[Cite as State v. Weaver, 2014-Ohio-1371.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2013-T-0066
        - vs -                                 :

PATRICK LAMAR WEAVER,                          :

                 Defendant-Appellant.          :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2012 CR 00581.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Patrick Lamar Weaver appeals the May 10, 2013 judgment of

the Trumbull County Common Pleas Court designating him a Repeat Violent Offender

and seeks to vacate the three-year mandatory prison term imposed by the trial court as

a result of the designation. For the following reasons, we affirm.

        {¶2}     Appellant was charged with robbery in violation of R.C. 2911.02(A)(2), a

second-degree felony; grand theft of a motor vehicle in violation of R.C. 2913.02(A)(1) &
(B)(5), a fourth-degree felony; failure to comply with the order or signal of a police officer

in violation of R.C. 2921.331(B) & (C)(1)(5)(a)(ii), a third-degree felony; and assault on a

peace officer in violation of R.C. 2903.13(A) & (C)(3), a fourth-degree felony.

       {¶3}   These charges stemmed from an incident in which appellant attacked a

man at a laundromat, took his truck, and led police on a high-speed chase. Appellant’s

defense at trial was that he had smoked marijuana laced with an unknown substance,

which caused him to lose control. Appellant admitted he assaulted the victim, took the

truck, and led police on a high speed chase. Appellant denied that he threatened to kill

the victim. Appellant also denied that he bit a police officer during his apprehension.

       {¶4}   Appellant was convicted of robbery, grand theft of a motor vehicle, and

failure to comply with the order of a police officer. Appellant was acquitted of assault on

a peace officer. With respect to the robbery count, the jury returned the special finding

that appellant had inflicted, attempted to inflict, or threatened to inflict serious physical

harm. Following a hearing at which it was established appellant had previously been

convicted of burglary, the trial court designated appellant a repeat violent offender.

       {¶5}   For the purpose of sentencing, the trial court found appellant’s grand theft

conviction merged with the robbery conviction. Appellant was sentenced to eight years

for robbery, one year for failure to comply with the order or signal of a police officer, and

three years on the repeat violent offender specification.          The trial court ordered

appellant to serve his sentences consecutively for a total of 12 years.

       {¶6}   Appellant’s trial counsel made multiple motions seeking dismissal of the

repeat violent offender specification and objected to the jury’s special finding of serious

harm, the repeat violent offender hearing, and the court’s judgment and sentence with




                                              2
respect to the specification. In arguing these motions and objections, appellant’s trial

counsel argued the repeat violent offender statute, the hearing, and the jury’s finding all

violated appellant’s constitutional rights generally and, specifically, his rights to

confrontation and to a jury trial.       The trial court overruled appellant’s motions and

objections concerning the repeat violent offender specification.

         {¶7}    Appellant filed a timely notice of appeal and asserts one assignment of

error:

                 The trial court erred, as a matter of law, by both submitting a repeat
                 violent offender specification to the jury and subsequently
                 enhancing the appellant’s sentence based upon the jury’s response
                 to the specification, all in violation of the appellant’s rights pursuant
                 to the Fifth, Sixth, and Fourteenth amendments to the United States
                 Constitution and Article I, Sections 1, 5, 10, 16, and 20 of the
                 Constitution of the State of Ohio.

         {¶8}    Appellant’s indictment contained a repeat violent offender specification

relative to the robbery charge, pursuant to R.C. 2941.149.              Second-degree felony

robbery requires proof that physical harm was inflicted, attempted, or threatened by the

offender.       R.C. 2911.02(A)(2).    R.C. 2929.14(B)(2)(a)(ii) indicates that an offender

convicted of a second-degree felony offense of violence may be designated a repeat

violent offender, provided, inter alia, the trier of fact finds the offender inflicted,

attempted to inflict, or threatened to inflict serious physical harm in the commission of

the repeat offense. Pursuant to both an instruction and a verdict form, the jury was

asked to make a special finding regarding whether the harm appellant inflicted,

attempted, or threatened, during the alleged robbery, if any, was serious physical harm.

