[Cite as State v. Wauer, 2017-Ohio-1337.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2016-T-0043
        - vs -                                 :

JOSHUA LEE WAUER,                              :

                 Defendant-Appellant.          :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR
00548.

Judgment: Affirmed.


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

Michael A. Scala, 244 Seneca Avenue, N.E., Warren, OH 44481 (For Defendant-
Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Joshua Lee Wauer, appeals from his convictions

and sentence for Felonious Assault, Robbery, and Assault in the Trumbull County Court

of Common Pleas. The issues to be determined by this court are whether all three

consecutive sentencing findings need to be made under R.C. 2929.14(C)(4)(a)-(c);

whether an Assault charge must be dismissed when the victim testifies that he was not

hit; whether a jury’s issuance of “inconsistent” verdicts on Robbery and Assault charges
warrants reversal; whether “serious physical harm” is demonstrated when the defendant

suffers a concussion, a skull fracture, and is rendered unconscious; whether remarks

during the prosecutor’s closing argument that unconsciousness constitutes serious

physical harm were improper; and whether an error occurred when the transcript did not

properly reflect the statement of the trial court but was subsequently corrected. For the

following reasons, we affirm the judgment of the lower court.

            {¶2}   On September 2, 2015, Wauer was indicted by the Trumbull County

Grand Jury for three counts of Assault (Counts One, Two, and Five), misdemeanors of

the first degree, in violation of R.C. 2903.13(A) and (C); Felonious Assault (Count

Three), a felony of the second degree, in violation of R.C. 2903.11(A)(1) and (D)(1)(a);

Aggravated Robbery (Count Four), a felony of the first degree, in violation of R.C.

2911.01(A)(3) and (C); Tampering with Evidence (Count Six), a felony of the third

degree, in violation of R.C. 2921.12(A)(1) and (B); and Driving Under OVI Suspension

(Count Seven), a misdemeanor of the first degree, in violation of R.C. 4510.14(A)(1)

and (B).

            {¶3}   A trial was held on April 4 through 6, 2016.   The following pertinent

testimony was presented.

            {¶4}   On the night of June 20, 2015, James Stefanik and Brandon Merrell went

to Wings Reloaded, a bar in Hubbard, to drink alcohol. According to Stefanik, they left

the bar at around 2:30 a.m. on June 21 and were sitting in a vehicle parked outside of

the bar when Merrell made a comment to two girls walking by, yelling, “Hey there, big

titties.”     A few seconds later, Stefanik was punched in his head three times by Wauer,




                                               2
who yelled that he was “sick of people talking about his * * * woman.” Wauer went to

the other side of the car and hit Merrell once before Stefanik could put up the windows.

      {¶5}   Merrell testified that he made the comment to the woman.               Wauer

subsequently hit Stefanik and walked to the passenger side of the car. According to

Merrell, Wauer “was trying to get [him] out of the car.” Wauer “attempt[ted] to” hit him

but could not because the window was up.           Merrell testified that he erred in his

statement to police that Wauer had hit him.

      {¶6}   Daniel DePaul was outside with a friend, James McIntyre, and others after

closing when he noticed Wauer in a verbal dispute with Stefanik and Merrell. According

to DePaul, McIntyre walked over to see what was happening and asked “what’s going

on?” Wauer turned around and punched McIntyre in the face. McIntyre “dropped down

to the ground and his head bounced off of the street.”

      {¶7}   Stefanik and Merrell both testified that when they exited the car shortly

after the confrontation with Wauer, they noticed McIntyre lying in the middle of the

street. Merrell noted that he was unconscious and bleeding from his ears.

      {¶8}   James McIntyre testified that he was drinking at Wings Reloaded on the

night of the incident, left the bar at closing, and talked with friends outside. He did not

remember what occurred after that point but was hospitalized for injuries, including a

concussion, a fractured skull, and a subdural hematoma, or bleeding on the brain.

      {¶9}   Laurel Dugan gave a similar account to DePaul’s regarding McIntyre and

Wauer’s actions. Dugan attempted to take a picture of Wauer’s license plate. At that

time, Wauer tried to rip her phone out of her hand and punched her in the face. Dugan

testified that he took her phone and drove away. She suffered bruises and jaw pain.




