[Cite as State v. Wesley, 2015-Ohio-5031.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 CASE NO. CA2015-04-077 

 Plaintiff-Appellee, : 

 O P I N I O N 

 : 12/7/2015 

 - vs - 

 : 

DAVID M. WESLEY, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2013-12-2048 

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee 

Charles M. Conliff, 5145 Pleasant Avenue, Suite 18, P.O. Box 18424, Fairfield, Ohio 45018-

0424, for defendant-appellant 

 

 S. POWELL, J.

{¶ 1} Defendant-appellant, David M. Wesley, appeals from his conviction and 

sentence in the Butler County Court of Common Pleas after a jury found him guilty of one 

count of felonious assault. For the reasons outlined below, we affirm in part, reverse in part, 

and remand for the limited purpose of resentencing. 

{¶ 2} On February 12, 2014, the Butler County Grand Jury returned an indictment 
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charging Wesley with one count of felonious assault in violation of R.C. 2903.11(A)(1), a 

second-degree felony. According to the bill of particulars, the charges stemmed from a 

physical confrontation between Wesley and Joseph Miracle on December 15, 2013, during 

which time Wesley was alleged to have "inflict[ed] an 8 centimeter cut to Mr. Miracle's left 

hand and seven extensor tendons." It is undisputed that the confrontation occurred near the 

Main Street Bridge located in Hamilton, Butler County, Ohio. 

{¶ 3} On March 4, 2015, a jury found Wesley guilty as charged. The trial court then 

sentenced Wesley to three years in prison, ordered him to pay a $100 fine, and imposed a 

mandatory three-year postrelease control term. However, prior to issuing its sentencing 

decision, the trial court did not personally address Wesley to directly ask if he wished to 

make a statement on his own behalf or present any information in mitigation of punishment. 

Wesley now appeals from his conviction and sentence, raising two assignments of error for 

review. 

{¶ 4} Assignment of Error No. 1: 

{¶ 5} THE STATE'S EVIDENCE WAS CONSTITUTIONALLY INSUFFICIENT TO 

SUPPORT THE CONVICTION FOR FELONIOUS ASSAULT. 

{¶ 6} In his first assignment of error, Wesley argues his conviction must be reversed 

because the state provided insufficient evidence to support his conviction for felonious 

assault. Specifically, Wesley claims the state "didn't prove that the injury [to Miracle's left 

hand] was caused by Mr. Wesley during this confrontation." We disagree. 

{¶ 7} Whether the evidence presented at trial is legally sufficient to sustain a verdict 

is a question of law. State v. Hoskins, 12th Dist. Warren No. CA2013-02-013, 2013-Ohio3580, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing the 

sufficiency of the evidence underlying a criminal conviction, an appellate court examines the 

evidence in order to determine whether such evidence, if believed, would convince the 
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average mind of the defendant's guilt beyond a reasonable doubt. State v. Kinsworthy, 12th 

Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 52. The relevant inquiry is "'whether, 

after viewing the evidence in a light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime proven beyond a reasonable 

doubt.'" State v. Smith, 12th Dist. Warren Nos. CA2012-02-017 and CA2012-02-018, 2012-

Ohio-4644, ¶ 25, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the 

syllabus. In other words, "the test for sufficiency requires a determination as to whether the 

state has met its burden of production at trial." State v. Boles, 12th Dist. Brown No. CA2012-

06-012, 2013-Ohio-5202, ¶ 34, citing State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 

2007-Ohio-2298, ¶ 33. When evaluating the sufficiency of the evidence, this court defers to 

the trier of fact regarding questions of credibility. State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, ¶ 132. 

{¶ 8} Wesley initially argues his felonious assault conviction must be reversed 

because the state provided insufficient evidence to show he "possessed or used a bladed 

weapon." However, as the state aptly notes, the provision that Wesley was convicted of 

violating, R.C. 2903.11(A)(1), does not require the state to prove Wesley ever possessed or 

used a weapon. State v. Williams, 7th Dist. Jefferson No. 11 JE 3, 2012-Ohio-1692, ¶ 50. 

