[Cite as State v. Hauser, 2016-Ohio-7710.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103880

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JOHN HAUSER 

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART, REVERSED IN PART 

AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-597360-A 

BEFORE: Keough, P.J., McCormack, J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: November 10, 2016 
ATTORNEY FOR APPELLANT

Stephen L. Miles 

20800 Center Ridge Road, Suite 405 

Rocky River, Ohio 44116 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Owen M. Patton 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, P.J.: 

{¶1} Defendant-appellant, John Hauser (“Hauser”), appeals his convictions. For 

the reasons that follow, we affirm his convictions, but vacate his sentence and remand for 

resentencing. 

{¶2} In July 2015, Hauser was named in a three-count indictment charging him 

with one count each of aggravated robbery, kidnapping, and robbery. Hauser waived his 

right to a jury trial, and the case was tried to the bench where the following evidence was 

presented. 

{¶3} On July 5, 2015, Hauser and the victim, Tiffanie Howard, agreed to meet at 

the University Inn and Suites for a sexual encounter. Howard testified that following the 

encounter, Hauser started acting “weird” and began ranting about how and why he robs 

people. According to Howard, Hauser told her that he conspires with his sister and the 

mother of his child to rob men who respond to their Backpage advertisement. In fact, he 

told her that his sister and mother of his child were currently in another room at the hotel, 

and he invited Howard to join them in their scheme. When Howard refused, Hauser told 

her she was not leaving the room until she agreed to be a part of their operation. 

{¶4} After Howard refused to participate, Hauser confiscated both of Howard’s 

cell phones, pulled a gun from his drawstring backpack, pointed it at her, and threatened 

to kill her. Howard testified that she was terrified and felt that she was unable to leave 

the hotel room. She stated that she was crying and asking him why he was doing this to 

her. After a period of time, she told Hauser to just shoot her if he was going to because 
she felt like she was being tortured. At that point, Hauser told Howard to turn off the 

lights and lie down because he did not want to look at her eyes when he shot her. 

Howard complied; Hauser then left the room with Howard’s belongings, including her 

cell phones, tablet, and duffel bag filled with her wallet and belongings. 

{¶5} After five minutes, Howard went down to the hotel lobby and called the 

police, reporting that she had been robbed. The following day, Howard went to Tower 

City in downtown Cleveland. Upon exiting the main entrance, she saw Hauser standing 

outside talking with a female. Howard testified that she immediately went to the RTA 

transit police and told them that the man who had robbed her was standing outside. RTA 

officers apprehended Hauser, and when the Cleveland police arrived, they recovered 

some of Howard’s property from Hauser’s person. Specifically, they found 11 of her 

credit and debit cards, as well as her identification. 

{¶6} On cross-examination, Howard admitted that she met up with Hauser for a 

sexual encounter after meeting him only two weeks prior. However, she denied that the 

rendevous with Hauser involved a July 5 posted Backpage ad involving a woman named 

“Bianca,” and where one of her cell phone numbers was published, or that she was being 

paid for sex. She further denied that the photos in the Backpage ad were of her; she 

testified that they were of a girl named “Jackie.” Howard explained that two of her 

friends, Brittany and Nicki, who is Jackie’s roommate, used the Backpage ad, and that she 

allowed those friends to use her prepaid cell phone as the means of contact. Upon 

further questioning, she admitted that she uses the phone for business and sets up dates 
for her friends on Backpage, and that she helped Jackie create the Backpage ad. Later, 

Howard testified that Nicki’s real name is Jackie. 

{¶7} Cleveland police officer David Price, testified that he responded to a 

dispatch call of a woman robbed at the University Inn and Suites. He and his partner 

arrived and met with Howard, who stated that she was robbed by a man at gunpoint after 

they had sex in the hotel. After conducting an investigation, Price and his partner took 

Howard to her friend’s house. Officer Price denied that Howard was crying and stated 

that Howard did not tell them about the suspect having family members in a different 

room within the hotel. 

{¶8} Regional Area Transit officer John Pechkurow testified that around 10 a.m. 

on July 6, 2015, he received a radio broadcast to assist his sergeant at Tower City with a 

robbery suspect. Pechkurow approached Hauser and told him that he matched the 

description of a robbery suspect. According to Pechkurow, Hauser appeared puzzled and 

confused, but cooperated and advised him that he had a firearm in his backpack. After 

searching both Hauser and his backpack, the officers found marijuana, a stack of credit 

cards, Howard’s identification card, $160 in cash, and a 1911-style black firearm, which 

was later determined to be a BB gun. Most of the credit cards belonged to Howard. 

