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State v. Johnson

Court of Appeals of Ohio, Ninth District

July 29, 2013

STATE OF OHIO Appellee
v.
BRIAN W. JOHNSON Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 08-CR-0282

WILLIAM T. WHITAKER and ANDREA L. WHITAKER, Attorneys at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and SCOTT G. SALISBURY, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

BETH WHITMORE, Judge.

{¶1} Defendant-Appellant, Brian Johnson, appeals from the judgment of the Medina County Court of Common Pleas. This Court reverses.

I

{¶2} On April 15, 2008, Brian and Carol Johnson gave birth to a son, N.J. On June 6, 2008, the Johnsons brought N.J. into the emergency room after noticing something was wrong with his arm. N.J. was diagnosed with a displaced fracture of the right humerus and twelve additional bone fractures in various stages of healing.

{¶3} Brian Johnson was indicted on three counts of felonious assault: one count for May 23rd through May 30th; one count for May 31st through June 6th; and one count for June 6th. In addition, Johnson was indicted on five counts of child endangering: two counts covering the time period of May 23rd through May 30th; one count for May 31st through June 5th; one count for May 31st through June 6th; and one count for June 6th.

{¶4} A jury found Johnson not guilty of felonious assault for May 23rd through May 30th and guilty of the remaining counts. The court sentenced Johnson to seven years for each of the two felonious assaults, and six years for one of the child endangering charges for May 23rd through May 31st. The court found the remaining child endangering counts were allied offenses of similar import. The court ordered Johnson's sentences to be served consecutively, for a total of twenty years in prison. Johnson appealed and this Court affirmed in part, reversed in part, and remanded for re-sentencing. State v. Johnson, 9th Dist. Medina No. 09CA0054-M, 2011-Ohio-3623.

{¶5} On remand the trial court conducted several hearings and ultimately sentenced Johnson to seven years on each of the two felonious assault convictions and six months on each of the child endangering convictions. The court found the two felonious assaults were not allied offenses of similar import and ordered the sentences to be served consecutively. The court further ordered the child endangering sentences to be served consecutive to one another, but concurrent to the felonious assault. Johnson now appeals and raises four assignments of error for our review. To facilitate the analysis, we address the assignments of error out of order.

II

Assignment of Error Number Two
THE TRIAL COURT'S SENTENCE OF CONSECUTIVE, NEARLY MAXIMUM TERMS FOR THE FELONIOUS ASSAULTS WAS CONTRARY TO THE PURPOSES OF THE STATE'S SENTENCING SCHEME AND [R.C.] 2929.14(C)(4)[.]

{¶6} In his second assignment of error, Johnson argues that the court erred in relying on incorrect factual findings when ...


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