[Cite as State v. Johnston, 2014-Ohio-353.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-13-10
v.
ERIC MICHAEL JOHNSTON, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court Trial Court No. CR12-10-0253
Judgment Affirmed
Date of Decision: February 3, 2014
APPEARANCES:
Edwin Dougherty for Appellant
Eric C. Stewart for Appellee Case No. 8-13-10
PRESTON, J.
{¶1} Defendant-appellant, Eric Michael Johnston (“Johnston”), appeals the
Logan County Court of Common Pleas’ judgment entry of sentence. We affirm.
{¶2} On December 11, 2012, the Logan County Grand Jury indicted
Johnston on one count of breaking and entering in violation of R.C. 2911.13(A), a
fifth-degree felony. (Doc. No. 4).
{¶3} The trial court held an arraignment hearing on January 16, 2013.
(Doc. No. 17). Johnston appeared with counsel and entered a plea of not guilty.
(Id.).
{¶4} On May 8, 2013, the trial court held a hearing to allow Johnston to
waive his right to a jury trial. (Doc. No. 28). Johnston executed a “waiver of
jury” in open court after having the opportunity to consult with counsel. (Doc.
No. 30). In the “waiver of jury,” Johnston waived his right to a trial by jury and
elected to be tried by a judge of the trial court. (Id.).
{¶5} A bench trial was held on May 16, 2013, and the trial court found
Johnston guilty. (May 16, 2013 Tr. at 4-5, 46); (Doc. Nos. 35, 37).
{¶6} The trial court held a sentencing hearing on June 17, 2013 and
sentenced Johnston to three years of community control. (June 17, 2013 Tr. at 2-
4); (Doc. No. 45). The trial court also ordered that Johnston pay a fine of $250.00,
restitution in the amount of $350.00, and the costs of prosecution and fees
permitted under R.C. 2929.18(A) and 2947.23. (Id.); (Id.).
-2- Case No. 8-13-10
{¶7} On July 15, 2013, the trial court filed its judgment entry of sentence.
(Doc. No. 45).
{¶8} Johnston filed a notice of appeal on July 19, 2013, followed by his
statement and praecipe and criminal appeal docketing statement on August 6,
2013. (Doc. Nos. 51, 58, 59). He raises two assignments of error for our review.
Assignment of Error No. I
Eric Johnston was convicted on insufficient evidence.
{¶9} In his first assignment of error, Johnston argues that the trial court
lacked sufficient evidence to find him guilty of breaking and entering under R.C.
2911.13(A). Specifically, Johnston argues that the State failed to prove that he
trespassed—one of the elements of R.C. 2911.13(A)—and that one of the State’s
witnesses was not credible.
{¶10} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id.
-3- Case No. 8-13-10
{¶11} “In deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses, as both are functions
reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570
and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d
505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance
No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of
adequacy rather than credibility or weight of the evidence.”), citing State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶12} The trial court found Johnston guilty of the sole count contained in
the indictment—breaking and entering in violation of R.C. 2911.13(A). That
statute provides: “[n]o person by force, stealth, or deception, shall trespass in an
unoccupied structure, with purpose to commit therein any theft offense, as defined
in section 2913.01 of the Revised Code, or any felony.” R.C. 2911.13(A).
{¶13} The breaking-and-entering count against Johnston was based on his
allegedly stealing aluminum gutters, siding, and spouting from a shed on a
“weekend getaway” property in the Indian Lake area. (See May 16, 2013 Tr. at
10, 20). In his brief, Johnston addresses the trespass element of R.C. 2911.13(A).
He argues that the State did not prove trespass because the State’s second of two
witnesses—a neighbor who lived across the street from the property—testified
only that she witnessed Johnston removing the materials from the shed, not that
she witnessed Johnston entering the shed.
-4- Case No. 8-13-10
{¶14} We conclude that there was sufficient evidence to support Johnston’s
breaking-and-entering conviction, including sufficient evidence on the trespass
element of R.C. 2911.13(A). The property owner testified that she and her
husband stored the aluminum gutters, siding, and spouting “in the shed” and that
they noticed those materials were missing from the shed. (May 16, 2013 Tr. at
13). The neighbor testified that she witnessed Johnston taking the gutters, siding,
and spouting “out of the shed and loading it into the truck.” (Id. at 20). The
neighbor—who knew Johnston for at least ten years and used to take care of his
son—testified that she approached Johnston and spoke with him face-to-face when
she witnessed him removing the materials and that he told her he had permission
to remove the materials. (Id. at 20-22, 26). She testified that there was “[n]o
question in [her] mind whatsoever” that it was Johnston who was removing the
materials from the shed. (Id. at 22). This is sufficient evidence to support the
trespass element of R.C. 2911.13(A).
