STATE OF OHIO v. DWAYNE A. JOHNSON

Dayton, OH - Criminal defense attorney represented Dwayne A. Johnson with a theft charge.

Johnson, along with two co-defendants, was indicted on one count of theft

based on the theft of merchandise from the JCPenney located within the Dayton Mall.

Johnson and his co-defendants stole items with an aggregate value exceeding $1,000,

and they were indicted for theft as a fifth degree felony. Johnson filed a motion to

dismiss, asserting that the State had improperly aggregated the value of the merchandise

stolen by defendants to arrive at "a felony level crime.” The trial court overruled the

motion to dismiss. Johnson then pleaded no contest to the indicted offense. Following

completion of a presentence investigation report, he was sentenced to community control

sanctions. This appeal followed.

{¶ 3} Original appellate counsel filed an Anders brief, but we rejected the brief

because the record did not include transcripts of the plea and sentencing hearings. New

counsel was appointed, and the record has been appropriately supplemented. As noted,

new counsel has also filed an Anders brief, including a request that counsel be allowed

to withdraw. Johnson was notified of his right to file a pro se brief by October 28, 2020.

No brief has been filed.

Anders Standard

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{¶ 4} Upon the filing of an Anders brief, an appellate court has a duty to determine,

"after a full examination of the proceedings,” whether the appeal is, in fact, "wholly

frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488

U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based

upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d

Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one

about which, "on the facts and law involved, no responsible contention can be made that

offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-

Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders

brief and appoint new counsel to represent the appellant.

Anders Analysis

{¶ 5} Consistent with his duties under Anders, counsel suggests the following as

a potential assignment of error: "* * * the trial court err[ed] in denying Johnson's motion to

dismiss[.]” We conclude that, if presented, such an assignment of error would be wholly

frivolous.

{¶ 6} Johnson's motion to dismiss requested the trial court "to dismiss the * * *

charge of theft under * * * R.C. 2913.02(A)(1), as a felony of the [fifth] degree * * *

[because] the facts do not fit the elements of a felony theft.” More specifically, Johnson's

motion argued as follows:

* * * [Johnson] has been charged with a fifth degree felony by

aggregating the amount taken by the three (3) codefendants to reach

the felony statutory amount of $1,000.00 or more. At most, the

Defendant here should only be charged for one-third of the alleged items

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taken or $716.24 of value. Aggregating items to reach the required

felony amount is not within the statutory scope of the Ohio theft statute,

O.R.C. 2913.02(A)(1).

{¶ 7} Though not so designated, Johnson's motion was filed under Crim.R. 12(C),

since it asserts a defect in the indictment. A "motion to dismiss [under Crim.R. 12(C)(2)]

tests the legal sufficiency of [an] indictment, regardless of the quality or quantity of the

evidence that may be introduced [at trial either by] the state or [by] the defendant.”

(Citations omitted.) State ex rel. Steffen v. Court of Appeals, First Appellate District, 126

Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 34; State v. Pointer, 193 Ohio App.3d

674, 2011-Ohio-1419, 953 N.E.2d 853, ¶ 16 (2d Dist.), citing Steffen at ¶ 34. When

presented with a motion to dismiss an indictment, a trial court should determine only

"whether the allegations [describe one or more] offenses under Ohio criminal law.” State

v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d 1165 (2d Dist.1989); see also Crim.R.

7(B). The question of whether the evidence is sufficient to support a conviction must be

left for a trial on the merits. Pointer at ¶ 16. On appeal, a trial court's ruling on a motion

under Crim.R. 12(C)(2) is reviewed de novo. State v. Thornsbury, 4th Dist. Lawrence

No. 12CA9, 2013-Ohio-1914, ¶ 6.

{¶ 8} The State responded to Johnson's motion by noting that the State's theory

was that Johnson acted in concert with two co-defendants, that the value of the items

stolen by the three defendants exceeded $1,000, and that, at trial, Johnson could be

found guilty as a principal offender or as an aider and abettor under R.C. 2923.03(A)(2).

That statute states that "[n]o person, acting with the kind of culpability for the commission

of an offense, shall * * * [a]id or abet another in committing the offense.” The State further

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accurately pointed out that under R.C. 2923.03(F), a "charge of complicity may be stated

in terms of [R.C. 2923.03], or in terms of the principal offense.” The trial court agreed with

the State's argument and, on this basis, overruled the motion to dismiss.

{¶ 9} The indictment charged as follows:

THE GRAND JURORS of the County of Montgomery, in the name, and by

the authority of the State of Ohio, upon their oaths do find and present that:

PAMELA J. JOHNSON, DWAYNE A. JOHNSON AND WILLIAM D.

REEVES, on or about SEPTEMBER 19, 2018 in the County of Montgomery,

aforesaid, and State of Ohio, with purpose to deprive the owner, to-wit: J.C.

PENNEY of property or services, did knowingly and without the consent of

the owner or person authorized to give consent, obtain or exert control over

said owner's property or services, to-wit: MERCHANDISE, having a value

of One Thousand Dollars ($1,000.00) or more but less than $7,500.00;

contrary to the form of the statute (in violation of Section 2913.02(A)(1) of

the Ohio Revised Code) * * * .

The indictment charged a violation of R.C. 2913.02(A)(1) as a fifth degree felony. As

discussed, this is the only determination a trial court needs to make when ruling upon a

Crim.R. 12(C) motion to dismiss an indictment. If Johnson had not entered a plea, the

issue of whether the evidence were sufficient to establish theft as a fifth degree felony,

under a complicity theory or otherwise, would have been resolved at a trial on the merits.

Thus, any argument that the trial court erred by overruling Johnson's motion to dismiss

would be wholly frivolous.

{¶ 10} In addition, we have reviewed the entire record, including the transcripts of

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the plea and sentencing hearings. This review has not revealed any potentially

meritorious appellate issues. Given this, the trial court's judgment will be affirmed.

Counsel is granted permission to withdraw. The judgment of the Montgomery County Common Pleas Court is affirmed.