Court of Appeals of Ohio, Eleventh District, Lake
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).
A. Smith, (For Defendant-Appellant).
V. GRENDELL, J.
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.
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).
A bench trial was held on July 25 and 26, 2016. The following
testimony was presented:
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."
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."
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
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.
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."
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."
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.
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