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State v. Wauer

Court of Appeals of Ohio, Eleventh District, Trumbull

April 10, 2017

STATE OF OHIO, Plaintiff-Appellee,
JOSHUA LEE WAUER, Defendant-Appellant.

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

          Dennis Watkins, Trumbull County Prosecutor, and Gabriel M. Wildman, Assistant Prosecutor, (For Plaintiff-Appellee).

          Michael A. Scala, (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, 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.

         {¶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, 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 ...

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