[Cite as State v. Johnson, 2017-Ohio-6930.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-16-41 

 v. 

AMOS K. JOHNSON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR2015 0169 

Judgment Affirmed 

Date of Decision: July 24, 2017 

 

APPEARANCES: 

 

Nikki Trautman Baszynski for Appellant 

 Terri L. Kohlrieser and Kenneth J. Sturgill for Appellee 
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ZIMMERMAN, J., 

{¶1} Defendant-Appellant, Amos K. Johnson (“Johnson” or “Appellant”), 

brings this appeal from the jury verdict of the Allen County Common Pleas Court 

convicting him of three (3) counts of Kidnapping, three (3) counts of Felonious 

Assault, one (1) count of Aggravated Robbery, and one (1) count of Having 

Weapons While Under Disability. On appeal, Johnson asserts that: (1) the trial court 

erred when it failed to merge his convictions for kidnapping and aggravated 

robbery; (2) the trial court erred when it assessed Johnson the $25.00 appointedcounsel application fee without making the ability-to-pay finding at Johnson’s 

sentencing hearing; (3) the trial court erred when it imposed costs without proper 

notification; and (4) the trial court erred when it imposed unauthorized costs of 

prosecution. For the reasons that follow, we affirm Johnson’s convictions and 

sentence. 

Facts

{¶2} On April 21, 2015, Lacey Duckett (“Duckett”) had Jessyca 

Shellenbarger (“Shellenbarger”) and Johnson as guests at her home in Lima, Ohio. 

Also present in Duckett’s home was Shellenbarger’s four-year-old daughter, M.B. 

Sometime during that evening, Duckett, Shellenbarger, and Johnson engaged in 

illicit drug use. Later, at some point during the early morning hours of April 22, 

2015, Johnson became suspicious of Duckett and Shellenbarger because his ring 
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and unused drugs were missing. When neither Duckett nor Shellenbarger confessed 

to taking the items, Johnson became angry and told them that no one could leave 

the residence until his items were found and returned.1

 

{¶3} Johnson threatened Shellenbarger and her daughter, M.B., with a gun 

in his attempt to get his items returned. Further, Johnson forced Duckett into the 

bathroom and destroyed Shellenbarger’s phone after she attempted to call 9-1-1. 

However, Shellenbarger and M.B. were able to escape Duckett’s house and get to a 

neighbor’s home to call 9-1-1. 

{¶4} When the authorities arrived (at Duckett’s home), Duckett and Johnson 

were still in the home. After several requests to comply with police orders, Johnson 

surrendered and was arrested. Law enforcement searched Duckett’s home and 

discovered a firearm stuffed under a mattress. Ammunition was also found in 

Johnson’s jacket. 

Procedural History 

{¶5} On June 11, 2015, Johnson was indicted by the Allen County grand jury 

on eight criminal counts related to the incident. Specifically, Johnson was indicted 

on: Count One, Kidnapping, in violation of R.C. 2905.01(A)(3), 2905.01(C)(1), a 

felony of the first degree, with a three-year firearm specification pursuant to R.C. 

 

1

 Testimony during trial revealed that while Johnson thought that his ring was missing, it was actually on 

his finger the entire evening. Attempts to inform Johnson that his ring was on his finger were futile. (See,

05/24/16 Tr., Vol. II, at 410). 
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2941.145(A); Count Two, Kidnapping, in violation of R.C. 2905.01(A)(3), 

2905.01(C)(1), a felony of the first degree, with a three-year firearm specification 

pursuant to R.C. 2941.145(A); Count Three, Kidnapping, in violation of R.C. 

2905.01(A)(3), 2905.01(C)(1), a felony of the first degree; Count Four, Aggravated 

Robbery, in violation of R.C. 2911.01(A)(1), 2911.01(C), a felony of the first 

degree, with a three-year firearm specification pursuant to R.C. 2941.145(A); Count 

Five, Felonious Assault, in violation of R.C. 2903.11(A)(2), 2903.11(D)(1)(a), a 

felony of the second degree, with a three-year firearm specification pursuant to R.C. 

