State v. Wasil

[Cite as State v. Wasil, 2018-Ohio-4463.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 18AP0001
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THOMAS D. WASIL COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2017 CRC-I 000154
DECISION AND JOURNAL ENTRY
Dated: November 5, 2018
CALLAHAN, Judge.
{¶1} Appellant, Thomas Wasil, appeals his conviction for gross sexual imposition.
This Court affirms.
I.
{¶2} Ten-year-old A.R. reported to her paternal grandmother that Mr. Wasil, her
maternal grandfather, sexually assaulted her during a sleepover at his home. Mr. Wasil was
charged with one count of rape, a violation of R.C. 2907.02(A)(1)(b), and gross sexual
imposition, a violation of R.C. 2907.05(A)(4). A jury found him not guilty of rape, but guilty of
gross sexual imposition, and the trial court sentenced him to the maximum permissible prison
term of five years. Mr. Wasil filed this appeal.
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II.
ASSIGNMENT OF ERROR NO. 1
APPELLANT’S CONVICTION FOR GROSS SEXUAL IMPOSITION, R.C.
2907.05(A)(4), WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶3} Mr. Wasil’s first assignment of error argues that his conviction is against the
manifest weight of the evidence. Mr. Wasil contends that it was inconsistent for the jury to find
him not guilty of rape, yet guilty of gross sexual imposition because, in his view, doing so
required the jury to believe that A.R. was lying with regard to part of his conduct, but truthful
about the rest.
{¶4} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.
State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing
State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
{¶5} R.C. 2907.02(A)(1)(b), which prohibits rape, provides that “[n]o person shall
engage in sexual conduct with another who is not the spouse of the offender * * * when * * * the
other person is less than thirteen years of age, whether or not the offender knows the age of the
other person.” “Sexual conduct” includes “cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal opening of another.” R.C.
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2907.01(A). R.C. 2907.05(A)(4), which prohibits gross sexual imposition, prohibits any person
from having sexual contact with another person who is less than thirteen years of age. “Sexual
contact” is defined as “any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the
purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). Consequently, the
distinction between the offenses of rape and gross sexual imposition is that while rape requires
sexual conduct, gross sexual imposition requires sexual contact. State v. Anderson, 9th Dist.
Summit No. 23197, 2007-Ohio-147, ¶ 14.
{¶6} Mr. Wasil’s underlying premise appears to be that one cannot be convicted of
gross sexual imposition, but acquitted of rape, when both charges arise out of one incident of
sexual assault. Although it is well-established that “a defendant may not be convicted of both
gross sexual imposition and rape when the counts arise out of the same conduct,” a defendant
who commits acts that are “distinct and separate from each other” can be convicted under both
statutes. State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006, ¶ 143-145 (considering under
what circumstances rape and gross sexual imposition constitute allied offenses of similar import
under R.C. 2941.25). A defendant may also, then, be found guilty of one offense, but not guilty
of the other.
{¶7} Arising from his premise, Mr. Wasil argues that it was inconsistent—and,
therefore, against the manifest weight of the evidence—for the jury to have found him not guilty
of rape, but guilty of the separate charge of gross sexual imposition. Even assuming that the
verdicts in this case were inconsistent, reversal would not be warranted because “[i]nconsistent
verdicts on different counts of a multi-count indictment do not justify overturning a verdict.”
State v. Hicks, 43 Ohio St. 3d 72, 78 (1989), citing United State v. Powell, 469 U.S. 57, 68
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(1984). Stated differently, “The several counts of an indictment containing more than one count
are not interdependent and an inconsistency in a verdict does not arise out of inconsistent
responses to different counts, but only arises out of inconsistent responses to the same count.”
State v. Adams, 53 Ohio St. 2d 223 (1978), paragraph two of the syllabus, vacated on other
grounds at 439 U.S. 811 (1978).
{¶8} In this case, however, the evidence demonstrates that there is no inconsistency
between the verdicts. A.R., who was eleven years old at the time of trial, testified that during a
sleepover at his home, her grandfather, Mr. Wasil, perpetrated several distinct acts against her.
