State v. Wagner

200 N.E.3d 1192

STATE of Ohio, Plaintiff-Appellee,

v.Mark R. WAGNER, Jr., Defendant-Appellant.

NO. 2021-L-101

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided: November 14, 2022

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Brandon J. Henderson, Justin M. Weatherly, and Calvin Freas, Henderson, Mokhtari & Weatherly Co., LPA, 1231 Superior Avenue, East, Cleveland, OH 44114 (For Defendant-Appellant).

OPINION

MATT LYNCH, J.

{¶1} Defendant-appellant, Mark R. Wagner, Jr., appeals from his convictions for Felonious Assault, Discharge of a Firearm on or Near Prohibited Premises, Improperly Handling Firearms in a Motor Vehicle, and Falsification in the Lake County Court of Common Pleas. For the following reasons, we affirm in part and reverse in part the judgment of the lower court and remand for further proceedings consistent with this opinion.

{¶2} On January 29, 2021, the Lake County Grand Jury issued an Indictment, charging Wagner with Felonious Assault (Count One), a felony of the second degree, in violation of R.C. 2903.11(A)(2) ; Discharge of a Firearm on or Near Prohibited Premises (Count Two), a felony of the third degree, in violation of R.C. 2923.162(A)(3) ; Improperly Handling Firearms in a Motor Vehicle (Count Three), a felony of the fourth degree, in violation of R.C. 2923.16(A) ; and Falsification (Count Four), a misdemeanor of the first degree, in violation of R.C. 2921.13(A)(3). Counts One and Two also had firearm specifications pursuant to R.C. 2941.145 and .146.

{¶3} A jury trial was held on July 20-22, 2021. The following pertinent testimony and evidence were presented:

{¶4} On September 22, 2020, Solomon Ford was driving on I-271 North and encountered another vehicle in front of him, a Chevy Silverado, later determined to have been driven by Wagner. According to Ford's testimony, Wagner was driving aggressively and slamming on his brakes. Ford testified that after the two travelled onto I-90 West, Wagner moved into the right lane while Ford remained in the fast lane. When Ford looked to the right, he observed Wagner with a gun and then saw and heard two gun shots. Ford followed Wagner to obtain his license plate number and gave a statement at the Wickliffe Police Department. Ford allowed police to access his vehicle, which had two bullet holes in it, and officers subsequently swabbed the inside of his vehicle for gunshot residue. At this point in the testimony, defense counsel indicated to the court that he was unaware a swab had been taken of Ford's car. The State indicated a reference to the kit had been included on the index of discovery provided to the defense.

{¶5} Patrolman David Cook of the Wickliffe Police Department spoke with Wagner, who described the shooting, observed two bullet holes in his passenger side and found a bullet inside the vehicle on the rear passenger floorboard. Around the same time, Officer Salvatore Continenza of the Willoughby Hills Police Department spoke with Wagner, who came to the department after the shooting. According to Continenza, Wagner identified that Ford fired at him first but Wagner did "not remember if he [Wagner] fired or not." Continenza turned over the statement to the Wickliffe Police Department as it was determined the incident occurred within their jurisdiction.

{¶6} Lieutenant Manus McCaffery of the Wickliffe Police Department searched Wagner's vehicle, wherein two shell casings were recovered. He observed no signs of a shooting within Ford's vehicle, which he inspected the day after the incident. He swabbed the interior of Ford's vehicle for gunshot residue on July 28. He testified that this was not sent to a laboratory because "there is no laboratory in the State of Ohio that will test them for gunshot residue" and labs would only test gunshot residue found on a person.

{¶7} As to his supplemental report that discussed swabbing Ford's vehicle for gunshot residue, McCaffery testified that he personally gave a copy to the prosecutor for the first time on the day preceding his testimony, the first day of trial. He was unaware of when the prosecutor first received the report but provided a copy because it had been indicated to him they did not have his supplement.

{¶8} Detective Don Dondrea of the Wickliffe Police Department examined Wagner's vehicle and did not observe bullet holes. He swabbed the vehicle for gunshot residue but after speaking with Ohio BCI, he was informed that they would only test residue from hands. He did not discover any evidence that showed Ford shot at Wagner other than Wagner's statement.