2941.145(A); Count Six, Felonious Assault, in violation of R.C. 2903.11(A)(2), 

2903.11(D)(1)(a), a felony of the second degree, with a three-year firearm 

specification pursuant to R.C. 2941.145(A); Count Seven, Felonious Assault, in 

violation of R.C. 2903.11(A)(2), 2903.11(D)(1)(a), a felony of the second degree, 

with a three-year firearm specification pursuant to R.C. 2945.145(A); and Count 

Eight, Having Weapons While Under Disability, in violation of R.C. 2923.13(A)(3), 

2923.13(B), a felony of the third degree. 

{¶6} On May 23, 2016 the matter proceeded to a jury trial. At the close of 

the State’s case Johnson requested the charges be dismissed pursuant to Crim.R. 29, 

which the trial court denied. Thereafter, and at the close of the evidentiary portion 

of the trial, Johnson renewed his Rule 29 Motion to Dismiss, which was again 
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denied by the trial court. Thereafter, the jury found Johnson guilty on all eight 

counts and all firearm specifications contained in the indictment. 

{¶7} On July 18, 2016 the trial court conducted Johnson’s sentencing 

hearing. At sentencing the trial court found that Counts One and Five merged; that 

Counts Two and Six merged; and that Counts Three and Seven merged with one 

another. Thus, the State elected to proceed to sentencing on Counts One, Two, and 

Three. The trial court then sentenced Johnson as follows: Count One, (Kidnapping) 

six years plus a mandatory three years for the firearm specification; Count Two, 

(Kidnapping) six years plus a mandatory three years for the firearm specification; 

Count Three, (Kidnapping) six years; Count Four, (Aggravated Robbery) four years 

plus a mandatory three years for the firearm specification; and Count Eight, 

(Weapons While Under Disability) twenty-four months. All sentences were ordered 

to run consecutively, resulting in an aggregate sentence of thirty-three years in 

prison. 

{¶8} At sentencing, Johnson was also ordered to pay the costs of prosecution, 

court costs, and the court-appointed attorney application fee of $25.00. Johnson did 

not object to the imposition of court costs, prosecution costs, or the court-appointed 

counsel application fee by the trial court at the sentencing hearing. 

{¶9} From the trial court’s entry of conviction and sentence Johnson timely 

appeals, and asserts the following assignments of error: 
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ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE 

MR. JOHNSON’S CONVICTIONS FOR KIDNAPPING AND 

AGGRAVATED ROBBERY. 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED WHEN IT ASSESSED THE 

$25.00 APPOINTED-COUNSEL APPLICATION FEE 

WITHOUT MAKING THE ABILITY-TO-PAY FINDING AT 

MR. JOHNSON’S SENTENCING HEARING. 

ASSIGNMENT OF ERROR NO. III 

THE TRIAL COURT ERRED WHEN IT IMPOSED COSTS 

WITHOUT PROPER NOTIFICATION. 

ASSIGNMENT OF ERROR NO. IV 

THE TRIAL COURT ERRED WHEN IT IMPOSED 

UNAUTHORIZED COSTS OF PROSECUTION. 

{¶10} On appeal, Johnson contends that: (1) the trial court erred when it 

failed to merge Johnson’s convictions for Kidnapping and Aggravated Robbery 

because the offenses contain the same victim, animus, and conduct; (2) the trial 

court erred when it assessed Johnson a $25.00 appointed-counsel application fee 

without making an ability-to-pay finding at the sentencing hearing; (3) the trial court 

erred when it imposed costs without proper notification, failing to notify Johnson at 

sentencing that the failure to pay court costs could result in community service; and 

(4) the trial court erred when it imposed the costs of prosecution. 
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{¶11} Before we commence our review, we note that Appellant concedes in 

his reply brief that Assignment of Error III only applies to sentences that involve 

the imposition of community-control sanctions, which Johnson did not receive. 

Thus, Johnson has withdrawn Assignment of Error III. Accordingly, we will only 

address Assignments of Error I, II, and IV. 

First Assignment of Error 

{¶12} In his first assignment of error, Johnson contends that the trial court 

erred by failing to merge his convictions for kidnapping and aggravated robbery. 

