[Cite as State v. Johnson, 2018-Ohio-527.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WILLIAMS COUNTY
State of Ohio Court of Appeals No. WM-16-008
Appellee Trial Court No. 16CR000076
v.
William F. Johnson, Jr. DECISION AND JUDGMENT
Appellant Decided: February 9, 2018
*****
Katherine J. Zartman, Williams County Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a July 25, 2016 judgment of the Williams County
Court of Common Pleas, finding appellant guilty following a jury trial on seven counts of
rape, in violation of R.C. 2907.02(A)(1)(b), and sentencing appellant to a mandatory term
of life imprisonment. The two victims of these offenses were appellant’s six-year-old
and nine-year-old stepdaughters. For the reasons set forth below, this court affirms the
judgment of the trial court.
{¶ 2} Appellant, William F. Johnson Jr., sets forth the following four assignments
of error:
One: Appellant was denied a fair trial and due process due to the trial
court’s denial of his motion in limine.
Two: Appellant’s convictions were unsupported by sufficient evidence and
were against the manifest weight of the evidence.
Three: Trial counsel rendered ineffective assistance for failing to request
lesser- included offense instructions.
Four: The trial court erred by imposing payment of attorney fees without a
finding of ability to pay.
{¶ 3} The following undisputed facts are relevant to this appeal. This case arises
from the discovery and investigation of appellant’s commission of approximately 70
instances of multiple categories of rape over the course of several years against his six-
year-old and nine-year-old stepdaughters during their periods of visitation at appellant’s
mobile home located in Bryan, Ohio.
{¶ 4} In 2005, appellant married the mother of the older, nine-year old victim
(“J”). J was born to appellant’s wife during a prior marriage. In 2008, the marriage
between appellant and J’s mother ended in divorce. Appellant was subsequently
incarcerated following an unrelated felony conviction.
2.
{¶ 5} In 2011, appellant was released from prison. Following appellant’s release
from incarceration, appellant’s ex-wife began permitting visitation between appellant, the
two children born during their marriage, and J.
{¶ 6} In October 2011, appellant’s ex-wife acquired a mobile home for appellant
to reside in located in Bryan, Ohio. Appellant’s two daughters, born while he was
married to his ex-wife, as well as J, went to appellant’s mobile home on weekends and
several times during the week for visitation with appellant.
{¶ 7} In May 2012, J began to exhibit new, highly concerning behavior. J was
often extremely agitated, bullied other children, began to do very poorly in school, and
began to defecate in corners of the family home, rather than in the bathroom.
{¶ 8} Given the onset of these behaviors, appellant’s ex-wife placed J in therapy.
J subsequently refused to continue in visitation with appellant. Ultimately, J disclosed
that appellant had committed acts of rape against her and would entice her by exchanging
candy, cookies, and money, with the girl prior to committing the sexual offenses against
her.
{¶ 9} In June 2014, appellant began a relationship with a new woman.
Appellant’s new girlfriend eventually moved into appellant’s mobile home along with her
three minor children from a prior relationship. One of these three children is the younger,
six-year-old victim (“K”).
{¶ 10} Notably, shortly after appellant’s new girlfriend moved into his home with
her six-year-old daughter, appellant downloaded on his smart phone information such as
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the statute of limitations chart for sexual offense crimes, the felony sentencing tables for
the state of Ohio, and a PDF download describing the warning signs of sexual
misconduct.
{¶ 11} On April 12, 2015, less than a year after moving into appellant’s home,
appellant’s girlfriend walked into the doorway of K’s bedroom and discovered appellant
pinning the victim down to her bed while having his right hand inserted into her pants up
to his wrist. The girlfriend screamed at appellant, appellant then denied what had just
been plainly witnessed, after which the victim then yelled to her mother that appellant
was lying and had committed the action.
{¶ 12} Appellant’s girlfriend next examined her daughter and observed red
markings around her nipple area. Appellant then conceded that he had placed his hand
inside the girl’s pants and was “rubbing her pubic bone.” However, when the police
arrived shortly thereafter, appellant immediately conveyed to them, “I ain’t saying a
fucking thing.”
