[Cite as State v. Weaver, 2014-Ohio-1371.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-T-0066
- vs - :
PATRICK LAMAR WEAVER, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2012 CR 00581.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Patrick Lamar Weaver appeals the May 10, 2013 judgment of
the Trumbull County Common Pleas Court designating him a Repeat Violent Offender
and seeks to vacate the three-year mandatory prison term imposed by the trial court as
a result of the designation. For the following reasons, we affirm.
{¶2} Appellant was charged with robbery in violation of R.C. 2911.02(A)(2), a
second-degree felony; grand theft of a motor vehicle in violation of R.C. 2913.02(A)(1) &
(B)(5), a fourth-degree felony; failure to comply with the order or signal of a police officer
in violation of R.C. 2921.331(B) & (C)(1)(5)(a)(ii), a third-degree felony; and assault on a
peace officer in violation of R.C. 2903.13(A) & (C)(3), a fourth-degree felony.
{¶3} These charges stemmed from an incident in which appellant attacked a
man at a laundromat, took his truck, and led police on a high-speed chase. Appellant’s
defense at trial was that he had smoked marijuana laced with an unknown substance,
which caused him to lose control. Appellant admitted he assaulted the victim, took the
truck, and led police on a high speed chase. Appellant denied that he threatened to kill
the victim. Appellant also denied that he bit a police officer during his apprehension.
{¶4} Appellant was convicted of robbery, grand theft of a motor vehicle, and
failure to comply with the order of a police officer. Appellant was acquitted of assault on
a peace officer. With respect to the robbery count, the jury returned the special finding
that appellant had inflicted, attempted to inflict, or threatened to inflict serious physical
harm. Following a hearing at which it was established appellant had previously been
convicted of burglary, the trial court designated appellant a repeat violent offender.
{¶5} For the purpose of sentencing, the trial court found appellant’s grand theft
conviction merged with the robbery conviction. Appellant was sentenced to eight years
for robbery, one year for failure to comply with the order or signal of a police officer, and
three years on the repeat violent offender specification. The trial court ordered
appellant to serve his sentences consecutively for a total of 12 years.
{¶6} Appellant’s trial counsel made multiple motions seeking dismissal of the
repeat violent offender specification and objected to the jury’s special finding of serious
harm, the repeat violent offender hearing, and the court’s judgment and sentence with
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respect to the specification. In arguing these motions and objections, appellant’s trial
counsel argued the repeat violent offender statute, the hearing, and the jury’s finding all
violated appellant’s constitutional rights generally and, specifically, his rights to
confrontation and to a jury trial. The trial court overruled appellant’s motions and
objections concerning the repeat violent offender specification.
{¶7} Appellant filed a timely notice of appeal and asserts one assignment of
error:
The trial court erred, as a matter of law, by both submitting a repeat
violent offender specification to the jury and subsequently
enhancing the appellant’s sentence based upon the jury’s response
to the specification, all in violation of the appellant’s rights pursuant
to the Fifth, Sixth, and Fourteenth amendments to the United States
Constitution and Article I, Sections 1, 5, 10, 16, and 20 of the
Constitution of the State of Ohio.
{¶8} Appellant’s indictment contained a repeat violent offender specification
relative to the robbery charge, pursuant to R.C. 2941.149. Second-degree felony
robbery requires proof that physical harm was inflicted, attempted, or threatened by the
offender. R.C. 2911.02(A)(2). R.C. 2929.14(B)(2)(a)(ii) indicates that an offender
convicted of a second-degree felony offense of violence may be designated a repeat
violent offender, provided, inter alia, the trier of fact finds the offender inflicted,
attempted to inflict, or threatened to inflict serious physical harm in the commission of
the repeat offense. Pursuant to both an instruction and a verdict form, the jury was
asked to make a special finding regarding whether the harm appellant inflicted,
attempted, or threatened, during the alleged robbery, if any, was serious physical harm.
{¶9} Under his assignment of error, appellant argues R.C. 2929.14(B)(2)(a)(ii)
is void for vagueness on its face or, in the alternative, as applied to cases involving
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second-degree robbery, because the statute does not require the trier of fact to
specifically find whether serious physical harm was attempted or inflicted or threatened.
Rather, it calls on the jury to make the finding “as a group.” Appellant contends the
legislature must have intended a more specific finding.
{¶10} Challenges to the constitutionality of a law are reviewed de novo. State v.
Henderson, 11th Dist. Portage No. 2010-P-0046, 2012-Ohio-1268, ¶10. “De novo
review is independent and without deference to the trial court’s determination.” Id. We
presume, however, that all legislative enactments are constitutional. State v. Ferraiolo,
140 Ohio App.3d 585, 586, (11th Dist.2000). A statute may be challenged on
constitutional grounds in two ways: (1) a statute is unconstitutional on its face when
“there exists no set of circumstances under which the statute would be valid”; or (2) a
statute may be unconstitutional when applied to presently existing facts in a case,
though it would not be unconstitutional in all situations. Harrold v. Collier, 107 Ohio
St.3d 44, 2005-Ohio-5334, ¶37.