Later during booking, a cell phone was found on Hauser. Pechkurow testified that 

Hauser told them he was just “hanging with friends” at Tower City; not that he was 

meeting up with someone. 
{¶9} The parties stipulated that Detective Ronald Berry would testify that on July 

10, 2015, Starla Love, Hauser’s girlfriend, delivered to the Third District Police 

Department a Kindle tablet and two cell phones — all belonging to Howard. 

{¶10} Hauser testified in his defense. After admitting to his extensive felony 

record for convictions involving robbery and domestic violence, Hauser testified to a very 

different version of events. He stated that on July 5 he met Howard, who identified 

herself as “Bianca,” at Rascal House. After initiating a conversation, they agreed that 

Hauser would pick the woman up later that evening at her residence at the University Inn 

and Suites. 

{¶11} Hauser testified that he obtained a car from someone in the neighborhood 

and drove to University Inn and Suites where Howard, carrying a small purse or wallet, 

got into his car. They drove to Sweethearts bar, and before going inside, Howard placed 

some of her belongings in between the seats of the car. 

{¶12} After visiting the bar, they went back to Howard’s residence. Hauser 

testified that the people in the hotel lobby knew Howard and called her “Bianca.” When 

they arrived in the room, Hauser plugged in his track phone and placed his other phone on 

the bed. They began watching a movie, and eventually had sex. After the encounter 

and as Hauser was getting dressed to leave, Howard asked him for payment of $50. 

When Hauser questioned her about payment, Howard showed him her Backpage ad. 

According to Hauser, Howard became angry when he refused to pay her because there 

was no agreement that he would pay her for sex. He subsequently left the hotel. 
{¶13} Upon returning to the car, he noticed that some of Howard’s belongings 

were still in his vehicle. He placed her stack of credit cards in his pocket and, fearing 

that his girlfriend would discover his indiscretion, hid her tablet in his folded pants once 

inside his girlfriend’s home. 

{¶14} The following morning, he received a telephone call from his ex-girlfriend 

asking for assistance with her son, who was brandishing a BB gun in the neighborhood. 

He went over to her house, retrieved the gun, and placed it in his backpack. At that 

point, he noticed he did not have his track phone with him, so he used his ex-girlfriend’s 

phone to call his phone. According to Hauser, Howard answered his track phone. They 

agreed to meet in front of Tower City to exchange property. However, Hauser had only 

Howard’s credit cards on his person at that time. 

{¶15} Hauser testified that shortly after he arrived at Tower City, a police officer 

approached him, stating that Hauser fit the description of a robbery suspect, and he was 

detained. Hauser stated that he was “shocked and confused.” The police discovered 

Howard’s credit cards and the gun in his backpack. He admitted that he did not tell the 

police his side of the story when he was arrested. Hauser denied robbing Howard, but 

stated that he was set up over $50 for the nonpayment of sex. 

{¶16} The court found Hauser guilty of all charges. The court merged the 

aggravated robbery and robbery charges, with the state electing that Hauser be sentenced 

on the aggravated robbery offense. Accordingly, the trial court ordered Hauser to serve 

seven years in prison on the aggravated robbery offense, consecutive to eight years on the 
kidnapping offense, for a total prison sentence of 15 years. Additionally, the trial court 

ordered that Hauser pay a total fine of $10,000. 

{¶17} Hauser now appeals, raising three assignments of error. 

I. Manifest Weight of the Evidence 

{¶18} In contrast to a sufficiency argument, a manifest weight challenge questions 

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 

92266, 2009-Ohio-3598, ¶ 12. A reviewing court “weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines 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. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). A 

conviction should be reversed as against the manifest weight of the evidence only in the 

most “exceptional case in which the evidence weighs heavily against the conviction.” Id. 

{¶19} In his first assignment of error, Hauser contends that his convictions for 

aggravated robbery, kidnapping, and robbery are against the manifest weight of the 

evidence because Howard’s testimony was unreliable and inconsistent. We disagree. 

