State v. Johnson

69 N.E.3d 143

2016 Ohio 4934

STATE of Ohio, Plaintiff–Appellee,

v.Jeremy JOHNSON, Defendant–Appellant.

Nos. C–150595

C–150596.

Court of Appeals of Ohio, First District, Hamilton County.

July 13, 2016.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff–Appellee.

Scott A. Rubenstein, Cincinnati, and John D. Hill, Jr., for Defendant–Appellant.

OPINION

DeWINE, Judge.

{¶ 1} Jeremy Johnson was convicted of multiple counts of rape and gross sexual imposition ("GSI") for acts involving three young girls. He molested one of the girls on the day of her 13th birthday. Under Ohio law, sexual conduct by an adult with a child under 13 constitutes rape; sexual contact with a child under 13 constitutes GSI. The primary question in this appeal is whether one turns 13 at 12:01 a.m. on the 13th anniversary of the day of one's birth or exactly 13 years after the moment of one's birth. We conclude that it is the former, and as a result, we must reverse one of the GSI and one of the rape convictions.

{¶ 2} Mr. Johnson raises several other issues on appeal—including challenges to the weight of the evidence for one of his other convictions, the joinder of indictments and the effectiveness of his counsel. We find no merit to any of these arguments. There is, however, a clerical error in his sentencing entry that needs to be corrected. Thus, we vacate the improper rape and GSI convictions, remand for correction of the sentencing entry and affirm in all other respects.

I. Background

{¶ 3} The trial in this matter involved three victims, D.W., Ar.L. and Aa.L., all of whom were part of Johnson's extended family. The charges relating to D.W. occurred in 2014 and were indicted in the case numbered B–1403701. The charges involving the other victims date back to 2007, 2008 and 2009. They were indicted in the case numbered B–1405760. Both cases were consolidated for trial.

A. Crimes Against D.W.

{¶ 4} Mr. Johnson was indicted on five felonies for crimes against D.W. The charges relate to two distinct time periods.

Counts one and two were for rape and GSI for acts that occurred between March 1 and March 15, 2014. The other three felonies were for crimes that occurred on March 16, 2014, the day of D.W.'s 13th birthday. Counts three and five were for rape and GSI. Count four was for unlawful sexual conduct with a minor.

{¶ 5} At trial, D.W. testified about an incident that occurred between March 1 and 15. She stated that Johnson invited her into a dark bedroom where he was lying on a bed. He then grabbed her around the waist, pulled down her pants, sat her on his lap and began "humping on" her. When asked, she said that this happened "a lot of times" before her birthday. She then testified that he had digitally penetrated her anus.

{¶ 6} D.W. turned 13 on March 16, 2014. Her extended family had begun gathering the previous night to celebrate her birthday. At 3 a.m. on the 16th, D.W.'s cousin, D.H., discovered Johnson with D.W. in a bedroom. He testified that he saw D.W.'s butt in the air with Johnson behind her and moving her. Later that day, D.W.'s mother took her to Cincinnati Children's Hospital. A rape kit developed at the hospital revealed semen that matched Johnson's DNA. At trial, D.W. testified that Johnson had taken out his penis and started humping her, and then vaginally raped her.

B. Crimes Against Ar.L. and Aa.L.

{¶ 7} The other charges involved two sisters, Ar.L. and Aa.L. The abuse came to light in February 2014 when Ar.L. told a counselor she had been abused by her cousin Jeremy. Ar.L. testified that, in 2007, when she was seven, Jeremy would have her sit on his lap straddling him and tell her to do sit ups. Each time she would sit up he would poke her privates over her clothes. One night when she was getting ready to go to sleep, Jeremy touched her under her clothes and digitally penetrated her vagina. She also testified that Jeremy molested her several times over her clothing the following year.

{¶ 8} Aa.L. told a similar tale of being abused by Jeremy in 2009, when she was seven. Jeremy was babysitting her, and they were watching a movie. After everyone else fell asleep, Jeremy took her into another room, removed her clothing and rubbed his hands on her chest and between her legs.

{¶ 9} After learning the details of the abuse, Ar.L. and Aa.L.'s mother contacted family members through Facebook to find the identity of "Jeremy." Mr. Johnson was already under investigation for his crimes involving D.W., so a family member gave her contact information for the detective who was working on D.W.'s case. Mr. Johnson was ultimately indicted for his crimes with Ar.L. and Aa.L., and that case was joined with the case involving D.W.

