State v. Johnson

[Cite as State v. Johnson, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 113591
                 v.                                 :

DEMARKCO JOHNSON,                                   :

                 Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: October 24, 2024


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
         Case Nos. CR-22-674068-A, CR-23-683589-A, and CR-23-683800-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory Mussman, Brandon A. Piteo, and
                 Samantha M. Sohl, Assistant Prosecuting Attorneys, for
                 appellee.

                 Allison F. Hibbard, for appellant.


EILEEN T. GALLAGHER, P.J.:

                Defendant-appellant, Demarkco Johnson (“Johnson”), appeals his

convictions and claims the following errors:

        1. The trial court abused its discretion in denying appellant’s request
        for a jury instruction on entrapment.
      2. The trial court erred in failing to admonish and/or instruct the
      witness to stop answering questions with a legal conclusion after
      defense counsel had objected.

      3. Appellant’s convictions are against the manifest weight of the
      evidence; therefore, his convictions are in violation of the Ohio state
      constitution and the Sixth and Fourteenth Amendments to the United
      States Constitution.

             We affirm the trial court’s judgment.

                        I. Facts and Procedural History

             In August 2023, Johnson and codefendant, Von E. Harris (“Harris”)

(collectively “defendants”), were charged with two counts of conspiracy, three

counts of bribery, eight counts of forgery, one count of insurance fraud, one count

of identity fraud, and one count of engaging in a pattern of corrupt activity. The two

conspiracy charges included furthermore clauses alleging that the object of the

conspiracy was to engage in a pattern of corrupt activity. The engaging in a pattern

of corrupt activity charge included a furthermore clause alleging that at least one of

the incidents of corrupt activity was a felony of the third degree or higher.

             The case against the defendants proceeded to a jury trial. George

Michael Riley, Sr. (“Riley”), testified that he became a confidential source for the

Federal Bureau of Investigation (“FBI”), which was investigating corruption in the

East Cleveland Police Department. Riley had operated a demolition business in East

Cleveland (“East Cleveland” or “the city”), and he was acquainted with several

individuals in the police department.

             Special Agent Shaun Roth (“Roth”), an agent with the FBI working with

the Cleveland Metropolitan Anticorruption Task Force, testified that the FBI
executed a search warrant for one of Riley’s properties. Riley’s attorney later

contacted the FBI to set up a proffer interview with Riley in November 2017. A

proffer interview allows an individual such as Riley to provide “protected

statements” that cannot be used against him as long as they are truthful. (Tr. 1026.)

They allow an individual to avoid criminal liability by assisting law enforcement.

             Riley provided two proffered interviews in November and December

2017. In the second statement, Riley told the investigators that he and Harris had a

“quid pro quo” relationship wherein Harris performed “services” in exchange for

money. Harris’s services included running Riley’s name in police databases to check

for warrants and blocking off city roads so Riley could move his demolition

equipment throughout the city. (Tr. 1029-1030.) Riley also called Harris if one of

his drivers was pulled over, and Harris would “have the problem taken care of.” (Tr.

1030.)

             In April 2018, two of Riley’s trucks were stolen from his business on

Elderwood Avenue in East Cleveland. Riley told his contacts at the FBI, and FBI

officials instructed him to file a police report with the East Cleveland police just as

any other victim would do. (Tr. 1032.) However, because he was going to make

contact with the city, the FBI decided to use him as a confidential source. Riley

cooperated with the FBI and agreed to have his cell phone monitored. (Tr. 1033,

1041.) He also allowed the FBI to install cameras in his truck to record the

interactions he had with city officials.
             Acting as a confidential source, Riley contacted Harris to report his

stolen vehicles. (Tr. 1034.) In a recorded phone call played for the jury, Riley asks

Harris “how much it costs to run a license plate?” Riley testified that such a question

was “normal business in East Cleveland.” (Tr. 686.)

