflicted physical harm on the store employee who confronted appellant to stop the robbery.
{¶ 18} Appellant’s first assignment of error is not well-taken.
III. Manifest Weight of the Evidence
{¶ 19} In support of his second assignment of error, appellant argues his convictions should be reversed because appellee used “puffed up circumstantial and irrelevant and prejudicial evidence to convict Mr. Johnson.” Appellant argues his conviction should be reversed because of the lack of credible identification evidence, pointing to the following: (1) lack of direct eye witness identification; (2) the inconsistent witness descriptions of the color of the hat worn by the perpetrator “from grey camo to
{¶ 20} In response, appellee argues the evidence at trial does not heavily weigh against appellant’s conviction. Citing to Gunn, appellee argues appellant “is not entitled to a reversal on manifest weight grounds simply because inconsistent evidence was presented at trial.” Appellee points to the following evidence produced at trial: (1) “two witnesses identified him from still photos”; (2) the Toledo police officer testified that he did not describe the robber’s hat as red and green; (3) the store surveillance footage does not depict a red-green hat; (4) “One could easily conclude that if the coat was noteworthy because it was too heavy for the weather on May 28, it would have [been] even more unreasonable on June 10, when Johnson himself was apparently comfortable riding his bike while shirtless”; (5) despite the inconsistencies between “brown boots” and “black
{¶ 21} “To evaluate a manifest-weight claim, we must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of all the witnesses.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. We must decide if the jury clearly lost its way in resolving conflicts in the evidence to create a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. Id. A manifest-weight claim questions the effect of the evidence in inducing belief of appellant’s guilt by questioning whether the jury could find the inclination of a greater amount of credible evidence was admitted at trial to sustain that decision than not. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The discretionary power to grant a new trial is in the exceptional case in which the evidence weighs heavily against the conviction. Id. The unanimous concurrence of all three judges of a court of appeals panel is required to overturn, on the weight of evidence, a judgment that results from a jury. Id. at 389. Appellant does not meet his burden.
{¶ 22} Appellant specifically challenges the manifest weight of the inconsistent evidence identifying him as the robber. “Every criminal prosecution requires proof that the person accused of the crime is the person who committed the crime. This truism is reflected in the state’s constitutional burden to prove the guilt of ‘the accused’ beyond a reasonable doubt. Like any fact, the state can prove the identity of the accused by
{¶ 23} We find the jury apparently believed the witness’ testimonies, video evidence and physical evidence admitted at trial that identified appellant as the perpetrator of the robbery. This court has repeatedly held that a reversal on manifest weight grounds requires more than mere inconsistency. State v. Giles, 6th Dist. Lucas No. L-20-1076, 2021-Ohio-2865, ¶ 84; State v. Knight, 6th Dist. Erie No. E-21-017, 2022-Ohio-1787, ¶ 32. The jury, as the trier of fact, is in the best position to determine the weight and credibility of the evidence, including inconsistencies, along with witness manner and demeanor, and is in the sole position to believe or disbelieve all or any of the testimony presented at trial. Gunn at ¶ 41. The factual inconsistencies highlighted by appellant do not rise to the level that mandates reversal on manifest weight grounds. Appellant’s argument that the evidence produced at trial was not “specific” to him is unpersuasive because of the overwhelming weight of credible evidence admitted to induce the jury’s belief of appellant’s guilt. Reasonable explanations were provided at trial by witnesses regarding the inconsistencies in color with the perpetrator’s clothing.
{¶ 24} Despite one witness’ description of appellant’s shoes as “tan boots,” she positively identified the half-zipped “tan” Carhartt coat and footwear with red shoelaces worn by the perpetrator in the Toledo Police Facebook photo as being the same as what she knew appellant routinely wore as “boots.” She further testified about her opinion of
{¶ 25} Although another witness described appellant’s camouflage hat as “[g]reen and like a grayish-green in the middle,” she positively identified the hat that was admitted into evidence at trial as being those colors in her opinion.
{¶ 26} The police sergeant testified that while he placed in the search warrant the camouflage hat’s description as a red-green color combination, he took that color information from another police detective’s report. The sergeant testified, “I don’t know how [the report] came to saying red and green. I wasn’t sure if there was something I was missing in the surveillance video as far as the red and green aspect of the hat. I didn’t see it. But I also put in the affidavit that it was a camouflage pattern.” He further explained, “I can’t necessarily say [the camouflage hat] was reported [to the other detective as red and green]. It was somehow construed in the report as a red and green hat. How it came to that point, I don’t know.” The alleged hat-color inconsistency with the search warrant was repeatedly refuted by the store employee witness: “I don’t know why they would make that kind of report because that’s not what I reported. Because when I showed them the video, I was showing them what went down and I was describing to them what happened.”