{¶11} Preliminarily, we address appellee’s contention that appellant did not
properly preserve the issue of vagueness for appeal, as trial counsel failed to
specifically raise it below. Appellee concedes that appellant’s trial counsel moved to
dismiss the specification and objected thereto on constitutional grounds, but states that
the grounds were general. Appellee cites to State v. Awan, 22 Ohio St.3d 120 (1986),
where the appellate court refused to address the defendant’s issue of constitutionality
because the defendant first raised the issue before the court of appeals. Appellee also
cites to Girard v. Rodomsky, 11th Dist. Trumbull No. 97-T-0107, 1998 Ohio App. LEXIS
6359, in which this court followed Awan in declining to consider whether a statute was
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unconstitutionally vague. However, in Rodomsky, we noted Awan held waiver to be
discretionary and stated that “constitutionality arguments may be heard for the first time
on appeal, if the court exercises its discretion to do so.” Id. at *7-8. Further, in
Rodomsky, we specifically declined to hear the issue of whether a zoning ordinance
was unconstitutionally vague, not only because the appellant had not raised the
argument below, but also because the appellant did not raise the argument in his
appellate brief, as required by App.R. 12(A)(2) and App.R. 16(A)(7). Id. at ¶8.
{¶12} Furthermore, shortly after Awan was decided, the Ohio Supreme Court
clarified that the waiver doctrine announced therein is discretionary. In re M.D., 38 Ohio
St.3d 149, 151 (1988) (“Even where waiver is clear, this court reserves the right to
consider constitutional challenges to the application of statutes in specific cases of plain
error or where the rights and interests involved may warrant it.”). Relying on In re M.D.,
several appellate districts have reviewed constitutionality issues under a plain error
standard despite clear waiver of constitutional issues below. See, e.g., State v.
Clemons, 7th Dist. Belmont No. 11 BE 26, 2012-Ohio-5362, ¶10; State v. Wood, 5th
Dist. Stark No. 09-CA-205, 2010-Ohio-2759, ¶28-29; State v. Desbiens, 2d Dist.
Montgomery No. 22489, 2008-Ohio-3375, ¶17.
{¶13} The record reveals that appellant’s trial counsel argued R.C. 2929.14 was
generally unconstitutional, violative of appellant’s rights to confrontation and trial by jury,
and invites judicial fact finding. Appellant’s trial counsel did not specifically argue that
R.C. 2929.14 is unconstitutionally vague. However, unlike Rodomsky, appellant’s brief
to this court clearly argues that R.C. 2929.14 is unconstitutionally vague. Furthermore,
as trial counsel made general constitutional objections, we are also not presented with a
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situation in which the waiver was clear. See In re M.D., supra. We therefore deem it
appropriate to review appellant’s vagueness argument for the first time on appeal.
{¶14} “[A] law will survive a void-for-vagueness challenge if it is written so that a
person of common intelligence is able to ascertain what conduct is prohibited, and if the
law provides sufficient standards to prevent arbitrary and discriminatory enforcement.”
State v. Williams, 88 Ohio St.3d 513, 533 (2000). Appellant argues R.C.
2929.14(B)(2)(a)(ii) is “nearly incomprehensible.” Appellant does not argue R.C.
2929.14(B)(2)(a)(ii) provides insufficient standards to prevent arbitrary and
discriminatory enforcement. Thus, the question for our review is whether a person of
common intelligence is able to ascertain from the statute what conduct may support a
court’s finding that an offender is a repeat violent offender.
{¶15} R.C. 2929.14(B)(2)(a)1 states, in relevant part and emphasis added:
[T]he court may impose on an offender, in addition to the longest
prison term authorized or required for the offense, an additional
definite prison term of one, two, three, four, five, six, seven, eight,
nine, or ten years if all of the following criteria are met:
***
(ii) The offense of which the offender currently is convicted or to
which the offender currently pleads guilty is aggravated murder and
the court does not impose a sentence of death or life imprisonment
without parole, murder, terrorism and the court does not impose a
sentence of life imprisonment without parole, any felony of the first
degree that is an offense of violence and the court does not impose
a sentence of life imprisonment without parole, or any felony of the
second degree that is an offense of violence and the trier of fact
finds that the offense involved an attempt to cause or a threat to
cause serious physical harm to a person or resulted in serious
physical harm to a person.
1. Criteria in subsections i, iii, iv, and v must also be met; however, they are not at issue in this appeal
and have thus been omitted.
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{¶16} Appellant asserts five arguments concerning the trial court’s decision to
designate appellant a repeat violent offender and impose an additional, mandatory
prison term of three years as a result of such designation.
{¶17} First, appellant argues this case is analogous to State v. Davis, 7th Dist.
