State v. JohnsonState v. Johnson
Rendered on the 11th day of March, 2011.
. . . . . . . . .
John Danish, Director of Law; Stephanie Cook, Chief Prosecutor; Ebony N. Wreh, Asst. City Prosecutor, Atty. Reg. No.0080629, 335 W. Third St., Rm. 372, Dayton, OH 45402
Attorneys for Plaintiff-Appellee
Tina McFall, Atty. Reg. No.0082586, Public Defender’s Office, 117 S. Main Street, Suite 400, Dayton, OH 45422
Attorney for Defendant-Appellant
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GRADY, P.J.:
{¶ 1} Defendant, Emari Johnson, appeals from his conviction and sentence for criminal child enticement.
{¶ 2} In February 2008, D.W., a twelve year old girl, lived in Dayton, Ohio, with her parents and two brothers. D.W. attended
{¶ 3} On the morning of February 11, 2008, as D.W. was walking to the bus stop to catch her school bus, Defendant yelled at D.W. from the front porch of his home. The front screen door of the house was closed but the inner door was open. Defendant was wearing a black T-shirt and no coat. Defendant motioned for D.W. to come to him and said, “come over here little girl,” several times. D.W. became frightened and did not respond.
{¶ 4} D.W. used her cell phone to call her father, who told her to go home and lock the doors, which D.W. did. While D.W. was on the phone with her father, her school bus pulled up. D.W. told her father she wanted to get on her bus, which she did, while staying on the phone with her father. D.W.’s father then called D.W.’s mother, and they decided to call Dayton Police. D.W., her principal, and her parents met with Dayton Police Officers at D.W.’s school. D.W. told Officers Speelman and Malson what had happened, and described the suspect and his residence.
{¶ 5} Officers proceeded to Defendant’s residence. When Officers knocked, Defendant answered the door wearing nothing but red, silky basketball shorts. Defendant appeared to be sexually aroused, and officers saw that a female, J. K., was sitting on
{¶ 6} Detective Olinger created a photospread which he showed to D.W., on February 11, 2008. She immediately identified Defendant as the offender. After waiving his Miranda rights, Defendant spoke to Detective Olinger on that same date. Defendant said that he was trying to get D.W. to come inside his house because he wanted to have sex with her.
{¶ 7} On February 12, 2008, Defendant was charged by complaint in Dayton Municipal Court with two counts of criminal child enticement, one in violation of
{¶ 8} Meanwhile, on May 1, 2008, Defendant was indicted on one
{¶ 9} In July 2008, Defendant was returned to the Montgomery County Jail, and on July 14, 2008, Defendant executed a written waiver of his speedy trial rights. After finding Defendant competent to stand trial on the criminal child enticement charges in August 2008, the trial court scheduled a jury trial for September 18, 2008. The State requested a continuance, which was granted. On September 16, 2008, Defendant withdrew his speedy trial waiver. The trial court rescheduled the jury trial for October 23, 2008.
{¶ 10} On September 26, 2008, Defendant filed a motion for discharge on the
{¶ 11} The State dismissed the child enticement charge under
{¶ 12} Defendant appealed to this court from his conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 13} “THE TRIAL COURT ERRED TO THE APPELLANT’S/DEFENDANT’S PREJUDICE WHEN IT OVERRULING (SIC) APPELLANT’S/DEFENDANT’S MOTION TO DISMISS PURSUANT TO
{¶ 14} Defendant does not argue that his speedy trial rights were violated because he was not brought to trial within the time required by
{¶ 15} “(C) Regardless of whether a longer time limit may be provided by sections
2945.71 and2945.72 of the Revised Code, a person charged with misdemeanor shall be discharged if he is held in jail in lieu of bond awaiting trial on the pending charge:{¶ 16} “(1) for a total period equal to the maximum term of
imprisonment which may be imposed for the most serious misdemeanor charged.”
{¶ 17} Defendant was arrested and jailed on the two
{¶ 18} On July 17, 2008, the Common Pleas Court reduced Defendant’s bond on the felonious assault charge to five thousand dollars cash. On September 18, 2008, the trial court granted Defendant’s request to reduce and/or release his bond, and the court amended Defendant’s bond to conditional own recognizance on the misdemeanor child enticement charges. Defendant was not released from jail, however, because he was also being held on the bond on the felonious assault charge. On September 26, 2008, Defendant entered a guilty plea to the felonious assault charge.