         {¶9}    Under his assignment of error, appellant argues R.C. 2929.14(B)(2)(a)(ii)

is void for vagueness on its face or, in the alternative, as applied to cases involving




                                                 3
second-degree robbery, because the statute does not require the trier of fact to

specifically find whether serious physical harm was attempted or inflicted or threatened.

Rather, it calls on the jury to make the finding “as a group.” Appellant contends the

legislature must have intended a more specific finding.

      {¶10} Challenges to the constitutionality of a law are reviewed de novo. State v.

Henderson, 11th Dist. Portage No. 2010-P-0046, 2012-Ohio-1268, ¶10.            “De novo

review is independent and without deference to the trial court’s determination.” Id. We

presume, however, that all legislative enactments are constitutional. State v. Ferraiolo,

140 Ohio App.3d 585, 586, (11th Dist.2000).         A statute may be challenged on

constitutional grounds in two ways: (1) a statute is unconstitutional on its face when

“there exists no set of circumstances under which the statute would be valid”; or (2) a

statute may be unconstitutional when applied to presently existing facts in a case,

though it would not be unconstitutional in all situations. Harrold v. Collier, 107 Ohio

St.3d 44, 2005-Ohio-5334, ¶37.

      {¶11} Preliminarily, we address appellee’s contention that appellant did not

properly preserve the issue of vagueness for appeal, as trial counsel failed to

specifically raise it below. Appellee concedes that appellant’s trial counsel moved to

dismiss the specification and objected thereto on constitutional grounds, but states that

the grounds were general. Appellee cites to State v. Awan, 22 Ohio St.3d 120 (1986),

where the appellate court refused to address the defendant’s issue of constitutionality

because the defendant first raised the issue before the court of appeals. Appellee also

cites to Girard v. Rodomsky, 11th Dist. Trumbull No. 97-T-0107, 1998 Ohio App. LEXIS

6359, in which this court followed Awan in declining to consider whether a statute was




                                           4
unconstitutionally vague. However, in Rodomsky, we noted Awan held waiver to be

discretionary and stated that “constitutionality arguments may be heard for the first time

on appeal, if the court exercises its discretion to do so.”         Id. at *7-8.   Further, in

Rodomsky, we specifically declined to hear the issue of whether a zoning ordinance

was unconstitutionally vague, not only because the appellant had not raised the

argument below, but also because the appellant did not raise the argument in his

appellate brief, as required by App.R. 12(A)(2) and App.R. 16(A)(7). Id. at ¶8.

       {¶12} Furthermore, shortly after Awan was decided, the Ohio Supreme Court

clarified that the waiver doctrine announced therein is discretionary. In re M.D., 38 Ohio

St.3d 149, 151 (1988) (“Even where waiver is clear, this court reserves the right to

consider constitutional challenges to the application of statutes in specific cases of plain

error or where the rights and interests involved may warrant it.”). Relying on In re M.D.,

several appellate districts have reviewed constitutionality issues under a plain error

standard despite clear waiver of constitutional issues below.            See, e.g., State v.

Clemons, 7th Dist. Belmont No. 11 BE 26, 2012-Ohio-5362, ¶10; State v. Wood, 5th

Dist. Stark No. 09-CA-205, 2010-Ohio-2759, ¶28-29; State v. Desbiens, 2d Dist.

Montgomery No. 22489, 2008-Ohio-3375, ¶17.

       {¶13} The record reveals that appellant’s trial counsel argued R.C. 2929.14 was

generally unconstitutional, violative of appellant’s rights to confrontation and trial by jury,

and invites judicial fact finding. Appellant’s trial counsel did not specifically argue that

R.C. 2929.14 is unconstitutionally vague. However, unlike Rodomsky, appellant’s brief

to this court clearly argues that R.C. 2929.14 is unconstitutionally vague. Furthermore,

as trial counsel made general constitutional objections, we are also not presented with a




                                              5
situation in which the waiver was clear. See In re M.D., supra. We therefore deem it

appropriate to review appellant’s vagueness argument for the first time on appeal.