{¶20} Although we review credibility when considering the manifest weight of 

the evidence, we are cognizant that determinations regarding the credibility of witnesses 

and the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th 

Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 

230, 227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and 
observe their demeanor, gestures, and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The trier of fact may take note of any 

inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a witness’s 

testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, 

citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Furthermore, a 

conviction is not against the manifest weight of the evidence because the trier of fact 

believed the state’s version of events over the defense’s version. State v. Scott, 10th 

Dist. Franklin No. 10AP-174, 2010-Ohio-5869, ¶ 16. 

{¶21} In this case, Howard testified that after she and Hauser engaged in sex, 

Hauser started acting weird and told her about the scheme he and his family operate. 

When Howard refused to be a part of the operation, Hauser confiscated her property, 

pulled a gun from his backpack and pointed it at her. According to Howard, Hauser kept 

her in the room against her will, and when he finally left, he stole her cell phones, tablet, 

and credit cards. 

{¶22} The following day, and admittedly very coincidentally, Howard saw Hauser 

standing in front of Tower City in downtown Cleveland. She reported Hauser’s presence 

to RTA police, and after being apprehended and searched, the police found on Hauser’s 

person a firearm, later determined to be a BB gun, as well as Howard’s credit cards and 

identification. Later, Starla Love, Hauser’s girlfriend, brought Howard’s cell phones and 

electronic tablet to the police station. 
{¶23} After reviewing the testimony and evidence at trial, the trier of fact could 

make reasonable inferences based on Howard’s testimony that Hauser committed the 

offenses of aggravated robbery, kidnapping, and robbery. Howard’s testimony 

established the material elements of each crime charged. Although we note that there 

were some inconsistencies in Howard’s testimony, we cannot substitute our judgment for 

that of the trier of fact. The trial court was in the best position to view the credibility of 

the witnesses, and in fact, commented in rendering its verdict that it found the victim to 

be 100 percent believable, and found Hauser to be, if possible, “lower than zero” percent 

credible. (Tr. 236.) The court chose to believe, which it is permitted to do, the 

testimony of the state’s witnesses and not believe Hauser’s testimony that his arrest was a 

setup for nonpayment of sex. 

{¶24} Accordingly, we cannot say that the court lost its way in finding Hauser 

guilty of aggravated robbery, kidnapping, and robbery. The first assignment of error is 

overruled. 

II. Imposition of Fines 

{¶25} In his second assignment of error, Hauser contends that the trial court 

abused its discretion in imposing fines as part of his sentence. 

{¶26} R.C. 2929.18(A) permits a trial court to impose a financial sanction and 

fine upon an offender who has committed a felony. Additionally, Ohio law does not 

prohibit a court from imposing a fine on an indigent defendant. State v. Ramos, 8th Dist. 

Cuyahoga No. 92357, 2009-Ohio-3064. Before doing so, however, “the court shall 
consider the offender’s present and future ability to pay the amount of the sanction or 

fine.” R.C. 2929.19(B)(5). “There are no express factors that must be taken into 

consideration nor specific findings that must be made by the court on the record, but there 

must be some evidence in the record that the trial court considered the defendant’s ability 

to pay.” State v. Schneider, 8th Dist. Cuyahoga No. 96953, 2012-Ohio-1740, ¶ 10, citing 

State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 79, ¶ 11 (8th Dist.). 

{¶27} In deciding to impose a fine, the court stated, 

I’m also in your case going to fine you, because I want you to do hard time. 

 So in both counts you’re fined $5,000. So that people just can’t put 

money on your books so that you can watch color TV at the joint and have 

Doritos and Ding Dongs and Ho Hos and get pop and stuff like that. 

You’re not going to do that. You can make a lot of phone calls. You’re 

going to pay a $10,000 fine first. You’re going to pay your court costs. 

(Tr. 252-253.) 

{¶28} In this case, Hauser did not object to the fine at the sentencing hearing. The 

failure to object to the amount of the fine at a time when the trial court could correct that 

error constitutes a waiver of all but plain error. State v. Barker, 8th Dist. Cuyahoga No. 

93574, 2010-Ohio-4480, ¶ 11. “Plain errors or defects affecting substantial rights may 

be noticed although they were not brought to the attention of the court.” Crim.R. 52(B). 