{¶ 13} During a videotaped interview with the investigating detectives, appellant’s
version of events evolved once again. Appellant now attributed blame upon the victim,
maintaining that he had his hands all over the victim because she had been having a
tantrum. Appellant ended cooperation with the investigators. The interview ceased.
{¶ 14} On April 12, 2015, appellant was arrested and charged with the first of the
eight total rape charges ultimately filed against him in connection to these events. On
June 5, 2015, while incarcerated at CCNO, appellant unsuccessfully attempted suicide
utilizing a bed sheet. This event was captured on the prison’s video surveillance system.
4.
{¶ 15} The record reflects that during appellant’s incarceration at CCNO while
awaiting trial, appellant engaged in literally hundreds of phone calls to various persons.
Significantly, during portions of these recorded phone calls made from prison, appellant
apologized to K for his actions. In addition, appellant told countless incongruous
versions of events, depending upon the audience. During one particularly candid moment
during a conversation with K’s mother, appellant confessed and referred to himself as a
monster.
{¶ 16} During subsequent phone calls with K’s mother, appellant now
unpersuasively suggested that he had done what he had done to punish K in order to get
her to listen and obey. Shortly thereafter, appellant yet again changed course and
unequivocally exclaimed, “I did it * * * [T]here’s no way you can possibly forgive me, I
broke something deep inside me, I broke our wedding vows, I hate myself, I’m supposed
to be her guardian and I failed, I have so much guilt.”
{¶ 17} In subsequent telephone conversations, appellant unconvincingly again
attempted to attribute blame for these events upon the victim, claiming that the victim
had put Barbie doll parts inside her pants and appellant was simply inside the young
girl’s pants trying to retrieve pieces of her dolls. Appellant subsequently admitted in
another recorded conversation that he had been lying when he relayed the fabricated
Barbie doll parts story.
{¶ 18} During the investigation, BCI investigators recovered male amylase from
inside K’s underwear. Although the amount of DNA recovered was inadequate to
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conduct a full comparison to appellant’s DNA, the DNA recovered from inside the
victim’s underwear did not exclude appellant.
{¶ 19} The sexual assault nurse examiner (“SANE”) who examined the victim
after these events observed redness, tenderness, and abrasions on the victim’s labia. In
addition, the SANE nurse confirmed that blunt force trauma injuries had occurred to the
victim’s labia and hymen.
{¶ 20} At trial, expert witness Dr. Randall Schlievert consistently testified that K
had suffered acute, penetrating internal injuries to her vagina that could have only been
caused by direct penetrating trauma consistent with the victim having suffered from
sexual assault such as rape.
{¶ 21} The older victim, J, gave extensive, direct testimony at trial. J testified that
appellant would touch her vagina with his hands, mouth, and penis. J further elaborated
that appellant would painfully rub her vagina with his hands, would lick her vagina with
his mouth, and would push his penis inside her vagina which was very painful. She gave
detailed testimony describing the various criminal sexual acts which appellant compelled
her to perform upon him. J confirmed that all of the sexual offenses occurred during
visitation at appellant’s mobile home.
{¶ 22} J testified that these criminal sexual offenses occurred, “[T]oo many times
to count.” In addition, J conveyed that appellant directly threatened her to never reveal
these events to anyone. Appellant would hold his fist up to her face while telling her that
she would be sorry if she disclosed these events.
6.
{¶ 23} Dr. Schlievert testified that J’s sudden acting out behaviors, including
defecating in the corners of her home rather than the bathroom, reflected that J had
sustained psychological trauma. Dr. Schlievert testified that J’s medical examination also
revealed physical trauma such as extreme thinning, damage, and scar tissue on her hymen
consistent with tears occurring via penetrating trauma only possible through sexual
contact.
{¶ 24} At the conclusion of the jury trial, appellant was convicted on seven of the
eight rape counts pending against him. A presentence investigation was conducted.
Appellant was subsequently sentenced to a mandatory term of life imprisonment. This
appeal ensued.
{¶ 25} In the first assignment of error, appellant maintains that the trial court
committed prejudicial error and abused its’ discretion in the admission of the non-audio
video footage of appellant’s suicide attempt while incarcerated at CCNO shortly after
being arrested and charged with rape. We do not concur.
