[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, Young stown, Ohio 44503, for Plaintiff-Appellee and
Atty. Edward Czopur, DeGenova & Yarwood. Ltd., 42 North Phelps Street, Youn g stown, 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, Cher y l L. Waite, Carol Ann Robb, Jud g es.

JUDGMENT: Affirmed.– 2 –

Case No. 19 MA 0023 Dated: Februar y

21, 2020
D’Apolito, J.
{¶1} Appellant Gerald Wainwright appeals his convictions for two cou nts of felonious assault against a peace officer, violations of R.C. 2 903.11(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 p eace officer, felonious assault is a felony of the firs t degree. R.C. 2903.11(D)(1)(a)

. {¶2} Appellant contends that the trial court abused its discretion w hen 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 reason s, Appellant’s felonious
assault convictions are affirmed.

FACTS AND PROCEDURAL HISTORY

{¶3} The following facts are taken from the testimony offered at tri al. 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 th e parties. {¶4} At approximately 2:30 a.m. on January 27, 2018, Youngstown Poli ce Department Officers Timothy Edwards and Brandon Caraway were pa trolling a high crime area on the City’s south side in the vicinity of the former Pri nceton Junior High School (now Alpha School of Excellence) (“school”). They encountered Appellant, who was walking northbound in the southbound lane of Hudson Avenue. Ap pellant 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 side walks were clear of snow. A Youngstown municipal ordinance prohibits pede strians from walking in the roadway when the use of a sidewalk is practicable. Violati on of the code section– 3 –

Case No. 19 MA 0023 constitutes a minor misdemeanor and is not an arrestable offens e. Officer Caraway testified that the officers reversed the course of the patrol c ar 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 be gan following Appellant, his pace quickened. Officer Caraway twice activated the air horn, which prompted Appellant to look back briefly, but he did not stop wa lking. 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 ho me to the west side of Youngstown. He explained that his friend, who he refused to id entify, gave him the weapon for protection on the approximately one-and-one-half-hou r journey through the City. {¶8} Officer Caraway testified at trial that the officers followed A ppellant in the patrol car, but left a “reactionary gap” of 30 to 40 feet in or der to allow them to see if he discarded drugs or weapons and to prevent them from injuring hi m should he trip and fall. When Appellant realized that he was fenced in the school parkin g 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 o fficers testified that Appellant did not break his forward stride, but that he turned his body j ust enough to fire at the patrol

car. {¶9} Officer Caraway did not see Appellant draw the weapon, only tur n 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 d irectly 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.)– 4 –

Case No. 19 MA 0023 {¶10} Three spent 9 mm casings were found at the scene, and were iden tified 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 Edw ards 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 br ight and may have “washed [ ] out” the muzzle flash. ( Id. , p. 314.) {¶11} Appellant admitted that he “got nervous, got scared” and discha rged the weapon. ( Id. at 536.) He could not recall how many bullets were fired. How ever, Appellant testified that he discharged the weapon “straight in the air, straight ahead of [him].” Appellant further testified that “[he] was trying to s top 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 we re unaware that Appellant had discarded the weapon until he was apprehended. O fficer Caraway crouched behind the dashboard and opened his door in order to e xit the patrol car and engage Appellant on foot. He testified that he would not have d ucked beneath the dashboard if Appellant had fired the pistol in the air. Office r Caraway exited the vehicle and discharged his weapon approximately six times. {¶13} Meanwhile, Officer Edwards, who was in the driver’s seat, immed iately returned fire through the windshield. Officer Caraway, who was crouched behind the dashboard at the time, mistook Edwards’ return fire for fire fr om 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 wit h standard-issue YPD Sig Sauer P226 .40 caliber pistols. {¶14} The officers began their foot pursuit southbound on West Prince ton Avenue, each firing several additional rounds at Appellant. After Appe llant exited the parking lot, he ran southbound across West Princeton Avenue then up the driv eway of the residence
at 355 West Princeton Avenue. {¶15} Officer Edwards, who maintained a distance of roughly 30 feet b ehind Appellant, noticed a blood trail in a driveway. Officer Carawa y moved to the northwest corner of the residence in the event that Appellant reversed hi s direction. Officer Edwards– 5 –

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 em ptied his magazine. He testified that he reloaded the weapon, but did not discharge th e weapon again that evening. {¶16} Officers Edwards and Caraway reunited at the southwest corner o f 397 West Princeton Avenue by the rear door, where they found Appell ant “crumpled up” on the ground. ( Id. , p. 292-294.) Appellant was ordered by Officers Caraway and E dwards, as well as other officers that had arrived at the scene, to sho w his hands, but Appellant stood and ran several feet before collapsing by a tree. He wa s 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 . A ppellant’s DNA was present on the handle of the weapon. {¶17} According to Officer Edwards, Appellant had bullet wounds in hi s leg and neck when he was found. According to Appellant, he was lying o n 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 ano ther and the interviews
were recorded. {¶20} On February 12, 2018, roughly two weeks after the incident, App ellant was interviewed by Captain Simon and Detective Rodway. Captain Sim on 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 marijua na at a friend’s house on January 27, 2018, and that his friend, who he declined to identify, gave– 6 –

