[Cite as State v. Johnson, 2022-Ohio-4641.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111473

v. :

ARNELL JOHNSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,

 AND REMANDED

RELEASED AND JOURNALIZED: December 22, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-652785-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and John Hirschauer, Assistant Prosecuting 

Attorney, for appellee. 

Christopher M. Kelley, for appellant. 

SEAN C. GALLAGHER, A.J.:

Defendant-appellant, Arnell Johnson, appeals from the judgment of 

conviction and sentence in this case. Upon review, we affirm in part but reverse in 

part and remand to the trial court solely for resentencing, with instructions to merge 
Counts 1-4 and to separately merge Counts 5 and 6, which respectively are allied 

offenses of similar import. The trial court shall vacate the original sentencing entry

and resentence Johnson in accordance with this decision.

I. Background

On September 8, 2020, Johnson and a codefendant, Timothy Evans, 

were charged under a multicount indictment. The charges stemmed from a shooting 

incident in which 19-year-old A.T., who was pregnant, was shot multiple times while 

attempting to leave a crowded city street in her vehicle. She sustained gunshot 

wounds to her abdomen and legs, and she was taken to the hospital with lifethreatening injuries. She survived, but tragically, her fetus did not. She identified 

Johnson and Evans as the shooters.

Testimony at trial revealed that on July 30, 2020, a large crowd was 

gathered in the area around Crestwood Avenue and East 110th Street in Cleveland, 

Ohio. A memorial service was being held in the area that day, and there also was a 

rap-music video being filmed, which involved young males with guns. The police 

were monitoring social media videos posted from the area and observed multiple 

people in the videos that were handling firearms while drinking alcohol. When the 

police first arrived around 8:00 p.m., the crowd had grown to approximately 250 

people. The police observed males running in different directions with firearms. 

The police confiscated several firearms, made a few arrests, and were “concerned for 

everyone’s safety.” However, the police were not able to stay in the area long because 
they could not get through the crowd, they were getting yelled and screamed at, and 

they were outmanned and potentially out firepowered. 

A.T. went to the memorial-service event around 4:00 p.m. with a 

friend to sell merchandise. She described the scene as having a lot of music and 

noise, a lot of people drinking, and a crowd that became rowdier after dark. After 

arriving, A.T. witnessed an incident involving Johnson in which other people had to 

disarm him and tell him to calm down. A.T. testified that sometime after 10:30 p.m.,

a situation occurred in which a woman was trying to fight her. A.T. got in her car to 

try to leave and observed someone snatch her brother’s gun and then hit him on his 

head with the gun. She then observed Evans run out in front of her car, jump onto 

the car, and start shooting at the hood of her car. She testified that she looked to her 

left and saw Johnson “standing in the field” and “[t]hat’s when he pulled a mask over 

his head and began firing” at the driver’s side of her vehicle. She further testified 

that “nobody was firing from over there until I saw him shooting.” The glass broke 

on the driver’s side window, and shots came into her vehicle. A.T. was shot multiple 

times. She saw there was blood on her, and she could not feel anything. Her brother 

pulled her out of the vehicle and took her to a hospital. The shooting occurred 

around 12:55 a.m. A.T. later identified Johnson and Evans in photographs 

presented to her by the police at the hospital.

The evidence reflects bullets impacted both the driver’s side and the 

passenger’s side of A.T.’s vehicle, with a higher concentration on the driver’s side of 

the vehicle in a downward trajectory. Over 20 shell casings were recovered from the 
crime scene, which included 10 mm casings, 9 mm casings, and .40 caliber casings. 

The cartridge casings came from six different manufacturers. Evans’s palm print 

was found on the front of the car, and police recovered a 10 mm handgun in his 

vehicle that matched four of the cartridge casings from the crime scene. There was 

a match to Evans’s DNA. No DNA evidence was found that matched Johnson. There 

was insufficient DNA for some of the recovered evidence. Although there was a 

preliminary association made for a batch of casings to another male, T.S., he was not 

identified as being involved in the shooting and was not investigated further. 

GPS data placed Johnson, who was under electronic monitoring, on 

Crestwood Avenue near East 110th Street within the time frame of the shooting and 

in the area in which A.T. saw him standing, which also was where a concentration of 

9 mm casings were located. The GPS data points were accurate within a range, 

including points with a range of up to 27 feet, 53 feet, and 79 feet. It appeared from 

the GPS data that within minutes of the shooting, Johnson traveled by foot down an 

alley, left in a vehicle, and went to a house a few miles away.