“Plain error exists only if ‘but for the error, the outcome of the trial clearly would have 

been otherwise, and is applied under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.’” State v. Harrison, 122 Ohio St.3d 512, 

2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61, quoting State v. Long, 53 Ohio St.2d 91, 97, 372 

N.E.2d 804 (1978). 
{¶29} In this case, there is no evidence that the court considered Hauser’s present 

or future ability to pay the fine before imposing it. No presentence-investigative report 

was prepared to provide the trial court with pertinent information regarding Hauser’s 

education and work history, and financial ability. Furthermore, Hauser was declared 

indigent, and was appointed trial counsel and remained in jail during the pendency of the 

case. Finally, no evidence was elicited at Hauser’s sentencing hearing that would have 

indicated his current or future ability to pay the fine. 

{¶30} The court recognized and noted that Hauser committed these offenses within 

28 days of being released from prison. Although Hauser testified at trial that he was 

doing “under the table janitorial” work at the time of the offense, there was no indication 

that he had a verifiable job during that 28-day period. Moreover, Hauser was 37 years of 

age at the time of sentencing, and upon completion of his sentence would be age 52. The 

trial court’s indication and reasons why Hauser needs to do “hard time,” bear no 

relationship to Hauser’s present and future ability to pay his fines. 

{¶31} Accordingly, the court committed plain error in failing to consider his 

present and future ability to pay his fines as required under R.C. 2929.19(B)(5). 

Hauser’s second assignment of error is sustained. 

III. Consecutive Sentence Findings 

{¶32} In his third assignment of error, Hauser contends that the trial court failed to 

make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive 

sentences. 
{¶33} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a 

reviewing court may overturn the imposition of consecutive sentences where the court 

“clearly and convincingly” finds that (1) “the record does not support the sentencing 

court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to 

law.” 

{¶34} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, 

the trial court must find that consecutive sentences (1) are necessary to protect the public 

from future crime or to punish the offender, (2) would not be disproportionate to the 

seriousness of the conduct and to the danger the offender poses to the public, and (3) that 

one of the following applies: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed 

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or 

was under postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or 

more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶35} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the 

statutory findings at the sentencing hearing, which means that “‘the [trial] court must note 

that it engaged in the analysis’ and that it ‘has considered the statutory criteria and 

specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio 
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio 

St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to 

discern that the record contains evidence to support the findings. State v. Davis, 8th Dist. 

Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not, 

however, required to state its reasons to support its findings, nor is it required to give a 

rote recitation of the statutory language, “provided that the necessary findings can be 

found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37. 

{¶36} On appeal, Hauser contends that the trial court failed to make the requisite 

findings prior to imposing consecutive sentences. Specifically, Hauser contends that the 

trial court failed to make the second finding, that consecutive sentences would not be 

disproportionate to the seriousness of his conduct and to the danger the offender poses to 

the public. 

{¶37} After reviewing the sentencing transcript, we find that the trial court did not 

make the requisite R.C. 2929.14(C)(4) findings in support of its imposition of consecutive 

sentences. In making the first finding, the court stated “this sentence is obviously in his 

case necessary to protect the public, for goodness sake, and to punish this offender.” (Tr. 

251.) In making the third finding, the court stated 

I want to indicate that this crime was committed while this individual was 

under a post-release control sanction. This crime was committed 28 days 

after he was released from a state penal institution. The harm that he has 

inflicted upon this community and upon this victim is so great that no single 

term adequately reflects the seriousness of this conduct. And by the way, 

this offender’s criminal history shows that consecutive terms are necessary 

to protect the public. 
(Tr. 251-252.) However, the trial court failed to make any statements where we can 

discern from the record that the court was satisfying its requirement to make the second 

finding — commonly referred to as the “disproportionate” finding. Therefore, we 

conclude that the trial court did not make all of the appropriate consecutive sentence 

findings required under R.C. 2929.14(C)(4). 

{¶38} Accordingly, we vacate Hauser’s sentence and remand the case for 

resentencing for the trial court to consider whether consecutive sentences are appropriate 

under R.C. 2929.14(C)(4) and, if so, to make the required findings on the record and 

incorporate those findings in the sentencing journal entry in accordance with Bonnell. 

Hauser’s third assignment of error is sustained. 

{¶39} Convictions affirmed; sentence is vacated, and the case is remanded for 

resentencing. 

It is ordered that the parties share equally the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for resentencing. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 
 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

TIM McCORMACK, J., and 

ANITA LASTER MAYS, J., CONCUR