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State v. Gazaway

Court of Appeals of Ohio, Twelfth District, Butler

December 16, 2019

STATE OF OHIO, Appellee,
v.
DONALD T. GAZAWAY, Appellant.

          CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-01-0105

          Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, for appellee

          Engel & Martin, LLC, Mary K. Martin, for appellant

          OPINION

          PIPER, J.

         {¶ 1} Appellant, Donald Gazaway, appeals his convictions in the Butler County Court of Common Pleas for felonious assault, aggravated burglary, kidnapping, having weapons under disability, and inducing panic, as well as the accompanying firearm specifications.

         {¶ 2} The victim and her son lived in an apartment complex, along with the family's dog. On the evening of the incident in question, the child was in his mother's bedroom playing video games when he heard yelling from the living room. The child ran from his mother's bedroom into the living room and saw Gazaway, a man with whom he was familiar, pointing a gun at his mother's head and demanding $10, 000. When the child tried to call police from a phone in the apartment, Gazaway ran after the child and threw the phone on the floor breaking it. During this time, the child's mother ran from her home.

         {¶ 3} After Gazaway searched the apartment for the woman but could not find her, Gazaway took the child and hid in a closet. Police soon arrived at the apartment complex and the child's mother informed them that Gazaway was inside with her son. The responding officers called the victim's cell phone, which was in the apartment, but Gazaway disconnected the calls and began firing his gun through the closet wall and door.

         {¶ 4} Soon thereafter, a SWAT team arrived on scene, including an armored vehicle and multiple officers. Officers then evacuated the other inhabitants of the surrounding apartments. Although no one was shot, bullets pierced the apartment's exterior windows, the SWAT vehicle where officers were located, as well as various parts of the apartment's interior.

         {¶ 5} The standoff lasted approximately 30 hours before Gazaway surrendered. Police located three firearms and a multitude of spent and live ammunition in the home. Gazaway was arrested and pled not guilty to the charges, claiming instead, that someone else fired the bullets that pierced the home and SWAT vehicle.

         {¶ 6} After a jury trial, Gazaway was convicted of felonious assault, aggravated burglary, kidnapping, having weapons under disability, inducing panic, and multiple accompanying firearm specifications. The trial court sentenced Gazaway to an aggregate term of 41 and one-half years in prison.[1]Gazaway now appeals his convictions and sentence, raising multiple assignments of error, some of which we will combine or discuss out of order for ease of discussion.

         {¶ 7} Assignment of Error No. 3:

         {¶ 8} THE CONVICTIONS IN THIS MATTER WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

         {¶ 9} Assignment of Error No. 4:

         {¶ 10} THE CONVICTIONS IN THIS MATTER WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶ 11} Gazaway argues that his convictions for felonious assault, kidnapping, and aggravated burglary are not supported by sufficient evidence and were against the manifest weight of the evidence.

         {¶ 12} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Workman, 12th Dist. Clermont Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 20. The relevant inquiry is "whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, ¶ 22.

         {¶ 13} To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17. An appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id. at ¶ 18. A determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency. State v. Peyton, 12th Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 48.

         {¶ 14} Gazaway was convicted of felonious assault in violation of R.C. 2903.11(A)(2), which provides, that no person shall "cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance." Gazaway was also convicted of aggravated burglary in violation of R.C. 2911.11(A)(2), which provides,

No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any crim inal offense, if * * * the offender has a deadly weapon or dangerous ordnance on or about the offender's person or under the offender's control.

         {¶ 15} Gazaway was also convicted of kidnapping in violation of ...


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