After being taken to the hospital with life-threatening injuries, A.T. 

underwent surgery. An exploratory laparotomy revealed two holes in her uterus 

with a prolapsed umbilical cord, which was transected completely in half. An 

emergency C-section was performed, and A.T.’s fetus was stillborn. Additional 

details are included in our evaluation of the assignments of error herein.

The trial court found Johnson guilty of the following offenses, along 

with attendant one- and three-year firearm specifications on all counts: (Count 1) 
murder involving the unlawful termination of another’s pregnancy in violation of 

R.C. 2903.02(A), as a lesser included offense;

1 (Count 2) aggravated murder of an 

unborn fetus in violation of R.C. 2903.01(C); (Count 3) murder of an unborn fetus 

in violation of R.C. 2903.02(B); (Count 4) felonious assault of an unborn fetus in 

violation of R.C. 2903.11(A)(2); (Count 5) attempted murder of A.T. in violation of 

R.C. 2923.02/2903.02(A); (Count 6) felonious assault of A.T. in violation of R.C. 

2903.11(A)(2); (Count 7) discharge of firearm on or near prohibited premises in 

violation of R.C. 2923.162(A)(3); and (Count 9) having weapons while under 

disability in violation of R.C. 2923.13(A)(2). 

At sentencing, the trial court imposed an individual sentence on each 

count; merged Counts 1, 2, and 3; and ordered the three-year firearm specification 

on Count 5 to run consecutive to the three-year firearm specification on Count 2, 

which were to be served prior to and consecutive with the underlying sentence; for 

a total stated prison term of 26 years to life.2

Johnson timely filed this appeal.

1 The trial court found “there was no prior calculation and design” to support a 

conviction for aggravated murder in violation of R.C. 2903.01(A) but found beyond a 

reasonable doubt that Johnson committed the lesser included offense of murder in 

violation of R.C. 2903.02(A).

2 We note that the sentencing entry differs from the pronounced sentence. Because 

we are reversing the sentence and remanding for resentencing, the original sentencing 

entry shall be vacated by the trial court.
II. Law and Analysis

Johnson raises four assignments of error for our review. Under his 

first assignment of error, Johnson claims his convictions were against the manifest 

weight of the evidence.

“To evaluate a claim that a jury verdict is against the manifest weight 

of the evidence, we review the entire record, weigh the evidence and all reasonable 

inferences, consider the credibility of witnesses, and determine whether in resolving 

conflicts in the evidence, the [trier of fact] clearly lost its way and created such a 

manifest miscarriage of justice that we must reverse the conviction and order a new 

trial.” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 168, 

citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). 

Reversing a conviction based upon the weight of the evidence should occur “‘only in 

the exceptional case in which the evidence weighs heavily against the conviction.’” 

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 

717 (1st Dist.1983).

First, Johnson argues that there was no forensic evidence linking him 

to any of the recovered evidence, that his convictions were primarily based on the 

eyewitness testimony of A.T., and that A.T.’s identification of Johnson was 

unreliable and contradicted by the evidence. In support of his argument, Johnson

references inconsistencies in A.T.’s testimony, refers to the lack of physical evidence

to link him to the shooting, questions the police investigation, argues DNA of 
another individual was found on some of the shell casings, claims the photo-array 

identification was tainted, and points to other purported deficiencies in the record. 

Our review of the entire record reflects that the eyewitness testimony

and circumstantial evidence weigh strongly against Johnson. Evidence reflected 

that Evans and Johnson were communicating throughout the day and were hanging 

out on Crestwood Avenue. They were identified in the video evidence. Evans 

appeared in a video holding a handgun. A commander with the City of Cleveland 

Division of Police described the clothing Johnson was wearing in one of the videos, 

which included Adidas joggers, Nike shoes, and a yellow hoodie, and testified that a 

person in the exact same clothing appeared in another video with a mask over his 

face and holding two firearms. A reasonable inference could be made that Johnson 

was the person wearing the cotton ski mask.

