[Cite as State v. Wasil, 2018-Ohio-4463.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                           C.A. No.   18AP0001

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
THOMAS D. WASIL                                         COURT OF COMMON PLEAS
                                                        COUNTY OF WAYNE, OHIO
        Appellant                                       CASE No.   2017 CRC-I 000154

                                  DECISION AND JOURNAL ENTRY

Dated: November 5, 2018



        CALLAHAN, Judge.

        {¶1}     Appellant, Thomas Wasil, appeals his conviction for gross sexual imposition.

This Court affirms.

                                                   I.

        {¶2}     Ten-year-old A.R. reported to her paternal grandmother that Mr. Wasil, her

maternal grandfather, sexually assaulted her during a sleepover at his home. Mr. Wasil was

charged with one count of rape, a violation of R.C. 2907.02(A)(1)(b), and gross sexual

imposition, a violation of R.C. 2907.05(A)(4). A jury found him not guilty of rape, but guilty of

gross sexual imposition, and the trial court sentenced him to the maximum permissible prison

term of five years. Mr. Wasil filed this appeal.
                                                 2


                                                 II.

                                ASSIGNMENT OF ERROR NO. 1

       APPELLANT’S CONVICTION FOR GROSS SEXUAL IMPOSITION, R.C.
       2907.05(A)(4), WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶3}       Mr. Wasil’s first assignment of error argues that his conviction is against the

manifest weight of the evidence. Mr. Wasil contends that it was inconsistent for the jury to find

him not guilty of rape, yet guilty of gross sexual imposition because, in his view, doing so

required the jury to believe that A.R. was lying with regard to part of his conduct, but truthful

about the rest.

       {¶4}       When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

       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 the conviction must be reversed and a new trial
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

       {¶5}       R.C. 2907.02(A)(1)(b), which prohibits rape, provides that “[n]o person shall

engage in sexual conduct with another who is not the spouse of the offender * * * when * * * the

other person is less than thirteen years of age, whether or not the offender knows the age of the

other person.” “Sexual conduct” includes “cunnilingus between persons regardless of sex; and,

without privilege to do so, the insertion, however slight, of any part of the body or any

instrument, apparatus, or other object into the vaginal or anal opening of another.”         R.C.
                                                  3


2907.01(A). R.C. 2907.05(A)(4), which prohibits gross sexual imposition, prohibits any person

from having sexual contact with another person who is less than thirteen years of age. “Sexual

contact” is defined as “any touching of an erogenous zone of another, including without

limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the

purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). Consequently, the

distinction between the offenses of rape and gross sexual imposition is that while rape requires

sexual conduct, gross sexual imposition requires sexual contact. State v. Anderson, 9th Dist.

Summit No. 23197, 2007-Ohio-147, ¶ 14.

        {¶6}    Mr. Wasil’s underlying premise appears to be that one cannot be convicted of

gross sexual imposition, but acquitted of rape, when both charges arise out of one incident of

sexual assault. Although it is well-established that “a defendant may not be convicted of both

gross sexual imposition and rape when the counts arise out of the same conduct,” a defendant

who commits acts that are “distinct and separate from each other” can be convicted under both

statutes. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, ¶ 143-145 (considering under

what circumstances rape and gross sexual imposition constitute allied offenses of similar import

under R.C. 2941.25). A defendant may also, then, be found guilty of one offense, but not guilty

of the other.

        {¶7}    Arising from his premise, Mr. Wasil argues that it was inconsistent—and,

therefore, against the manifest weight of the evidence—for the jury to have found him not guilty

of rape, but guilty of the separate charge of gross sexual imposition. Even assuming that the

verdicts in this case were inconsistent, reversal would not be warranted because “[i]nconsistent

verdicts on different counts of a multi-count indictment do not justify overturning a verdict.”

State v. Hicks, 43 Ohio St.3d 72, 78 (1989), citing United State v. Powell, 469 U.S. 57, 68
                                                4


(1984). Stated differently, “The several counts of an indictment containing more than one count

are not interdependent and an inconsistency in a verdict does not arise out of inconsistent

responses to different counts, but only arises out of inconsistent responses to the same count.”