Case No. 19 MA 0023 him the 9 mm pistol. Appellant further admitted that he was at tempting to avoid a confrontation with the officers that evening because he was a f elon under a weapons disability. {¶22} Despite the foregoing admissions, Appellant repeatedly denied d ischarging the firearm. He claimed initially that he tripped and fell, dr opped 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 collapse d. 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 confro nted 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 inconsi stencies in the officers’ trial testimony regarding the position of Appella nt’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 rec orded 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 r eenacted 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 J anuary 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 h is side when he reenacted Appellant’s movements during the interview. Offic er Caraway explained the position of his hand on cross examination stating, “It’s sh owing 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 dis ability. The case– 7 –

Case No. 19 MA 0023 proceeded to a jury trial on January 22, 2019 and the jury bega n 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 po lice cruiser 205 equipped with a Dash cam?”; (2) If so, was it running?”; (3) “Did Officer Ed ward’s [sic] magazine have any bullets missing when he turned in his gun?”; (4) Can we ha ve the transcripts of Edwards and Carraways [sic] interviews that were referred to du ring 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 req uested 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 convic tion plus seven years for each firearms specification, plus twelve months for having a we apon while under disability conviction, with all sentences i mposed to run consecutively. T his timely appeal followed.

ANALYSIS

{¶28} Appellant advances two assignments of error challenging his fel onious
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 a nd 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 wh en 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 in struction, an appellate court– 8 –

Case No. 19 MA 0023 should determine whether the record contains evidence from whic h 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, resis tance to arrest, concealment, assumption of a false name, and related conduct, a re 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 standa rd. 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 revie wed 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 fl ight 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 indicat e 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 engag ed in such conduct, and you decide that he was motivated by a consciousnes s of guilt, you may, but are not required to, consider the evidence in deci ding whether or not he is guilty of the crime charged. You alone will deter mine 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 dis cretion when it instructed the jury on flight. Appellant’s trial counsel ad vanced the following argument regarding the state’s proposed flight instruction:

Your Honor, my objection is focused on the fact that the testim ony did show that his flight began on Hudson Avenue prior to the state’s all egations of the
felonious assault.

I believe this would be very prejudicial and confusing to the j ury 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 b eing 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 th e having a weapon while under disability charge was tried at the bench, Appellant argue s that any evidence of flight related exclusively to the having a weapon while under disabili ty charge. Appellant contends that the entire chain of events, beginning when he fir st encountered the police and ending with his physical collapse, constituted flight attri butable to his illegal possession of the 9 mm handgun, not the conduct that provided t he substance of his felonious assault convictions. He further contends that the ju ry, based on the questions posed to the trial court during their deliberations, did not be lieve 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 t hat 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 b ack 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 exi ted 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 t hat he was in possession– 10 –

Case No. 19 MA 0023 of a firearm. However, that argument is completely at odds wit h his admission that he discharged the weapon in the officers’ presence. Therefore, we find that the record
contains evidence from which reas onable minds might reach the c onclusion 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 i t instructed the jury on flight, the instruction caused no prejudice. The o fficers’ testimony, coupled with Appellant’s implausible statement that he discharged the p istol “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 o f 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 a dequacy.” 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 a nd 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 cas e 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, conf licting testimony and evidence weight “are primarily for the trier of t he facts.” State v. Hunter
,– 11 –

Case No. 19 MA 0023 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 995, ¶ 118, quoti ng State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syl labus. It is in the purview of the jury whether to believe some, all or none of the testimo ny from witnesses and the jury can parse out credible portions of testimony from incredib le portions. State v. Mastel
, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). Moreover, when p resented with two fairly reasonable perspectives regarding the evidence or with two conf licting versions of events, neither of which can be ruled out as unbelievable, this Court h as 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 testimo ny regarding the events of January 29, 2018, specifically the number of shot s 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 Ap pellant’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 fi nding.” (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 m ovements on January 27, 2018. However, the videotaped interviews were not admitted in e vidence for our review. {¶40} After reviewing the evidence in the record, we find that the ju ry verdicts are supported by the manifest weight of the evidence. Officer Caraw ay testified at trial that Appellant continued to run from the patrol car but turned his b ody just enough to fire the 9 mm pistol at the patrol car. Officer Edwards provided simila r 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 App ellant discharged the weapon at the patrol car. The jury could have c redited the testimony of the officers, while disbelieving Appellant, whose version of ev ents 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 test ified that he panicked and– 12 –

Case No. 19 MA 0023 discharged the weapon in order to scare the officers into endin g their pursuit, but then immediately discarded the weapon in order to show that he inten ded 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 discharg ed the weapon at the patrol car. Appellant also provided conflicting testimony rega rding 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 Detec tive Rodway during their interviews, we find nonetheless that the jury did not clearly l ose 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 er ror has no merit.

CONCLUSION

{¶44} Because the record contains evidence from which reasonable mind s might reach the conclusion that Appellant’s motivation to flee the cr ime scene was due to consciousness of his guilt, we find that the trial court did no t abuse its discretion in instructing the jury on flight. We further find that the verdi cts are supported by the greater weight of the evidence because t hey turn on credibility determi nations 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 assi gnments of error are overruled and it is the final judgment and order of this Co urt 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 const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.