             A month later, Harris told Riley that he had a license plate for a vehicle

that may be related to the theft of Riley’s vehicles, and Riley asked if Harris could

run the plate. (Tr. 1034.) By this time, Harris was no longer working as a police

officer due to an injury and he needed the assistance of a police officer who was still

employed by the department.        The FBI obtained Harris’s cell phone records

pursuant to a subpoena and discovered that he called Johnson almost immediately

after Riley asked him if he could run the plate. (Tr. 1036.) Days later, Riley again

contacted Harris to inquire about a bus that was also stolen from his business.

              Roth authenticated several audio and video recordings of Riley’s

interactions with Harris, Johnson, and other city employees.           In one phone

recording from June 7, 2018, which was marked as State’s exhibit No. 502, Harris is

heard telling Riley to give someone $150 for her help preparing an incident report.

Harris is also heard telling Riley to give another individual $200 for doing the

report. Roth testified, and the recording confirms, that the idea of these payments

originated with Harris. (Tr. 1039.)

             In accordance with Harris’s instructions, Riley traveled to northeast

Ohio with the money to pay the individuals who prepared the reports. (Tr. 1040.)

Riley arranged to meet Harris at the East 55th Diner, and FBI agents set up
surveillance at the scene. Roth authenticated video footage taken of the June 13,

2018 meeting. The video footage, marked as State’s exhibit No. 2, shows a hand-to-

hand transaction between Riley, who is seated in the driver’s seat of his truck, and

Harris, who is standing outside the driver’s side window. Referring to the video,

both Roth and Riley testified that Harris handed him a police report for the bus

stolen from Riley’s property. (Tr. 1061.) In exchange for the report, Riley gave

Harris $200. The video footage further shows that a woman, later identified as

Kawanga Patrick (“Patrick”), approached Riley’s truck and Riley handed her

something. At trial, Riley and Roth testified that Riley gave Patrick $200. (Tr. 1047,

702-704.)

              Roth testified that after the meeting at the East 55th Diner, Riley and

Harris later drove to the East Cleveland Police Department so that Riley could pay

another individual who wrote the report.           Video surveillance shows Harris

introducing the other individual as “Nevels.” However, the FBI later determined

that the person introduced as Task Force Officer Wilbert Nevels was actually

Johnson. Video footage of this encounter shows Riley shaking Johnson’s hand and

giving him $200 in cash. (Tr. 712, 1077.) Before Harris and Johnson walk away,

Riley tells them that he has “a bonus” for them if they can find the bus that was stolen

from his property. (Tr. 714.)

              On June 20, 2018, Riley again met with Harris and Johnson at a gas

station in East Cleveland.      (Tr. 1088, State’s exhibit No. 200.)       During this

encounter, Riley gave Johnson an additional $200 in exchange for two East
Cleveland police reports concerning the two vehicles that were stolen from Riley’s

property.   (Tr. 1104-1107, State’s exhibit Nos. 202-203.)        The reports were

purportedly signed by Nevels. However, Wilbert Nevels testified at trial that he did

not create these reports. He also stated that the signatures on the reports were not

his signatures. (Tr. 993.) Roth testified that he conducted a search of the alleged

stolen vehicles’ VIN numbers in the Law Enforcement Automated Data System

(“LEADS”) and discovered that although the vehicles were reported stolen, the

vehicles were never actually entered into LEADS.          LEADS allows other law

enforcement agencies to assist in locating stolen vehicles. (Tr. 1106.)

              After paying Johnson at the gas station, Riley drove with Harris to the

East Cleveland City Hall, where Riley paid another city official $100. He then drove

Harris home, where he gave Harris $300. (Tr. 1089.)

              Riley again met with Harris and Johnson at a different gas station on

July 24, 2018. In this meeting, Harris and Johnson gave Riley false police reports

detailing the recovery of the stolen vehicles in exchange for $500 each. (State’s

exhibit Nos. 301-304, tr. 751 and 1109-1110.) A videorecording of this meeting

captured a conversation between Riley and Johnson wherein Riley asked if the

reports are “the real deal,” meaning that they did not look fake. (Tr. 751, State’s

exhibit No. 301.) Riley had told them that he intended to submit the reports to his

insurance company to recover for “damage” to the vehicles. Johnson assured Riley

that the reports would appear legitimate for purposes of the insurance claims.