{¶ 19} Defendant argues that he was held in jail in lieu of bail awaiting trial on these misdemeanor charges for a total period of two hundred and twenty-four days, from February 11, 2008, when he was arrested, to September 22, 2008, when his bond on those charges was withdrawn as a condition of his release. Because the maximum term of imprisonment that could be imposed for the most serious of these first degree misdemeanors is only one hundred and eighty days,
{¶ 20} The trial court overruled Defendant’s motion to dismiss pursuant to
{¶ 21} The court noted that the time Defendant spent at Summit
{¶ 22} In order to be entitled to discharge,
{¶ 24} Defendant was held in jail in lieu of bail and awaiting trial solely on the pending misdemeanor charges from February 11, 2008 to May 1, 2008, a total of seventy-nine days. That is far short of the one hundred and eighty day maximum sentence permissible for the most serious misdemeanor charged. Defendant was not entitled to be discharged pursuant to
{¶ 25} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 26} “THE TRIAL COURT ERRED TO THE APPELLANT’S/DEFENDANT’S PREJUDICE IN EXCLUDING EXPERT TESTIMONY ON THE ISSUE OF RELIABILITY
{¶ 27} Defendant argues that the trial court abused its discretion by excluding expert testimony by a psychologist, Dr. Mark Humbert, which Defendant proffered, concerning his diagnosis that Defendant suffers from paranoid schizophrenia and how that mental disease or defect might impact Defendant’s ability to accurately recall and relate events and the reliability of statements he made to police. (T. 187-190). Relying upon Crane v. Kentucky (1986), 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636, Defendant argues that this expert evidence was relevant and admissible because it could assist the jury in evaluating the credibility and reliability of the confession Defendant made to Detective Olinger.
{¶ 28} The admission or exclusion of evidence rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Sage (1987), 31 Ohio St.3d 173.
{¶ 29} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or
{¶ 30} “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.” AAAA Enterprises, Inc. V. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 31} Relevant evidence is defined in Evid.R. 401:
{¶ 32} “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{¶ 33} The trial court excluded Dr. Humbert’s proffered testimony on the basis that it goes to the voluntariness of Defendant’s statements to police, which is a purely legal issue for the trial court alone to decide in the context of a motion to suppress, which Defendant did not file. T. 24. In State v. Stringham, Miami App. No. 2002CA9, 2003-Ohio-1100, this court recognized that Crane distinguishes the voluntariness of a confession from the reliability of that confession, which the trier of facts has a duty to determine. Crane recognized that a defendant’s constitutional right to present a defense includes
{¶ 34} Defendant sought to introduce expert testimony by Dr. Humbert on how Defendant’s diagnosed mental defect, paranoid schizophrenia, might impact the reliability of the statements/confession he gave to police. That evidence would be used to assist the jury in assessing the reliability or credibility of Defendant’s confession, not to challenge the voluntariness of Defendant’s confession. Accordingly, the trial court erred when it excluded Dr. Humbert’s proposed expert testimony solely because that evidence related to the voluntariness of Defendant’s statements to police, which is instead a question of law for the trial court to decide before trial. Stringham, at ¶33-42.
{¶ 35} An appellate court may decide an issue on grounds different from those determined by the trial court, affirming the trial court in this process, so long as the evidentiary basis on which the court of appeals decides a legal issue was adduced before the trial court and made a part of that court’s record. State v. Peagler (1996), 76 Ohio St.3d 496.
{¶ 36} Dr. Humbert testified by way of proffer that he examined Defendant on May 7 and June 30, 2008 (T. 224), and from those interviews arrived at “my diagnosis that he was suffering from a substantial disorder upon (sic) mood that was consistent with
{¶ 37} Defendant called Dr. Humbert to testify as an expert witness, and he was so designated by the court on the basis of his qualifications. (T. 223). Evid.R. 703 states:
{¶ 38} “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing.”
{¶ 39} Facts or data perceived by an expert are those gathered through the witness’s “firsthand perceptions.” Weissenberger’s Ohio Evidence Treatise (2010 Ed.) §703.1. Dr. Humbert’s firsthand perceptions took place during his interviews of Defendant in May and June of 2008. Dr. Humbert disclaimed any knowledge of Defendant’s condition in February of 2008, when Defendant made
{¶ 40} The trial court did not abuse its discretion in excluding Dr. Humbert’s proposed expert testimony.
{¶ 41} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 42} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVER OBJECTION ADMITTED EVIDENCE RELATED TO MR. JOHNSON’S IMPLIED SEXUAL ACTIVITIES WITH [J. K.], A MINOR FEMALE WHO WAS NOT THE COMPLAINING WITNESS IN THIS CASE.”