        {¶14} “[A] law will survive a void-for-vagueness challenge if it is written so that a

person of common intelligence is able to ascertain what conduct is prohibited, and if the

law provides sufficient standards to prevent arbitrary and discriminatory enforcement.”

State v. Williams, 88 Ohio St.3d 513, 533 (2000).                            Appellant argues R.C.

2929.14(B)(2)(a)(ii) is “nearly incomprehensible.”                Appellant does not argue R.C.

2929.14(B)(2)(a)(ii)      provides      insufficient     standards      to   prevent      arbitrary    and

discriminatory enforcement. Thus, the question for our review is whether a person of

common intelligence is able to ascertain from the statute what conduct may support a

court’s finding that an offender is a repeat violent offender.

        {¶15} R.C. 2929.14(B)(2)(a)1 states, in relevant part and emphasis added:

                [T]he court may impose on an offender, in addition to the longest
                prison term authorized or required for the offense, an additional
                definite prison term of one, two, three, four, five, six, seven, eight,
                nine, or ten years if all of the following criteria are met:

                ***

                (ii) The offense of which the offender currently is convicted or to
                which the offender currently pleads guilty is aggravated murder and
                the court does not impose a sentence of death or life imprisonment
                without parole, murder, terrorism and the court does not impose a
                sentence of life imprisonment without parole, any felony of the first
                degree that is an offense of violence and the court does not impose
                a sentence of life imprisonment without parole, or any felony of the
                second degree that is an offense of violence and the trier of fact
                finds that the offense involved an attempt to cause or a threat to
                cause serious physical harm to a person or resulted in serious
                physical harm to a person.



1. Criteria in subsections i, iii, iv, and v must also be met; however, they are not at issue in this appeal
and have thus been omitted.


                                                     6
       {¶16} Appellant asserts five arguments concerning the trial court’s decision to

designate appellant a repeat violent offender and impose an additional, mandatory

prison term of three years as a result of such designation.

       {¶17} First, appellant argues this case is analogous to State v. Davis, 7th Dist.

Mahoning No. 08 MA 152, 2009-Ohio-5273, which reversed a repeat violent offender

designation following a conviction for second-degree robbery. However, as appellant

notes, the reason for reversal in Davis was that the jury was not instructed to make a

finding as to whether the harm involved was serious; nor did the jury make such a

finding. See Davis, supra, ¶34-36. In this case, the jury was instructed by the trial court

to make a special finding with regard to the repeat violent offender specification. The

jury was instructed that, in the event it found appellant guilty of robbery, it should decide

whether appellant “did inflict, attempt to inflict, or threaten to inflict serious physical harm

on another.” The jury found appellant guilty of robbery and made the separate, special

finding that appellant inflicted, attempted to inflict, or threatened to inflict serious

physical harm. Thus, Davis does not support appellant’s position.

       {¶18} Second, appellant argues R.C. 2929.14(B)(2)(a)(ii) is facially void for

vagueness because having one element for the underlying offense of second-degree

felony robbery—infliction, attempted infliction, or threatened infliction of physical harm—

and a different element for the sentencing enhancement—infliction, attempted infliction,

or threatened infliction of serious physical harm—is “very confusing, to the point of

being nearly incomprehensible.” In spite of this contention, appellant easily explains the

issue, stating: “to find a criminal defendant guilty of [second-degree felony robbery],

physical harm must only be shown. To invoke the sentencing enhancement contained




                                               7
in the Repeat Violent Offender statutes, the trier of fact must find serious physical

harm[.]” A person of common intelligence can ascertain from the statute that a robbery

can be committed by threat, infliction, or attempted infliction of physical harm, but that

the repeat violent offender designation does not apply unless, inter alia, the harm

threatened, attempted, or inflicted was serious in nature.

