[Cite as State v. Gambino,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

STATE OF OHIO, CASE NO. 2021-T-0018

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

WILLIAM L. GAMBINO, JR., Trial Court No. 2020 CR 00777 Defendant-Appellant.

OPINION

Decided: May 9, 2022 Judgment: Affirmed

Dennis Watkins, Trumbull County Prosecutor, Ryan J. Sanders, Assistant Prosecutor, Administration Building, Fourth Floor, 160 Hight Street, N.W., Warren, OH 44481 (for Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (for Defendant- Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, William Gambino Jr., appeals his conviction in the Trumbull

County Court of Common Pleas for felonious assault, aggravated robbery, and weapons

under disability. Appellant asserts that the trial court erred in failing to give a jury

instruction on self-defense, that his convictions are against the manifest weight of the

evidence, and that the trial court erred by failing to merge his felonious assault and

aggravated robbery convictions. Finding no reversible error, we affirm. {¶2} On November 12, 2020, appellant was indicted for one count of Felonious

Assault with a firearm specification in violation of R.C. 2903.11(A)(2) and (D)(1)(1) and

R.C. 2941.145; one count of Aggravated Robbery with a firearm specification in violation

R.C. 2911.(A)(1) and (C) and 2941.145; and one count of Having Weapons While Under

Disability in violation of R.C. 2923.13(A)(3).

{¶3} At the jury trial, the victim, William Blake, testified that appellant confronted

him at Blake’s home on October 7, 2020. Appellant had been living at Blake’s residence,

but Blake believed appellant was stealing from him and kicked him out. Blake also said

that appellant had recently become paranoid about sex cults and satanic groups and

believed that Blake was molesting his own daughter.

{¶4} Blake came home and found appellant waiting for him in his driveway. Blake

asked why appellant was there. Appellant asked for money. Blake refused and told

appellant to leave. Appellant refused to do so, and Blake exited his vehicle and

approached appellant, who was still in his vehicle. Appellant then exited his vehicle as

Blake approached and the two began to argue. Appellant pulled out a pellet handgun and

fired it at Blake several times. Appellant then backed away, dropped the pellet gun, drew

a .22 caliber pistol, and shot Blake multiple times. Blake retreated and testified that

appellant pursued him “smiling while he was shooting at me and saying that I was raping

my daughter and I was a child rapist.”

{¶5} Appellant then went to Blake’s vehicle, took Blake’s cell phone, keys, and

wallet, and then drove away. After this, Blake went to his vehicle and realized appellant

had stolen his items. He then went to a neighbor’s house to use a phone to call 911. Blake

testified that he was intubated and was in the hospital for 14 days and has had multiple

2

Case No. 2021-T-0018 surgeries. He still has a bullet that is lodged in his neck and does not believe he will ever

fully recover from his injuries. The shooting was recorded on Blake’s home video system

which was played for the jury and made part of the record.

{¶6} Trumbull County Deputy Sheriff Dennis Garito testified that he responded

to a shooting call and that he received a description of the shooter and his vehicle. Garito

observed appellant’s vehicle on the side of the road and appellant ducking down to avoid

being seen. Garito turned around and stopped appellant when he pulled into a gas station.

Garito recovered Blake’s items and a .22 pistol in the vehicle with one live round in the

chamber.

{¶7} Trumbull County Sheriff’s Department Detective Jolene Marcello testified

that she went to Blake’s home to process the crime scene. She located fresh blood, empty

shell casings, and a pellet gun in the grass. In addition, she located a wooden box that

had been covered with a tarp. Inside the box, there was a .22 rifle and a 12-gauge shotgun

and ammunition for both weapons.

{¶8} Trumbull County Sherriff’s Department Sergeant Mike Yannucci testified

that he investigated the shooting and initially arrived to process the crime scene but was

called away to speak with the appellant who requested to speak with a detective.

Yannucci interviewed appellant and the video of the interview was played for the jury. In

the video, appellant admitted that he obtained each of the weapons used and found at

the scene. Appellant admitted that he took the weapons to Blake’s home and hid the long

guns behind the house so that he could rely upon them if the conflict with Blake required

the extra weapons.