Specifically, Johnson contends that his taking of Shellenbarger’s phone (which 

resulted in an Aggravated Robbery charge – Count Four) also resulted in the 

restraint of Shellenbarger (which comprised the Kidnapping charge in Count Three) 

and, as such, the charges should have merged. For the following reasons, we find 

this argument without merit. 

Standard of Review 

{¶13} “‘A defendant bears the burden of proving that the offenses for which 

he has been convicted and sentenced constitute allied offenses of similar import.’” 

State v. Vanausdal, 3rd Dist. Shelby No. 17-16-06, 2016-Ohio-7735, ¶ 17, quoting 

State v. Campbell, 12th Dist. Butler No. CA2014-06-137, 2015-Ohio-1409, ¶ 18, 

citing State v. Luong, 12th Dist. Butler No. CA2011-06-110, 2012-Ohio-4520, ¶ 46. 

Additionally, a reviewing court may look to the information contained in the record 
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to make its allied offense determination. Id. An appellate court then reviews de 

novo the question of whether offenses are allied offenses of similar import. State v. 

Potts, 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 93 (3rd Dist.), citing State v. Stall, 3rd 

Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3rd Dist. 

Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36. 

R.C. 2941.25, Allied Offenses of Similar Import 

Ohio’s multiple-count statute, codified in R.C. 2941.25, states: 

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such offenses, 

but the defendant may be convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more offenses 

of dissimilar import, or where his conduct results in two or more 

offenses of the same or similar kind committed separately or with a 

separate animus as to each, the indictment or information may contain 

counts for all such offenses, and the defendant may be convicted of 

all of them. 

R.C. 2941.25. 

{¶14} In State v. Ruff, the Supreme Court promulgated the following threepart test for determining whether offenses merged: “[u]nder R.C. 2941.25(B), a 

defendant whose conduct supports multiple offenses may be convicted of all the 

offenses if any one of the following is true: (1) the conduct constitutes offenses of 

dissimilar import, (2) the conduct shows that the offenses were committed 

separately, or (3) the conduct shows that the offenses were committed with separate 
Case No. 1-16-41 

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animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 (2015), 

paragraph three of the syllabus. An affirmative answer to any of the preceding 

questions will permit separate convictions. Id. at ¶ 31. 

Relevant Statutes 

{¶15} Johnson was convicted in Count Three of Kidnapping, a felony of the 

first degree, in violation of R.C. 2905.01(A)(3), 2905.01(C)(1), which provides, in 

part: 

No person, by force, threat, or deception, * * * shall remove another 

from the place where the other person is found or restrain the liberty 

of the other person, for any of the following purposes: * * * to 

terrorize, or to inflict serious physical harm on the victim or another. 

* * * Whoever violates this section is guilty of kidnapping. Except as 

otherwise provided in this division, * * * kidnapping is a felony of the 

first degree. 

R.C. 2905.01(A)(3), 2905.01(C)(1). Johnson was also convicted of Aggravated 

Robbery, a felony of the first degree, in R.C. 2911.01(A)(1), 2911.01(C), which 

provides in pertinent part: 

No person, in attempting or committing a theft offense, as defined in 

section 2913.01 of the Revised Code, or in fleeing immediately after 

the attempt or offense, shall do any of the following: have a deadly 

weapon on or about the offender’s person or under the offender’s 

control and either display the weapon, brandish it, indicate that the 

offender possesses it, or use it. * * * Whoever violates this section is 

guilty of aggravated robbery, a felony of the first degree. 

R.C 2911.01(A)(1), 2911.01(C). 
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Analysis 

{¶16} Addressing the first Ruff factor, whether “the conduct constitutes 

offenses of dissimilar import,” the Ohio Supreme Court has held that “two or more 

offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the 

defendant’s conduct constitutes offenses involving separate victims or if the harm 

that results from each offense is separate and identifiable.” Ruff, 143 Ohio St.3d 

114, 2015-Ohio-995, 34 N.E.3d 892, paragraph two of the syllabus. Similar to this 

Court’s analysis in Vanausdal, we find that while each count involved the same 

victim, the harm that resulted from each offense is separate and identifiable. See 

Vanausdal, 3rd Dist. Shelby No. 17-16-06, 2016-Ohio-7735, ¶ 13 (Victim in that 

case suffered physical and emotional harm as a result of her rape; separately and 

identifiably, the victim also suffered emotional, mental, and psychological harm by 

Vanausdal’s possession of sexually oriented material). 