                                              3
      {¶10} Gregory Holbrook, Wauer’s friend, heard people in a vehicle “yelling

vulgar things to the females” outside of Wings Reloaded. He saw Wauer approach the

driver’s side, “believed” he hit the driver, then saw him walk to the passenger side and

hit the passenger. Holbrook told him they needed to go and the two left.

      {¶11} Sergeant William Fisher of the Hubbard Police Department responded to

the scene of the incident and, after receiving information describing Wauer, went to the

scene of a traffic stop where Wauer had been detained. He observed that Wauer had

“redness on his knuckles.” Fisher returned to the scene of the incident and searched

the route Wauer had driven for Dugan’s phone. He recovered the phone, which was

smashed, four blocks from the Wings Reloaded.

      {¶12} Alecia Davis, Wauer’s girlfriend, testified for the defense. While she was

outside of the bar talking to a friend, the men in the car yelled vulgar comments about

the size of her breasts, scaring her. She did not see Wauer hit the men in the car. She

testified that McIntyre ran at Wauer with “his hands up” and fists closed. She believed

he was trying to hit Wauer. She also did not see Wauer hit Dugan or take her phone.

      {¶13} At the conclusion of the trial, the jury found Wauer not guilty of Aggravated

Robbery and Assault as to Laurel Dugan. He was found guilty of the lesser-included

offense of Robbery and the remaining offenses as charged in the indictment. An April

11, 2016 Judgment Entry memorialized the jury’s verdict. On April 20, 2016, Wauer

filed a Motion for Judgment for Acquittal after Verdict, which was denied.

      {¶14} A sentencing hearing was held on April 26, 2016, and an Entry on

Sentence was filed May 4, 2016. Wauer was ordered to serve a term of six months on

Counts One, Two, and Seven, three years on Count Three, two years on Count Four,




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and one year on Count Six. Counts Three and Four were to run consecutively with

each other and concurrent with the remaining counts, also ordered to run concurrently,

for a total prison term of five years.

       {¶15} Wauer appealed and subsequently filed a February 13, 2017 Motion to

Supplement Record, requesting that the record be supplemented with the audio

recording of the jury instructions and for this court to verify whether a portion of the jury

instruction was properly transcribed. This court issued a March 13, 2017 Judgment

Entry, remanding to the trial court “in order to determine whether the record correctly

reflects the trial court’s instruction to the jury on self-defense.” The trial court issued a

Judgment Entry on March 24, 2017, finding that the transcript, as amended by the court

reporter, reflects a proper transcription of the jury instruction given at trial.

       {¶16} On appeal, Wauer raises the following assignments of error:

       {¶17} “[1.] The trial court erred, to the detriment of appellant, by finding Count 3

(Felonious Assault) and Count 4 (Robbery) to be separate and distinct criminal

offenses, and thus ordering consecutive sentences to these indictments.

       {¶18} “[2.]   The trial court erred, to the detriment of appellant, by failing to

dismiss Count 2, an Assault M-1 on a Brandon Merrell.

       {¶19} “[3.]   The trial court erred, to the detriment of appellant, by failing to

dismiss Count 4, Robbery (F-2), as the jury specifically found appellant did not inflict or

attempt to inflict physical harm on the witness, Laurel Dugan.

       {¶20} “[4.]    The trial court erred, to the detriment of appellant, by issuing

instructions for Felonious Assault (F-2), when instructions for Simple Assault (M-1) was

correct. (sic)




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       {¶21} “[5.]   The trial court erred, to the detriment of appellant, by failing to

correct, by mistrial or instruction, three prejudiced statements made by the prosecutor

during his closing argument.

       {¶22} “[6.] The trial court erred, to the detriment of appellant, by instructing the

jury that ‘self-defense’ must be proved by the appellant beyond a reasonable doubt.”

       {¶23} In his first assignment of error, Wauer argues that the lower court erred in

finding that Felonious Assault and Robbery were “separate and distinct” offenses and

by ordering consecutive sentences.

       {¶24} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing

court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence

is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b).

       {¶25} Initially, it is unclear precisely what Wauer is arguing in relation to the

separate and distinct crimes finding, which he argues is required for consecutive

sentences under R.C. 2929.14. That statute requires no such finding.