Rather, to support a felonious assault conviction under R.C. 2903.11(A)(1), such as the case 

here, the state was only required to prove Wesley knowingly caused "serious physical harm" 

to Miracle. As defined by R.C. 2901.01(A)(5)(c), the phrase "serious physical harm" includes 

"[a]ny physical harm that involves some permanent incapacity, whether partial or total, or that 

involves some temporary, substantial incapacity." 

{¶ 9} At trial, Miracle testified that while driving his truck through Hamilton with a 

family friend, Autumn Peterson, he briefly stopped at an intersection believing there was a 

stop sign. However, upon stopping his truck for just a few seconds, the car behind Miracle 
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honked. Realizing there was no stop sign, Miracle testified he then proceeded straight 

through the intersection. It is undisputed the car behind Miracle that honked was a purple PT 

Cruiser driven by Wesley. It is also undisputed that Wesley's mother, Rose, was sitting in the 

front passenger seat of the PT Cruiser at all times relevant. 

{¶ 10} After crossing through the intersection, Miracle testified he switched lanes in 

order to continue going straight and "I guess maybe I cut [Wesley] off a little bit right there." 

Miracle then testified Wesley passed him and then "zoomed right back in front of me and cut 

me off and immediately stomped his brakes like to the point where it was what I call a brake 

check," thereby forcing Miracle to come to a complete stop. Miracle testified he then 

attempted to go around Wesley to "flip him off or whatever," when Wesley "jerked over" 

causing Miracle to slow down in order to avoid a collision. According to Miracle, this backand-forth posturing continued for several blocks until Wesley "brake checked" him again as 

they approached the Main Street Bridge. However, instead of stopping behind the PT 

Cruiser, Miracle testified he switched lanes and again passed Wesley on the right. 

{¶ 11} Once he passed Wesley, Miracle testified he stopped at a stop light, opened his 

door, leaned out of his truck, and "was like what the heck is your problem? I probably, I 

mean I probably cussed * * * and just slammed my door mad." According to Miracle, Wesley 

was stopped approximately 30 to 50 feet behind his truck at this time. Miracle then testified 

that after about ten seconds had passed, he looked over and saw Wesley standing right 

outside his driver's side door. Noting that his window was partially down in order to ventilate 

the smoke from Peterson's cigarettes, Miracle testified Wesley then "flinched" at him and 

stated "that's right. Like trying intimidation what I was thinking and I sat there kind of frozen 

still." Thinking Wesley was going to throw a punch, Miracle testified Wesley "twitched again 

so I like blocked [it with my left hand] and I was – there was a sound. I mean, I'll never forget 

the sound. * * * It sounded like a smack" and his left hand immediately went numb. Miracle 
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later testified the "smacking" he heard was the sound of his extensor tendons in his left hand 

being severed. 

{¶ 12} Continuing, Miracle then testified as follows: 

I didn't know at the – for about five seconds that I was even cut. 

My hand collapsed. I thought it just went dead. You know, if you 

bang the back of your hand, how it will go numb or whatever. 

And I look and [Wesley] had run back to his car. And about that 

time, I realized my hand wasn't opening and I felt something – I 

had a coat on, I had a hoodie on and I had a long sleeve like, 

kind of like a thermal on and I felt like warm running down my 

hand. 

I pulled my sleeve up and as I pulled my sleeve up, it literally 

squirted blood and, I, "Oh my God Autumn, he cut me bad," was 

my exactly (sic) words. I remember from that second until I got 

to the hospital I remember everything like I can close my eyes 

and picture it frame by frame. 

