State v. Gatewood , 2021 Ohio 3325 ( 2021 )

[Cite as State v. Gatewood, 2021-Ohio-3325.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190654
TRIAL NO. B-1803186
Plainitff-Appellee, :
O P I N I O N.
vs. :
RASHAWN GATEWOOD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 22, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant Rashawn Gatewood.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Rashawn Gatewood appeals his convictions for
felonious assault and having weapons while under a disability. For the reasons set
forth below, we affirm the judgment of the trial court.
I. Facts and Procedure
{¶2} On May 31, 2018, Gatewood shot Dontay Jackson. The following
testimony was presented at trial.
{¶3} Gatewood testified that his 14-year-old daughter told him that 21-year-
old Jackson had inappropriately touched her. Jackson was an extended family
member of Antwanette King, Gatewood’s girlfriend and the mother of his children.
Gatewood and King immediately went to Jackson’s house. Gatewood’s cousin, John
Shields, and longtime friend, Chris Marlow, rode with them. Gatewood testified that
they had no knowledge of the alleged sexual assault and remained in the vehicle at all
relevant times.
{¶4} Jackson lived with his mother (and King’s cousin), Melinda Brown,
and his 17-year-old sister, Je’da Brown, on the second floor of a multifamily house.
When Gatewood and King arrived, Je’da and Melinda were present and invited them
inside. Gatewood told Melinda that he wanted to speak to Jackson about his
daughter. The testimony differed as to what happened next. The state’s witnesses
testified that Jackson soon came downstairs, appearing as if he had just awoken. The
defense witnesses conversely testified that Melinda called Jackson, and shortly
thereafter, he entered through the front door. Upon seeing Jackson, Gatewood asked
to talk to him outside. Jackson agreed.
{¶5} Gatewood and Jackson walked down the stairs, distantly followed by
Je’da, King, and Melinda. Melinda testified that she saw Gatewood putting on gloves
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in the stairwell. Jackson testified that Gatewood was wearing gloves when he
reached the bottom of the stairwell.
{¶6} Once outside, Gatewood asked Jackson, “Did you touch my daughter?”
Jackson replied, “Who’s your daughter?” The conversation repeated. Gatewood
then pulled out a 9 mm semiautomatic pistol and shot Jackson in the leg. The
conversation lasted less than one minute. The state’s witnesses testified there was no
yelling, arguing, or physical altercation before the gunshot.
{¶7} Gatewood testified that he shot Jackson in self-defense. According to
Gatewood, Jackson disingenuously denied knowing his daughter, so Gatewood
threatened to call the police. The defense witnesses testified that Jackson began
yelling at Gatewood, calling him a “police ass nigger” for wanting to involve the
police. Gatewood testified that Jackson then reached behind his back and lunged
forward. Shields and Marlow testified that Jackson was reaching for a black handle.
Gatewood testified that he instinctively pulled out his gun and shot Jackson in the
leg. According to Gatewood, “I feared for my life.” At the time of the offense,
Gatewood had a concealed-carry permit issued by the state of Virginia.
{¶8} After Gatewood shot him in the leg, Jackson fled. Jackson ran through
the house, into the backyard, over a fence, and eventually collapsed in the stairwell to
a neighbor’s basement. Gatewood also left the scene and eventually turned himself
in at the police station. The police officers searched Gatewood’s vehicle and seized
three firearms and a bulletproof vest. At the time of his arrest, Gatewood had a 1999
juvenile adjudication for the commission of an offense that would have constituted
felonious assault.
{¶9} Gatewood was charged with two counts of felonious assault and one
count of having weapons while under a disability. Following a seven-day jury trial,
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OHIO FIRST DISTRICT COURT OF APPEALS
Gatewood was found guilty on all counts and sentenced to an aggregate six-year
prison term. Gatewood timely appealed, raising the following assignments of error
for our review:
1. The imposition of a guilty verdict for the offense of having weapons
while under disability by way of a juvenile adjudication which the
state failed to prove involved a disability-creating offense violated
Rashawn’s due process rights and his right to bear arms under the
Ohio and United States Constitutions.
2. The trial court erred in admitting the Ruger, Glock, bulletproof
vest, and gloves at trial, and in failing to exclude the testimony of
former police officer Thomas Rackley concerning arresting
Rashawn as a juvenile in 1999, the collective impact of which
prejudiced Rashawn and denied him a fair trial.
3. Rashawn was deprived of due process under the Ohio and United
States Constitutions where his convictions for having weapons
while under disability was obtained despite assertions from state
and federal government officials informing him he could lawfully
possess a firearm, otherwise known as entrapment by estoppel.
4. Rashawn’s convictions for felonious assault and having weapons
while under disability were not supported by sufficient evidence
and/or ran contrary to the manifest weight of the evidence.
II. Weapons Under Disability
{¶10} In his first assignment of error, Gatewood challenges his conviction for
having weapons while under a disability on several grounds.