3

Case No. 2021-T-0018 {¶9} Appellant admitted that he waited in the driveway for Blake to arrive home

from work. Appellant admitted that he asked for money, that Blake told him to leave, and

that he shot Blake when Blake approached him. Appellant claimed that he acted in self-

defense because he feared for his safety when Blake approached him. Yannucci testified

that appellant continued to argue with Blake and ask for money even after shooting him.

Yannucci also identified certified copies of appellant’s prior convictions which placed him

under disability.

{¶10} Appellant testified that he shot Blake in self-defense. He said that he waited

for Blake in the driveway for four to five hours but said that he did so in order to tell Blake

that he was moving into the apartment behind Blake’s house based on the permission

given to him by Blake’s wife.

{¶11} Appellant testified that he asked for money and that Blake told him to leave.

Appellant testified that when Blake got out of his car to approach him, he also exited the

vehicle and only began to shoot Blake with the pellet gun to prevent him from coming

closer to him. Appellant claimed that Blake laughed at appellant when he shot him with

the pellet gun and that he continued to approach him.

{¶12} Appellant testified that an industrial injury left him physically weak, and that

Blake is significantly larger than him. Appellant said that he retreated after shooting Blake

with the pellet gun, but that Blake was still approaching. Appellant then dropped the pellet

gun and pulled out the .22 pistol and shot Blake multiple times. He testified that after

shooting Blake, he pursued him around several cars in the driveway and then when he

thought Blake had fled into his house, appellant went to Blake’s car and took Blake’s

keys, wallet, and cell phone. He testified that he took the cell phone because it had

4

Case No. 2021-T-0018 evidence of Blake threatening him on it, that he took the wallet because he intended to

use it to buy gas, and that he took Blake’s keys to prevent him from pursuing him.

{¶13} Appellant admitted to placing the firearms in the backyard of Blake’s house

and that he waited for four to five hours before the victim arrived. He also testified that

Blake was not armed at the time of the shooting and admitted that he initiated the first

violent act in the encounter by shooting Blake with the pellet gun. He also acknowledged

that he pursued Blake with the .22 pistol when Blake fled. However, he claimed that he

acted in self-defense because Blake approached him in anger.

{¶14} Appellant requested a self-defense jury instruction and the trial court

declined to give it. The reason the court gave was that appellant prepared for a violent

confrontation with Blake, laid in wait to ambush him, and that the evidence indicated that

appellant was the initial aggressor and was at fault in creating the confrontation.

{¶15} The jury convicted appellant of all charges and the trial court sentenced

appellant on each count with an aggregate prison sentence of twenty-five to thirty years

incarceration. Prior to sentencing, appellant argued that the aggravated robbery and

felonious assault convictions should merge for sentencing purposes. The trial court

disagreed and sentenced appellant on each count.

{¶16} Appellant timely appealed and raises three assignments of error.

{¶17} Appellant’s first assignment of error states:

{¶18} “[1.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR, TO THE

PREJUDICE OF APPELLANT, BY REFUSING TO GIVE THE JURY A SELF-DEFENSE

INSTRUCTION.”

5

Case No. 2021-T-0018 {¶19} Appellant’s first assignment of error asserts that he was prejudiced by the

trial court denying his request for a jury instruction on self-defense.

{¶20} This court has held that whether sufficient evidence has been presented to

raise an affirmative defense of self-defense is a question of law. State v. Petway, 11th

Dist. No. 2019-L-124,

,

, appeal not allowed,

,

,

, reconsideration denied,

,

,

, citing State v. Sullivan, 11th Dist. Lake

Nos. 2019-L-143,

. “After arguments are completed, a trial court

must 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.” Sullivan, at ¶

30, quoting State v. Comen,

,

(1990), paragraph two

of the syllabus, construing Crim.R. 30(A).

{¶21} Ordinarily, a trial court must give a requested jury instruction if it is a correct

statement of law, it is applicable to the facts of the case, and if reasonable minds might

reach the conclusion sought by the requested instruction. Petway at ¶ 40, citing State v.

Adams,

,

,

. When an instruction

is not applicable to the facts governing the case, the court may refuse to give the

requested instruction.

citing State v. Scott,

,

(1986).