{¶ 27} We find that any rational fact-finder could have found the inclination of a greater amount of credible evidence was admitted at trial than not to induce the jury’s
{¶ 28} Appellant’s second assignment of error is not well-taken.
IV. Other-Acts Evidence
{¶ 29} Appellant’s third assignment of error argues the trial court violated
{¶ 30} Appellee responds that there was no trial court error, whether plain error or abuse of discretion, because the Toledo police officer’s testimony explained the course of the investigation and the identification of appellant as the perpetrator. Appellee argues, “The purpose was not to provide improper character inferences, and the evidence was probative of issues at trial, given that the visual depiction of [appellant] in his distinctive hat and on his bicycle were relevant to the depiction of [appellant] in the surveillance recordings of the May robbery of the Dollar Tree.”
{¶ 32} The admission of evidence, as well as the regulation of the examination of witnesses, rests within the sound discretion of the trial court, and we will not reverse those rulings without a clear demonstration of an abuse of that discretion resulting in material prejudice to a party. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 111. “An abuse of discretion is more than a mere error of law or judgment; instead, it implies that a trial court’s decision was unreasonable, arbitrary, or unconscionable.” Id. at ¶ 91, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 33} For the following reasons we do not find the trial court abused its discretion, and its attitude was not unreasonable, arbitrary or unconscionable, when it admitted the body-camera video of the arresting Toledo police officer who identified appellant at the time of arrest on June 10.
{¶ 34} First, appellant is raising for the first time on appeal the trial court’s alleged violations of
{¶ 35} Second, even without waiver, appellant’s reliance on Kamer is misplaced in light of appellant’s insistence the arrest video evidence was inadmissible under
{¶ 36} Third, in compliance with
{¶ 37} Fourth, the trial court properly overruled appellant’s speaking objection. Appellee cites to State v. Freeman, 6th Dist. Lucas No. L-09-1086, 2010-Ohio-1357, ¶ 49, and to State v. Keenan, 81 Ohio St.3d 133, 138, 689 N.E.2d 929 (1998), to argue appellant has no right to a “hybrid” form of representation where he is represented by counsel but also acts simultaneously as his own counsel by voicing an objection. Appellee points out that under
{¶ 38} Finally, appellant fails to demonstrate material prejudice from the trial court’s admission of the June 10 arrest video. We find that an integral part of arresting appellant on June 10 for the May 28 robbery was the arresting police officer, who was also the investigating police officer, identifying appellant as the robber. State v. Lott, 51 Ohio St.3d 160, 169, 555 N.E.2d 293 (1990). The May 28 store surveillance videos depict the perpetrator, as confirmed by witness testimonies. The arresting officer
{¶ 39} Appellant’s third assignment of error is not well-taken.
V. Self-Representation
{¶ 40} Appellant’s fourth assignment of error challenges the trial court’s refusal to dismiss his appointed counsel when he desired to proceed pro se at the start of trial. In support, citing State v. McGlown, 6th Dist. Lucas No. L-07-1384, 2009-Ohio-1894, ¶ 13, appellant points to selections from the transcript prior to the start of trial during which he says he voluntarily, knowingly and intelligently elected to defend himself without counsel, which the trial court acknowledged by seeking to present him with waiver-of-counsel paperwork. In McGlown, this court recognizes that a defendant’s right to self-representation is not absolute if it is not offered voluntarily, knowingly, and intelligently; if it is not properly invoked; or if it is not timely and unequivocally asserted. Id.; State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus.
{¶ 41} Appellant argues that he unequivocally asserted his right to self-representation, which the trial court improperly denied solely “because of his inability to maintain proper decorum,” citing State v. Griffin, 10th Dist. Franklin No. 10AP-902, 2011-Ohio-4250, ¶ 23. We find appellant’s reliance on Griffin to be misguided, as that court was faced with a record where that defendant had “difficulty to maintain the appropriate decorum in the courtroom and clashed with the trial judge several times, but this is not a problem unique to pro se defendants. Even trained and licensed attorneys at times have problems with decorum and conflicts with the bench.” Id. Appellant argues that, “during the trial Mr. Johnson maintained himself well, needing no more cautioning from the bench than many trial attorneys require.” However, a more inclusive review of the transcript reveals a different situation than that painted by appellant and by Griffin.