{¶15} Johnston also argues that the neighbor was not a credible witness
because she testified, on one hand, that Johnston was a known collector of junk
who was not allowed in the neighborhood due to thievery, but, on the other hand,
that she did not think Johnston’s presence in the neighborhood was suspicious
because “junk men” come through the neighborhood. (May 16, 2013 Tr. at 19-
20). However, in deciding if the evidence was sufficient, we do not assess
credibility of witnesses—that is a function reserved for the trier of fact, who
-5- Case No. 8-13-10
obviously found the neighbor’s testimony credible. See Jones, 2013-Ohio-4775,
at ¶ 33.
{¶16} Johnston’s first assignment of error is overruled.
Assignment of Error No. II
Mr. Johnston was denied effective assistance of counsel when counsel called Johnston to testify eventhough [sic] he had multiple theft convictions.
{¶17} In his second assignment of error, Johnston argues that he was
denied effective assistance of trial counsel when trial counsel called Johnston to
testify because Johnston’s “lengthy record for thefts and one case of breaking and
entering,” which came out during the State’s cross-examination of Johnston.
(Appellant’s Brief).1
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[Cite as State v. Johnston, 2014-Ohio-353.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-13-10
v.
ERIC MICHAEL JOHNSTON, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court Trial Court No. CR12-10-0253
Judgment Affirmed
Date of Decision: February 3, 2014
APPEARANCES:
Edwin Dougherty for Appellant
Eric C. Stewart for Appellee Case No. 8-13-10
PRESTON, J.
{¶1} Defendant-appellant, Eric Michael Johnston (“Johnston”), appeals the
Logan County Court of Common Pleas’ judgment entry of sentence. We affirm.
{¶2} On December 11, 2012, the Logan County Grand Jury indicted
Johnston on one count of breaking and entering in violation of R.C. 2911.13(A), a
fifth-degree felony. (Doc. No. 4).
{¶3} The trial court held an arraignment hearing on January 16, 2013.
(Doc. No. 17). Johnston appeared with counsel and entered a plea of not guilty.
(Id.).
{¶4} On May 8, 2013, the trial court held a hearing to allow Johnston to
waive his right to a jury trial. (Doc. No. 28). Johnston executed a “waiver of
jury” in open court after having the opportunity to consult with counsel. (Doc.
No. 30). In the “waiver of jury,” Johnston waived his right to a trial by jury and
elected to be tried by a judge of the trial court. (Id.).
{¶5} A bench trial was held on May 16, 2013, and the trial court found
Johnston guilty. (May 16, 2013 Tr. at 4-5, 46); (Doc. Nos. 35, 37).
{¶6} The trial court held a sentencing hearing on June 17, 2013 and
sentenced Johnston to three years of community control. (June 17, 2013 Tr. at 2-
4); (Doc. No. 45). The trial court also ordered that Johnston pay a fine of $250.00,
restitution in the amount of $350.00, and the costs of prosecution and fees
permitted under R.C. 2929.18(A) and 2947.23. (Id.); (Id.).
-2- Case No. 8-13-10
{¶7} On July 15, 2013, the trial court filed its judgment entry of sentence.
(Doc. No. 45).
{¶8} Johnston filed a notice of appeal on July 19, 2013, followed by his
statement and praecipe and criminal appeal docketing statement on August 6,
2013. (Doc. Nos. 51, 58, 59). He raises two assignments of error for our review.
Assignment of Error No. I
Eric Johnston was convicted on insufficient evidence.
{¶9} In his first assignment of error, Johnston argues that the trial court
lacked sufficient evidence to find him guilty of breaking and entering under R.C.
2911.13(A). Specifically, Johnston argues that the State failed to prove that he
trespassed—one of the elements of R.C. 2911.13(A)—and that one of the State’s
witnesses was not credible.
{¶10} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id.
-3- Case No. 8-13-10
{¶11} “In deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses, as both are functions
reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570
and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d
505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance
No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of
adequacy rather than credibility or weight of the evidence.”), citing State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶12} The trial court found Johnston guilty of the sole count contained in
the indictment—breaking and entering in violation of R.C. 2911.13(A). That
statute provides: “[n]o person by force, stealth, or deception, shall trespass in an
unoccupied structure, with purpose to commit therein any theft offense, as defined
in section 2913.01 of the Revised Code, or any felony.” R.C. 2911.13(A).
{¶13} The breaking-and-entering count against Johnston was based on his
allegedly stealing aluminum gutters, siding, and spouting from a shed on a
“weekend getaway” property in the Indian Lake area. (See May 16, 2013 Tr. at
10, 20). In his brief, Johnston addresses the trespass element of R.C. 2911.13(A).
He argues that the State did not prove trespass because the State’s second of two
witnesses—a neighbor who lived across the street from the property—testified
only that she witnessed Johnston removing the materials from the shed, not that
she witnessed Johnston entering the shed.