{¶ 13} After realizing he was injured, Miracle called 9-1-1 and chased after the fleeing 

Wesley in order to get the license plate number from the PT Cruiser. As Miracle testified, "I 

knew that if something was going to come out of it I needed his license plate number 

because otherwise there was no way for me to identify who did it." Eventually catching up to 

Wesley, Miracle provided the PT Cruiser's license plate number to the 9-1-1 operator. Police 

later traced the PT Cruiser's license plate to Wesley's mother, Rose. In describing the 

incident, Miracle also told the 9-1-1 operator that "[w]e came up to a stop light. And he 

jumped out of his car and came up. And my window was down. And he reached in and cut 

my hand wide open." Miracle then testified he had surgery to repair the severed extensor 

tendons in his left hand, but that he still suffers from nerve damage and has scar tissue that 

restricts his movement. The doctor who performed Miracle's surgery later testified and 

confirmed this testimony. 

{¶ 14} Peterson also testified at trial. Peterson testified that she was sitting in the 

passenger seat of Miracle's truck when the purple PT Cruiser driven by Wesley honked as 
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they were stopped at an intersection. Realizing there was no stop sign, Peterson testified 

Miracle proceeded through the intersection and changed lanes when Wesley "sped up into 

the left lane and like swerved over on us, like trying to run us off the road." Peterson then 

testified Wesley got in front of Miracle's truck where he "brake checked" them on the Main 

Street Bridge. 

{¶ 15} After swerving around Wesley, Peterson testified Miracle stopped at the 

stoplight and observed Wesley walking towards Miracle's truck "pretty fast." According to 

Peterson, Miracle then opened the driver's side door, leaned out and "had his arm like you 

know, like what are you doing," before shutting the door. Peterson then testified Wesley 

said, "yeah that's right or that's what I thought or something like that." Thereafter, upon 

Wesley reaching the driver's side door, Peterson testified Wesley "flinched" at Miracle in 

such a manner that looked like he was going to throw a punch. Peterson then testified she 

saw Wesley's "hand go up and like hit – I heard a smacking noise and I saw him hit – like 

[Miracle] to block it, like he was trying to punch him, and right after that I watch [Wesley] run, 

sprint back to the car[.]" Peterson further testified that she had previously identified a photo 

of Wesley as the individual who was driving the PT Cruiser and who had injured Miracle's left 

hand. 

{¶ 16} Rose Wesley testified on her son's behalf. Rose testified she was sitting in the 

passenger seat of the purple PT Cruiser driven by her son when they approached Miracle's 

truck driving "really, really slow, I mean very slow." Rose then testified Wesley honked and 

sped past Miracle's truck. According to Rose, Wesley then "got in front of [Miracle] and he 

slowed down and that, and then [Miracle], I don't know, got mad, I don't know." Rose then 

claims Wesley continued driving when she looked over at Miracle's truck driving in the next 

lane and heard a bang. As Rose testified, "I, you know, kind of jumped and I said * * * he's 

throwing something at the car because it had hit the window." Rose claims that Miracle then 
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threw another unknown object that struck the PT Cruiser's front passenger door. Both 

Miracle and Peterson denied ever throwing anything at the PT Cruiser. 

{¶ 17} Continuing, Rose testified Miracle then pulled in front of the PT Cruiser and 

slammed on his brakes as they crossed the Main Street Bridge, thus prompting Wesley to do 

the same. Rose then testified Miracle got out of his truck and started walking back towards 

the PT Cruiser. Rose then testified, in pertinent part, as follows: 

A: And by this time, my son, he took his seatbelt off and then he 

got out of the car. And when he got out of the car and shut the 

door, and as he was getting ready to walk up to this guy, well the 

guy then turned around and got back in his truck. 

Q: What happens when he gets back in his truck? 

A: [Wesley] walks up there. He was not like face to face with 

him because I can see his whole body. 

* * * 

Q: So you were able to see the entire incident between Mr. 

Miracle and your son [Wesley]? 

A: Yes. 

* * * 

Q: What happens then? 

A: And that – like it was cold that night. My windows was rolled 

up. I heard him – his lips – I seen his lips moving so I guess they 

were having a talk with each other. 

Q: Okay. 

A: And then after they got done whatever they was saying, 

[Wesley] just turned around and walked straight back to the car. 

And that's when we left and we went around that little bit – I don't 

know Hamilton so I can't – 

Rose further testified that she did not see her son with a knife or any other weapon, nor did 

she see him strike or throw a punch at Miracle. 

