[Cite as State v. Wainwright, 2020-Ohio-623.]

Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant 

Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, 

for Plaintiff-Appellee and 

Atty. Edward Czopur, DeGenova & Yarwood. Ltd., 42 North Phelps Street, 

Youngstown, Ohio 44503, for Defendant- Appellant. 

 

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

GERALD WAINWRIGHT, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 MA 0023 

 

Criminal Appeal from the 

Court of Common Pleas of Mahoning County, Ohio 

Case No. 2018 CR 97 

BEFORE: 

David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges. 

JUDGMENT: 

Affirmed. 
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Case No. 19 MA 0023

Dated: February 21, 2020 

D’Apolito, J. 

{¶1} Appellant Gerald Wainwright appeals his convictions for two counts of 

felonious assault against a peace officer, violations of R.C. 2903.11(A)(2)(D), felonies of 

the first degree, with firearms specifications pursuant to R.C. 2941.145, following a jury 

trial in the Mahoning County Court of Common Pleas. R.C. 2903.11, captioned 

“Felonious Assault,” reads, in pertinent part, “No person shall knowingly do either of the 

following: * * * (2) Cause or attempt to cause physical harm to another * * * by means of 

a deadly weapon or a dangerous ordnance.” If the victim is a peace officer, felonious 

assault is a felony of the first degree. R.C. 2903.11(D)(1)(a). 

{¶2} Appellant contends that the trial court abused its discretion when it provided 

a flight instruction to the jury, and that his convictions are against the manifest weight of 

the evidence. Appellant does not challenge his conviction for one count of having a 

weapon while under disability, a violation of R.C. 2923.13(A)(1)(2), a felony of the third 

degree, which was tried to the bench. For the following reasons, Appellant’s felonious 

assault convictions are affirmed. 

FACTS AND PROCEDURAL HISTORY 

{¶3} The following facts are taken from the testimony offered at trial. Officer 

Edwards was unavailable at trial and provided his testimony on October 26, 2018. His 

recorded testimony was played for the jury by stipulation of the parties. 

{¶4} At approximately 2:30 a.m. on January 27, 2018, Youngstown Police 

Department Officers Timothy Edwards and Brandon Caraway were patrolling a high crime 

area on the City’s south side in the vicinity of the former Princeton Junior High School 

(now Alpha School of Excellence) (“school”). They encountered Appellant, who was 

walking northbound in the southbound lane of Hudson Avenue. Appellant was wearing a 

hoodie and his face was covered with a mask. He was carrying a book bag. 

{¶5} Although it was approximately 35 degrees that evening, the sidewalks were 

clear of snow. A Youngstown municipal ordinance prohibits pedestrians from walking in 

the roadway when the use of a sidewalk is practicable. Violation of the code section 
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Case No. 19 MA 0023

constitutes a minor misdemeanor and is not an arrestable offense. Officer Caraway 

testified that the officers reversed the course of the patrol car in order to stop and speak 

with Appellant, so as to identify him, check for warrants, and explain the danger 

associated with walking in the street at 2:30 a.m. 

{¶6} When the officers activated the lights on the patrol car and began following 

Appellant, his pace quickened. Officer Caraway twice activated the air horn, which 

prompted Appellant to look back briefly, but he did not stop walking. Then, Appellant ran 

across the street in a northeast direction and entered the gate of the fence of the school 

parking lot. 

{¶7} Appellant testified at trial that he was attempting to avoid a confrontation 

with the officers because he was carrying a Kahr Luger CW9 9 mm semiautomatic pistol 

and he was under a disability as a result of a previous felony conviction. Appellant had 

just smoked marijuana at a friend’s house and he was walking home to the west side of 

Youngstown. He explained that his friend, who he refused to identify, gave him the 

weapon for protection on the approximately one-and-one-half-hour journey through the 

City. 

{¶8} Officer Caraway testified at trial that the officers followed Appellant in the 

patrol car, but left a “reactionary gap” of 30 to 40 feet in order to allow them to see if he 

discarded drugs or weapons and to prevent them from injuring him should he trip and fall. 

When Appellant realized that he was fenced in the school parking lot, he discarded the 

book bag and made a circle towards his entry point. According to the officers, Appellant 

then turned and fired the 9 mm pistol at the patrol car. The officers testified that Appellant 

did not break his forward stride, but that he turned his body just enough to fire at the patrol 

car. 

{¶9} Officer Caraway did not see Appellant draw the weapon, only turn and fire. 

Specifically, Officer Caraway testified that Appellant was “not stationary, he was still 

moving.” (Trial Tr., p. 226), but that the weapon was “aimed directly at [the patrol car.]” 

