The Akron Legal News

Murderer's burglary conviction vacated due to lack of a deadly weapon

JESSICA SHAMBAUGH
Special to the Legal News
Published: August 27, 2015

A convicted killer was improperly found guilty of aggravated burglary because there was no evidence that he was armed with a deadly weapon at the time of that offense, according to a recent ruling from the 5th District Court of Appeals.

The three-judge appellate panel affirmed a Stark County Court of Common Pleas ruling convicting Mikal Jamari Johnson of aggravated murder, aggravated robbery and two counts of aggravated burglary.

However, it reversed a conviction on the third count of aggravated burglary, ruling that the state did not establish all elements of that offense.

“This decision in no way affects the guilty verdicts and sentences issued by the three-judge panel on any other count of the indictment,” Presiding Judge Scott Gwin wrote in his opinion for the appellate court.

Johnson’s charges arose from a home invasion at Eugene Render’s home on Nov. 18, 2013, a home invasion at Kim Eller’s residence on Nov. 22, 2013 and another home invasion at Render’s home on Nov. 22, 2013, during which Render was killed.

Johnson waived his right to a jury trial and a three-judge panel heard the case.

The state presented evidence that someone broke into Render’s home in Canton on Nov. 18, 2013.

According to the police report, Render heard a loud crash and someone kicking in his door. He told police that he yelled out and the intruders ran away.

Police found that a doorframe had been splintered and pieces of it were lying on the floor.

Render’s son said he asked his father to come stay with him, but Render refused and instead boarded up his door.

Four days later, Eller experienced a break-in at her home in Navarre, Ohio.

She said two men entered her trailer and one of them held a gun to her head while the other went through her home. She said the men fled with her laptop.

The responding officer said he found that Eller’s door had been broken in.

Shortly after that incident, two men again broke into Render’s home, though the scene was not immediately discovered.

Render’s son said he went to check on Render after several of his calls went unanswered.

When he got to the home, he noticed the door was “busted up,” glass had been broken out of the screen door and the door handle was bent.

He then discovered a gun on the floor, a Glock on the kitchen table, and Render dead on the floor.

Police found evidence that both Render and his assailant had fired weapons.

They determined that Render was fatally shot twice with a pistol that was not at the scene. They also found a blue bandana and hat at the scene.

Later that day, Japheth Thomas, known as J.T., was taken the hospital to be treated for a gunshot wound to his arm.

After learning that Thomas was the suspect in the theft of a white Nissan, police started searching for him. They ultimately found him driving the stolen car, which also contained Eller’s laptop.

Police then went to Thomas’s residence and took several individuals to headquarters for questioning.

Deanna Fisk, Thomas’s girlfriend, testified that she was with Thomas and Johnson prior to the break-in at Eller’s home.

She said the men planned to commit the robbery and she stayed in the car while they did so. She said they had a BB gun and a pistol at the time.

Fisk said after that robbery they went home, but Johnson and Thomas left again later to commit a second robbery.

When they returned, she said Johnson entered the home frantic and stating that he had killed someone. She testified that Thomas entered a few minutes later with the gunshot wound.

Based on that information, police located Johnson and questioned him about his involvement.

He then confessed to robbing Render on both dates and robbing Eller. He described how the door was broken, how Thomas was shot and what occurred after the offenses.

However, throughout his interview Johnson denied being the one to shoot Render.

He also would not say that Thomas did the shooting and only insisted that it was not him.

Another man also testified that he was at Thomas’s house when Johnson and Thomas returned from robbing Render the second time and heard Johnson say, “I think I killed him.”

Another man said he spoke to Thomas after the incident and Thomas told him Render “started blasting at him and that his friend returned fire.”

After hearing the evidence, the judicial panel found Johnson guilty as charged and sentenced him to life in prison without the possibility of parole as well as an additional 25 years.

On appeal, Johnson challenged the manifest weight and sufficiency of the evidence against him for each count.

The appellate judges found that the state presented ample evidence that Johnson forced his way into Eller’s home and Render’s home on both occasions.

They further determined that Eller testified that he had a gun when he was in her home and pointed it at her head while his accomplice took her laptop, thus establishing all elements of aggravated burglary and aggravated robbery.

The judges next found that testimony from Fisk and the other men at Thomas’s apartment established the elements of aggravated murder and aggravated burglary.

However, with regard to the first count of aggravated burglary, they found the evidence lacking.

Johnson asserted that he could not be convicted on that charge because there was no evidence that he had a deadly weapon at the time and only carried a BB gun.

“Courts agree that regardless of whether a BB or pellet is powerful enough to cause death, a BB gun can be a deadly weapon because the body of the gun itself can be used to bludgeon,” Gwin stated.

In Johnson’s case, however, they found no evidence that he used the weapon to bludgeon Render and no evidence that he could have used it for such a purpose.

The state did not introduce the weapon as evidence and there was no testimony describing the size, weight or shape of the gun.

“In the case at bar, there was no evidence, testimonial or otherwise, presented at trial to show the pellet BB guns were heavy enough to be used as a deadly bludgeon, or capable of inflicting death in other manner,” Gwin wrote.

Based on that finding, the appellate court agreed that there was insufficient evidence to establish the deadly weapon element of aggravated burglary for the first break-in at Render’s home.

It therefore vacated that conviction and remanded the matter for further proceedings.

Judges Craig Baldwin and Patricia Delaney concurred.

The case is cited State v. Johnson, 2015-Ohio-3113.

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