       {¶19} Appellant was charged with the second-degree felony variety of robbery in

an indictment alleging a repeat violent offender specification. This specification called

for the jury to find that the harm threatened, attempted, or inflicted during the robbery

was “serious physical harm.” Because the jury found the physical harm at issue was

serious, it was appropriate for the court to designate appellant a repeat violent offender.

R.C. 2929.14(B)(2)(a)(ii) specifically provides that when the criteria set forth in R.C.

2929.14(B)(2)(a)(i) and (iii) are met and the trier of fact determines the physical harm

involved in the commission of a second-degree felony is serious, the trial court may

impose an additional definite jail term for being a repeat violent offender. The fact that

the robbery charge alleged only physical harm did not affect the court’s ability to

designate appellant a repeat violent offender.

       {¶20} Third, appellant argues R.C. 2929.14(B)(2)(a)(ii) is impermissibly vague

because the statutory language requires the jury to determine whether the defendant

inflicted, attempted to inflict, or threatened to inflict serious physical harm without

specifically finding which action occurred; that is, without specifically finding a threat, an

attempt, or the actual infliction of serious physical harm.          A person of common

intelligence, however, can ascertain from R.C. 2929.14(B)(2)(a)(ii) that any of the three

are sufficient to warrant a repeat violent offender designation. It is irrelevant whether




                                              8
the offender threatened, attempted, or inflicted the serious physical harm.              The

important distinction in that regard is whether the nature of the harm—either threatened,

attempted, or inflicted—was serious. Contrary to appellant’s argument, the legislature

did not clearly intend for the jury to determine whether a threat, an attempt, or actual

infliction of serious physical harm was involved.

       {¶21} Appellant’s argument is, essentially, that there is no way to determine

whether the jury was unanimous as to the alternatives it could have found, to wit: a

threat, an attempt, or an actual infliction of serious physical harm. The Eighth District

Court of Appeals has rejected a similar argument. In State v. Gibbs, 8th Dist. Cuyahoga

No. 86126, 2006-Ohio-175, the defendant was indicted for trespassing in the victim’s

apartment “by force, stealth, or deception * * *.” During the trial, each witness testified

that the defendant’s accomplice broke through the back door and entered the

apartment.    The Eighth District held that it was neither plain error nor ineffective

assistance of counsel not to request a unanimity instruction on the method of entry.

Id.at ¶35. See also Schad v. Arizona, 501 U.S. 624 (1991).

       {¶22} Fourth, appellant argues that the language of R.C. 2929.14(B)(2)(a)(ii)

does not actually require the jury to make a factual finding. The statute specifically

requires the trier of fact to find the physical harm inflicted, attempted, or threatened was

serious. This determination is not, as appellant suggests, undermined by the fact that

the jury need not specify whether the serious harm was threatened, attempted, or

inflicted. Appellant could have, but did not, request the trial court edit the special finding

instruction to comport with the actual evidence presented. For example, when it is clear




                                              9
that serious physical harm was not actually inflicted, it is within the trial court’s discretion

to omit that phrase from the jury instruction.

       {¶23} Finally, appellant argues R.C. 2929.13(B)(2)(a)(ii) is unconstitutionally

vague when applied to the facts of this case even if not void as applied to cases

involving aggravated robbery, which requires infliction or attempted infliction of physical

harm as an element of the crime. In this final argument, appellant merely reiterates his

previous arguments that we have held are without merit.               A person of common

intelligence can ascertain from the statute what conduct may subject an offender to a

repeat violent offender designation. R.C. 2929.13(B)(2)(a)(ii) is therefore not

impermissibly vague.

       {¶24} For the foregoing reasons, appellant’s assignment of error is without merit.

The judgment of the trial court is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




                                               10