(Tr. 752 and 118-119; State’s exhibit No. 301.) Riley told Harris and Johnson that
his truck was worth $20,000-$25,000, and he promised to give them more money

when he eventually received the insurance payout. (Tr. 752.)

              Roth testified that he investigated the police reports Riley received

from Harris and Johnson. The reports provided on June 20, 2018, and depicted in

State’s exhibit Nos. 202 and 203, describe the theft of two of Riley’s vehicles.

(Tr. 1104-1108.) However, Roth’s investigation revealed that these “stolen vehicles”

were never entered into LEADS. LEADS allows other law enforcement agencies to

assist in locating stolen vehicles. (Tr. 1106.) Roth also interviewed Wilbert Nevels,

whose signature appeared on the reports, and he discovered that the signatures were

forgeries. (Tr. 993, 1107.)

              The recovery reports provided on July 24, 2018, indicated that the

recovered vehicles were towed by a company in Akron and signed by one “Officer

Coleman badge 921” of the Akron Police Department. (Tr. 1129.) Roth inquired of

the Akron Police Department and learned that “[t]here was no Officer Coleman

badge 921.” (Tr. 1129.) Roth also called the tow-truck company listed in the reports

and found that the vehicles were never towed by that company. (Tr. 1129.)

              Finally, Roth interviewed Johnson as part of his investigation. The

interview was recorded and entered into evidence as State’s exhibit No. 400.

(Tr. 1136.) During the interview, Roth and another FBI agent confronted Johnson

with video evidence of him meeting with and accepting cash from Riley on multiple

occasions. They also showed him the video wherein Johnson assured Riley that the

reports would appear legitimate. (Tr. 1136-1148, State’s exhibit No. 400.) After
seeing the video evidence, Johnson apologized to Roth for “lying.” (Tr. 1149, State’s

exhibit No. 400.) Roth also described the interview he took of Harris in which

Harris also admitted he received money from Riley and that he gave some of it to

Johnson.

              After hearing the evidence, the jury found Johnson guilty of two

counts of bribery in violation of R.C. 2921.02(B), as alleged in Counts 5 and 10 of the

indictment. The jury acquitted him of all other charges. The court sentenced

Johnson to 12 months in prison on both counts and ordered that the two prison

terms be served concurrently. Johnson now appeals the trial court’s judgment.

                               II. Law and Analysis

                           A. Entrapment Instruction

              In the first assignment of error, Johnson argues the trial court erred

in denying his request for a jury instruction on the defense of entrapment.

              We review a trial court’s refusal to give a particular jury instruction for

an abuse of discretion. State v. Daniel, 

 (8th Dist.), citing State

v. Leonard, 

. An abuse of discretion occurs when a court

exercises its judgment in an unwarranted way regarding a matter over which it has

discretionary authority. Johnson v. Abdullah, 

.

              A requested jury instruction should be given if it contains a correct

statement of the law, is appropriate to the facts, and reasonable minds could reach

the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co., 

 (1991); State v. Nelson, 

 (1973), paragraph one of the
syllabus. However, the trial court should not instruct the jury on a particular issue

where there is no evidence to support it. State v. Williams, 

,

citing Riley v. Cincinnati, 

 (1976).

              Entrapment     is   an   affirmative   defense.    State   v.   Carver,

 (8th Dist.). The party asserting an affirmative defense bears

the burden of establishing the defense by a preponderance of the evidence.

R.C. 2901.05(A); State v. Doran, 

 (1983); State v.

Marquand, 

 (8th Dist.) (“Because the defense of entrapment is

an affirmative defense, the burden of production and the burden of proof, by a

preponderance of the evidence, is on the defendant.”).

              “Entrapment is a ‘confession and avoidance’ defense in which the

defendant admits committing the acts charged, but claims that the criminal design

arose with the state’s agent.” State v. Ellison, 

 (6th Dist.). To

establish an entrapment defense, the evidence must show that the criminal design

originated with government officials, that the government officials implanted in the

mind of an innocent person the disposition to commit the alleged offense, and that

government officials induced the commission of a crime in order to prosecute the

defendant. 