(Id., p. 227.) Officer Edwards stated that he observed Appellant “fidgeting around with 

something,” and then Appellant “pulled a pistol from somewhere on his person * * * he 

turned, pointed the pistol at [the officers], and then he fired a shot.” (Id., p. 276-277.) 
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Case No. 19 MA 0023

{¶10} Three spent 9 mm casings were found at the scene, and were identified at 

trial by a firearms expert from BCI as having been ejected from Appellant’s weapon. 

Officer Caraway testified that he heard two shots. Officer Edwards testified that he heard 

only one shot. Both officers conceded that they did not see a muzzle flash or flashes. 

Edwards explained that the lights on the patrol car are very bright and may have “washed 

[ ] out” the muzzle flash. (Id., p. 314.) 

{¶11} Appellant admitted that he “got nervous, got scared” and discharged the 

weapon. (Id. at 536.) He could not recall how many bullets were fired. However, 

Appellant testified that he discharged the weapon “straight in the air, straight ahead of 

[him].” Appellant further testified that “[he] was trying to stop the officers from chasing 

[him.] And to show that [he] was not trying to cause harm, [he] threw [the weapon] down, 

around that same time.” (Id. at 537.) 

{¶12} Both officers testified that they feared for their lives and were unaware that 

Appellant had discarded the weapon until he was apprehended. Officer Caraway 

crouched behind the dashboard and opened his door in order to exit the patrol car and 

engage Appellant on foot. He testified that he would not have ducked beneath the 

dashboard if Appellant had fired the pistol in the air. Officer Caraway exited the vehicle 

and discharged his weapon approximately six times. 

{¶13} Meanwhile, Officer Edwards, who was in the driver’s seat, immediately 

returned fire through the windshield. Officer Caraway, who was crouched behind the 

dashboard at the time, mistook Edwards’ return fire for fire from Appellant. After Officer 

Edwards fired six to eight shots, the windshield became “glazed over,” so he exited the 

patrol car to give chase on foot. Both officers were armed with standard-issue YPD Sig 

Sauer P226 .40 caliber pistols. 

{¶14} The officers began their foot pursuit southbound on West Princeton Avenue, 

each firing several additional rounds at Appellant. After Appellant exited the parking lot, 

he ran southbound across West Princeton Avenue then up the driveway of the residence 

at 355 West Princeton Avenue. 

{¶15} Officer Edwards, who maintained a distance of roughly 30 feet behind 

Appellant, noticed a blood trail in a driveway. Officer Caraway moved to the northwest 

corner of the residence in the event that Appellant reversed his direction. Officer Edwards 
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Case No. 19 MA 0023

fired several additional rounds toward an unattached garage on the property, then fired 

again as Appellant moved westbound behind the residence at 397 West Princeton 

Avenue. At this point, Officer Edwards realized that he had emptied his magazine. He 

testified that he reloaded the weapon, but did not discharge the weapon again that 

evening. 

{¶16} Officers Edwards and Caraway reunited at the southwest corner of 397 

West Princeton Avenue by the rear door, where they found Appellant “crumpled up” on 

the ground. (Id., p. 292-294.) Appellant was ordered by Officers Caraway and Edwards, 

as well as other officers that had arrived at the scene, to show his hands, but Appellant 

stood and ran several feet before collapsing by a tree. He was apprehended in the 

backyard of the residence at 397 West Princeton Avenue. The 9 mm pistol was found in 

the parking lot of the school. Appellant’s DNA was present on the handle of the weapon. 

{¶17} According to Officer Edwards, Appellant had bullet wounds in his leg and 

neck when he was found. According to Appellant, he was lying on the ground with bullet 

wounds in his foot and leg when the officers approached him and shot him in the neck. 

{¶18} The patrol car did not sustain any damage as a result of any of the bullets 

fired by Appellant. The only damage sustained by the patrol car was the result of Officer 

Edwards firing through the windshield. Although three spent 9 mm casings with breech 

marks and firing pin compressions matching the 9 mm pistol were recovered from the 

scene, no projectiles from the weapon were found. 

{¶19} On January 30, 2018, Captain Jason Simon and Detective Sergeant Ronald 

Rodway of the Youngstown Police Department interviewed Officer Caraway and Officer 

Edwards. The officers were interviewed independently of one another and the interviews 

were recorded. 

{¶20} On February 12, 2018, roughly two weeks after the incident, Appellant was 

interviewed by Captain Simon and Detective Rodway. Captain Simon was a member of 

the shooting team assigned to the officer-involved shooting of Appellant. Detective 

Rodway was the detective assigned to the felonious assault case. Appellant signed a 

waiver of his right to counsel. 