These included placing her hand on his genitals, inserting his fingers into her vagina two or three
times, and placing his mouth on her genitals. Mr. Wasil’s trial counsel, who successfully
obtained an acquittal on the rape charge, elicited testimony during cross-examination of A.R. on
a strategic point: she acknowledged that she did not provide all of the details of the assault when
she first disclosed it and, specifically, that she had omitted telling her grandmother that Mr.
Wasil inserted his fingers into her vagina. In addition, the pediatrician from the Wayne County
Children’s Advocacy Center who oversees forensic examinations testified on direct examination
that because of a misunderstanding of their own anatomy, many young girls perceive any
touching of their genitals to be penetration of the vagina. Based on these statements, the jury
could have credited A.R.’s description regarding some of Mr. Wasil’s actions, but failed to credit
the remainder of her testimony.
{¶9} The evidence in this case does not weigh heavily against Mr. Wasil’s conviction
for gross sexual imposition, whether owing to inconsistency or otherwise. His first assignment
of error is overruled.
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ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
APPELLANT TO THE MAXIMUM POSSIBLE PRISON TERM.
{¶10} Mr. Wasil’s second assignment of error argues that the trial court erred by
sentencing him to the maximum possible prison term of five years. This Court disagrees.
{¶11} This Court may modify or vacate a felony sentence “only if it determines by clear
and convincing evidence that the record does not support the trial court’s findings under relevant
statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-516, ¶ 1. With respect to maximum sentences, a trial court has “full discretion to
impose a prison sentence within the statutory range” and is “no longer required to make findings
or give * * * reasons for imposing maximum, consecutive, or more than the minimum
sentences.” State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, paragraph three of the syllabus.
{¶12} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others and to punish the offender using the minimum sanctions
that the court determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” R.C. 2929.11(A).1 Trial courts have discretion in
fashioning felony sentences with consideration for the factors provided in R.C. 2929.12(B)-(F).
R.C. 2929.12(A). “R.C. 2929.12(B) includes factors that suggest that the offense is more
serious. R.C. 2929.12(C) includes factors suggesting the offense is less serious. The recidivism
factors—factors indicating an offender is more or less likely to commit future crimes—are set
forth in R.C. 2929.12(D) and (E).” State v. Thrasher, 9th Dist. Summit No. 27547, 2015-Ohio-
2504, ¶ 5.
1
R.C. 2929.11 was amended effective October 29, 2018. This opinion references the
previous version of the statute.
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{¶13} Mr. Wasil does not dispute that his sentence is within the permissible range for
gross sexual imposition when it is a third-degree felony, as in this case. See R.C. 2907.05(C)(2);
R.C. 2929.14(A)(3)(a). Instead, he has argued that the record does not support the sentence that
the trial court imposed because “he does not have a meaningful criminal record, the victim in this
case did not suffer any serious physical harm, and he has a low likelihood of recidivism.” In this
respect, however, we cannot examine the record because the presentence investigation report is
not part of the record on appeal. When an appellant does not provide a complete record to
facilitate our review, we must presume regularity in the trial court’s proceedings and affirm.
State v. Jalwan, 9th Dist. Medina No. 09CA0065-M, 2010-Ohio-3001, ¶ 12, citing Knapp v.
Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980). Consequently, when the contents of a
presentence investigation report are necessary to review the appropriateness of a sentence, an
appellant must move to supplement the record on appeal with the report to enable our review.
See State v. Banks, 9th Dist. Summit No. 24259, 2008-Ohio-6432, ¶ 14.
{¶14} Mr. Wasil did not move this Court to supplement the record on appeal with the
presentence investigation report so, because his second assignment of error requires us to
consider the evidence related to the trial court’s sentencing decision, we must presume regularity
and affirm.
{¶15} Mr. Wasil’s second assignment of error is overruled.
III.
{¶16} Mr. Wasil’s assignments of error are overruled. The judgment of the Wayne
County Court of Common Pleas is affirmed.
Judgment affirmed.
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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 Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
MATTHEW J. MALONE, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.