. There is no entrapment when government officials

“merely afford opportunities or facilities for the commission of the offense” to a

criminal defendant who was predisposed to commit the offense. 

              In Doran, the Ohio Supreme Court was asked to determine whether

Ohio law should define entrapment pursuant to a “subjective” test or an “objective”
test. 

. The Court explained that a “subjective test of entrapment

focuses upon the predisposition of the accused to commit an offense.” 

 By

contrast, an objective test “focuses upon the degree of inducement utilized by law

enforcement officials and whether an ordinary law-abiding citizen would have been

induced to commit an offense.”        

   The Ohio Supreme Court adopted the

“subjective” test, finding it more reliable because it “properly emphasizes the

accused’s criminal culpability and not the culpability of the [government agent].”

.

              In applying the subjective test of the entrapment defense, the Doran

Court identified the following nonexhaustive list of factors to consider:

       (1) the accused’s previous involvement in criminal activity of the nature
       charged, (2) the accused’s ready acquiescence to the inducements
       offered by the police, (3) the accused’s expert knowledge in the area of
       the criminal activity charged, (4) the accused’s ready access to
       contraband, and (5) the accused’s willingness to involve himself in
       criminal activity.

. “No one factor controls over another.” State v. Carver, 

.

              There was no evidence that Johnson previously engaged in any

criminal conduct. However, Johnson’s acquiescence was demonstrated through

Riley’s testimony and the video footage of him accepting money in exchange for his

help in creating false police reports. There is no evidence that Johnson hesitated

when Riley asked for the reports nor was there any evidence that he objected when

Harris introduced him to Riley as Nevels. And there is also no evidence that
Johnson manipulated in some fashion nor that he needed to be persuaded to

cooperate with the plan to create the reports. Johnson seemed happy to accept

Riley’s money, and he accepted it on more than one occasion. The video evidence

showed Johnson handing Riley reports in exchange for money on multiple

occasions.    Johnson’s conduct demonstrated a ready acquiescence to the

inducements offered by the government’s confidential source and a willingness to

become involved in criminal activity in exchange for money.

              The evidence also showed that Johnson had expert knowledge in the

area of the criminal activity involved. As a trained police officer, he knew the

protocol for filing police reports. He also knew to use handwritten forms that would

not be filed and, therefore, were not likely to be discovered. Nevels testified that the

East Cleveland Police Department no longer uses handwritten police reports but

that they keep blank forms in the event the computer system they now use stops

working. (Tr. 988.) Nevels further explained that handwritten reports are not

automatically entered into the computer system. (Tr. 1002.) Moreover, the blank

police report forms were readily available “under the front desk” at the police

department. (Tr. 988.)

              The evidence showed that Johnson not only had expert knowledge as

to how to create the police reports in a way that could go undetected, but he also had

access to the blank police forms that made the concealment of the reports possible.

And because there was no evidence of any hesitation on his part or any evidence that

he was manipulated into committing criminal acts, it is clear the evidence did not
support an entrapment defense. Accordingly, the first assignment of error is

overruled.

                      B. Testimony Pertaining to Bribery

               In the second assignment of error, Johnson argues the trial court

erred by refusing to instruct Roth to refrain from using the word “bribe” or “bribery

payment” in response to questions that were not specifically related to bribe

payments.

              Johnson objected to the testimony at trial.            In State v. Jones,

, the Ohio Supreme Court noted that “Ohio’s criminal law

distinguishes between errors that a defendant objects to at trial and those that he or

she fails to raise at trial.” Id. at ¶ 17. In contrast to plain-error review, which applies

when the defendant fails to object, we apply a harmless-error analysis when the

defendant objects to an error. Id., citing State v. Perry, 

, ¶ 16.

               Crim.R. 52(A) governs harmless errors and provides that “[a]ny error,

defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.” Under the harmless-error standard of review, “the state always bears

the burden of demonstrating that the error did not affect the outcome of the trial-

court proceedings.” 

.