{¶9} Wagner testified that Ford tried to merge his vehicle into him while driving on I-271, which resulted in Wagner "brake checking" him. After Ford tailgated him and followed him in traffic, Wagner separated from him and drove in the right lane while Ford remained in the far left lane. Subsequently, Wagner observed Ford holding a gun. Wagner reached for a firearm in his vehicle while crouching down, heard a shot and saw a flash, and then fired his gun twice. He observed no damage to his vehicle and told Continenza that he "wasn't sure if I shot him. But I fired." He testified that he fired the shots in self-defense.

{¶10} The jury found Wagner guilty of all counts as charged in the indictment. Its verdict was memorialized in a July 28, 2021 Judgment Entry.

{¶11} A sentencing hearing was held on August 30, 2021. The court found that Counts Two and Three merged into Count One. It ordered Wagner to serve a minimum prison term of three years and a maximum term of four and a half years on Count One, with a term of three years for the first firearm specification and five years on the second, all to be served consecutively. Wagner was ordered to serve a concurrent term of 180 days for Count Four.

{¶12} Wagner timely appeals and raises the following assignments of error:

{¶13} "[1.] The trial court committed prejudicial error when it instructed the jury to consider whether Mr. Wagner had a duty to retreat as a factor of his self-defense claim because the plain language of the statute in effect at the time of trial and jury deliberations prohibited such an instruction: ‘the trier of fact shall not consider the possibility of retreat ’ in determining whether the self-defender ‘reasonably believed that the force was necessary ...’ R.C. 2901.09(C).

{¶14} "[2.] The Defendant was reversibly prejudiced when crucial evidence that was directly related to the cross-examination of the State's primary witness—and whose cross-examination had already been completed—was not given to his defense until one day into the three-day trial even though the Defendant had triggered Crim.R. 16 by demanding discovery months previously."

{¶15} In his first assignment of error, Wagner argues that, after the offense occurred but prior to trial, a "Stand Your Ground" law came into effect, removing the duty to retreat for the purposes of self-defense and, thus, the trial court erred by denying his request not to give a duty to retreat instruction.

{¶16} Generally, "[a]n appellate court reviews a trial court's decision to give a particular set of jury instructions under an abuse of discretion standard." (Citation omitted.) State v. Settle , 2017-Ohio-703, 86 N.E.3d 35, ¶ 37 (11th Dist.). However, "[w]hether the jury instructions correctly state the law is a question that is reviewed de novo." State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 135.

{¶17} R.C. 2901.09 was amended effective April 6, 2021, and provides the following:

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence if that person is in a place in which the person lawfully has a right to be.

(C) A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person's residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.

The version of the statute in effect prior to that date, known as the Castle Doctrine, provided that a person lawfully in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of a residence and a person in their vehicle had no duty to retreat before using force in self-defense or defense of another. Section (C) was not part of the prior version.

{¶18} "The Supreme Court of Ohio has articulated a two-part test" for "determining whether a statute is impermissibly retroactive under Section 28, Article II." State v. McEndree , 2020-Ohio-4526, 159 N.E.3d 311, ¶ 43 (11th Dist.). "Because R.C. 1.48 establishes a presumption that statutes operate prospectively only, ‘[t]he issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply.’ " (Citation omitted.) State v. Walls , 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 10. "If there is no ‘clear indication of retroactive application, then the statute may only apply to cases which arise subsequent to its enactment.’ * * * If we can find, however, a ‘clearly expressed legislative intent’ that a statute apply retroactively, we proceed to the second step, which entails an analysis of whether the challenged statute is substantive or remedial." (Citations omitted.) Id. If the law is substantive, it cannot be applied retroactively. Bielat v. Bielat , 87 Ohio St.3d 350, 721 N.E.2d 28 (2000).

{¶19} It has been held, however, that "if a statute is amended and becomes effective while the defendant's case is pending in the trial court, then its applicability to ...