{¶ 42} Appellant was verbally volatile towards his court-appointed attorney and, particularly, the trial judge. The transcript reveals that appellant did not knowingly, voluntarily, and intelligently assert his right to self-representation. Rather, in response to the court explaining his options on the morning of trial as, “You can plead or you can go to trial,” appellant engaged in what the trial court believed was a deliberate strategy to generate a dismissal, frequently reminding appellant, “You will not shout away this trial,” and “You will not shout me off the bench.” The following is an example of appellant’s
Appellant: I’m not going nowhere. I’m firing him. He’s fired.
Court: If you want to sit here without an attorney during your trial —
Appellant: Okay. He’s fired.
Court: The problem with this though is we have to go through —
Appellant: You can say what you want today. I already know you’re biased. You’re not about to sit there and send me to prison. We already done (sic.) been through this. Me, you and the prosecutor. You ain’t about to dog me, man. Let me stand up and tell you to your face you ain’t about to dog me, dude. Get your prejudiced ass off my case. Get the f*** off my case. Get your sorry ass off my case. Get your bitch ass off my case, man. You’re a prejudiced ass white man. The same thing you did with Michael Goulding, you let that motherfu**er out of jail and he ain’t even a judge in your court. You think I’m going to let you ruin my case, man. You ain’t going to keep denying me. Take me back to jail.
{¶ 43} The foregoing demonstrates appellant was not acting similarly to that of other licensed attorneys. The trial court gave appellant repeated opportunities to calm down and demonstrate that he was knowingly, voluntarily, and intelligently asserting his right to self-representation. “In order to establish an effective waiver of right to counsel,
Court: So you’re not going to shout away a trial. You’re not going to shout out me to recuse myself. We’re going forward with this trial today. Now, if you don’t want Mr. Simmons to represent you, we need to go over your decision and the rights that you’re waiving to represent yourself in court.
Appellant: Okay.
Court: Are you ready to do that?
Appellant: This man is fired. * * * I’m telling you that.
Court: Can you print out the waiver of counsel form? What I’d like to do is I’d like to keep Mr. Simmons as advisory counsel. You don’t have to talk to him, but he’s going to stay in the courtroom. And if you have any questions during the trial, you can ask him, but Mr. Johnson, we’re going forward with this trial.
Appellant: You can’t go forward on nothing if you can’t afford me my witnesses.5 You can’t have his witnesses present, yeah. You can keep looking at the police all you want to. I already know about the police bullshit, man. That’s why you need to come the f*** off my case. They’re not going to win.
Court: I’m not going to.
Appellant: You’re not going to — performing for these police. You’re not going to let me — sit me up and then you sit there and put me in jail behind this shit, behind some shit you can’t even say. That’s not even enough evidence to proceed. You’re a fool, dude.
{¶ 44} We find appellant failed to unequivocally, knowingly, voluntarily, and intelligently assert his right to self-representation. “The right [to self-representation] is waived if it is not timely and unequivocally asserted.” McGlown, 6th Dist. Lucas No. L-07-1384, 2009-Ohio-1894, at ¶ 13. It appears appellant sought a dismissal by focusing on removing the trial judge with vague references to speedy trial violations and racial
{¶ 45} The trial judge possessed the “inherent power to supervise the appointment of counsel,” and it was within the trial judge’s sound discretion to deny appellant’s request on the brink of trial to terminate his court-appointed counsel and represent himself. State ex rel. Butler v. Demis, 66 Ohio St.2d 123, 133, 420 N.E.2d 116 (1981); State v. Wilson, 6th Dist. Lucas No. L-84-332, 1985 WL 7510, *2 (June 14, 1985) (a trial court exercises its discretion in selecting appointed counsel and controlling the criminal proceedings). We find no abuse of discretion by the trial court because appellant failed to unequivocally, knowingly, voluntarily, and intelligently assert his right to self-representation.
{¶ 46} Appellant’s fourth assignment of error is not well-taken.
VI. Conclusion
Judgment affirmed
Thomas J. Osowik, J.
Gene A. Zmuda, J.
Myron C. Duhart, P.J.
CONCUR.
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JUDGE
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JUDGE
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JUDGE
A certified copy of this entry shall constitute the mandate pursuant to
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.