{¶21} During the interview, Appellant admitted that he smoked marijuana at a 

friend’s house on January 27, 2018, and that his friend, who he declined to identify, gave 
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Case No. 19 MA 0023

him the 9 mm pistol. Appellant further admitted that he was attempting to avoid a 

confrontation with the officers that evening because he was a felon under a weapons 

disability. 

{¶22} Despite the foregoing admissions, Appellant repeatedly denied discharging 

the firearm. He claimed initially that he tripped and fell, dropped the 9 mm pistol in the 

parking lot, and then the officers started shooting and struck his foot. As the officers’ 

pursuit continued, Appellant was shot in the thigh and collapsed. According to Appellant’s 

statement, he was begging for help when the officers approached and demanded that he 

show his hands. Because he was not able to show his hands, the officers shot him in the 

neck. As the interview progressed, and Detective Rodway confronted Appellant with 

ballistics and GSR test results, Appellant ultimately admitted to discharging the weapon 

a single time into the air. 

{¶23} Appellant’s manifest weight argument is predicated upon inconsistencies in 

the officers’ trial testimony regarding the position of Appellant’s right hand when he fired 

the 9 mm pistol, and their description of the events during the recorded interviews with 

Detective Rodway and Captain Simon on January 30, 2018. The recorded interviews 

were not admitted at trial. 

{¶24} On cross-examination, Officer Edwards could not recall whether Appellant 

used his left or right hand to fire the 9 mm pistol. When he reenacted Appellant’s 

movements during his recorded trial testimony, Officer Edwards turned back to his right 

with his right hand to shoot. After viewing a portion of his January 30th interview, Officer 

Edwards conceded that he reached across his right side with his left hand when he 

reenacted Appellant’s movements during the interview. (Id.) 

{¶25} Officer Caraway conceded at trial that he had his hand out to his side when 

he reenacted Appellant’s movements during the interview. Officer Caraway explained 

the position of his hand on cross examination stating, “It’s showing that he was pointing 

it at us. I might not have reached all the way around.” (Id., p. 249.) Detective Rodway 

testified that to the best of his recollection he recalled both officers saying that “they saw 

the gun pulled * * * turned in their directions.” (Id., p. 519.) 

{¶26} Appellant was charged with two counts of felonious assault with firearm 

specifications and one count of having a weapon while under disability. The case 
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Case No. 19 MA 0023

proceeded to a jury trial on January 22, 2019 and the jury began its deliberations at 10:02 

a.m. on January 28, 2019, At 11:30 a.m. that same day, the jury posed the following 

questions to the trial court during deliberations: (1) “Was police cruiser 205 equipped with 

a Dash cam?”; (2) If so, was it running?”; (3) “Did Officer Edward’s [sic] magazine have 

any bullets missing when he turned in his gun?”; (4) Can we have the transcripts of 

Edwards and Carraways [sic] interviews that were referred to during the trial? Paper of 

interview with Detective Rodway.” The trial court declined to answer the jury’s first three 

questions, then explained that the interviews that the jury requested were not admitted 

into evidence at the trial. Deliberations continued until the jury returned its verdicts at 

1:30 p.m. 

{¶27} Appellant was sentenced to an aggregate term of imprisonment of thirty-five 

years, comprised of ten years for each felonious assault conviction plus seven years for 

each firearms specification, plus twelve months for having a weapon while under disability 

conviction, with all sentences imposed to run consecutively. This timely appeal followed. 

ANALYSIS 

{¶28} Appellant advances two assignments of error challenging his felonious 

assault convictions: 

ASSIGNMENT OF ERROR NO. 1 

APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND DUE 

PROCESS WHEN THE TRIAL COURT IMPROPERLY INCLUDED A 

FLIGHT INSTRUCTION IN THE JURY CHARGE. 

{¶29} Under Ohio Crim.R. 30(A), a trial court is required to “fully and completely 

give the jury all instructions which are relevant and necessary for the jury to weigh the 

evidence and discharge its duty as the fact-finder.” State v. Comen, 50 Ohio St.3d 206, 

553 N.E.2d 640 (1990), paragraph two of the syllabus; State v. Joy, 74 Ohio St.3d 178, 

181, 657 N.E.2d 503 (1995) (Jury instructions “must be given when they are correct, 

pertinent, and timely presented.”). In reviewing the record to ascertain the presence of 

sufficient evidence to support the giving of a proposed jury instruction, an appellate court 
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Case No. 19 MA 0023

should determine whether the record contains evidence from which reasonable minds 

might reach the conclusion sought by the instruction. State v. Palmer, 80 Ohio St.3d 543, 

564, 687 N.E.2d 685 (1997). 