A.T. testified that she was familiar with who Johnson and Evans were

and that she “probably got about three to four seconds of seeing Johnson’s face 

before he pulled the mask down” and began firing. She was “certain” it was Johnson, 

who was standing approximately 20 feet away from her. Although it was dark, the 

streetlights were on. She indicated Johnson had on a cotton ski mask, and he had 

“a hoodie on and some pants.” A.T. identified Johnson in the photo array presented 

to her by the police at the hospital. She also identified Johnson in a video shown at 

trial.

Although there were some inconsistencies with A.T.’s former 

testimony at Evans’s trial, including as to whether she looked left before or after the 
car window broke and whether she observed Johnson standing in a field or in a 

driveway when he was shooting, A.T.’s testimony was not incredible. Upon further 

questioning, A.T. testified that after the shots were fired in front of her, about eight 

seconds went by, and then she saw “a whole bunch of commotion on the left-hand 

side” and that was when she saw Johnson pull his mask down and begin firing. She 

testified that she did not know exactly where he was standing, but that it was 

somewhere in the area between the driveway and the field. GPS data placed 

Johnson in the range of the area where A.T. indicated he was standing.

As this court has recognized, “‘[e]ven where discrepancies exist, 

eyewitness identification testimony alone is sufficient to support a conviction so 

long as a reasonable juror could find the eyewitness testimony to be credible.’” State 

v. Robinson, 8th Dist. Cuyahoga No. 100126, 2014-Ohio-1624, ¶ 12, quoting State v. 

Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 52; State v. Winters, 8th 

Dist. Cuyahoga No. 102871, 2016-Ohio-928, ¶ 19. Here, in addition to the 

eyewitness testimony, circumstantial evidence was presented linking Johnson to the 

crimes. We find this is not the exceptional case in which the evidence weighs heavily 

against the convictions. 

Next, Johnson challenges his convictions on Counts 2 and 3 for 

aggravated murder and murder of A.T.’s fetus. Johnson argues that the state failed 

to establish that the fetus was “viable” so as to establish the criminal offense was 

committed against a “person.” R.C. 2901.01(B)(1)(a)(ii) defines a “person” to 

include “[a]n unborn human who is viable.” Pursuant to R.C. 2901.01(B)(1)(c)(ii), 
the term “[v]iable” means “the stage of development of a human fetus at which there 

is a realistic possibility of maintaining and nourishing of a life outside the womb 

with or without temporary artificial life-sustaining support.”

In this case, the medical records indicated that the gestational age of 

the fetus, which weighed approximately 1.2 pounds, was 24 weeks and four days. 

Dr. Elizabeth Rae Mooney, the medical examiner who examined the fetus, testified 

that the gestational age was determined by “the actual measurements done on an 

anatomic scan” and the last menstrual period.3 Dr. Mooney testified that the fetus 

weighed 554.8 grams and that the weight “is consistent with a 24 to 25-week 

gestation.” Dr. Mooney testified that from her anatomical and biological 

examination of the fetus at 24 gestational weeks, the fetus would have been viable if 

it were born without the defects from the bullets. 

Dr. Andrew Loudon, a trauma and surgical critical care physician for 

University Hospitals, testified that at 1.2 pounds a fetus would have a difficult 

chance of survival outside the womb even with life support. He testified that “20 

weeks would be unrealistic” and “24 weeks in ideal circumstances, there’s a chance, 

but it’s not a good chance.” He further explained, “At 24 weeks, what happens 

developmentally are the lungs start to become mature enough to sustain. So the 

time period really is right around there where there starts to be a chance.” 

3 A.T. had testified that she first discovered she was pregnant in February 2020 

and was around six months pregnant at the time of the shooting.
Dr. Loudon was not an expert on the gestational age of a fetus in the mother’s womb 

and did not examine A.T.’s fetus.

The medical examiner, Dr. Mooney, determined the cause of death 

was “intrauterine fetal demise due to gunshot wounds of the placenta and fetal lower 

extremities.” Dr. Mooney found from her examination of the fetus that 

notwithstanding the injuries, overall the baby was a healthy fetus and that “there is 

evidence of viability or vital reaction,” meaning around the injuries “there’s bruising 

of those tissues, meaning there is a heartbeat, pressure within the vessels to give 

those injuries that vital reaction.” Dr. Mooney testified to an amputating gunshot 

wound to the right lower extremity “with bruising around that on either end of the 

thigh and the detached leg portion” and to a second gunshot that is “a tangential 

gunshot wound” that also had an “associated hemorrhage into the surrounding 

tissues.” The fetus also had “lacerations or tearing of the skin” that were “likely from 

the forces from that gunshot or bullet as it passes through the tissues within the 

amniotic sac within the placenta * * *.” 