State v. Adams, 53 Ohio St.2d 223 (1978), paragraph two of the syllabus, vacated on other

grounds at 439 U.S. 811 (1978).

       {¶8}    In this case, however, the evidence demonstrates that there is no inconsistency

between the verdicts. A.R., who was eleven years old at the time of trial, testified that during a

sleepover at his home, her grandfather, Mr. Wasil, perpetrated several distinct acts against her.

These included placing her hand on his genitals, inserting his fingers into her vagina two or three

times, and placing his mouth on her genitals. Mr. Wasil’s trial counsel, who successfully

obtained an acquittal on the rape charge, elicited testimony during cross-examination of A.R. on

a strategic point: she acknowledged that she did not provide all of the details of the assault when

she first disclosed it and, specifically, that she had omitted telling her grandmother that Mr.

Wasil inserted his fingers into her vagina. In addition, the pediatrician from the Wayne County

Children’s Advocacy Center who oversees forensic examinations testified on direct examination

that because of a misunderstanding of their own anatomy, many young girls perceive any

touching of their genitals to be penetration of the vagina. Based on these statements, the jury

could have credited A.R.’s description regarding some of Mr. Wasil’s actions, but failed to credit

the remainder of her testimony.

       {¶9}    The evidence in this case does not weigh heavily against Mr. Wasil’s conviction

for gross sexual imposition, whether owing to inconsistency or otherwise. His first assignment

of error is overruled.
                                                5


                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
       APPELLANT TO THE MAXIMUM POSSIBLE PRISON TERM.

       {¶10} Mr. Wasil’s second assignment of error argues that the trial court erred by

sentencing him to the maximum possible prison term of five years. This Court disagrees.

       {¶11} This Court may modify or vacate a felony sentence “only if it determines by clear

and convincing evidence that the record does not support the trial court’s findings under relevant

statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-516, ¶ 1. With respect to maximum sentences, a trial court has “full discretion to

impose a prison sentence within the statutory range” and is “no longer required to make findings

or give * * * reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus.

       {¶12} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender using the minimum sanctions

that the court determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.”      R.C. 2929.11(A).1    Trial courts have discretion in

fashioning felony sentences with consideration for the factors provided in R.C. 2929.12(B)-(F).

R.C. 2929.12(A). “R.C. 2929.12(B) includes factors that suggest that the offense is more

serious. R.C. 2929.12(C) includes factors suggesting the offense is less serious. The recidivism

factors—factors indicating an offender is more or less likely to commit future crimes—are set

forth in R.C. 2929.12(D) and (E).” State v. Thrasher, 9th Dist. Summit No. 27547, 2015-Ohio-

2504, ¶ 5.


       1
         R.C. 2929.11 was amended effective October 29, 2018. This opinion references the
previous version of the statute.
                                                6


       {¶13} Mr. Wasil does not dispute that his sentence is within the permissible range for

gross sexual imposition when it is a third-degree felony, as in this case. See R.C. 2907.05(C)(2);

R.C. 2929.14(A)(3)(a). Instead, he has argued that the record does not support the sentence that

the trial court imposed because “he does not have a meaningful criminal record, the victim in this

case did not suffer any serious physical harm, and he has a low likelihood of recidivism.” In this

respect, however, we cannot examine the record because the presentence investigation report is

not part of the record on appeal. When an appellant does not provide a complete record to

facilitate our review, we must presume regularity in the trial court’s proceedings and affirm.

State v. Jalwan, 9th Dist. Medina No. 09CA0065-M, 2010-Ohio-3001, ¶ 12, citing Knapp v.

Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). Consequently, when the contents of a

presentence investigation report are necessary to review the appropriateness of a sentence, an

appellant must move to supplement the record on appeal with the report to enable our review.

See State v. Banks, 9th Dist. Summit No. 24259, 2008-Ohio-6432, ¶ 14.

       {¶14} Mr. Wasil did not move this Court to supplement the record on appeal with the

presentence investigation report so, because his second assignment of error requires us to

consider the evidence related to the trial court’s sentencing decision, we must presume regularity

and affirm.

       {¶15} Mr. Wasil’s second assignment of error is overruled.

                                               III.

       {¶16} Mr. Wasil’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
                                                 7




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

MATTHEW J. MALONE, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