{¶30} It is well-established that “flight, escape from custody, resistance to arrest, 

concealment, assumption of a false name, and related conduct, are admissible as 

evidence of consciousness of guilt, and thus of guilt itself.” State v. Williams, 79 Ohio 

St.3d 1, 11, 679 N.E.2d 646 (1997), quoting State v. Eaton, 19 Ohio St.2d 145, 160, 249 

N.E.2d 897 (1969). An appellate court reviews a trial court’s decision whether to give a 

particular jury instruction under an abuse of discretion standard. State v. Kaufman, 187 

Ohio App.3d 50, 2010-Ohio-1536, 931 N.E.2d 143, ¶ 103. An abuse of discretion 

connotes more than an error of judgment; it implies an attitude on the part of the court 

that is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 

157, 404 N.E .2d 144 (1980). A particular instruction is reviewed in the context of the 

entire jury charge. State v. Price, 60 Ohio St.2d 136, 141, 398 N.E.2d 772 (1979). 

{¶31} The trial court provided the following instruction regarding flight to the jury: 

Consciousness of guilt. Testimony has been admitted indicating that the 

defendant fled the scene. You are instructed that fleeing the scene alone 

does not raise presumption of guilt, but it may tend to indicate the 

defendant’s consciousness of guilt. 

If you find that the facts do not support the defendant fleeing the scene, or 

if you find that some other motive prompted his conduct, or if you find that 

you - - excuse me - - or if you were unable to decide what his motivation 

was, then you should not consider this evidence for any purpose. 

However, if you find that the facts support the defendant engaged in such 

conduct, and you decide that he was motivated by a consciousness of guilt, 

you may, but are not required to, consider the evidence in deciding whether 

or not he is guilty of the crime charged. You alone will determine the weight, 

if any, to give to this evidence. 

(Id., p. 595-596.) 
 – 9 – 

Case No. 19 MA 0023

{¶32} Appellant argues that the trial court committed an abuse of discretion when 

it instructed the jury on flight. Appellant’s trial counsel advanced the following argument 

regarding the state’s proposed flight instruction: 

Your Honor, my objection is focused on the fact that the testimony did show 

that his flight began on Hudson Avenue prior to the state’s allegations of the 

felonious assault. 

I believe this would be very prejudicial and confusing to the jury based on 

the fact that his fleeing started prior to any of these charges arising. And 

he never stopped running. This is not a situation where he’s being charged 

with flight after felonious assault only. He began his flight way before that. 

(Id., p. 561.) 

{¶33} Appellant testified that he attempted to evade the officers in order to prevent 

their discovery of the 9 mm pistol in his book bag. Because the having a weapon while 

under disability charge was tried at the bench, Appellant argues that any evidence of flight 

related exclusively to the having a weapon while under disability charge. Appellant 

contends that the entire chain of events, beginning when he first encountered the police 

and ending with his physical collapse, constituted flight attributable to his illegal 

possession of the 9 mm handgun, not the conduct that provided the substance of his 

felonious assault convictions. He further contends that the jury, based on the questions 

posed to the trial court during their deliberations, did not believe the officers’ testimony. 

He asserts that “[the jury’s] indecision was eventually cleared up with a guilty finding, but 

only with the flight instruction there to help the jury reach that conclusion.” (Appellant’s 

Brf., p. 6.) 

{¶34} While it is true that Appellant’s initial efforts to evade the officers may have 

been prompted by his desire to conceal the 9 mm pistol in his back pack, that motive 

necessarily ended when he removed the weapon from the backpack and then discharged 

it while the officers gave chase. Appellant argues that he exited the school parking lot 

and attempted to avoid capture by running into the backyards of 355 and 397 West 

Princeton Avenue because he did not want the officers to know that he was in possession 
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Case No. 19 MA 0023

of a firearm. However, that argument is completely at odds with his admission that he 

discharged the weapon in the officers’ presence. Therefore, we find that the record 

contains evidence from which reasonable minds might reach the conclusion sought by 

the instruction, that Appellant’s motivation to flee the crime scene was due to 

consciousness of his guilt. Palmer, supra, at 564. 

{¶35} Even assuming that the trial court abused its discretion when it instructed 

the jury on flight, the instruction caused no prejudice. The officers’ testimony, coupled 

with Appellant’s implausible statement that he discharged the pistol “straight in the air, 

straight ahead of [him],” (Id. at 537), provided sufficient evidence to support Appellant’s 

convictions. Consequently, we find that the first assignment of error has no merit. 