{¶ 18} After a thorough review of the record, we find the state provided ample and 
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overwhelming evidence to support Wesley's felonious assault conviction. As noted above, 

both Miracle and Peterson testified Wesley was the individual driving the PT Cruiser who 

approached Miracle's truck and injured Miracle's left hand, thus requiring him to get surgery 

to repair his severed extensor tendons. Although Wesley claims otherwise, Miracle's 

testimony, standing alone, was sufficient to support Wesley's felonious assault conviction 

without any additional corroborating evidence linking him to the crime. See State v. Beaver, 

3d Dist. Union No. 14-13-15, 2014-Ohio-4995, ¶ 36 (felonious assault statute does not 

require corroborating evidence to support a felonious assault conviction); see also State v. 

Hargrove, 10th Dist. Franklin No. 05AP-547, 2006-Ohio-1030, ¶ 9 (testimony of the victim 

standing alone was sufficient to support a felonious assault conviction); State v. Acevedo, 

11th Dist. Ashtabula No. 2002-A-0109, 2005-Ohio-3267, ¶ 27 (testimony from witnesses, 

including the victim, was sufficient to support a felonious assault conviction). 

{¶ 19} Moreover, the fact that there was no direct testimony to prove Wesley actually 

used a weapon to injure Miracle's hand does not mean the state failed to provide sufficient 

evidence to support his felonious assault conviction. As noted previously, the provision that 

Wesley was convicted of violating, R.C. 2903.11(A)(1), does not require the state to prove 

Wesley ever possessed or used a weapon, but rather, only that Wesley knowingly caused 

"serious physical harm" to Miracle. Therefore, because any rational trier of fact could have 

found the essential elements of the crime proven beyond a reasonable doubt, i.e., that 

Wesley knowingly caused "serious physical harm" to Miracle's left hand, we find the state 

provided sufficient evidence to support Wesley's felonious assault conviction. Accordingly, 

Wesley's first assignment of error is without merit and overruled. 

{¶ 20} Assignment of Error No. 2: 

{¶ 21} THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO 

PROVIDE APPELLANT WITH HIS RIGHT TO ALLOCUTION. 
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{¶ 22} In his second assignment of error, Wesley argues his sentence must be 

reversed because the trial court failed to provide him with his right of allocution. We agree. 

{¶ 23} Pursuant to Crim.R. 32(A)(1), before imposing a sentence in a criminal trial, 

"the trial court shall 'address the defendant personally' and ask whether he or she wishes to 

make a statement on her own behalf or present any information in mitigation of punishment." 

State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 166. "The purpose of allocution is to 

permit the defendant to speak on his own behalf or present any information in mitigation of 

punishment." State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, ¶ 85. Although not 

considered a constitutional right, the right of allocution is firmly rooted in the common-law 

tradition. State v. Copeland, 12th Dist. Butler No. CA2007-02-039, 2007-Ohio-6168, ¶ 6. As 

a result, this right is "'both absolute and not subject to waiver due to a defendant's failure to 

object.'" State v. Haynes, 12th Dist. Butler No. CA2010-10-273, 2011-Ohio-5743, ¶ 27, 

quoting State v. Collier, 2d Dist. Clark Nos. 2006 CA 102 and 2006 CA 104, 2007-Ohio-6349, 

¶ 92. Therefore, in cases where the trial court imposes a sentence without first asking the 

defendant whether he wishes to exercise his right of allocution, "'resentencing is required 

unless the error is invited error or harmless error.'" State v. Osie, 140 Ohio St.3d 131, 2014-

Ohio-2966, ¶ 179, quoting State v. Campbell, 90 Ohio St.3d 320 (2000), paragraph three of 

the syllabus. 