       {¶26} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple

offenses may be ordered to be served consecutively if the court finds it “necessary to

protect the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to




                                             6
the danger the offender poses to the public,” and “if the court also finds any of” the three

factors listed in R.C. 2929.14(C)(4)(a)-(c) are applicable.

       {¶27} Wauer concedes that the court addressed R.C. 2929.14(C)(4)(c), by

finding that his history of criminal conduct demonstrated that consecutive sentences are

necessary to protect the public. He argues that the trial court “failed to address all of

these requirements [contained in] R.C. 2929.14(C)(4)(a)-(c),” since (a) and (b) were not

discussed. As described above, the plain language of the statute requires that only one

of these three elements need be found, which is evident from the statute’s use of the

word “any.” There was no error by the court in failing to address the remaining factors.

       {¶28} To the extent that the “separate and distinct crimes” reference relates to

allied offenses, Wauer sets forth no argument in support of merger. The Felonious

Assault and Robbery were committed against two separate victims.            “Two or more

offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) [allied offenses

statute] when the defendant’s conduct constitutes offenses involving separate victims * *

*.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph two of

the syllabus. Separate sentences were also appropriate under the allied offenses law.

       {¶29} The first assignment of error is without merit.

       {¶30} In his second assignment of error, Wauer argues that the trial court erred

in failing to dismiss the Assault charge in relation to Brandon Merrell, since Merrell

testified that Wauer did not hit him.

       {¶31} It is initially unclear under what grounds Wauer intends to raise his error,

but he argues that the evidence did not support a conviction for Assault. This fails both

under a review of the weight of the evidence and the sufficiency of the evidence.




                                             7
       {¶32} In reviewing the sufficiency of the evidence, “[t]he 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.”    State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

       {¶33} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose

evidence is more persuasive—the state’s or the defendant’s?” Id. An appellate court

must consider all the evidence in the record, the reasonable inferences, the credibility of

the witnesses, and whether, “in resolving conflicts in the evidence, the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” (Citation omitted.) Thompkins at 387.

       {¶34} In order to convict Wauer of Assault, the State was required to prove that

he “knowingly cause[d] or attempt[ed] to cause physical harm to another * * *.” R.C.

2903.13(A).

       {¶35} Wauer fails to cite any authority for the proposition that a victim’s denial

that he was hit justifies dismissal of an Assault charge.      Courts have rejected the

argument that a conviction is not supported by the evidence when the victim denied

being assaulted but there is other evidence in the record to support the conviction. See




                                            8
State v. Arnwine, 12th Dist. Warren No. CA88-11-076, 1989 WL 101653, 1-2 (Sept. 5,

1989); State v. Taylor, 9th Dist. Summit No. 21307, 2003-Ohio-2025, ¶ 15-18.

       {¶36} Several witnesses testified that Wauer hit Merrell. Stefanik testified that

he was “pretty sure [Wauer] gets one shot in on [Merrell] before I get the window all the

way up.” Holbrook, Wauer’s friend who was standing near him during the assault,

testified multiple times and without equivocation that he saw Wauer hit Merrell.

Merrell’s written and signed statement to police stated that Wauer had hit him. The

issue of credibility of witnesses is for the trier of fact to determine. State v. Banks, 11th

Dist. Lake No. 2012-L-110, 2013-Ohio-3865, ¶ 35; State v. Awan, 22 Ohio St.3d 120,

123, 489 N.E.2d 277 (1986) (the determination of a witness’ credibility lies “with the

finder of fact and an appellate court may not substitute its own judgment”). The jury

was free to disbelieve Merrell’s testimony and accept the other witnesses’ version of the

events. There was sufficient evidence establishing the elements of Assault and the

conviction was supported by the weight of the evidence.

       {¶37} The second assignment of error is without merit.

       {¶38} In his third assignment of error, Wauer argues it was inconsistent to

convict him of Robbery when he was acquitted of Assault, since Assault is an element

of Robbery.

       {¶39} In relation to Robbery, R.C. 2911.02(A) provides:

              No person, in attempting or committing a theft offense or in fleeing

              immediately after the attempt or offense, shall do any of the

              following: (1) Have a deadly weapon on or about the offender’s

              person or under the offender’s control; (2) Inflict, attempt to inflict,




                                             9
              or threaten to inflict physical harm on another; (3) Use or threaten

              the immediate use of force against another.

