[Cite as State v. Cassidy, 2017-Ohio-8351.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-17-03

        v.

ROBERT K. CASSIDY,                                        OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2016 0193

                                      Judgment Affirmed

                            Date of Decision: October 30, 2017




APPEARANCES:

        Michael J. Short for Appellant

        Jana E. Emerick for Appellee
Case No. 1-17-03


PRESTON, P.J.

       {¶1} Defendant-appellant, Robert K. Cassidy (“Cassidy”), appeals the

January 25, 2017 judgment entry of sentence of the Allen County Court of Common

Pleas. For the reasons that follow, we affirm.

       {¶2} This case stems from an incident that took place in Lima, Ohio on April

6, 2016. Ryan Plaugher (“Plaugher”) arrived at a carry-out grocery store to purchase

baby formula in accordance with an agreement reached via the social networking

site Facebook.     After approaching a vehicle in the store’s parking lot and

determining that its occupants had the items he agreed to purchase, Plaugher gave

Cassidy, the vehicle’s driver, $30.00. Cassidy then produced a firearm and pointed

it at Plaugher. Plaugher backed away from the vehicle before Cassidy quickly fled

the scene in his vehicle.

       {¶3} On June 16, 2016, the Allen County Grand Jury indicted Cassidy on

Count One of aggravated robbery in violation of R.C. 2911.01(A)(1), (C), a felony

of the first degree and Count Two of having weapons while under disability in

violation of R.C. 2923.13(A)(2), (B), a felony of the third degree. (Doc. No. 3).

Count One included a firearm specification under R.C. 2941.145(A) alleging that

Cassidy had a firearm on or about his person or under his control while committing

aggravated robbery and displayed, brandished, or indicated that he possessed the

firearm or used it to facilitate the offense. (Id.). Count One also included a repeat


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violent offender (“RVO”) specification under R.C. 2941.149(A) alleging that

Cassidy was convicted of or pled guilty to aggravated robbery in May of 2007. (Id.).

Count Two included the same firearm specification that Count One includes. (Id.).

       {¶4} Cassidy appeared for arraignment on June 27, 2016, and pled not guilty

to the counts and specifications in the indictment. (Doc. No. 13).

       {¶5} A jury trial took place from November 28 to December 1, 2016. (Doc.

Nos. 130, 131, 132). The jury found Cassidy guilty of Counts One and Two as well

as the firearm specification included in Counts One and Two. (Nov. 28, 2016 Tr.

at 714-716).   The trial court held a hearing on sentencing and on the RVO

specification on January 19, 2017 at which it found Cassidy guilty as to the RVO

specification included in Count One. (Jan. 19, 2017 Tr. at 47). The trial court

sentenced Cassidy to eleven years in prison as to Count One and one year in prison

as to Count Two. (Id. at 78-79). The trial court further sentenced Cassidy to two

years in prison as to the RVO specification and three years in prison as to each of

the two firearm specifications. (Id.). The trial court ordered that all sentences be

served consecutively for a total of 20 years of incarceration. (Id.). The trial court

filed its judgment entry of sentence on January 25, 2017. (Doc. No. 110).

       {¶6} Cassidy filed his notice of appeal on January 26, 2017. (Doc. No. 114).

He brings three assignments of error for our review.




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                             Assignment of Error No. I

       The Convictions Are Not Supported By The Weight Of The
       Evidence.

       {¶7} In his first assignment of error, Cassidy argues that his convictions for

aggravated robbery and for having a weapon while under disability are against the

manifest weight of the evidence. Specifically, Cassidy argues that the trier of fact

lost its way in convicting him of those offenses because there is inconsistent

testimony as to whether Cassidy possessed a firearm during the incident. Cassidy

further argues that his conviction is against the manifest weight of the evidence

because there is no physical evidence linking him to the firearm.

       {¶8} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine 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. Thompkins, 78 Ohio St.3d 380,

387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A

reviewing court must, however, allow the trier of fact appropriate discretion on

matters relating to the weight of the evidence and the credibility of the witnesses.

