[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 

 Appellee 

 v. 

THOMAS D. WASIL 

 Appellant 

C.A. No. 18AP0001 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF WAYNE, OHIO 

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-Ohio2504, ¶ 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.