State v. WenkerState v. Wenker
Dated: February 23, 2011
MOORE, Judge.
{¶1} Appellant, Richard T. Wenker, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} On June 1, 2008, Wenker lived in Akron, Ohio with his fiancé, Traci Billups, and her young daughter. The couple argued frequently and had been arguing loudly all day. Wenker spent most of the day working on his truck in the garage while drinking beer and huffing toluene. Despite the fact that Wenker was still working in the garage, around 9:30 p.m. Billups locked the house in her customary manner. This included wedging a butter knife in the back door to counteract a faulty latching mechanism. Billups then took multiple medications, including a sleeping pill. She testified that she awakened to Wenker attempting to gain entry through the back door. She made her way to the kitchen and as she passed the refrigerator and turned to face the back door she was struck in the face by the wooden door, which Wenker had
{¶3} Witnesses testified, however, that Billups first explained that she tripped over the dog and fell on the ground, breaking her nose in the process. She later admitted to a police officer that she was standing right behind the back door looking at Wenker through the glass. He was yelling through the window. He then drove his shoulder into the door, causing it to fly open and strike Billups in the face.
{¶4} The officers placed Wenker under arrest. On June 3, 2008, a judge on the Akron Municipal Court issued a temporary protection order which forbade Wenker from visiting the shared residence.
{¶5} On June 10, 2008, the Summit County Grand Jury indicted Wenker for one count of felonious assault in violation of
{¶6} On August 1, 2008, police were dispatched to the shared residence, where they found Wenker. The officers determined that Wenker had been huffing in the crawl space above the garage. The fumes in the crawl space were so strong that the officers were unable to enter.
{¶8} Beginning September 15, 2008, a bench trial commenced in the Summit County Court of Common Pleas. On September 17, 2008, the court found Wenker guilty of felonious assault with the repeat violent offender specification, domestic violence, abusing harmful intoxicants on June 1, 2008, endangering children, violating a protection order and abusing harmful intoxicants on August 1, 2008.
{¶9} On November 26, 2008, the court sentenced Wenker to eight years of incarceration on the felonious assault charge, one year of incarceration on the repeat violent offender specification, 18 months of incarceration on the domestic violence charge, six months of incarceration on each charge of abusing harmful intoxicants, 90 days of incarceration on the endangering children charge and six months of incarceration on the charge of violating a protection order. The court further ordered that the sentences for felonious assault and the repeat violent offender specification run consecutively to each other but concurrently with the sentences for domestic violence, abusing harmful intoxicants, endangering children and violating a protection order, for a total of nine years of incarceration. On December 16, 2009, the trial court resentenced Wenker to the same terms of incarceration but altered its order of post-release control.
{¶10} Wenker timely filed a notice of appeal. He raises three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED BY OVERRULING THE CRIMINAL RULE 29 MOTION TO DISMISS THE COUNTS OF FELONIOUS ASSAULT AND DOMESTIC VIOLENCE BECAUSE THE STATE FAILED TO PRODUCE EVIDENCE THAT [WENKER] KNOWINGLY CAUSED THE ASSAULT.”
{¶11} In his first assignment of error, Wenker contends that the trial court erred in overruling his
{¶12} “Pursuant to
{¶13} In this case, Wenker has limited his challenge to whether the State proved that he acted with the requisite culpable mental state to sustain convictions for domestic violence and felonious assault. To convict a defendant of domestic violence or felonious assault, the State must prove that the defendant acted knowingly.
{¶14} Intent need not be proved by direct evidence. State v. Elwell, 9th Dist. No. 06CA008923, 2007-Ohio-3122, at ¶26. This is because, “‘[n]ot being ascertainable by the exercise of any or all of the senses, [intent] can never be proved by the direct testimony of a third person, and it need not be. It must be gathered from the surrounding facts and circumstances[.]‘” In re Washington (1998), 81 Ohio St.3d 337, 340, quoting State v. Huffman (1936), 131 Ohio St. 27, paragraph four of the syllabus. “Furthermore, if the State relies on circumstantial evidence to prove any essential element of an offense, it is not necessary for ‘such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. (Internal quotations omitted.)‘” State v. Tran, 9th Dist. No. 22911, 2006-Ohio-4349, at ¶13, quoting State v. Daniels (June 3, 1998), 9th Dist. No. 18761, at *2. Circumstantial evidence has the same probative value as direct evidence. See State v. Jenks (1991), 61 Ohio St.3d 259, paragraph one of the syllabus.
{¶15} Testimony before the trial court indicated that Billups and Wenker had argued earlier in the day. At the time of the incident, Billups was standing directly behind the back door of the house and looking at Wenker, who was yelling at her. He then lowered his shoulder and rammed himself into the door, causing it to fly open and strike her in the face. From these circumstances the trial court could reasonably conclude that Wenker acted knowingly for the purposes of
ASSIGNMENT OF ERROR II
“IT WAS PLAIN ERROR WHEN [WENKER] WAS CONVICTED OF BOTH FELONIOUS ASSAULT AND DOMESTIC VIOLENCE AS BOTH COUNTS WERE SUPPORTED BY A SINGLE ALLEGATION OF FACT AND THEREFORE THE TWO ALLIED OFFENSES SHOULD HAVE MERGED INTO A SINGLE CONVICTION.”