{¶ 26} It is well-established that the trial court is vested with broad discretion on
the admission or exclusion of evidence. State v. Jenks, 61 Ohio St.3d 259, 281, 573 N.E.
2d 492 (1991). In conjunction with this, demonstration of an abuse of discretion requires
more than showing a mere error of law or judgment. It requires establishing that the
disputed trial court action was unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
7.
{¶ 27} As specifically applied in the context of appellant’s first assignment of
error, Ohio courts have routinely held that evidence of a suicide attempt transpiring in the
same timeframe as the offense can properly be admitted into evidence as suggestive of
potential guilt. State v. Tvaroch, 2012-Ohio-5836, 982 N.E.2d 619, ¶ 18 (11th Dist.).
{¶ 28} In the instant case, the record reflects that appellant attempted suicide
shortly after the initial, underlying rape arrest. The record further reflects that the state
requested, and the court properly instructed the jury that, “You are instructed the
defendant’s suicide attempt alone does not raise a presumption of guilt, but it may tend to
indicate the defendant’s consciousness or awareness of guilt.” This instruction was
communicated to the jury by the trial court immediately prior to the jury’s viewing of the
disputed videotape and also prior to jury deliberations.
{¶ 29} The record further reflects an abundance of separate, compelling evidence
of appellant’s guilt regardless of consideration of the disputed videotape. There was
direct testimony of the younger victim’s mother walking in while the girl was being
sexually assaulted by appellant. There was extensive direct testimony from the older
victim regarding the ongoing acts of oral, digital and penile rape committed by appellant
against her over the course of several years.
{¶ 30} In collaboration with the above evidence, the record further reflects
unequivocal expert testimony demonstrating the extensive direct sexual penetration
trauma injuries sustained by the victims, as well as collaborating testimony from the
treating SANE personnel.
8.
{¶ 31} Lastly, the record reflects recorded conversations in which appellant, at
various times, confessed his guilt to these crimes and expressed remorse to one of the
victims and the victim’s mother.
{¶ 32} Given a wealth of evidence in support of appellant’s convictions, even in
the absence of the disputed admission of the videotape, appellant cannot demonstrate
prejudice.
{¶ 33} The record does not reflect the disputed trial court evidentiary decision to
be unreasonable, arbitrary or unconscionable. Wherefore, we find appellant’s first
assignment of error not well-taken.
{¶ 34} In appellant’s second assignment of error, appellant maintains that his
convictions regarding J, the older victim, were not supported by sufficient evidence, and
that his convictions regarding both victims were against the manifest weight of the
evidence. We do not concur.
{¶ 35} It is well-established that when assessing sufficiency of the evidence
claims, an appellate court must consider whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the elements
of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574
N.E. 2d 492 (1991), paragraph two of the syllabus.
{¶ 36} R.C. 2907.02 (A)(1)(b) establishes in relevant part, “[N]o person shall
engage in sexual conduct with another who is not the spouse of the offender * * * [W]hen
the other person is less than 13 years of age, whether or not the offender knows the age of
the other person.”
9.
{¶ 37} R.C. 2907.01 defines “sexual conduct” to include, “[V]aginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between persons
regardless of sex * * * Penetration, however slight, is sufficient to complete vaginal or
anal intercourse.”
{¶ 38} The record reflects, as specifically pertaining to appellant’s convictions on
offenses committed against J, the older victim, that the trial court heard extensive,
detailed and compelling direct evidence from the victim. The victim clearly testified in
detail that appellant had committed acts against her when she was under the age of 13
constituting oral intercourse, digital penetration, and vaginal intercourse. The testimony
reflected that these offenses took place over the course of three years, “[T]oo many times
to count.”
{¶ 39} In conjunction with the above evidence, the record further reflects that J’s
mother furnished collaborating testimony, and Dr. Schlievert also furnished extensive
expert testimony regarding the overwhelming medical evidence that J had sustained
extreme hymen damage consistent with penetrating sexual trauma, and had exhibited
behaviors during the same timeframe, such as defecating in the corners of the family
home and no longer using the bathroom, consistent with extreme psychological trauma
such as sexual abuse and rape.
{¶ 40} The record reflects ample evidence from which a rational trier of fact could
have found the essential elements of the crimes committed against J by appellant proven
beyond a reasonable doubt.