               Johnson argues that Roth used the terms “bribe” or “bribe payment”

15 times at trial. However, neither Johnson nor Harris objected to those words until

after Roth had used them 11 times. (Tr. 1043, 1044, 1073, 1077, 1108, 1109, 1137,

and 1138.) Thereafter, defense counsel asked the court to instruct Roth to stop using
the word bribe. In response, the court indicated that it would instruct Roth to

answer with a “yes” or “no” response if such a response were called for but that it

could not otherwise “instruct the witness how to answer[.]” (Tr. 1228.)

              Johnson’s asserts that the Roth’s use of the words “bribe” and “bribery

payment” was inappropriate because those words state a legal conclusion. However,

where a witness’s words have “no separate legal relevance apart from their common

usage,” they are neither legal terms nor legal conclusions. United States v. Sheffey,

 (6th Cir. 1995).

              The term “bribe” is a plain and commonly used word in the English

language. In fact, it was used 237 times during the trial without requiring a

definition. Therefore, Roth’s use of the word “bribe” was a factual statement

consistent with its common definition and was not a legal conclusion.

              Furthermore, even if Roth had avoided the words “bribe” or “bribery

payment,” the outcome of the trial would not have been any different.            The

overwhelming evidence established that Johnson helped create fake police reports

in exchange for money. Therefore, even if the trial court’s decision to not admonish

Roth and/or instruct him on how to answer questions was in error, the error was

harmless beyond a reasonable doubt.

              The second assignment of error is overruled.

                     C. Manifest Weight of the Evidence

              In the third assignment of error, Johnson argues his convictions are

against the manifest weight of the evidence.
                 In a manifest-weight challenge, the reviewing court “‘weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” State v. Thompkins, 

(1997), quoting State v. Martin, 

 (1st Dist. 1983). “A

conviction should be reversed as against the manifest weight of the evidence only in

the most ‘exceptional case in which the evidence weighs heavily against the

conviction.’” State v. Burks, 

 (8th Dist.), quoting 

.

                 Johnson was convicted of two counts of bribery in violation of R.C.

2921.02(B), which states:

         No person, either before or after the person is elected, appointed,
         qualified, employed, summoned, or sworn as a public servant or party
         official, shall knowingly solicit or accept for self or another person any
         valuable thing or valuable benefit to corrupt or improperly influence
         the person or another public servant or party official with respect to the
         discharge of the person’s or the other public servant’s or party official’s
         duty.

                Johnson argues there is no evidence that he knew Harris and Riley

were conspiring to create fake police reports in order to commit insurance fraud. He

contends he was an unknowing participant in Harris’s scheme to take bribes from

Riley.

                 However, Johnson’s convictions are not dependent on his knowledge

of any insurance scheme or Harris’s separate dealings with Riley. His convictions
are based solely on his position as a police officer in the East Cleveland Police

Department and his acceptance of cash in exchange for police reports. Video

evidence showed Johnson accepting cash from Riley in exchange for the reports on

at least two occasions. And, despite Johnson’s argument to the contrary, Johnson

played along when Harris introduced him to Riley as Nevels.

              The video evidence also unequivocally showed Johnson reassuring

Riley that the police reports looked legitimate for purposes of Riley’s insurance

claims. Therefore, Johnson’s claim that he was completely unaware of Riley and

Harris’s conspiracy is not supported by the evidence. The fact that the jury acquitted

Johnson of the insurance fraud, forgery, and pattern of corrupt activity charges does

not change that fact. Johnson’s voice is clearly heard on the video footage presented

in State’s exhibit No. 301, confirming that the reports were “the real deal.” And Riley

confirmed that he paid Johnson “in exchange for the police reports.” (Tr. 729.)

Furthermore, Johnson admitted in his interview with Roth that he had previously

lied about not accepting bribes in exchange for the reports. Therefore, this is not a

rare case in which the jury clearly lost its way and created such a manifest

miscarriage of justice that Johnson’s convictions must be reversed and a new trial

ordered.

              The third assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.           The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., and
WILLIAM A. KLATT, J.,* CONCUR

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of
Appeals.)