       {¶40} To convict a defendant of Assault, as noted above, the defendant must

knowingly “cause or attempt to cause physical harm.” R.C. 2903.13(A).

       {¶41} This court has held that “[i]nconsistent verdicts do not provide a basis for a

new trial. In fact, the Ohio Supreme Court has long held that inconsistent verdicts on

different counts in a multi-count indictment provide no basis for retrial.”         State v.

Barringer, 11th Dist. Portage No. 2004-P-0083, 2006-Ohio-2649, ¶ 53; State v.

Kotomski,   11th    Dist.   Ashtabula   No.        2015-A-0047,   2016-Ohio-4731,    ¶   46.

“[I]nconsistency 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.

Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph one of the syllabus.

       {¶42} Wauer argues that his acquittal for Assault necessarily means that the jury

could not have found that physical harm was attempted or inflicted for the purposes of

the Robbery conviction. As is made clear by the law outlined above, this provides no

basis to order the verdict be overturned or the case retried.

       {¶43} Wauer contends that, given Robbery and Assault share elements, this

case “presents issues beyond mere inconsistency.” However, the foregoing principles

relating to inconsistent verdicts have been applied under the same circumstances,

where a defendant was convicted of Robbery but not Assault. State v. Norris, 9th Dist.

Summit No. 21619, 2004-Ohio-2516, ¶ 4-6 (rejecting appellant’s argument that an

acquittal on the Assault charge “indicated that he did not cause any physical harm” for

the purposes of the Robbery charge).




                                              10
      {¶44} To the extent that Wauer argues the evidence did not support a verdict of

guilty on Robbery, we disagree. Although Wauer does not argue that there was a lack

of evidence he committed a theft offense, we note that evidence supported a finding

that he stole Dugan’s phone. The phone was located several blocks away, on the route

that Wauer used to drive away from the scene. Further, regarding the physical harm

element, there is no question Dugan testified that, while struggling with her in order to

take her phone, Wauer hit her in the face, causing her to suffer pain, bruising, and the

inability to fully open her jaw. There was sufficient evidence to support a Robbery

conviction.

      {¶45} The third assignment of error is without merit.

      {¶46} In his fourth assignment of error, Wauer argues that the Felonious Assault

conviction was not proven, and no jury instruction for that offense should have been

given, since the evidence did not substantiate a finding of “serious physical harm.”

      {¶47} In order for Wauer to be convicted of Felonious Assault, the State was

required to prove that he knowingly “[c]ause[d] serious physical harm to another * * *.”

R.C. 2903.11(A)(1). Serious physical harm includes: “[a]ny mental illness or condition

of such gravity as would normally require hospitalization * * *”; “[a]ny physical harm that

involves some permanent incapacity, whether partial or total, or that involves some

temporary, substantial incapacity;” and “[a]ny physical harm that involves acute pain of

such duration as to result in substantial suffering or that involves any degree of

prolonged or intractable pain.” R.C. 2901.01(A)(5)(a),(c), and (e).

      {¶48} There was more than sufficient evidence presented to establish serious

physical harm. McIntyre was taken to the emergency room, his skull was fractured, he




                                            11
suffered a concussion, had a subdural hematoma (bleeding on the brain), memory loss,

headaches, and could not hear out of his right ear for a week. He was unable to work

for over two months until he was cleared to return by a neurologist.              These

circumstances provide evidence beyond that required to show serious physical harm.

See State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶ 57 (11th Dist.) (a concussion with

bruising “satisfies the serious physical harm threshold”). Such a conclusion is further

supported by this court’s holding that serious physical harm “may be reasonably inferred

‘[w]here injuries to the victim are serious enough to cause him or her to seek medical

treatment.’” (Citations omitted). State v. Soller, 11th Dist. Ashtabula No. 2014-A-0034,

2015-Ohio-635, ¶ 28. There is no question that the injuries required immediate medical

treatment, and caused long-lasting effects which prevented McIntyre from working,

supporting a Felonious Assault conviction.

      {¶49} That being the case, the trial court did not err by giving an instruction for

Felonious Assault. Jury instructions “must be given when they are correct, pertinent,

and timely presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995).

