Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2015 CR 00548.
Watkins, Trumbull County Prosecutor, and Gabriel M. Wildman,
Assistant Prosecutor, (For Plaintiff-Appellee).
Michael A. Scala, (For Defendant-Appellant).
V. GRENDELL, J.
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.
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).
A trial was held on April 4 through 6, 2016. The following
pertinent testimony was presented.
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.
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.
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."
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.
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.
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.
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
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.
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.
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.
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
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.
On appeal, Wauer raises the ...