C. Convicted for Multiple Sex Crimes and Sentenced to Life in Prison

{¶ 10} Under Ohio law, sexual conduct with a minor under 13 constitutes rape. R.C. 2907.02(A)(1)(b). Similarly, sexual contact with a minor under 13 constitutes gross sexual imposition. R.C. 2907.05(A)(4). All of the rape and GSI charges against Johnson were charged under these sections, relieving the state of any need to show coercion or force.

{¶ 11} One issue at trial was whether D.W. was under 13 for purposes of the events that occurred on her birthday. The prosecutor argued that D.W. was born at 1:48 p.m. on March 16, 2001, and, therefore, she was only 12 years old at 3:00 a.m. when the assault occurred. The prosecutor thus urged the jury to find Johnson guilty of the rape and GSI charges for this date, and not guilty of the charge of unlawful sexual conduct with a minor. (The unlawful sexual conduct charge required a finding that the child was 13 or older but less than 16.)

{¶ 12} The jury apparently accepted the prosecutor's logic and found Johnson guilty of the rape and GSI crimes that occurred on her birthday, and not guilty of the unlawful-sexual-conduct charge. It also found Johnson guilty of the rape and GSI charges for the period before her birthday.

{¶ 13} For his conduct involving Ar.L., the jury found Johnson guilty of two counts of GSI and one count of rape involving a victim under age ten. He was also found guilty of one count of GSI as to Aa.L.

{¶ 14} The trial court sentenced Johnson to life without the possibility of parole for the rape of Ar.L., a sentence the court was authorized to impose because the victim was under ten years old. See R.C. 2907.02(B). It sentenced Johnson to concurrent five-year terms for each of the three GSI convictions under that case number.

{¶ 15} In the case number involving D.W., the court sentenced Johnson to ten years to life on each of the rapes of D.W., to be served consecutively. It also sentenced Johnson to concurrent five-year terms for each of the GSI convictions. The judge did not explicitly order that the sentences in the case involving D.W. be served consecutively to the life sentence imposed in the other case, so under Ohio law, the sentences in the two cases will be served concurrently. See R.C. 2929.41(A).

II. The Birthday Question

{¶ 16} In his first assignment of error, Mr. Johnson asserts that the state presented insufficient evidence to sustain counts three and five of the indictment involving D.W. because it failed to establish that she was under 13 on March 16. We agree.

{¶ 17} Ohio follows the common-law principle that fractions of a day are not considered when computing time. Greulich v. Monnin, 142 Ohio St. 113, 116–17, 50 N.E.2d 310 (1943). The Ohio Supreme Court has explained "the term ‘day’ in law, embraces the entire day," and thus "is not capable of subdivision into hours, minutes, or seconds, but is to be taken as a whole." Id. "Any other method of computation would require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable." Id. at 117, 50 N.E.2d 310, quoting 39 Ohio Jurisprudence, Computation of Time, Section 10, at 196 (1943).

{¶ 18} This rule has been widely followed. For example, the Third and Fifth Appellate Districts have held that a person is deemed to have turned 18 at 12:01 a.m. on the day of his birth, rather than at the precise time of his birth. State v. Yarger, 181 Ohio App.3d 132, 2009-Ohio-543, 908 N.E.2d 462, ¶ 18 (3d Dist.) ; State v. Clark, 84 Ohio App.3d 789, 792, 618 N.E.2d 257 (5th Dist.1993). In a similar case out of Florida, the court found that the victim in a sexual-battery case turned 12 at 12:01 a.m. based on the same no-fraction-of-a-day rule. Velazquez v. State, 648 So.2d 302 (Fla.Dist.Ct.App.1995), disapproved on other grounds, Welsh v. State, 850 So.2d 467 (Fla.2003).

{¶ 19} We see no reason to disrupt this established rule. For legal purposes, D.W. turned 13 at 12:01 a.m. on March 16th. On appeal, the state does not seriously dispute this proposition; rather, it suggests that even if we follow the common-law rule, we should still sustain the conviction because the indictment stated that the acts occurred "on or about" March 16. In light of this language, it argues that the jury was free to rely upon testimony about acts occurring prior to March 16 to find Johnson guilty of the crimes charged. But this new argument on appeal is directly contrary to the argument the state made to the jury. It told the jury to find Johnson guilty of counts three and five for the events that occurred on March 16, because they occurred just before she turned 13.

{¶ 20} The jury did what the state asked. Undoubtedly, it convicted Johnson for the acts that occurred on March 16. Because she was not under 13 on that date, the state failed to establish sufficient evidence of the essential elements of counts three and five.

{¶ 21} Mr. Johnson's first assignment of error is sustained. The convictions for counts three and five are vacated, and Mr. Johnson is discharged on those counts.

III. Conviction for Other Rape of D.W.: Weight of the Evidence

{¶ 22} In his second...