Dr. Mooney elaborated on the viability of the fetus as follows:

Viability in the sense that there was a vital reaction, so the infant was 

alive. Viability in general means that the infant can sustain life outside 

the womb at [a] certain gestational age with or without the aid of 

medical help. So viability — it’s viable in the sense that it was alive at 

the time that it sustained these injuries.

Dr. Mooney clarified that if a fetus is viable, it means the fetus could survive outside 

the womb at that state in gestation, stating as follows:
Viability is considered to be a certain gestational age. Once the baby is 

born, they can sustain life outside the womb, with or without the aid of 

medical help.

Dr. Mooney determined that but for the gunshot wounds to the fetus, A.T.’s fetus 

was a viable fetus. Dr. Mooney’s testimony established the fetus was viable at the 

time of the shooting.

Upon our review of the record, we do not find that the trier of fact 

clearly lost its way in resolving conflicts in the evidence or that any manifest 

miscarriage of justice occurred. Johnson’s convictions were not against the manifest 

weight of the evidence. The first assignment of error is overruled.

Under his second assignment of error, Johnson claims that his 

convictions are not supported by sufficient evidence. “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, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus. “The 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. Circumstantial and direct evidence “possess the same probative value.” Id. at 

272. To survive a sufficiency challenge, the state need only have had sufficient 

evidence, not the best possible evidence. State v. Wilks, 154 Ohio St.3d 359, 2018-

Ohio-1562, 114 N.E.3d 1092, ¶ 166. Also, “an evaluation of the credibility of the 
testimony * * * is not proper on review of evidentiary sufficiency.” Id. at ¶ 161, citing 

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 200.

Johnson makes similar arguments as above and claims that there was 

no DNA or forensic evidence linking him to the crimes, that A.T.’s identification of 

Johnson as the shooter was flawed, unreliable, and not supported by the record, and 

that there was insufficient evidence to show the fetus was viable outside the womb 

at the time of the shooting. Johnson also argues the state failed to produce sufficient 

evidence that he possessed or otherwise used a firearm as defined under R.C. 

2923.11(B)(1). Johnson’s arguments are not convincing.

There is no question that A.T. was shot multiple times and the fetus 

did not survive. A.T. provided a detailed account of the events surrounding the 

shooting, which was consistent with the evidence introduced by the state. A.T. was 

familiar with Johnson, observed him with a firearm during an incident earlier in the 

day, and identified Johnson as one of the shooters. She saw Johnson standing 

outside the driver’s side of her vehicle, observed his face for three to four seconds,

saw him pull a mask over his face, and described his use of a firearm in the shooting. 

She further indicated that after Johnson began firing, she saw bullets “coming at 

me.” A.T. later identified Johnson from a photo array. The eyewitness identification 

testimony alone was sufficient to sustain the convictions. See State v. Smith, 8th 

Dist. Cuyahoga No. 107773, 2019-Ohio-2574, ¶ 15; State v. Humberto, 196 Ohio 

App.3d 230, 2011-Ohio-3080, 963 N.E.2d 162, ¶ 10 (10th Dist.). This testimony also 
was sufficient to establish that Johnson knowingly possessed or otherwise used a 

firearm. See State v. White, 8th Dist. Cuyahoga No. 90839, 2008-Ohio-6152, ¶ 10.

Additionally, circumstantial evidence was presented to corroborate 

the eyewitness identification. Video evidence showed the clothing Johnson was 

wearing and an individual wearing the same clothing with a mask over his face 

carrying two firearms. Johnson was communicating with Evans throughout the day,

and evidence reflected that Evans was also involved in the shooting. GPS data 

placed Johnson on Crestwood Avenue at the time of the shooting and in the area in 

which A.T. testified he was standing. A concentration of 9 mm casings were located 

in that area. At least four bullet holes were found in the driver side of A.T.’s vehicle. 

Johnson left the area within minutes of the shooting. “‘This court has long held that 

circumstantial evidence is sufficient to sustain a conviction if that evidence would 

convince the average mind of the defendant’s guilt beyond a reasonable doubt.’”

