State v. Wauer
2017 Ohio 1337
| Ohio Ct. App. | 2017Background
- On June 21, 2015, outside a bar in Hubbard, Ohio, Joshua Lee Wauer struck several people; one victim (James McIntyre) suffered a fractured skull, concussion, subdural hematoma, and prolonged incapacitation.
- Wauer was indicted on multiple counts including Assault (M1), Felonious Assault (F2), Aggravated Robbery (charged, reduced to Robbery), Tampering with Evidence, and OVI-suspension.
- At a jury trial, witnesses variously testified Wauer hit Stefanik, Merrell, McIntyre, and Laurel Dugan (who claimed her phone was taken and she was struck); some defense witnesses disputed specific contacts.
- Jury acquitted Wauer of Aggravated Robbery and Assault as to Dugan, convicted him of Robbery (lesser-included) and of the other charges including Felonious Assault (McIntyre).
- Trial court sentenced Wauer to an aggregate five-year term (consecutive sentences on Felonious Assault and Robbery).
- On appeal Wauer raised six assignments of error challenging consecutive-sentence findings, sufficiency/consistency of Assault and Robbery convictions, Felonious Assault instruction/evidence of serious physical harm, prosecutor remarks in closing, and an alleged erroneous jury-instruction transcription (self-defense burden).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Wauer) | Held |
|---|---|---|---|
| Whether trial court erred ordering consecutive sentences under R.C. 2929.14(C)(4) | Court complied with R.C. 2929.14(C)(4) by finding (c) (history of criminal conduct) | Court failed to make all (a)-(c) findings and misapplied "separate and distinct" requirement | Affirmed: only one of (a)-(c) required; consecutive terms supported; offenses against separate victims are not allied under Ruff |
| Sufficiency/weight of evidence for Assault on Merrell | State: multiple witnesses (including defense friend) placed Wauer hitting Merrell; signed police statement supported assault | Wauer: Merrell testified he was not hit so charge should be dismissed | Affirmed: evidence sufficient and jury resolves credibility; victim denial does not require dismissal |
| Whether Robbery conviction inconsistent with acquittal on related Assault | State: Robbery supported by evidence (Dugan’s testimony, recovered smashed phone) | Wauer: acquittal for Assault means jury found no physical harm, so Robbery verdict is inconsistent | Affirmed: inconsistent verdicts across counts are not a basis for reversal; evidence supported Robbery conviction |
| Whether Felonious Assault instruction/evidence of "serious physical harm" was improper | State: McIntyre’s skull fracture, concussion, subdural hematoma, treatment and prolonged incapacity satisfy serious physical harm | Wauer: evidence only supported simple Assault; felonious instruction unnecessary | Affirmed: injuries meet statutory definitions of serious physical harm; instruction proper |
| Whether prosecutor’s closing statements (unconscious = always serious physical harm) were improper | State: such remarks are permissible argument and consistent with precedents recognizing unconsciousness as temporary substantial incapacity | Wauer: statements misstated law and prejudiced jury | Affirmed: remarks not misleading or, if improper, harmless in light of accurate jury instructions |
| Whether jury self-defense instruction was misstated as defendant must prove beyond reasonable doubt | State: transcript error corrected to show correct preponderance standard; trial court verified | Wauer: instruction given wrongly imposed higher burden | Affirmed / moot: court reporter corrected transcript; trial court confirmed correct instruction was given (preponderance) |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (sets Jackson sufficiency standard for criminal convictions)
- Jackson v. Virginia, 443 U.S. 307 (sufficiency review standard under Due Process)
- State v. Ruff, 143 Ohio St.3d 114 (offenses against separate victims are dissimilar import for allied-offenses analysis)
- State v. Thompkins, 78 Ohio St.3d 380 (distinguishes sufficiency and weight of the evidence)
- State v. Lovejoy, 79 Ohio St.3d 440 (inconsistent verdicts among counts do not require reversal)