{¶22} The defendant is required to meet the burden of production with sufficient

evidence to make a prima facie case for self-defense. Id. at ¶ 47. The General Assembly

amended the provisions in R.C. 2901.05 that define self-defense effective on March 28,

2019. Under the former version of R.C. 2901.05(A), the accused had the burden of

6

Case No. 2021-T-0018 proving that he or she had used force in self-defense by a preponderance of the evidence.

The amended version of R.C. 2901.05 places the burden of persuasion upon the State to

disprove at least one of the elements of self-defense beyond a reasonable doubt. Id. at ¶

55; R.C. 2901.05(A).

{¶23} The elements of a valid claim of self-defense are:

(1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant had a bona fide belief that he or she was in imminent danger of death or great bodily harm and that his or her only means of escape from such danger was in the use of such force; and (3) the defendant did not violate any duty to retreat or avoid the danger. State v. Barnes,

, 24,

(2002), citing State v. Robbins,

,

(1979), paragraph two of the syllabus; State v. Mogul, 11th Dist. Trumbull Nos. 97-T-0018 & 97-T-0067,

, *3 (May 15, 1998).

Id. at ¶ 41. “The degree of force permitted depends upon what is reasonably necessary

to protect that individual from the imminent use of unlawful force.” Id., at ¶42, citing

State v. Mogul, 11th Dist. Trumbull Nos. 97-T-0018 & 97-T-0067,

, *3

(May 15, 1998).

{¶24} “[I]n order for the defendant to successfully raise an affirmative defense, ‘*

* * evidence of a nature and quality sufficient to raise the issue must be introduced, from

whatever source the evidence may come.’” State v. Melchior,

,

(1978), quoting State v. Robinson,

,

(1976). “Evidence is sufficient where a reasonable doubt of guilt has arisen based

upon a claim of self-defense. If the evidence generates only a mere speculation or

possible doubt, such evidence is insufficient to raise the affirmative defense, and

submission of the issue to the jury will be unwarranted.”

(internal citations omitted). In

determining whether the self-defense instruction is appropriate the “court must view the 7

Case No. 2021-T-0018 evidence in a light most favorable to the defendant” without consideration of credibility.

, quoting State v. Belanger, 3rd Dist. No. 1-09-65,

,

,

. The defendant has met the burden of

production when the defendant’s testimony, if believed, would raise the question of self-

defense in the mind of a reasonable juror.

{¶25} Appellant contends that the facts of his case warrant a jury instruction on

self-defense. He argues that Blake acted aggressively toward him and that the size

disparities between the two made appellant fearful that Blake would cause him injury. For

this reason, appellant produced the pellet gun to cause Blake to retreat. He further argues

that when he shot Blake with the pellet gun, Blake laughed and continued to aggressively

approach while appellant retreated and put distance between the two before using the

.22 pistol.

{¶26} However, this argument is unpersuasive based on the evidence presented

at the trial and, in particular, the video evidence of the shooting. Appellant’s self-defense

arguments fail because appellant, by his own admission, committed the first act of

violence in the confrontation. Simply, appellant failed to put forth sufficient evidence to

meet his burden of production. Although he asserted that he was in fear of great bodily

harm because Blake approached him aggressively, this goes to his belief that he was in

danger of great bodily harm, the second element of self-defense. However, appellant did

not meet his burden of production as to the first element. Appellant admitted that Blake

told appellant to leave, that he refused, and that he initiated the first violent act by shooting

Blake with the pellet gun. He failed to adduce evidence to satisfy his burden of production

that he was not at fault for creating the situation giving rise to the affray.

8

Case No. 2021-T-0018 {¶27} When Blake arrived, appellant asked Blake for money and refused to leave

when Blake told him to get off his property. Appellant testified that he stepped out of his

vehicle and could have avoided any perceived danger by not getting out of his vehicle or

simply driving away. He also testified that he knew that Blake was not armed at the time

of the confrontation. The video does not support appellant’s portrayal that Blake continued

to aggressively pursue him after being shot with the pellet gun. Instead, the video shows

that Blake stopped after being struck by the pellet gun and that appellant quickly

discarded the pellet gun and began firing at Blake with the .22. Finally, if appellant’s self-

defense claims were true, appellant violated his duty to disengage once he had

neutralized the perceived threat. In this case, his own testimony acknowledged that he

used more force than what was reasonably necessary when firing at and pursuing Blake.

