[Cite as State v. Johnson,
2021-Ohio-1441.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-20-039
Appellee Trial Court No. 2019CR0106
v.
Nikia Johnson DECISION AND JUDGMENT
Appellant Decided: April 23, 2021
…
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Sarah R. Anjum, for appellant.
…
DUHART, J.
{¶ 1} Appellant, Nikia Johnson, appeals the judgment entered by the Wood
County Common Pleas Court on March 6, 2020, convicting her on one count of burglary,
in violation of R.C. 2911.12(A)(1) and 2911.12(D), and one count of petty theft, in
violation of R.C. 2913.02(A)(1) and 2913.02(B)(2). For the reasons that follow, we
affirm the judgment of the trial court.
{¶ 2} Appellant sets forth the following assignments of error:
I. The trial court erred in failing to order a competency exam for
Appellant.
II. The trial court erred in accepting Appellant’s no contest plea
because the State’s recitation of the facts negated essential elements of the
offense.
Statement of the Case and Facts
{¶ 3} Appellant was indicted on April 4, 2019, in a two count indictment, which
charged her with one count of burglary, as a felony of the second degree, and one count
of petty theft, as a misdemeanor of the first degree. Appellant failed to appear for her
next two hearings, which resulted in warrants being issued. She was ultimately
apprehended.
{¶ 4} On January 13, 2020, appellant’s attorney filed a plea of “not guilty by
reason of insanity” (“NGRI plea”) on her behalf. The trial court ordered an evaluation by
the Court Diagnostic and Treatment Center the next day. The record is silent as to
whether that evaluation was ever ruled completed.
{¶ 5} On March 6, 2020, appellant withdrew her NGRI plea and entered a plea of
no contest to the offenses as indicted. In explaining appellant’s reasoning for
withdrawing the NGRI plea, appellant’s attorney stated:
After her being in the Justice Center and being on her medications
and having time to think about the consequences of entering a plea, she has
2.
decided that she does not want to go down that route and that she wishes to
withdraw her NGRI plea and enter into a no contest plea to the counts
facing her.
{¶ 6} Appellant disclosed to the court that while she was in jail, she began taking
four different psychiatric medications. She further indicated that those were new
medications and that prior to her admission to the jail, she was “unstable.”
{¶ 7} Regarding the charges to which appellant was pleading no contest, the state
presented the following operative facts on the record. On or about March 9, 2019, the
Perrysburg Township police were contacted by the loss prevention officer at the Kohl’s
store located on Fremont Pike in Perrysburg. The loss prevention officer reported that
she tracked appellant through the store, and watched as appellant picked up a mesh bag
and filled it with goods from around the store, proceeded to area away from the point of
sale, looked around, and then finally left the store with the mesh bag full of goods. The
loss prevention officer testified that she had indicated to appellant her title, and had asked
her to stop. Instead of stopping, appellant got into a car that was driven by her
codefendant. The state further provided that as the car was fleeing the scene, it was
intercepted by an officer from the Rossford police division. When Perrysburg police
arrived, they found the clothes that appellant had put into the mesh bag and had taken
from Kohl’s. Finally, the state provided that appellant “was subject to a trespass notice
from a Kohl’s store for similar actions.”
3.
Analysis
{¶ 8} Appellant argues in her first assignment of error that the trial court erred in
failing to order a competency hearing for her to determine whether she was competent
enough to enter her guilty plea.
{¶ 9} Consistent with the notion of fundamental fairness and due process, a
criminal defendant who is not competent to stand trial may not be tried or convicted.
State v. Prophet, 10th Dist. Franklin No. 14AP-875, 2015-Ohio-4997, ¶ 11. The United
States Supreme Court has stated that the test to determine whether a defendant is
competent to stand trial “must be whether [the defendant] has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding -- and whether
he has a rational as well as factual understanding of the proceedings against him.” Dusky
v. United States,
362 U.S. 402,
80 S.Ct. 788 (1960) (quotation omitted). The competency
standard for pleading guilty is the same as the standard for standing trial. State v. Mink,
101 Ohio St.3d 350,
2004-Ohio-1580,
805 N.E.2d 1064, ¶ 57.
{¶ 10} The right to a hearing on the issue of competency arises where the record
contains “sufficient indicia of incompetence,” such that an inquiry into the defendant’s
competency is necessary to protect the defendant’s right to a fair trial. See State v. Bock,
28 Ohio St.3d 108, 110,
502 N.E.2d 1016 (1986). Factors a trial court should consider
when determining whether to sua sponte conduct a competency hearing include: doubts
expressed by defense counsel as to a client’s competency; evidence of irrational behavior;
4.
the defendant’s demeanor; and any prior medical opinions concerning the defendant’s
competency. Prophet at ¶ 14.