State v. Jones, 8th Dist. Cuyahoga No. 108894, 2020-Ohio-4915, ¶ 39, quoting State 

v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990). Further, the lack of 

DNA or forensic evidence implicating Johnson in the shooting does not preclude a 

determination that his convictions were supported by sufficient evidence. See State 

v. Nicholson, 8th Dist. Cuyahoga No. 110595, 2022-Ohio-2037, ¶ 153; Jones at ¶ 39. 

Evidence also showed that the shooting of A.T. resulted in the death 

of her unborn fetus. Dr. Mooney, the medical examiner, testified that her 

examination of the fetus revealed bruising of the tissues showing a vital reaction. 

She concluded that the fetus, which was at 24 to 25 weeks gestation, was a viable 
fetus, meaning the fetus could survive outside the womb. Her testimony was 

sufficient to demonstrate that the unborn child was viable. See State v. Cutts, 5th 

Dist. Stark No. 2008CA00079, 2009-Ohio-3563, ¶ 177.

Because the evidence admitted at trial, if believed, would have 

convinced the average mind that Johnson was guilty beyond a reasonable doubt, we 

find the evidence was sufficient to support Johnson’s convictions and overrule the 

second assignment of error.

Under his third assignment of error, Johnson argues that the trial 

court erred when it overruled his motion to dismiss the indictment on constitutional 

speedy-trial grounds. Johnson concedes that the court was acting under COVID-19 

protocols during the pendency of the matter and does not claim that his statutory 

right to a speedy trial was violated. He argues that his constitutional right to a 

speedy trial was violated when considering the overall length of delay, his assertion 

of the right on multiple occasions, and his disputing whether the numerous 

continuances were at his request.

The Sixth and Fourteenth Amendments of the United States 

Constitution and Article I, Section 10, of the Ohio Constitution guarantee a 

defendant the constitutional right to speedy trial. State v. Taylor, 98 Ohio St.3d 27, 

2002-Ohio-7017, 781 N.E.2d 72, ¶ 32. To determine whether there has been a denial 

of a defendant’s constitutional right to a speedy trial, the court considers the four 

factors identified in Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 

L.Ed.2d 101 (1972), including the length of the delay, the reason for the delay, the 
defendant’s assertion of his speedy trial right, and prejudice to the defendant. State 

v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, citing State v. Hull, 

110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 20. However, no single 

factor controls the analysis. Long at ¶ 14. “Rather, they are related factors and must 

be considered together with such other circumstances as may be relevant.” Barker

at 533. A defendant must meet the “threshold requirement” of a “presumptively 

prejudicial” delay to trigger a Barker analysis. State v. Duncan, 8th Dist. Cuyahoga 

No. 97208, 2012-Ohio-3683, ¶ 8. Courts have generally held that a delay 

approaching one year becomes “presumptively prejudicial.” Long at ¶ 14, citing 

Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), 

fn. 1.

First, we consider the length of delay. In this case, Johnson was

arrested on August 25, 2020, and his trial began on March 28, 2022. The length of 

delay was over a year and was presumptively prejudicial. Therefore, we will apply a 

Barker analysis and consider the remaining factors.

Second, we consider the reason for the delay. Different weights 

should be assigned to different reasons, with a deliberate attempt to delay the trial 

in order to hamper the defense weighted more heavily against the government than 

a more neutral reason and with a valid reason serving to justify appropriate delay. 

Barker at 531. In this case, there is no evidence of a deliberate attempt to delay the 

trial. Rather, the record reflects that the delay was incurred for valid reasons, 

including the COVID-19 pandemic and because numerous continuances were made 
at the request of the defendant or by joint request. Ohio courts have found the 

COVID-19 pandemic, which was outside the trial court’s control, weighs against 

finding a constitutional violation of the right to a speedy trial. State v. Mize, 2022-

Ohio-3163, 195 N.E.3d 574, ¶ 65 (2d Dist.) (recognizing speedy-trial claims have 

been rejected where the delay was caused by the COVID-19 pandemic); State v. 