{¶17} In our review of the record we find that evidence was presented by the 

State supporting that Shellenbarger suffered emotional, mental, and/or 

psychological harm while being restrained by Johnson. (See 05/24/2016 Trial Tr., 

Vol. II, at 407-08; 428. “He threatened me that he would kill me. And he walked up 

right beside my daughter, if not touching her head with the gun, was right next to 

her head with the gun and told me to shut her up or he would kill her. * * * Told 
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me I wasn’t going anywhere. And he told me to sit down and keep my ass on the 

couch.” “* * * I had my daughter in my arms and I was scared * * *.”). 

Shellenbarger’s testimony supports that Johnson restrained her liberty by 

commanding her to remain on the couch and by terrorizing her and her daughter 

with a gun. These acts understandably caused Shellenbarger fear which we find to 

be consistent with her suffering a psychological, mental, or emotional harm due to 

Johnson’s criminal conduct. 

{¶18} In contrast, as to Johnson’s aggravated robbery conviction, we find 

that Shellenbarger suffered a separate and different harm, that being the loss of her 

personal property, her cell phone, due to Johnson’s additional criminal conduct. 

Shellenbarger testified that Johnson took her phone and rendered it inoperable. (See 

id. at 418. * * * [A]nd he came from the back and pulled it like that (indicating) 

and snapped it like that. * * * And I’m still not even sure on what exactly happened 

to it. I know it couldn’t be used * * *.”). Thus, Shellenbarger suffered property 

damage to her cell phone through Johnson’s destruction of it which we find is 

separate and distinguishable from the emotional, mental, and/or psychological harm 

that she suffered when Johnson restrained her liberty and terrorized her with a gun. 

{¶19} Accordingly, we answer the first Ruff question in the affirmative 

because the victim (Shellenbarger) in Counts Three and Four suffered separate and 

identifiable harms at the hands of Johnson. With this affirmative answer to the first 
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Ruff factor, separate convictions are permissible as to Counts Three and Four and 

we need not address the second and third Ruff factors. Accordingly, Johnson’s first 

assignment of error is overruled. 

Second Assignment of Error 

{¶20} In Appellant’s second assignment of error, Johnson contends that the 

trial court erred when it imposed costs without proper notification. Specifically, 

Johnson contends that the trial court improperly imposed the $25.00 appointedcounsel application fee without making the required “ability-to-pay” finding at his 

sentencing hearing. Johnson also asserts that the trial court failed to notify him of 

this obligation (to pay the $25.00 fee) at his sentencing hearing. For the following 

reasons, we disagree. 

{¶21} Johnson’s assertion that R.C. 2947.23 governs the imposition of the 

$25.00 application fee for court-appointed counsel is misplaced, as R.C. 120.36, 

entitled “Application fee; Reports,” is the proper statute addressing such process. 

R.C. 120.36 states, in part: 

(A)(1) Subject to division (A)(2), (3), (4), (5), or (6) of this section, if 

a person who is a defendant in a criminal case or a party in a case in 

the juvenile court requests or is provided a state public defender, a 

county or joint county public defender, or any other counsel appointed 

by the court, the court in which the criminal case is initially filed or 

the juvenile court, whichever is applicable, shall assess, unless the 

application fee is waived or reduced, a non-refundable application fee 

of twenty-five dollars. 
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The court shall direct the person to pay the application fee to the clerk 

of court. The person shall pay the application fee to the clerk of court 

at a time the person files an affidavit of indigency or a financial 

disclosure form with the court, a state public defender, a county or 

joint county public defender, or any other counsel appointed by the 

court or within seven days of that date. If the person does not pay the 

application fee within that seven-day period, the court shall assess the 

application fee at sentencing or at the final disposition of the case. 

(Emphasis added). R.C. 120.36(A)(1). 