{¶ 11} In the instant case, there was no evidence of any prior medical opinions
concerning appellant’s competency to stand trial. As indicia of incompetence, appellant
alleges that she was “in and out” of jail during the pendency of this case, that she was
placed on “at least four psychiatric medications at the jail,” and that she had indicated
that she was “unstable” prior to receiving those medications. Despite these allegations,
the record is clear that appellant was a full, active, and rational participant throughout the
course of her plea proceedings. The Supreme Court of Ohio has specifically determined
that “a defendant may be emotionally disturbed or even mentally ill and yet competent to
stand trial.” State v. Ferguson, 108 Ohio St.3d 451,
2006-Ohio-1502,
844 N.E.2d 806,
¶ 46. Stated otherwise, “[a] defendant may be emotionally disturbed or even psychotic
and still be capable of understanding the charges against him and assisting his counsel.”
State v. Bock,
28 Ohio St.3d 108, 110,
502 N.E.2d 1016 (1986). In the instant case, the
trial court conducted an extended colloquy with appellant to make sure that she fully
understood the actions that she was about to take. During that exchange, appellant
expressly stated that she was currently “stable.”
{¶ 12} Based on the foregoing, we conclude that the trial court did not err in
failing to order a competency hearing in this case, because the record does not contain
“sufficient indicia of incompetence” such that an inquiry into appellant’s competency
5.
was necessary to protect the appellant’s right to a fair trial. Appellant’s first assignment
of error is, therefore, found not well-taken.
{¶ 13} Appellant argues in her second assignment of error that the trial court erred
in accepting her no contest plea, because the state’s recitation of the facts negated
essential elements of the offense of burglary. Regarding the offense of burglary in this
case, R.C. 2911.12(A)(1) relevantly provides:
(A) No person, by force, stealth, or deception, shall do any of the
following:
(1) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when another person
other than an accomplice of the offender is present, with purpose to commit
in the structure or in the separately secured or separately occupied portion
of the structure any criminal offense.
{¶ 14} Appellant was convicted on her plea of no contest, which was an admission
of the truth of the facts alleged in the indictment. See Crim.R. 11(B)(2). A court may
accept a plea where the conditions of Crim.R. 11(C) are satisfied, and if it does accept the
plea, the court must find the defendant guilty if the facts alleged in the indictment are
sufficient in law to demonstrate the offense alleged. State v. Cooper, 168 Ohio App.3d
378,
2006-Ohio-4004,
860 N.E.2d 135, ¶ 3 (2d Dist.).
{¶ 15} Appellant does not dispute that the conditions of Crim.R. 11(C) were
satisfied, or the sufficiency of the facts alleged in the indictment. Instead, she argues that
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her conviction should be reversed on the grounds that the state’s recitation of the facts
failed to establish the elements of trespass and “force, stealth, or deception.”
{¶ 16} Ohio law is clear that when a court accepts a plea of no contest to a felony
charge, the court is not required to have before it a statement of the particular conduct
constituting the alleged offense. Cooper at ¶ 6. In general, “a defendant is barred from
challenging the sufficiency of the evidence as to elements that are deemed admitted via
his no contest plea.” State v. Jones, 6th Dist. Lucas No. L-12-1267,
2013-Ohio-4745,
¶ 9, citing State v. Taylor, 6th Dist. Lucas No. L-10-1302,
2011-Ohio-5462, ¶ 18 (“The
effect of appellant’s no contest plea is an admission to all of the allegations in the
indictment, including the element for which he now claims there was insufficient
evidence.”). “However, if the prosecutor presents a statement of facts and those facts
positively contradict the felony charged in the indictment by negating an element
essential to the commission of the offense alleged, the court cannot make a finding of
guilt on the basis of the charges alleged in the indictment.”
Cooper at ¶ 6 (emphasis
added.)
{¶ 17} As indicated above, burglary, as it is defined in R.C. 2911.12, requires a
trespass. Trespass is defined in R.C. 2911.21(A), which relevantly provides:
No person, without privilege to do so, shall do any of the following:
…
(2) Knowingly enter or remain on the land or premises of another,
the use of which is lawfully restricted to certain persons, purposes, modes,
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or hours, when the offender knows the offender is in violation of any such
restriction or is reckless in that regard.
Regarding the definition of recklessness, R.C. 2901.22 relevantly states:
(C) A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that
the person's conduct is likely to cause a certain result or is likely to be of a
certain nature.
Here, the state’s recitation of the facts revealed that appellant entered the Kohl’s store
after she had received a trespass notice from what was apparently another Kohl’s store
for “similar actions.” According to the trial court, appellant “had been ordered not to
enter into any Kohl’s but did go into there and did so with the purpose of stealing items
from there.” We find that the state’s recitation of the facts not only fails to negate the
element of trespass, it supports that element to the extent that appellant’s conduct in
entering any Kohl’s store while under the restriction of a trespass notice from Kohl’s was
at least reckless in nature.
{¶ 18} Regarding the element of “force, stealth, or deception,” we likewise find
that evidence that appellant entered the Kohl’s store, knowing she was under the
restriction of a Kohl’s trespass notice and with the purpose of stealing items from the
store, only served to support, and did nothing to negate, this element. Accordingly,
appellant’s second assignment of error is not well-taken.
8.
{¶ 19} For all of the foregoing reasons, we affirm the judgment of the Wood
County Court of Common Pleas. 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
Christine E. Mayle, J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
9.
