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




             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.


 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.
                                                                                        –2–


                                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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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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       {¶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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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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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



Case No. 19 MA 0023
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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



Case No. 19 MA 0023
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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.)


Case No. 19 MA 0023
                                                                                         –9–


        {¶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


Case No. 19 MA 0023
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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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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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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.




Case No. 19 MA 0023
[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.