See

.

{¶28} Even viewing the evidence in a light most favorable to the appellant, he did

not present sufficient evidence that, if believed, would raise the question of self-defense

in the mind of a reasonable juror. See

.

{¶29} Accordingly, appellant’s first assignment of error is without merit.

{¶30} Appellant’s second assignment of error states:

{¶31} “[2.] APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

{¶32} Next, appellant argues that his conviction is against the manifest weight of

the evidence because it is not supported by competent, credible evidence that proved his

guilt beyond a reasonable doubt. Appellant points to evidence suggesting that he had

permission to reside at Blake’s address and to be on the property, that Blake was angry

9

Case No. 2021-T-0018 and agitated as the encounter developed, that Blake’s large size and appellant’s physical

disability created a reasonable fear in appellant, and that Blake had access to weapons

on his property. This evidence, according to appellant, indicates that the jury lost its way

in finding him guilty.

Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them.” (Emphasis sic.)

State v. Thompkins,

,

(1997),

quoting Black’s Law Dictionary 1594 (6th Ed. 1990).

{¶33} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

The 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. The discretionary power to grant a

new trial should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.”

, quoting State v. Martin,

,

(1st Dist. 1983).

{¶34} The trier of fact is the sole judge of the weight of the evidence and the

credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-

Ohio-4258, ¶ 22, quoting State v. Antill,

, 67,

(1964). The

10

Case No. 2021-T-0018 trier of fact may believe or disbelieve any witness in whole or in part, considering the

demeanor of the witness and the manner in which a witness testifies, the interest, if any,

of the outcome of the case, and the connection with the prosecution or the defendant.

quoting Antil at 67.

{¶35} This court, engaging in the limited weighing of the evidence introduced at

trial, must defer to the weight and factual findings made by the jury. State v. Brown, 11th

Dist. No. 2002-T-0077,

, citing Thompkins at 390 and State v.

DeHass,

,

(1967), paragraph two of the syllabus.

{¶36} In this assignment, appellant couches many of his arguments in terms of

reasonable self-defense. However, as our discussion in the prior assignment found, the

trial court did not err in refusing to give the jury a self-defense instruction. Therefore, to

the extent that appellant believes the jury lost its way in relation to self-defense, our

resolution of the prior assignment of error resolves that question in the negative.

{¶37} Appellant’s arguments that do not specifically relate to self-defense are also

without merit. Appellant’s own testimony was that he collected weapons, hid several on

Blake’s property for possible use, waited four to five hours for Blake to arrive at his house,

engaged in a confrontation with him about money, initiated the first act of violence by

firing at Blake with the pellet gun, shot Blake multiple times with the .22 pistol, pursued a

fleeing and wounded Blake with a gun, only to then steal Blake’s wallet, keys, and cell

phone from his car. On appellant’s own testimony, the evidence shows “clearly to the jury

that the party having the burden of proof” was entitled to its verdict. See

. This is not the extraordinary case where the “jury clearly lost its way and

11

Case No. 2021-T-0018 created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” See

.

{¶38} Accordingly, appellant's second assignment of error is without merit.

{¶39} Appellant’s third assignment of error states:

{¶40} “[3.] THE TRIAL COURT ERRED BY FAILING TO MERGE THE

FELONIOUS ASSAULT CHARGE WITH THE AGGRAVATED ROBBERY CHARGE

FOR SENTENCING PURPOSES.”

{¶41} Appellant’s final assignment of error asserts that the trial court erred by

failing to merge his aggravated robbery and felonious assault charges because the two

offenses are not dissimilar in import or significance. He argues that there was only one

victim of each offense and that separate harms cannot be demonstrated. He further

argues that the State presented a theory of the case in which appellant committed the

crimes with a single animus and as part of the same transaction.

{¶42} In response, the State argues that the offenses caused separate and

identifiable harms. The State points to the extreme harm appellant caused by the

felonious assault which required Blake to undergo seven surgeries and to endure ongoing

injuries from which Blake will never fully recover. The felonious assault began by

appellant demanding money from Blake, which caused an argument between the two and

resulted in appellant shooting Blake with both a pellet gun and a .22 pistol. In contrast,

the State points to the distinct harm appellant caused by the aggravated robbery,

particularly as he continued demanding money even after shooting Blake. The State

argues that appellant’s pursuit of Blake, his continued demands for money after the

12

Case No. 2021-T-0018 shooting, and his subsequent theft of Blake’s items constituted separate acts with a

separate animus that is distinct from the felonious assault.