{¶17} Wenker observes that both convictions stem from a single act: Wenker pushed open a door, which hit Billups in the face, breaking her nose. Pursuant to
{¶18}
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
“(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶20} Although no four-justice majority supported any one test, the Court held that a defendant‘s conduct must be examined. Id. at the syllabus. Examining the defendant‘s conduct allows a court to determine whether it is possible to commit both offenses by the same conduct. Id. at ¶48. If both offenses can be committed with the same conduct, then a court must determine “whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.‘” Id. at ¶49, quoting Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶50 (Lanzinger, J., dissenting). “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.” Id. at ¶50. We believe this
{¶21} Applying Johnson to the facts of this case, Wenker contends that the felonious assault and domestic violence charges stem from his single act of driving the door into Billups’ nose. As a result, Johnson dictates that the charges are allied offenses of similar import and must be merged for sentencing purposes. In response to our request for briefing, however, the State changed its approach. In its initial brief, the State argued without citing to any authority, that domestic violence and felonious assault are not allied offenses of similar import based on a comparison of the elements of each charge. The State further contended that because one offense could be committed without the other, this “Court need not determine whether the offenses were committed with separate animus.” In its supplemental brief addressing Johnson, the State, apparently unable to argue that Wenker‘s single act could support two convictions, looked elsewhere in the transcript and cited an event that occurred earlier in the evening in which Wenker allegedly argued with Billups, pushed her and then went to the garage. The State now contends that the earlier act of pushing Billups constitutes a separate instance of domestic violence under
{¶22} Accordingly, in light of Johnson, we must remand this matter to the trial court for a determination as to whether Wenker committed the offenses separately or with a separate
ASSIGNMENT OF ERROR III
“[WENKER] SUFFERED FROM INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY FAILED TO INFORM HIM THAT HE FACED A MANDATORY EIGHT-YEAR PRISON TERM BEFORE REJECTING A PLEA DEAL AND PROCEEDING TO TRIAL.”
{¶23} In his third assignment of error, Wenker contends that his trial counsel was ineffective because counsel failed to inform him that he faced a mandatory eight-year prison term before rejecting a plea deal and proceeding to trial. We do not agree.
{¶24} In order to show ineffective assistance of counsel, Wenker must satisfy a two-prong test. Strickland v. Washington (1984), 466 U.S. 668, 669. First, he must show that his trial counsel engaged in a “‘substantial violation of any * * * essential duties to his client.‘” State v. Bradley (1989), 42 Ohio St.3d 136, 141, quoting State v. Lytle (1976), 48 Ohio St.2d 391, 396. Second, he must show that his trial counsel‘s ineffectiveness resulted in prejudice. Bradley, 42 Ohio St.3d at 141-142, quoting Lytle, 48 Ohio St.2d at 396-397. “Prejudice exists where there is a reasonable probability that the trial result would have been different but for the alleged deficiencies of counsel.” State v. Velez, 9th Dist. No. 06CA008997, 2007-Ohio-5122, at ¶37, citing Bradley, 42 Ohio St.3d at paragraph three of the syllabus. This Court need not address both Strickland prongs if Wenker fails to prove either one. State v. Ray, 9th Dist. No. 22459, 2005-Ohio-4941, at ¶10.
{¶25} The State contends that Wenker failed to request a transcript of the sentencing hearing or notify the State that he had failed to do so. The State further contends that as a result of this failure, this Court should presume regularity in the proceedings below and overrule this
{¶26} In his argument, Wenker quoted the trial judge at sentencing. The trial judge stated: “Having said all that, you still would have been sent to prison, Mr. Wenker, even without the mandatory sentence. I would have sent you to prison, I wouldn‘t have sent you to prison for 8 years.” Additionally, the trial judge, prosecutor and defense counsel all acknowledged that until sentencing, they were unaware of a mandatory sentence in this case. Wenker also cites State v. Hicks, 12th Dist. No. CA2002-08-198, 2003-Ohio-7210, for the proposition that an attorney‘s failure to communicate a prosecutor‘s plea offer to her client constitutes ineffective assistance of counsel. Id. at ¶14.
{¶27} Wenker did not, however, point this Court to any location in the transcript or record that demonstrates the contents of the prosecutor‘s plea offer. Moreover, Hicks does not stand for the proposition that the failure to communicate a mandatory sentence to a client who may be convicted after trial constitutes ineffective assistance of counsel. In fact, in State v. Lawson (Dec. 12, 1996), 8th Dist. No. 69899, the court held “that a defense counsel‘s failure to inform his client of the range of sentencing possibilities does not require reversing the conviction.” Id. at *2. As in Lawson, Wenker has not directed this Court to any authority to support his claim for ineffective assistance of counsel.
III.
{¶28} Wenker‘s first and third assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed in part, and the cause remanded for further proceedings consistent with this opinion.
Judgment affirmed in part, and cause remanded for further proceedings.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE FOR THE COURT
CARR, P. J. CONCURS
WHITMORE, J. CONCURS, SAYING:
{¶29} I concur, but write separately to note that a remand also would be warranted under Justice O‘Connor‘s separate opinion in Johnson, which Justices Pfeifer and Cupp joined. See State v. Johnson, Slip Opinion No. 2010-Ohio-6314, at ¶59-71 (focusing on the evidence and arguments raised at trial in assessing a defendant‘s conduct and instructing courts to ask whether the commission of one offense will probably result in the commission of the other and whether the offenses involved similar criminal wrongs and similar resulting harm).
APPEARANCES:
DONALD GALLICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.