{¶22} Contrary to Johnson’s assertion that the trial court needed to make an 

“ability-to-pay” finding prior to assessing a $25.00 application fee, our review of 

R.C. 120.36 reveals that no such finding requirement exists. We do find, however, 

that the application fee under R.C. 120.36 may be waived by the trial court. See 

generally, State v. Kurth, 6th Dist. Lucas Nos. L-15-1238, L-15-1239, 2016-Ohio7698, ¶ 4 (trial court waived the $25.00 application fee after finding that such a fee 

would result in an undue hardship). However, the record contains no such request 

for a waiver by Johnson. Thus, we find that the trial court complied with the 

statutory requirements of R.C. 120.36 by requiring Johnson to pay the $25.00 fee at 

sentencing, and because Johnson never requested a waiver of such fee, we find no 

error present. Accordingly, we overrule Johnson’s second assignment of error. 

Fourth Assignment of Error 

{¶23} In his fourth assignment of error, Johnson contends that the trial court 

erred when it imposed upon him the costs of prosecution. Specifically, Johnson 

states that the assessment of a $33.00 fee for a subpoena issued to M.B., the four-
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year-old child victim of one of his charges, was impermissible because, as a matter 

of law, M.B. was not competent to testify due to her age. 

{¶24} Johnson’s argument lacks merit. Initially, we note that Johnson never 

objected to the imposition of court costs and the costs of prosecution, but instead, 

raises this issue for the first time on appeal. (07/18/16 Tr. at 27, 30). “An 

appellant’s failure to raise an issue with the trial court constitutes a waiver of that 

issue absent plain error.” State v. Stiles, 3rd Dist. Allen No. 1-08-12, 2009-Ohio89, ¶ 31, citing State v. Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332, (1983). 

The Ohio Supreme Court has held, pursuant to Crim.R. 52(B), that “‘[t]he plain 

error rule is to be invoked only in exceptional circumstances to avoid a miscarriage 

of justice.’” State v. Long, 53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978), quoting 

United States v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971). “Plain error does 

not exist unless it can be said that but for the error, the outcome of the trial would 

clearly have been otherwise.” State v. Wickline, 50 Ohio St.3d 114, 120, 552 N.E.2d 

913 (1990). 

{¶25} In our review of this assignment, we find that Johnson has failed to 

demonstrate plain error. Pursuant to R.C. 2947.23(A)(1)(a), “[i]n all criminal cases, 

including violations of ordinances, the judge or magistrate shall include in the 

sentence the cost of prosecution, including costs under section 2947.231 of the 

Revised Code, and render a judgment against the defendant for such costs.” 
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(Emphasis added). R.C. 2947.23(A)(1)(a). Thus, the trial court followed the 

mandates of R.C. 2947.23 in assessing Johnson the subpoena cost relative to M.B. 

{¶26} Further, Johnson’s argument that the State could have never called 

M.B. as a witness also lacks merit. Johnson contends that M.B. couldn’t have been 

called as a witness because she was incompetent to testify pursuant to Evid.R. 

601(A). Evid.R. 601(A) states: “[e]very person is competent to be a witness except: 

those of unsound mind, and children under ten years of age, who appear incapable 

of receiving just impressions of the facts and transactions respecting which they are 

examined, or of relating them truly.” Evid.R. 601(A). However, the Ohio Supreme 

Court has provided the following guidance on this issue: 

In determining whether a child under ten is competent to testify, the 

trial court must take into consideration (1) the child’s ability to receive 

accurate impressions of fact or to observe acts about which he or she 

will testify, (2) the child’s ability to recollect those impressions or 

observations, (3) the child’s ability to communicate what was 

observed, (4) the child’s understanding of truth and falsity and (5) the 

child’s appreciation of his or her responsibility to be truthful. 

State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). Accordingly, we 

find that Evid. R. 601(A) does not stand for the proposition, as suggested by 

Johnson, that a child under ten years of age may never testify, but rather that a child 

under ten may be competent to testify if so found by a trial court upon its proper 

inquiry under Frazier. 
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{¶27} Accordingly, we find that it was not plain error for the trial court to 

require Johnson to pay for the costs associated with the issuance of M.B.’s subpoena 

under the presented facts of this appeal. Johnson’s fourth assignment of error is 

overruled. 

{¶28} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON, P.J. and WILLAMOWSKI, J., concur. 

/jlr