{¶ 43} Defendant argues that the trial court abused its discretion when it admitted, over his objection, irrelevant and unfairly prejudicial evidence relating to Defendant’s implied sexual activity with another female, J. K., who was not the victim in this case, when that conduct occurred two hours after Defendant committed the instance offense.
{¶ 44} Prior to trial, Defendant filed a motion in limine asking that the State be prohibited from introducing irrelevant evidence
{¶ 45} Defendant was charged with criminal child enticement in violation of
{¶ 46} Evid.R. 404(B) provides:
{¶ 47} “Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶ 48} In State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, we observed:
{¶ 49} “{¶78} Evid.R. 404(B) and its companion statutory provision,
{¶ 50} “* * *
{¶ 51} “{¶84} Per the first sentence of the rule, ‘[e]vidence of the other crimes, wrongs, or acts is not admissible to prove
{¶ 52} “* * *
{¶ 53} “{¶ 89} It is fundamental to any of the matters in Evid.R. 404(B) and
{¶ 54} “{¶ 90} To be admissible, the other-act evidence must tend to show by substantial proof one or more of the things the rule or statute enumerates. State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682. Such evidence is never admissible when its sole purpose is to establish that the defendant committed the act alleged in the indictment. State v. Flonnory (1972), 31 Ohio St.2d 124, 60 O.O.2d 95, 285 N.E.2d 726. Rather, the evidence must tend
{¶ 55} Where an extrinsic act is used to establish motive, the act should demonstrate that the accused possesses a specific reason to commit the crime alleged. Eq., State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266. Extrinsic act evidence of motive may be admissible in cases in which it is highly probative. State v. Wilson, 74 Ohio St.3d 381. 1996-Ohio-103.
{¶ 56} The fact that, two hours after he had asked D.W., a twelve-year old girl, to “come here, little girl,” while standing on the porch of his house, Defendant was found inside the house with another young female and in a state of sexual arousal, is probative of the allegation that Defendant acted with a sexual motivation in his encounter with D.W. Any dissimilarities in the two episodes goes to the weight of the other act evidence admitted, not its admissibility. Further, Officer Olinger testified that Defendant admitted to him that “I’m horny and . . . wanted to have sex with that girl.” (T. 152). The circumstances in which Defendant was found with J. K. corroborates Defendant’s admission of the sexual motivation or violation of
{¶ 57} Defendant’s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 59} Defendant argues that his conviction for criminal child enticement in violation of
{¶ 60} A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law. State v. Thompkins, (1997), 78 Ohio St.3d 380. The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259:
{¶ 61} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. 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.”
{¶ 62}
{¶ 63} “(A) No person, by any means and without privilege to
{¶ 64} “(1) The actor does not have the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.
{¶ 65} “(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.
{¶ 66} “(B) No person, with a sexual motivation, shall violate division (A) of this section.
{¶ 67} “(C) It is an affirmative defense to a charge under division (A) of this section that the actor undertook the activity in response to a bona fide emergency situation or that the actor undertook the activity in a reasonable belief that it was necessary to preserve the health, safety, or welfare of the child.
{¶ 68} “(D) Whoever violates this section is guilty of criminal
{¶ 69} “(E) As used in this section:
{¶ 70} “(1) ‘Sexual motivation’ has the same meaning as in
{¶ 71} “(2) ‘Vehicle’ has the same meaning as in
{¶ 72} “(3) ‘Vessel’ has the same meaning as in
{¶ 73} Defendant was convicted of a violation of
{¶ 74} Defendant does not argue that the State’s evidence, which includes Defendant’s admissions to Detective Olinger, was insufficient to prove that he acted with a sexual motivation per
{¶ 75} Knowingly is defined in
{¶ 76} “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.”
{¶ 77} Prior to April 9, 2001,
{¶ 78} Effective April 9, 2001,
{¶ 79} Effective April 11, 2005,
{¶ 80} Effective January 1, 2008,
{¶ 81} Defendant relies on two cases that were decided prior to the most recent amendment adding the sexual motivation element in
{¶ 82} Defendant also relies on State v. Carle, Ashtabula App. No. 2007-A-0008, 2007-Ohio-5376. In that case the defendant approached the victim, who was on foot, in his van and asked “if she needed a ride and if she needed help with anything.” Id., at ¶4. The victim ran off. Relying on Clark, the defendant argued that a more overt act was necessary to show that he violated
{¶ 83} We addressed the same issue more recently in State v. Brown, 183 Ohio App.3d 643, 2009-Ohio-4314. In that case the defendant twice approached an eleven year old girl as she was walking home. On the first occasion, the defendant stopped his car and asked the girl if she would help him find his dog. The girl refused. On the second occasion the defendant was also on foot. He approached the same girl and asked if she would help him find his ring. She again said “no,” and ran home. The defendant was subsequently charged with a violation of
{¶ 84} On appeal, Brown challenged the sufficiency of the State’s evidence, relying on the holding in Clark to argue that to “solicit” another to accompany the offender in violation of
{¶ 85} Addition of the sexual motivation element in
{¶ 86} Unlike in Brown, where both solicitation to accompany
{¶ 87} Defendant’s fourth assignment of error is overruled. The judgment of the trial court will be affirmed.