10.
{¶ 41} Appellant further maintains that all of the underlying convictions against
him involving both victims were against the manifest weight of the evidence. The record
of evidence does not comport with this claim.
{¶ 42} When assessing whether a disputed conviction is against the manifest
weight of the evidence, the appellate court must review the record, weigh the evidence
and all reasonable inferences, consider witness credibility and decide whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way so as to cause a
manifest miscarriage of justice. State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio-
6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.).
{¶ 43} In applying this standard to the instant case, we note that the record of
evidence reflects extensive medical expert testimony demonstrating that both victims
sustained penetration sexual trauma injuries consistent with the offenses during the
relevant timeframe. The record further reflects that the mother of K walked in on
appellant assaulting her daughter, interrupted the incident, and gave direct testimony to
the trial court. The record reflects that J furnished extensive, direct testimony
establishing numerous acts of rape perpetrated against her by appellant over the course of
several years.
{¶ 44} In conjunction with the above, the record further reflects that appellant was
recorded during telephone conversations during his CCNO incarceration confessing to
the crimes, apologizing to K, apologizing to K’s mother, and expressing extreme
remorse, referring to himself as a “monster.” The record further reflects that appellant
unsuccessfully attempted suicide shortly after being arrested on these matters.
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{¶ 45} We find that the record of evidence encompasses ample, compelling
evidence of appellant’s guilt of these offenses. The record is devoid of any evidence that
the jury lost its way in this matter or caused a manifest miscarriage of justice.
{¶ 46} Wherefore, we find that the record of evidence clearly reflects that
appellant’s convictions were supported by sufficient evidence and were not against the
manifest weight of the evidence. We find appellant’s second assignment of error not
well-taken.
{¶ 47} In the third assignment of error, appellant contends that trial counsel was
ineffective by not requesting jury instructions on a lesser included offense with regard to
the charges involving J. We do not concur.
{¶ 48} In order to prevail on a claim of ineffective assistance of counsel, it must be
demonstrated both that trial counsel was deficient in certain respects, and that but for the
deficiencies the outcome of the case would have been different. Strickland v.
Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 80 L.E.2d 674 (1984).
{¶ 49} In support of the third assignment of error, appellant maintains that trial
counsel was ineffective in connection to victim J for declining to request instructions on a
lesser included offense.
{¶ 50} Given our determination above that the record of evidence reflects
sufficient evidence of appellant’s guilt of all convictions against both victims, and that
the convictions were not against the manifest weight of the evidence, appellant cannot
demonstrate that the outcome of this matter would have been different but for the alleged
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deficiency in requesting lesser included offense instructions in connection to an offense
for which ample, sufficient evidence of guilt of the offense as charged was presented to
the trial court.
{¶ 51} Wherefore, we find appellant’s third assignment of error not well-taken.
{¶ 52} In appellant’s fourth assignment of error, appellant contends that the trial
court erred in imposing the cost of attorney’s fees against appellant. We do not concur.
{¶ 53} R.C. 2941.51(D) establishes that, “[I]f the person represented has, or
reasonably may be expected to have, the means to meet some part of the cost of the
services rendered to the person, the person shall pay the county an amount that the person
reasonably can be expected to pay.”
{¶ 54} This court has consistently held that the imposition of costs of counsel
requires the trial court to consider appellant’s ability to pay. Although a separate hearing
is not required, the imposition of the costs must be supported by clear and convincing
evidence. State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, ¶ 14.
{¶ 55} As applied to the instant case, the record of evidence reflects, and the
presentence investigation report confirms, that appellant was 41 years of age at the time
of sentencing, possessed a GED, was not suffering from any significant physical health
ailments, possessed a valid driver’s license, and was receiving monthly social security
benefit payments.
{¶ 56} Given these facts and circumstances, the record reflects clear and
convincing evidence in support of the disputed ruling that appellant exhibited an ability
to pay fees for counsel. We find appellant’s fourth assignment of error not well-taken.
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{¶ 57} Based upon the foregoing, we find that substantial justice has been done in
this matter. The judgment of the Williams County Court of Common Pleas is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, P. J. JUDGE
CONCUR.
_______________________________
JUDGE
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