Mahoning No. 08 MA 152, 2009-Ohio-5273, which reversed a repeat violent offender
designation following a conviction for second-degree robbery. However, as appellant
notes, the reason for reversal in Davis was that the jury was not instructed to make a
finding as to whether the harm involved was serious; nor did the jury make such a
finding. See Davis, supra, ¶34-36. In this case, the jury was instructed by the trial court
to make a special finding with regard to the repeat violent offender specification. The
jury was instructed that, in the event it found appellant guilty of robbery, it should decide
whether appellant “did inflict, attempt to inflict, or threaten to inflict serious physical harm
on another.” The jury found appellant guilty of robbery and made the separate, special
finding that appellant inflicted, attempted to inflict, or threatened to inflict serious
physical harm. Thus, Davis does not support appellant’s position.
{¶18} Second, appellant argues R.C. 2929.14(B)(2)(a)(ii) is facially void for
vagueness because having one element for the underlying offense of second-degree
felony robbery—infliction, attempted infliction, or threatened infliction of physical harm—
and a different element for the sentencing enhancement—infliction, attempted infliction,
or threatened infliction of serious physical harm—is “very confusing, to the point of
being nearly incomprehensible.” In spite of this contention, appellant easily explains the
issue, stating: “to find a criminal defendant guilty of [second-degree felony robbery],
physical harm must only be shown. To invoke the sentencing enhancement contained
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in the Repeat Violent Offender statutes, the trier of fact must find serious physical
harm[.]” A person of common intelligence can ascertain from the statute that a robbery
can be committed by threat, infliction, or attempted infliction of physical harm, but that
the repeat violent offender designation does not apply unless, inter alia, the harm
threatened, attempted, or inflicted was serious in nature.
{¶19} Appellant was charged with the second-degree felony variety of robbery in
an indictment alleging a repeat violent offender specification. This specification called
for the jury to find that the harm threatened, attempted, or inflicted during the robbery
was “serious physical harm.” Because the jury found the physical harm at issue was
serious, it was appropriate for the court to designate appellant a repeat violent offender.
R.C. 2929.14(B)(2)(a)(ii) specifically provides that when the criteria set forth in R.C.
2929.14(B)(2)(a)(i) and (iii) are met and the trier of fact determines the physical harm
involved in the commission of a second-degree felony is serious, the trial court may
impose an additional definite jail term for being a repeat violent offender. The fact that
the robbery charge alleged only physical harm did not affect the court’s ability to
designate appellant a repeat violent offender.
{¶20} Third, appellant argues R.C. 2929.14(B)(2)(a)(ii) is impermissibly vague
because the statutory language requires the jury to determine whether the defendant
inflicted, attempted to inflict, or threatened to inflict serious physical harm without
specifically finding which action occurred; that is, without specifically finding a threat, an
attempt, or the actual infliction of serious physical harm. A person of common
intelligence, however, can ascertain from R.C. 2929.14(B)(2)(a)(ii) that any of the three
are sufficient to warrant a repeat violent offender designation. It is irrelevant whether
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the offender threatened, attempted, or inflicted the serious physical harm. The
important distinction in that regard is whether the nature of the harm—either threatened,
attempted, or inflicted—was serious. Contrary to appellant’s argument, the legislature
did not clearly intend for the jury to determine whether a threat, an attempt, or actual
infliction of serious physical harm was involved.
{¶21} Appellant’s argument is, essentially, that there is no way to determine
whether the jury was unanimous as to the alternatives it could have found, to wit: a
threat, an attempt, or an actual infliction of serious physical harm. The Eighth District
Court of Appeals has rejected a similar argument. In State v. Gibbs, 8th Dist. Cuyahoga
No. 86126, 2006-Ohio-175, the defendant was indicted for trespassing in the victim’s
apartment “by force, stealth, or deception * * *.” During the trial, each witness testified
that the defendant’s accomplice broke through the back door and entered the
apartment. The Eighth District held that it was neither plain error nor ineffective
assistance of counsel not to request a unanimity instruction on the method of entry.
Id.at ¶35. See also Schad v. Arizona, 501 U.S. 624 (1991).
{¶22} Fourth, appellant argues that the language of R.C. 2929.14(B)(2)(a)(ii)
does not actually require the jury to make a factual finding. The statute specifically
requires the trier of fact to find the physical harm inflicted, attempted, or threatened was
serious. This determination is not, as appellant suggests, undermined by the fact that
the jury need not specify whether the serious harm was threatened, attempted, or
inflicted. Appellant could have, but did not, request the trial court edit the special finding
instruction to comport with the actual evidence presented. For example, when it is clear
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that serious physical harm was not actually inflicted, it is within the trial court’s discretion
to omit that phrase from the jury instruction.
{¶23} Finally, appellant argues R.C. 2929.13(B)(2)(a)(ii) is unconstitutionally
vague when applied to the facts of this case even if not void as applied to cases
involving aggravated robbery, which requires infliction or attempted infliction of physical
harm as an element of the crime. In this final argument, appellant merely reiterates his
previous arguments that we have held are without merit. A person of common
intelligence can ascertain from the statute what conduct may subject an offender to a
repeat violent offender designation. R.C. 2929.13(B)(2)(a)(ii) is therefore not
impermissibly vague.
{¶24} For the foregoing reasons, appellant’s assignment of error is without merit.
The judgment of the trial court is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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