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State v. Johnson

Court of Appeals of Ohio, Eleventh District, Lake

May 22, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
BRIAN A. JOHNSON, Defendant-Appellant.

         Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2016 CR 000378.

          Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee).

          Brian A. Smith, (For Defendant-Appellant).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} Defendant-appellant, Brian A. Johnson, appeals his convictions and sentence for Rape, Aggravated Burglary, and Burglary, following a bench trial in the Lake County Court of Common Pleas. The issues to be determined by this court are whether a Rape conviction is supported by the weight of the evidence when the victim gives conflicting statements about events, including her past relationship with the defendant, and whether the trial court errs in issuing a sentence when it does not weigh the victim's credibility issues and considers the defendant's past convictions for nonsexual offenses. For the following reasons, we affirm the judgment of the lower court.

         {¶2} On May 31, 2016, Johnson was indicted by the Lake County Grand Jury for Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2); Aggravated Burglary, a felony of the first degree, in violation of R.C. 2911.11(A)(1); Burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2); and Robbery, a felony of the second degree, in violation of R.C. 2911.02(A)(2).

         {¶3} A bench trial was held on July 25 and 26, 2016. The following testimony was presented:

         {¶4} Tina Shaw, a dispatcher with the Wickliffe Police Department, testified that on March 29, 2016, at around 11:17 p.m., L.L. entered the police department lobby and stated that she had been sexually assaulted. L.L. looked like she had been crying and was "scared." Shaw contacted the Willoughby Hills Police Department, since the incident took place in its jurisdiction, and asked officers to come to Wickliffe since L.L. seemed "too upset to drive."

         {¶5} Patrolman Brett Peeples of the Wickliffe Police Department met with L.L. at the police department and could tell she "had been crying, " was "pretty upset, " and was "hyperventilating a little bit."

         {¶6} Patrolman Randy Mullenax of the City of Willoughby Hills Police Department met with L.L., and observed that she was "crying very heavily, " "very excited" and "hysterical." L.L. stated that Johnson had come over to her house to buy and smoke marijuana, and had "forced himself on her and he raped her." Mullenax noted bruises on L.L.'s leg and arm, which he photographed.

         {¶7} Mullenax testified that L.L. initially denied having prior sexual contact with Johnson. In a later interview, L.L. indicated that they had past consensual sexual contact.

         {¶8} L.L., who was 19 at the time of her testimony, became friends with Johnson on Facebook and began to meet with him in person in the summer of 2015. The two sent pictures via social media, including pictures of them smoking marijuana. L.L. sent Johnson nude pictures because he requested them and she was "proud of [her] body." After L.L. received text messages from the mother of Johnson's child, she communicated to Johnson that she did not want to have a relationship or sexual activity with him because she did not want to be a "home wrecker."

         {¶9} L.L. testified that she and Johnson had performed consensual oral sex on each other in the past. The two had also had an "incident" in the winter of 2016 where Johnson attempted intercourse and afterward L.L. told him she was not comfortable. She stopped talking to Johnson in February 2016 because she had difficulty communicating her feelings with him. In March 2016, Johnson made statements to L.L. via Snapchat about wanting to engage in sexual acts with her. She responded, "I'm sorry I just feel like I don't want to do that anymore."

         {¶10} On the night of March 29, 2016, L.L. agreed that Johnson could come to her apartment. She testified that she did not want to have sex with him, noting that she was on her period and in pain. When Johnson arrived around 10:30 p.m., L.L. went to her bedroom to get a can of marijuana to take into the living room so the two could smoke. Johnson entered L.L.'s bedroom and she attempted to get him to go to the living room. Johnson "threw her" on the bed, and grabbed her. He held her down by her arms and began to pull down her pajama pants and underwear, which she repeatedly tried to pull back up. She said, "I'm serious, I'm serious, stop." She put her knees up and put her hand "on her vagina and * * * kind of used it as a barricade." Johnson eventually was able to insert his penis into her vagina, but lost his erection. He grabbed her hair and "forced [her] to give him oral for about 15 or 20 seconds" and again pushed her onto the bed and began having intercourse. She suffered pain during this incident and had bruises afterward.

         {¶11} Following the assault, L.L. went into the bathroom and Johnson ran out of the apartment. L.L. noticed that he had taken the can of marijuana and her phone. She chased him through the parking lot, while wearing just her t-shirt, but ...


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