ASSIGNMENT OF ERROR NO. 2 

THE VERDICTS FOR FELOIOUS ASSAULT, AND THE 

ACCOMPANYING GUILTY VERDICTS ON THE FIREARMS 

SPEICIFCATIONS WERE AGAINST THE MANFIEST WEIGHT OF THE 

EVIDENCE. 

{¶36} “Sufficiency of the evidence is a legal question dealing with adequacy.” 

State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49 

(7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A 

challenge on the manifest weight of the evidence, on the other hand, focuses on the 

state’s burden of persuasion. Id. 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 jury clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and a new trial ordered.” 

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 484 N.E.2d 717 (1st 

Dist.1983). Reversal should occur only “in the exceptional case in which the evidence 

weighs heavily against the conviction.” State v. Andric, 7th. Dist. Columbiana No. 06 CO 

28, 2007-Ohio-6701, ¶ 19, citing Martin at 175. 

{¶37} Furthermore, determinations regarding witness credibility, conflicting 

testimony and evidence weight “are primarily for the trier of the facts.” State v. Hunter, 
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Case No. 19 MA 0023

131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 995, ¶ 118, quoting State v. DeHass, 10 

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. It is in the purview 

of the jury whether to believe some, all or none of the testimony from witnesses and the 

jury can parse out credible portions of testimony from incredible portions. State v. Mastel, 

26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). Moreover, when presented with two fairly 

reasonable perspectives regarding the evidence or with two conflicting versions of events, 

neither of which can be ruled out as unbelievable, this Court has declined to choose which 

one is more credible. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th 

Dist.1999). 

{¶38} Appellant argues that the officers provided conflicting testimony regarding 

the events of January 29, 2018, specifically the number of shots fired and the hand in 

which Appellant held the 9 mm pistol. Appellant further argues that neither officer stated 

during their interviews with Rodway that Appellant pointed the 9 mm pistol directly at the 

patrol car. Based on the officers’ testimony, “coupled with Appellant’s testimony that he 

never pointed the gun at the officers, an[d] in fact pointed it in the air,” Appellant argues 

that “the weight of the evidence clearly favors a not-guilty finding.” (Appellant’s Brf., p 7.) 

{¶39} Appellant’s manifest weight argument is predicated for the most part on the 

officers’ reenactments during their interviews of Appellant’s movements on January 27, 

2018. However, the videotaped interviews were not admitted in evidence for our review. 

{¶40} After reviewing the evidence in the record, we find that the jury verdicts are 

supported by the manifest weight of the evidence. Officer Caraway testified at trial that 

Appellant continued to run from the patrol car but turned his body just enough to fire the 

9 mm pistol at the patrol car. Officer Edwards provided similar testimony during his 

testimony. Appellant conceded that he fired the weapon because “[he] was trying to stop 

the officers from chasing [him.]” (Id. at 537.) 

{¶41} The foregoing testimony supports the jury’s conclusion that Appellant 

discharged the weapon at the patrol car. The jury could have credited the testimony of 

the officers, while disbelieving Appellant, whose version of events changed throughout 

his police interview. 

{¶42} Further, Appellant provided conflicting testimony at the trial regarding his 

intentions and his actions on January 27, 2018. Appellant testified that he panicked and 
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Case No. 19 MA 0023

discharged the weapon in order to scare the officers into ending their pursuit, but then 

immediately discarded the weapon in order to show that he intended to inflict no physical 

harm. The jury may have reasoned that Appellant’s stated goal of ending the police 

pursuit could have only been accomplished if Appellant discharged the weapon at the 

patrol car. Appellant also provided conflicting testimony regarding the direction in which 

he aimed the weapon, that is, he fired straight in the air and straight ahead of him. 

{¶43} While it is true that the officers acknowledged inconsistencies between their 

trial testimony and the information that they provided to Detective Rodway during their 

interviews, we find nonetheless that the jury did not clearly lose its way and create such 

a manifest miscarriage of justice that the convictions must be reversed and a new trial 

ordered. Accordingly, we find that the second assignment of error has no merit. 

CONCLUSION 

{¶44} Because the record contains evidence from which reasonable minds might 

reach the conclusion that Appellant’s motivation to flee the crime scene was due to 

consciousness of his guilt, we find that the trial court did not abuse its discretion in 

instructing the jury on flight. We further find that the verdicts are supported by the greater 

weight of the evidence because they turn on credibility determinations that are the 

province of the jury. Accordingly, Appellant’s convictions are affirmed. 

Waite, P.J., concurs. 

Robb, J., concurs. 
[Cite as State v. Wainwright, 2020-Ohio-623.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.