DONOVAN, J., concurs.
FAIN, J., dissents.
FAIN, J., dissenting:
{¶ 88} I would sustain Johnson’s Fourth Assignment of Error, and reverse his conviction. I reach this result reluctantly, because Johnson’s vile purposes are evident in this case. But
{¶ 89} Johnson was alleged to have knowingly solicited his victim, a girl under the age of fourteen, “to accompany [him] in any manner.”
{¶ 90} In order to convict Johnson, the State was required to prove two things: first, that Johnson solicited his victim to accompany him; and second, that he had a sexual motivation for having done so. In other words, the State was required to prove both an act – a solicitation to an under-age child to accompany Johnson – and an underlying motivation. The underlying motivation, alone, is insufficient without the act.
{¶ 91} I do not construe the verb “to accompany,” in
{¶ 92} “To accompany” is defined in Webster’s Third New International Dictionary, at 12:
{¶ 93} “1 : to go with or attend as an associate or companion : go along with <will you do me the honor to ~ me home for supper? – Laura Krey> <servants came to ~ us to the nobleman’s house – Heinrich Harrer>”
{¶ 94} The mere request to “come here” is not a request to go with or to go along with. In my view, it would be an expansive interpretation of “to attend as an associate or companion” to include within its scope the act of simply coming to where another person is, at that person’s request. Johnson’s victim was not being asked to be his associate or companion (although such a request would most likely have soon followed) when she was asked to “come here.”
{¶ 95} It might well be argued that an expansive definition of “to accompany” in the context of
{¶ 96} Suppose that a twenty-year-old man sees a female, unknown to him, in the far distance, make sexually suggestive gestures toward him. The man shouts to the female, “come here and do that.” The man’s purpose in shouting to the female is to seek to gratify himself sexually with her. As the female approaches, the man can see that it is possible, even likely, that she is under the age of fourteen. (In fact, she is under the age of fourteen.) The man says to the girl, “never mind, go home to your momma,” turns, and leaves. As I understand our holding in this case, he has violated
{¶ 97} I would adopt a less expansive construction of
{¶ 98} Next, I must distinguish State v. Brown, 183 Ohio App.3d 643, 2009-Ohio-4314, a task made difficult, but not impossible, by some loose language in that opinion. To begin with, in that case, as in the case before us, the issue of the defendant’s sexual motivation for his act was not a problem. (“We note that Brown does not raise any issues regarding his motivation.” Id., ¶ 21.)
{¶ 99} The defendant in Brown asked his under-age victim if she “would help him find a ring.” The essence of our holding in State v. Brown, supra, is set forth in the last substantive paragraph:
{¶ 100} “Brown was walking toward her before he approached and asked her to help him find a ring. As he was not on his hands and knees searching, the search was more than likely to take place elsewhere, requiring A.A. to accompany Brown. The evidence, therefore, is sufficient to prove that Brown violated the statute by soliciting A.A. to accompany him.” Id., ¶ 21.
{¶ 101} In the context in which the solicitation in Brown was uttered, it was more than a solicitation to the victim to “come
{¶ 102} In the case before us, Johnson merely requested his victim to “come here.” Of course, given the evidence in the record of Johnson’s underlying purpose in making this request, his victim is to be commended for having intuited that he was dangerous, and taking steps to protect herself.
{¶ 103} Because it is clear from this record that Johnson’s purpose was to take sexual advantage of his under-age victim, I take no comfort in reaching the conclusion that his Fourth Assignment of Error should be sustained, and his conviction reversed. But I am unwilling to adopt a broad construction of “to accompany,” as that verb is used in this statute, just so that this defendant can receive his just desserts.
{¶ 104} I concur with Judge Grady’s opinion for this court in its disposition of Johnson’s First and Third Assignments of Error. In view of my conclusion with respect to Johnson’s Fourth Assignment of Error, I find it unnecessary to consider his Second Assignment of Error, which involves a close question requiring a careful examination of Johnson’s proffer of Dr. Humbert’s
Copies mailed to:
Ebony N. Wreh, Esq.
Tina McFall, Esq.
Hon. John S. Pickrel