-4- Case No. 8-13-10
{¶14} We conclude that there was sufficient evidence to support Johnston’s
breaking-and-entering conviction, including sufficient evidence on the trespass
element of R.C. 2911.13(A). The property owner testified that she and her
husband stored the aluminum gutters, siding, and spouting “in the shed” and that
they noticed those materials were missing from the shed. (May 16, 2013 Tr. at
13). The neighbor testified that she witnessed Johnston taking the gutters, siding,
and spouting “out of the shed and loading it into the truck.” (Id. at 20). The
neighbor—who knew Johnston for at least ten years and used to take care of his
son—testified that she approached Johnston and spoke with him face-to-face when
she witnessed him removing the materials and that he told her he had permission
to remove the materials. (Id. at 20-22, 26). She testified that there was “[n]o
question in [her] mind whatsoever” that it was Johnston who was removing the
materials from the shed. (Id. at 22). This is sufficient evidence to support the
trespass element of R.C. 2911.13(A).
{¶15} Johnston also argues that the neighbor was not a credible witness
because she testified, on one hand, that Johnston was a known collector of junk
who was not allowed in the neighborhood due to thievery, but, on the other hand,
that she did not think Johnston’s presence in the neighborhood was suspicious
because “junk men” come through the neighborhood. (May 16, 2013 Tr. at 19-
20). However, in deciding if the evidence was sufficient, we do not assess
credibility of witnesses—that is a function reserved for the trier of fact, who
-5- Case No. 8-13-10
obviously found the neighbor’s testimony credible. See Jones, 2013-Ohio-4775,
at ¶ 33.
{¶16} Johnston’s first assignment of error is overruled.
Assignment of Error No. II
Mr. Johnston was denied effective assistance of counsel when counsel called Johnston to testify eventhough [sic] he had multiple theft convictions.
{¶17} In his second assignment of error, Johnston argues that he was
denied effective assistance of trial counsel when trial counsel called Johnston to
testify because Johnston’s “lengthy record for thefts and one case of breaking and
entering,” which came out during the State’s cross-examination of Johnston.
(Appellant’s Brief).1
{¶18} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was
deficient or unreasonable, the defendant must overcome the presumption that
counsel provided competent representation and must show that counsel’s actions
were not trial strategies prompted by reasonable professional judgment.
Strickland, 466 U.S. at 687.
1 Johnston’s brief does not contain page numbers.
-6- Case No. 8-13-10
{¶19} Counsel is entitled to a strong presumption that all decisions fall
within the wide range of reasonable professional assistance. State v. Sallie, 81
Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if
unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72
Ohio St.3d 545, 558 (1995). Rather, the errors complained of must amount to a
substantial violation of counsel’s essential duties to his client. See State v.
Bradley, 42 Ohio St.3d 136, 141-142 (1989), quoting State v. Lytle, 48 Ohio St.2d
391, 396 (1976).
{¶20} In this case, Johnston has not satisfied Strickland’s ineffective-
assistance-of-counsel test. “Whether or not a defendant testifies is purely a
tactical decision.” State v. Hailes, 6th Dist. Wood No. WD-11-001, 2012-Ohio-
3111, ¶ 53, quoting State v. Ryan, 6th Dist. Wood No. WD-05-5120, 2006-Ohio-
5120, ¶ 23. See also State v. Coulson, 3d Dist. Hardin No. 6-96-04, 1996 WL
471304, *2 (Aug. 2, 1996) (“[W]e believe that counsel’s decision to
allow defendant to testify was a reasonable tactical decision which will not be
second guessed on appellate review.”). “Since the advice of an attorney to their
client regarding the decision to testify is a tactical decision, it cannot be challenged
on appeal on the grounds of ineffective assistance of counsel, unless it is shown
that the decision was the result of coercion.” Hailes at ¶ 53, quoting Ryan at ¶ 23.
Here, Johnston does not allege that his trial counsel coerced him into testifying in
his trial, so he cannot demonstrate that his trial counsel was ineffective.
-7- Case No. 8-13-10
{¶21} Moreover, Johnston does not argue that he was prejudiced, only that
“[i]t would be hard to believe that the prior convictions would not enter into the
Court’s decision-making and sway the balance toward guilty.” (Appellant’s
Brief). However, in “a bench trial rather than a trial before a jury, a judge is
presumed to consider only the relevant, material and competent evidence in
arriving at a judgment unless the contrary affirmatively appears from the record.”
State v. Jones, 3d Dist. Van Wert No. 15-11-16, 2012-Ohio-5334, ¶ 35, citing
State v. Colegrove, 140 Ohio App.3d 306, 317 (8th Dist.2000). In this case, it
does not affirmatively appear from the record that the trial court considered for
any improper purpose—such as propensity to commit the crime—the evidence of
Johnston’s prior convictions, and Johnston does not argue that it does.
{¶22} Johnston’s second assignment of error is overruled.
{¶23} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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