Quinn, 8th Dist. Cuyahoga No. 110692, 2022-Ohio-2038, ¶ 36 (finding a defendant’s 

constitutional right to a speedy trial was not violated where he requested numerous 

continuances and the two-year delay was not excessive in light of the COVID-19 

pandemic). Although Johnson disputed whether many of the continuances were 

actually at his request, the journal entries reflect otherwise and it does not appear 

that Johnson objected to the continuances.

Third, we consider the defendant’s assertion of his speedy trial right. 

The record reflects that Johnson moved to dismiss the indictment in due course and 

in a timely fashion.

Fourth, we consider prejudice to the defendant. In Long, the Ohio 

Supreme Court reiterated that “[t]he prejudice factor in the analysis ‘should be 

assessed in the light of the interests of defendants [that] the speedy trial right was 

designed to protect[,]’” which include “‘(i) to prevent oppressive pretrial 

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit 

the possibility that the defense will be impaired.’” Long, 163 Ohio St.3d 179, 2020-

Ohio-5363, 168 N.E.3d 1163, at ¶ 22, quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182, 

33 L.Ed.2d 101. The third interest is the greatest concern because it “‘skews the 
fairness of the entire system.’” Id., quoting Barker at 532. Although the time spent

in jail awaiting trial has a detrimental impact on the individual, there was little 

impact on Johnson’s ability to prepare his defense. Further, there is no claim that 

any of Johnson’s witnesses died; the record does not reflect any lapses of memory

on the part of prosecution witnesses that were significant to the outcome; and 

Johnson does not articulate any prejudice related to the delay.

Upon balancing the above factors, we find that Johnson was not 

deprived of his constitutional right to a speedy trial. His third assignment of error 

is overruled.

Under his fourth assignment of error, Johnson argues that the trial 

court erred by failing to merge as allied offenses of similar import his convictions on 

Counts 1-4,

4 which related to the unborn fetus. Johnson claims that the conduct for 

all four counts was the same in that he allegedly fired a gun at A.T. and/or her 

unborn fetus and that the offenses involved the same animus. Under his fifth 

assignment of error, Johnson argues that the trial court erred by failing to merge 

Counts 5 and 6 for attempted murder and felonious assault of A.T. Johnson claims 

these counts were committed through the same conduct and with the same animus 

in the alleged shooting at A.T. Johnson recognizes that because Counts 5 and 6 

involve a different victim (A.T.) than Counts 1-4 (the unborn fetus), they all do not 

merge together. Furthermore, Johnson observes that at sentencing, the trial court 

4 On Counts 1-4, Johnson was convicted of murder as a lesser included offense, 

aggravated murder, murder, and felonious assault.
merged Counts 1, 2, and 3 after imposing a separate sentence for each count, rather 

than having the state elect on which count to proceed to sentencing, and that the 

sentencing entry orders the sentence on each count to run concurrent to each other.

The state concedes that the trial court should have merged Counts 1-

4 together and should have merged Counts 5 and 6 together based on the Ohio 

Supreme Court’s precedent and applicable case law. We agree. See State v. Ruff, 

143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraphs one to three of the 

syllabus; R.C. 2941.25. Assignments of error four and five are sustained.

III. Conclusion

We affirm in part. We conclude that appellant’s convictions are not 

against the manifest weight of the evidence and are supported by sufficient evidence. 

We also conclude that there was no constitutional violation of the right to a speedy 

trial. 

We reverse in part. We conclude that the trial court erred in failing to 

merge allied offenses of similar import. We reverse the sentence imposed by the 

trial court and remand solely for resentencing. Upon remand, the trial court shall 

vacate the original sentencing entry, filed April 4, 2022, and shall resentence 

Johnson. The trial court is instructed to merge Counts 1-4 together and to separately

merge Count 5 and 6 together, which respectively are allied offenses of similar 

import. At the resentencing hearing, the state must elect which allied offense to 

pursue, and the trial court must accept the state’s choice and merge the respective 

allied offenses into a single conviction for sentencing. See State v. Whitfield, 124 
Ohio St.3d 319, 2010-Ohio-2 922 N.E.2d 182, ¶ 20, 24. The trial court shall 

resentence Johnson in accordance with this decision.

Judgment affirmed in part and reversed in part; case remanded solely 

for resentencing with instructions.

It is ordered that appellee and appellant share the 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 resentencing.

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

of the Rules of Appellate Procedure.

______

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and

EILEEN T. GALLAGHER, J., CONCUR