{¶43} R.C. 2941.25, Ohio’s merger statute, provides:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶44} “Under R.C. 2941.25(B), a defendant whose conduct supports multiple

offenses may be convicted of all the offenses if any one of the following is true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses

were committed separately, or (3) the conduct shows that the offenses were committed

with separate animus.” State v. Ruff,

,

,

,

paragraph three of the syllabus. “An affirmative answer to any of the above will permit

separate convictions. The conduct, the animus, and the import must all be

considered.” Id. at ¶ 31.

{¶45} “[A] defendant's conduct that constitutes two or more offenses against a

single victim can support multiple convictions if the harm that results from each offense

is separate and identifiable harm from the harm of the other offense.” Id. at ¶ 26. “In Ruff,

the Supreme Court ‘provided two alternatives to determine whether the offenses are of

dissimilar import: separate victims or separate harms.’” State v. Crawford, 11th Dist. Lake

No. 2020-L-074,

, ¶ 45 appeal not allowed,

, 2021-

13

Case No. 2021-T-0018 Ohio-2069,

, quoting State v. Carradine, 8th Dist. Cuyahoga No. 101940,

, (Gallagher, J., concurring).

{¶46} In State v. Stanley, 11th Dist. Lake No. 2020-L-065,

, this

court considered whether aggravated robbery and attempted murder offenses should

have merged. We found “that the level of violence inflicted upon the victim and the

resulting injuries were far in excess of that necessary to commit the Aggravated Robbery.”

Id. at ¶ 25. The evidence in that case demonstrated a separate purpose or animus to kill

the victim beyond the purpose of robbing him. Id. Further, we held that separate harms

may result from the terror instilled when being robbed at gunpoint and the trauma endured

by receiving life threatening injuries from being shot multiple times at close range. Id. at

¶ 26, citing State v. Elem, 8th Dist. Cuyahoga No. 105821,

. This

same logic applies with equal force to aggravated robbery and felonious assault offenses,

where a shooting constituting “a greater use of force than necessary to accomplish the

robbery” may result in a separate act with a separate animus. State v. Williams, 11th Dist.

Trumbull No. 2012-T-0053,

.

{¶47} In this case, appellant’s conduct shows that the offenses were committed

with a separate animus. After appellant shot Blake, he went to Blake’s vehicle to take his

items. At trial, he testified that he stole the items because the cell phone had evidence of

Blake threatening him on it, that he took the wallet because he intended to use it to buy

gas, and that he took Blake’s keys to prevent him from pursuing him. This demonstrates

a separate animus from the animus appellant had in committing the felonious assault.

{¶48} Further, although appellant demanded Blake give him gas money, he also

had a separate violent animus evidenced by his accusation – as he was shooting and

14

Case No. 2021-T-0018 pursuing Blake – that Blake was a child rapist. This demonstrates that appellant had two

separate motivations: first, to obtain gas money from Blake by force; second, to enact his

version of vigilante justice upon Blake, who appellant believed had committed heinous

acts. These separate motivations make merger of the aggravated robbery and the

felonious assault offenses improper. See

.

{¶49} Further, the offenses were of dissimilar import because they resulted in

separate harms. The first harm Blake suffered was the enduring trauma of his grave

injuries which appellant inflicted upon him. Further, the injuries that appellant inflicted

upon Blake constituted a greater use of force than necessary to accomplish the

aggravated robbery. See

;

. The second harm

was the loss of his wallet, car keys, and cell phone after appellant had shot him. This

second harm was particularly acute because appellant took the extra steps of taking his

wallet, keys, and cell phone from Blake, which delayed him from obtaining aid after

appellant shot him. Based on these separate harms, it was proper for the trial court to

sentence appellant for the aggravated robbery and the felonious assault.

{¶50} Accordingly, appellant’s third assignment of error is without merit.

{¶51} For the foregoing reasons, appellant’s assignments of error are without

merit, and the judgment of the Trumbull County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.

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Case No. 2021-T-0018