State v. DeHass, 10 Ohio St.2d 230, 231 (1967).                  When applying the

manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs

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heavily against the conviction,’ should an appellate court overturn the trial court’s

judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,

quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶9} The criminal offense of aggravated robbery is codified in R.C. 2911.01,

which, as relevant here, provides:

       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 * * * [h]ave 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[.]

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

       {¶10} The criminal offense of having weapons while under disability is

codified in R.C. 2923.13, which, as relevant here, provides that, “[u]nless relieved

from disability under operation of law or legal process, no person shall knowingly

acquire, have, carry, or use any firearm or dangerous ordnance, if * * * the person

is under indictment for or has been convicted of any felony offense of violence[.]”

R.C. 2923.13(A)(2).

       {¶11} At trial, the State called Patrolman Kaitlyn Weidman (“Patrolman

Weidman”) of the Lima City Police Department, who testified that Plaugher


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identified Cassidy from video footage and testified that Plaugher said that Cassidy

had a firearm. (Nov. 28, 2016 Tr. at 231-232, 247).

       {¶12} On cross-examination, Patrolman Weidman testified that Plaugher

informed her that Cassidy had a firearm in his lap during the robbery. (Id. at 259).

Specifically, she testified that Plaugher told her that Cassidy carried a gun with a

black handle during the robbery. (Id. at 266).

       {¶13} The State next called Plaugher, who testified that Cassidy had a

firearm during the robbery and that Cassidy pointed that firearm at him. (Id. at 274,

279-281). Plaugher identified State’s Exhibit 13 as the firearm that Cassidy pointed

at him during the robbery. (Id. at 299).

       {¶14} On cross-examination, Plaugher testified that Cassidy pointed a

firearm at him during the robbery before fleeing the scene. (Id. at 314-315).

Plaugher further testified that he initially told police that he saw only the handle of

the firearm and that such is inconsistent with his testimony at trial. (Id. at 322-323).

       {¶15} On re-direct examination, Plaugher testified that the assertion that the

firearm was initially in Cassidy’s lap is accurate, as is the assertion that Cassidy

later pointed the gun at Plaugher. (Id. at 337).

       {¶16} Rachel Wierwille (“Wierwille”) was then called as the trial court’s

witness. (Id. at 350). Wierwille, Cassidy’s girlfriend and his passenger on the day

of the robbery, testified that Cassidy did not have a firearm in the vehicle on the day


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in question. (Id. at 354-355, 360, 363, 389). She further testified that police

deceived her into saying that Cassidy possessed a firearm. (Id. at 359-360).

       {¶17} The State next called Detective Steven Stechschulte Jr. (“Detective

Stechschulte”), who testified that Wierwille initially told him Cassidy had a firearm

on his lap during the robbery. (Id. at 429, 451-452).

       {¶18} The defense rested without calling any witnesses. (Id. at 563).

       {¶19} In regard to Cassidy’s argument as to the consistency and credibility

of Plaugher’s and Wierwille’s testimony, we note that, in assessing the manifest

weight of the evidence, “[i]t is well established that the * * * credibility of the

witnesses [is] primarily a matter for the trier of fact.” State v. Clark, 101 Ohio

App.3d 389, 409 (8th Dist.1995). A reversal on manifest weight grounds is not

required when inconsistencies exist in the testimony of different witnesses. State v.

Wareham, 3d Dist. Crawford No. 3-12-11, 2013-Ohio-3191, ¶ 24, citing State v.

Humberto, 196 Ohio App.3d 230, 2011-Ohio-3080, ¶ 11 (10th Dist.) (“The jury

may take note of any inconsistencies and resolve them accordingly, believing all,

part, or none of a witness’s testimony.”). Jurors are free to credit testimony offered

by the State’s witnesses. See State v. Bates, 12th Dist. Butler No. CA2009-06-174,

2010-Ohio-1723, ¶ 11, quoting State v. Bromagen, 12th Dist. Clermont No.