Here, the jury instruction was given for the offense for which Wauer was indicted and

which was supported by the evidence.         To the extent that Wauer argues that an

instruction should have been given on misdemeanor Assault, presumably as a lesser-

included offense, such an instruction “is required only where the evidence presented at

trial would reasonably support both an acquittal on the crime charged and a conviction

upon the lesser included offense.” State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286

(1988), paragraph two of the syllabus. Such is not the case here, given the extensive

evidence as to the seriousness of the injury.




                                             12
       {¶50} The fourth assignment of error is without merit.

       {¶51} In his fifth assignment of error, Wauer argues that the trial court erred by

failing to correct each of the prosecutor’s statements during closing argument that

rendering someone unconscious “is always serious physical harm.”

       {¶52} “The prosecution is normally entitled to a certain degree of latitude in its

concluding remarks.”      State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984).

However, the prosecution “must avoid insinuations and assertions which are calculated

to mislead the jury.” Id. at 14.

       {¶53} When evaluating a defendant’s claims in relation to the prosecutor’s

closing arguments, courts have considered 1) whether remarks made were “improper”

and 2) “whether they prejudicially affected substantial rights of the defendant.” Id. at 14;

State v. Bell, 11th Dist. Lake No. 2015-L-017, 2015-Ohio-4775, ¶ 59.

       {¶54} Wauer contends that the State’s closing argument misled the jury since

the definition of “serious physical harm” does not include the term “unconscious.”

During closing argument, the prosecutor stated, on multiple occasions, that “knock[ing]

someone unconscious” is “always serious physical harm” under Ohio law. Wauer’s

counsel objected to one of these statements, which was sustained, but no objection was

made as to the other two statements.

       {¶55} The prosecutor’s remarks to the jury were not incorrect or misleading.

This court has held that, when it “was known that the victim was beaten until he was

unconscious, [this was] an injury sufficient to establish the element of serious physical

harm.” In re Miller, 11th Dist. Ashtabula No. 2000-A-0014, 2002-Ohio-3360, ¶ 28. See

also State v. McSwain, 8th Dist. Cuyahoga No. 83394, 2004-Ohio-3292, ¶ 29




                                            13
(“[u]nconsciousness is a state of temporary, substantial incapacity sufficient to

constitute serious physical harm”).

       {¶56} Even if these statements were considered improper, they did not affect

Wauer’s substantial rights. The trial court instructed the jury that closing arguments

were not evidence to be considered in deliberations and the court’s instruction regarding

the legal elements of serious physical harm was accurate, allowing the jury to follow the

appropriate law when reaching its verdict. State v. Brown, 2016-Ohio-1358, 62 N.E.3d

943, ¶ 108 (11th Dist.)

       {¶57} The fifth assignment of error is without merit.

       {¶58} In his sixth assignment of error, Wauer argues that the trial court erred by

instructing the jury that he must prove “beyond a reasonable doubt” that he was not at

fault to prevail on a self-defense claim.

       {¶59} The State notes that an error in transcription occurred, which has been

corrected.

       {¶60} Page 526 of the transcript initially stated the jury instruction as described

above. Following an inquiry by the State, the court reporter filed an affidavit, explaining

that upon reviewing her notes and backup audio, this was a mistake and that the

transcript should state that the defendant was required to prove “by a preponderance of

the evidence” that he was not at fault.

       {¶61} Pursuant to App.R. 9(E), “[i]f anything material to either party is omitted

from the record by error or accident or is misstated, * * * the court of appeals, on proper

suggestion or of its own initiative, may direct that omission or misstatement be

corrected, and if necessary that a supplemental record be certified, filed, and




                                            14
transmitted.” Upon the State’s Motion, this court granted the request to correct the

record pursuant to the court reporter’s affidavit. In response to Wauer’s subsequent

request to supplement the record and verify whether the correct jury instruction was

given, this matter was remanded to the trial court for it to determine, pursuant to App.R.

9(E), whether the record “truly discloses what occurred in the trial court.” The trial court

verified that the transcription, as amended by the court reporter, is correct and that a “by

a preponderance of the evidence” instruction was given. Since the correct instruction

was given, the error raised is rendered moot.

       {¶62} The sixth assignment of error is without merit.

       {¶63} For the foregoing reasons, Wauer’s convictions and sentence in the

Trumbull County Court of Common Pleas are affirmed.            Costs to be taxed against

appellant.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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