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State v. Wrona

Court of Appeals of Ohio, Third District, Allen

February 20, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DENNIS WRONA, DEFENDANT-APPELLANT.

         Appeal from Allen County Common Pleas Court Trial Court No. CR2016 0248 Judgment Affirmed

          Kenneth J. Rexford for Appellant.

          Jana E. Emerick for Appellee.

          OPINION

          ZIMMERMAN, J.

         {¶1} Defendant-Appellant, Dennis Wrona ("Appellant"), brings this appeal from the Allen County Common Pleas Court, convicting him of one count of assault and sentencing him to two years Community Control. On appeal, Appellant asserts that: 1) the trial court erred by depriving Appellant of his right to trial by jury by refusing a requested instruction to the jury as to self-defense; 2) the Appellant's jury waiver was not made voluntarily; and 3) the Appellant's conviction for assault was against the manifest weight of the evidence. For the reasons that follow, we affirm the ruling of the Allen County Court of Common Pleas.

         Factual Background

         {¶2} At approximately 5 p.m. on May 29, 2016, employees working at a Bob Evans restaurant on North Cable Road in Lima, Ohio noticed a man "passed out" and lying face down in the grass outside of the restaurant. (Trial, 02/27/2017 Tr. at 28). When attending to the man, who was later identified as Appellant, restaurant employees noted that the man was responsive. (Id. at 29). The employees assisted Appellant into the restaurant, gave him a glass of water, and called 9-1-1 for assistance. (Id.). The Allen County's Sheriffs Office (the department that received the 9-1-1 call) contacted the Lima City Police Department, and dispatched the Lima Allen County Paramedics ("LACP") to the scene to provide Appellant medical assistance. (Id. at 17; 22). Jennifer Pierce ("Pierce") and Linda Bishop ("Bishop"), were the EMTs dispatched to Bob Evans. (Id. at 59).

         {¶3} Upon arriving at Bob Evans, Pierce and Bishop met with the Appellant. (Id. at 64). Appellant told the EMTs that the person who had "passed out" in the grass had already left the restaurant. (Id.). However, after talking to Bob Evans employees, Pierce and Bishop determined that the Appellant was the individual who had "passed out" outside of the restaurant. (Id.). Nevertheless, Appellant refused treatment, but did agree to being "checked out" in the ambulance as long as its doors remained opened and that he would not be transported to the hospital. (Id. at 66). While reports differ as to whether Appellant stepped up into or fell into the back of the ambulance, it is not disputed that once inside the ambulance a physical altercation occurred between the Appellant and Pierce. (Id. at 76). As a result of the altercation, Pierce "flew" out of the back of the ambulance, landing on her backside. (Id. at 76-77).

         {¶4} After being thrown from the ambulance, Pierce radioed for police assistance, then returned to the ambulance to assist Bishop in restraining Appellant until law enforcement arrived. (Id. at 78). One of the responding officers, Steven Torres ("Torres") of the Lima City Police Department, reported that the Appellant's eyes were bloodshot and glassy. (Id. at 156). Torres also reported that the Appellant had an odor of alcohol coming from his breath and appeared to have urinated on himself. (Id.). Torres reported that based on his observations (of Appellant) and experience, he believed Appellant was intoxicated. (Id.). Appellant denied being intoxicated, and no breath or blood alcohol testing was performed by law enforcement to determine whether or not Appellant was under the influence of alcohol. (Trial, 02/28/2017 Tr. at 186). However, Torres arrested the Appellant for assaulting Pierce and transported him to the Lima police station without further incident. (Trial, 02/27/2017 Tr. at 171-72).

         {¶5} After the altercation with the Appellant, Pierce sought medical treatment for her injuries. (Id. at 91). Pierce testified that as a result of being kicked out of the back of the ambulance, she suffered severe pain in her right hip/pelvis region. (Id. at 92). Pierce also testified that Appellant had bit her and attempted to light her arm hairs on fire with a lighter that Appellant had in his shirt pocket. (Id. at 81). Pierce's injuries were documented at trial by medical records from St. Rita's Medical Center and photographs taken by police. (State's Ex. Nos. 5-18).

         Procedural Background

         {¶6} On July 14, 2016, the Allen County Grand Jury indicted Appellant on one count of Assault, in violation of R.C. 2903.13(A) and R.C. 2903.13(C)(5). (Doc. No. 4). Because the victim of the assault, Pierce, was performing an emergency medical service in the course of her official duties, the charge against the Appellant was elevated to a felony of the fourth degree. (Id.).

         {¶7} After several continuances, a jury trial was scheduled in the trial court for February 27, 2017. (Doc. No. 24). However, Appellant waived his right to a jury the morning of trial after an in-chamber meeting occurred between the trial judge and the attorneys involved in the case. (Doc. No. 56). Appellant's jury waiver was in writing and was signed (by Appellant) in open court and on the record. (Id.). After the waiver was executed, a bench trial commenced. During the bench trial, Appellant's counsel's office faxed to the trial court a "Pretrial Statement Re: Self Defense and Refused Medical Treatment." (Doc. No. 51). At the conclusion of the bench trial on February 28, 2017, the trial court found Appellant guilty of assault. (Doc. No. 57). Thereafter, Appellant was sentenced to two years of community control on April 20, 2017. (Doc. No. 60). It is from this judgment Appellant appeals, presenting the following assignments of error for our review:

         ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT ERRED AND DEPRIVED MR. WRONA OF HIS RIGHT TO TRIAL BY JURY BY REFUSING A REQUESTED INSTRUCTION TO THE JURY AS TO SELF-DEFENSE.

         ASSIGNMENT OF ERROR NO. II[1]

         THE JURY WAIVER WAS NOT VOLUNTARY.

         ASSIGNMENT OF ERROR NO. III

         THE CONVICTION FOR ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶8} On appeal, Appellant asserts: 1) that the trial court erred by depriving Appellant of his right to a trial by jury and by refusing the requested self-defense jury instruction; 2) that the Appellant involuntarily executed his jury waiver, and 3) that Appellant's conviction for assault was against the manifest weight of the evidence. For the reasons that follow, we affirm the decision of the trial court.

         Appellant's First and Second Assignments of Error

         {¶9} As both the first and second assignments of error involve Appellant's right to a jury trial and the voluntariness of his jury waiver, we will discuss these assignments together.

         Standard of Review

         {¶10} "A jury waiver must be voluntary, knowing, and intelligent." State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 45 citing State v. Ruppert, 54 Ohio St.2d 263, 271, 375 N.E.2d 1250 (1978). "Waiver may not be presumed from a silent record." Id. citing State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 52. "However, if the record shows a jury waiver, the verdict will not be set aside except on a plain showing that the waiver was not freely and intelligently made." Id. "Moreover, a written waiver is presumptively voluntary, knowing, and intelligent." Id

         Trial Court's Conversation with Appellant Regarding Waiver

         {¶11} At Appellant's jury waiver hearing, the following exchange occurred between Appellant and the trial court:

         Trial Court: Mr. Wrona, you've heard what your lawyer said about waiving your right to a jury trial?

         Appellant: I did, your honor.

         Trial Court: Okay. Thank you. Now, Mr. Wrona, I want to make sure you understand a bit of detail relating to that. First of all, you have a constitutional ...


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