CA2005-09-087, 2006-Ohio-4429, ¶ 38 (“It is well-established that ‘[w]hen

conflicting evidence is presented at trial, a conviction is not against


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the manifest weight of the evidence simply because the jury believed the

prosecution testimony.’ ”). As to Cassidy’s argument pertaining to the lack of

physical evidence linking him to the firearm, we note that a defendant’s conviction

for a firearm-related offense is not against the manifest weight of the evidence

simply because of the absence of physical evidence linking the defendant to the

firearm. State v. Wiley, 2d Dist. Montgomery No. 22628, 2009-Ohio-1932, ¶ 9.

Because the presence of a firearm is the only element Cassidy challenges, that is the

only element we will address.

       {¶20} Weighing the evidence above, we conclude that Cassidy’s convictions

for aggravated robbery and possessing a weapon while under disability are not

against the manifest weight of the evidence. The jury did not lose its way in finding

that Cassidy possessed a firearm. A conviction is not against the manifest weight

of the evidence when inconsistencies exist in the testimony of different

witnesses. Wareham at ¶ 24, citing Humberto at ¶ 11. The jury is free to credit

Plaugher’s testimony. See Bates ¶ 11, quoting Bromagen at ¶ 38. The jury heard

ample evidence from which it could conclude that Cassidy possessed a firearm.

Plaugher informed Patrolman Weidman that Cassidy possessed a firearm. Plaugher

testified multiple times at trial that Cassidy possessed a firearm and pointed it at him

during the robbery. Nor are Cassidy’s convictions against the manifest weight of

the evidence because the absence of physical evidence such as fingerprints or DNA


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linking Cassidy to the firearm. Wiley, ¶ 9 (holding that a conviction is not against

the manifest weight of the evidence because of a lack of physical evidence linking

the defendant to a gun crime). We therefore conclude that Cassidy’s convictions

are not against the manifest weight of the evidence, and we overrule his first

assignment of error.

                            Assignment of Error No. II

       The Trial Court Erred In Failing To Swear In Prospective Jurors
       Prior To The Court’s Examination Of These Jurors.

       {¶21} In his second assignment of error, Cassidy argues that the trial court

erred in failing to swear in prospective jurors prior to its examination of those jurors

at the beginning of voir dire.

       {¶22} R.C. 2945.27 provides “The judge of the trial court shall examine the

prospective jurors under oath or upon affirmation as to their qualifications to serve

as fair and impartial jurors, but he shall permit reasonable examination of such

jurors by the prosecuting attorney and by the defendant or his counsel.”

       {¶23} “It is a general rule that an appellate court will not consider any error

which counsel for a party complaining of the trial court’s judgment could have

called but did not call to the trial court’s attention at a time when such error could

have been avoided or corrected by the trial court.” State v. Zehner, 3d Dist.

Crawford No. 3-02-30, 2003-Ohio-936, ¶ 22, citing State v. Childs, 14 Ohio St.2d

56, 61 (1968), citing State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the

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syllabus. Where a defendant had an opportunity to bring any failure to properly

swear in jurors to the trial court’s attention but did not do so, he cannot later object

to the irregularity and seek reversal absent a showing of prejudice. State v.

Vanblarcome, 10th Dist. Franklin No. 02AP-417, 2003-Ohio-579, ¶ 21-22. No

prejudice results from the failure to comply with R.C. 2945.27 where it does not

appear that any juror gave a false answer during voir dire examination. Glaros at

paragraph three of the syllabus.

       {¶24} In the present case, Cassidy did not call the trial court’s failure to

comply with R.C. 2945.27 to the trial court’s attention. Vanblarcome at ¶ 21-22

(concluding that a defendant may not claim error as to the administration of an oath

or affirmation absent a clear showing of prejudice on appeal if he did not object to

the error at trial). Cassidy does not argue that he was prejudiced because of the trial

court’s non-compliance with the statute. Indeed, Cassidy could not claim that he

was prejudiced by the trial court’s mistake because it was not shown that any juror

gave a false answer during voir dire examination. Glaros at paragraph three of the

syllabus (concluding that there is no prejudice resulting from the failure to swear in

potential jurors where it does not appear any juror gave a false answer during voir

dire examination). Further, the attorney for each party had the opportunity to

question the prospective jurors after they were sworn by the trial court. We




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therefore conclude that Cassidy has waived this issue on appeal. Vanblarcome at ¶

21-22; Glaros at paragraph three of the syllabus.