{¶ 24} In this case, the record indicates the trial court never personally addressed 

Wesley asking if he wished to make a statement on his own behalf or present any 

information in mitigation of punishment. Rather, after Wesley's trial counsel noted Wesley's 

minimal criminal history, recent divorce, financial status, and alleged non-violent tendencies, 

the trial court permitted Wesley's mother, Rose, to address the court. The trial court also 

permitted Miracle to address the court, wherein Miracle noted his surprise regarding Wesley's 

general lack of remorse and the serious impact the injury to his left hand has caused to his 
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everyday life. The following exchange then occurred: 

THE COURT: Thank you. Counsel, anything else to say? 

[WESLEY'S TRIAL COUNSEL]: He's just very upset at this 

point, Your Honor, and it's difficult for him to speak. 

Without ever personally addressing Wesley directly, the trial court then sentenced Wesley to 

three years in prison, ordered him to pay a $100 fine, and imposed a mandatory three-year 

postrelease control term. 

{¶ 25} As this court has stated previously, "Crim.R. 32 does not merely give the 

defendant a right to allocution; it imposes an affirmative requirement on the trial court to ask if 

he or she wishes to exercise that right." State v. Larios, 12th Dist. Preble No. CA2009-07-

019, 2012-Ohio-4525, ¶ 21, citing Campbell at 323-324. As a result, "[t]he requirement of 

allocution is considered fulfilled when the conduct of the court clearly indicates to the 

defendant that he has a right to make a statement prior to the imposition of sentence." State 

v. Harvey, 3d Dist. Allen No. 1-09-48, 2010-Ohio-1627, ¶ 15, citing Defiance v. Cannon, 70 

Ohio App.3d 821, 828 (3d Dist.1990). That simply did not happen here. The trial court, 

therefore, erred by not adhering to the allocution requirements mandated by Crim.R. 32(A)(1) 

before issuing its sentencing decision. 

{¶ 26} Nevertheless, the state claims any error the trial court may have made in failing 

to personally address Wesley prior to issuing its sentencing decision was invited error. 

Specifically, the state claims the "affirmative statement by counsel invited the trial court to 

end any further inquiry regarding allocution." Under the invited error doctrine, which is 

applied when trial counsel is "actively responsible" for the trial court's alleged error, a party is 

not entitled to take advantage of an error that he himself invited or induced the trial court to 

make. Haynes, 2011-Ohio-5743 at ¶ 40. In turn, "[t]he rule of invited error prohibits a party 

who induces error in the trial court from taking advantage of such error on appeal." State v. 
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Williams, 12th Dist. Butler No. CA2006-03-067, 2007-Ohio-2699, ¶ 27. This requires 

something more than merely acquiescing to the trial court's erroneous conclusion. Campbell, 

90 Ohio St.3d at 324. 

{¶ 27} We find no merit to the state's argument. Although the state relies on the fact 

that Wesley's trial counsel informed the trial court that Wesley was "very upset" and that it 

was "difficult for him to speak," nothing in the record indicates Wesley could not speak or did 

not wish to speak if the trial court had provided him with such an opportunity. In other words, 

had the trial court complied with its affirmative requirement by asking Wesley if he wished to 

exercise his right of allocution, Wesley may very well have taken advantage of his last 

opportunity to plead his case and express remorse prior to the trial court issuing its 

sentencing decision. To assume otherwise is improper. This is particularly true here 

considering Miracle had just noted his surprise regarding Wesley's general lack of remorse. 

The state's argument alleging invited error is therefore without merit. 

{¶ 28} In light of the foregoing, because we find the trial court's error in failing to 

personally address Wesley at sentencing does not amount to invited error, Wesley's second 

assignment of error is sustained and this matter is remanded for the limited purpose of 

resentencing. See, e.g., State v. Bonner, 12th Dist. Butler No. CA2012-09-195, 2013-Ohio3670, ¶ 19. Upon remand, the trial court is instructed to adhere to the allocution 

requirements mandated by Crim.R. 32(A)(1) by personally addressing Wesley and directly 

asking him if he wishes to make a statement on his own behalf or present any information in 

mitigation of punishment before imposing its sentence. 

{¶ 29} Judgment affirmed in part, reversed in part, and remanded for the limited 

purpose of resentencing. 

 PIPER, P.J., and RINGLAND, J., concur.