       {¶25} For the foregoing reasons, Cassidy’s second assignment of error is

overruled.

                            Assignment of Error No. III

       The Defendant Was Denied A Fair Trial As A Result Of Juror
       Misconduct.

       {¶26} In his third assignment of error, Cassidy claims that he was denied a

fair trial as a result of juror misconduct. Specifically, Cassidy argues that he was

denied a fair trial because a juror allegedly slept through a portion of the

proceedings.

       {¶27} It is well-settled that the trial court is in the best position to discern the

nature of alleged juror misconduct and to fashion the proper remedy for any

demonstrated misconduct. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-

6046, ¶ 184. Further, the trial court has “‘considerable discretion in deciding how

to handle a sleeping juror.’” Id., quoting State v. Sanders, 92 Ohio St.3d 245, 253

(2001). We will not disturb a trial court’s handling of a sleeping juror absent an

abuse of that discretion. See State v. Suarez, 11th Dist. Geauga No. 2013-G-3167,

2014-Ohio-1350, ¶ 31. Where a defendant requests no remedy at trial and expresses

no dissatisfaction with the trial court’s handling of an allegedly sleeping juror, such

issues are waived on appeal absent plain error. McKnight at ¶ 185, citing State v.

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Childs, 14 Ohio St.2d 56 (1968). No plain error occurs when whether a juror was,

in fact, sleeping is entirely speculative. Id. at ¶ 186.

       {¶28} App.R. 12(A)(2) provides that we may “disregard an assignment of

error presented for review if the party raising it fails to identify in the record the

error on which the assignment of error is based or fails to argue the assignment

separately in the brief, as required under App.R. 16(A).” App.R. 16(A)(7) provides

that an appellant must include in his brief an “argument containing the contentions

of the appellant with respect to each assignment of error presented for review and

the reasons in support of the contentions, with citations to the authorities, statutes,

and parts of the record on which appellant relies.” App.R. 16(A)(7).

       {¶29} In the present case, Cassidy’s brief asserts that the allegedly sleeping

juror slept “during the direct and cross [examination] of the State’s first witness or

during the direct examination of the State’s second witness.” (Appellant’s Brief at

7). Cassidy further argues that such misconduct is “especially concerning” if it

occurred during Plaugher’s direct testimony because Plaugher provided “the sole

eyewitness testimony about the presence of a firearm.” (Id.). Cassidy invites this

court to speculate that alleged juror misconduct rendered a juror unable to perceive

large or critical portions of witness testimony. However, he cites nothing in the

record indicating that such is the case. The only reference in the record to a sleeping

juror is the trial court’s statement that it received a report that “there may be some


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snoozing off.” (Nov. 28, 2016 Tr. at 301). Cassidy cites nothing in the record

establishing that any sleeping by a juror, if it occurred at all, rendered the juror

unable to perceive large or critical pieces of trial testimony. Based on this, we could

choose to ignore this assignment of error. App.R. 12(A)(2). Nevertheless, we

choose to address Cassidy’s third assignment of error. Neither Cassidy nor his trial

counsel expressed any dissatisfaction with the manner in which the trial court dealt

with the allegedly sleeping juror. Thus Cassidy has waived this issue on appeal

absent plain error. McKnight at ¶ 185. No plain error occurred in this case because

the record reveals only vague allegations of sleeping, and Cassidy has provided no

evidence that a juror was, in fact, sleeping. Id. at ¶ 186. We therefore conclude that

Cassidy has waived this issue on appeal. Id. at 185-186.

       {¶30} For the reasons explained above, Cassidy’s third assignment of error

is overruled.

       {¶31} 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

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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