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OHIO FIRST DISTRICT COURT OF APPEALS
A. Disability-Creating Offense
{¶11} Gatewood first challenges the sufficiency of the evidence establishing a
disability-creating offense.1 Gatewood argues that the state failed to prove that he
was previously adjudicated delinquent for a felony offense of violence. Gatewood
claims that he was charged with felonious assault, but admitted to and was
adjudicated delinquent of a lesser offense.
{¶12} We review challenges to the sufficiency of the evidence to assess
whether, after viewing the evidence in a light most favorable to the state, “any
rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus.
{¶13} Gatewood was convicted of having weapons under a disability under
R.C. 2923.13, which provides:
(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if any of the following apply:
(2) The person * * * has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have
been a felony offense of violence.
{¶14} The existence of a prior adjudication is an essential element of R.C.
2923.13. State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶
7 (1st Dist.). “Whenever in any case it is necessary to prove a prior conviction, a
certified copy of the entry of judgment in such prior conviction together with
1 Although Gatewood’s assignment of error is couched in terms of due process and the
constitutional right to bear arms, the crux of his argument is that the state failed to present
sufficient evidence of a disability-creating offense.
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence sufficient to identify the defendant named in the entry as the offender in the
case at bar, is sufficient to prove such prior conviction.” R.C. 2945.75(B)(1).
{¶15} In this case, the state offered into evidence the certified judicial entry
of adjudication and identification testimony from the 1999 arresting officer. The
judicial entry was captioned:
/99/01843 X
HENDON
COURT OF COMMON PLEAS OF HAMILTON COUNTY, OHIO
JUVENILE DIVISION
RASHAWN GATEWOOD
FELONIOUS ASSAULT
The body of the entry contained handwritten notations from every court appearance.
On “3-9-99,” the judge wrote “Change plea to admit. Adjudicate delinquent. Place
on probation for investigation.” Kristie Davis, the Chief Deputy Clerk for the
Hamilton County Juvenile Court, testified that the judicial entry showed Gatewood
was adjudicated delinquent for felonious assault on March 9, 1999.
{¶16} Viewing it in a light most favorable to the state, the judicial entry
(along with Davis’s testimony) sufficiently established that Gatewood was
adjudicated delinquent for felonious assault on March 9, 1999. The caption plainly
stated “FELONIOUS ASSAULT” and the entry provided, “Change plea to admit.
Adjudicate delinquent.” Nonetheless, the state further supplemented the judicial
entry with the accompanying complaint and a record of complaints.
{¶17} The complaint charged Gatewood with knowingly causing serious
physical harm to another in violation of R.C. 2903.11, a felony of the second degree.
The record of complaints listed:
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OHIO FIRST DISTRICT COURT OF APPEALS
Case No: /99/001843 X Date of Filing: 02/04/1999
Complaint: Felonious Assault Offense Date: 02/04/1999
Degree: F2 Section: 2903.11
On “03/09/1999,” the record stated “Changed plea to admit.” and “Adjudged
delinquent.” Davis testified that the record of complaints again showed Gatewood
was adjudicated delinquent for felonious assault on March 9, 1999. On cross-
examination, Davis explained, “Had the charge been reduced, it would not appear as
felonious assault on the rap sheet. * * * If Gatewood pled to a reduced charge, it
would have been noted.”
{¶18} The state also presented testimony from Thomas Rackley, the
arresting officer in the 1999 case. Rackley testified that on February 4, 1999, he
arrested Gatewood for felonious assault and aggravated robbery. Rackley confirmed
that the defendant in this case was the same Rashawn Gatewood in the 1999 case.
Rackley stated, “His facial features haven’t changed in over 20 years. He still has
what I describe like a baby face. He also has the same similar smirk that he had back
in that time.”
{¶19} Gatewood testified in his own defense. He did not dispute that he was
the defendant named in the entry, but he claimed that he admitted to a lesser
offense, not felonious assault. Gatewood testified, “I don’t know what the exact
charge was. I know they dropped it down to a lesser charge.” Gatewood admitted
that the judicial entry showed he was “adjudged delinquent of felonious assault,” but
contended that “it had to be a lesser charge or I wouldn’t have been able to get my
gun license.” However, it was for the jury to decide whether to believe the state’s
evidence or Gatewood.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} The judicial entry combined with Rackley’s identification testimony
sufficiently proved Gatewood’s prior adjudication for a felony offense of violence
under R.C. 2945.75(B)(1).
B. Notice of Disability
{¶21} Gatewood next argues that the state failed to prove that the juvenile
court informed him he could not lawfully possess a firearm when he reached
adulthood. Gatewood contends that the failure to advise a juvenile of a weapons
disability violates the juvenile’s due-process rights and infringes upon the
constitutional right to bear arms. Because Gatewood did not raise the constitutional
arguments in the trial court, we can consider only his sufficiency argument on
appeal.
{¶22} Notice is not an essential element of R.C. 2923.13(A)(2). State v.
Earls, 1st Dist. Hamilton No. C-040141, 2004-Ohio-6432, ¶ 9. By its terms, R.C.
2923.13 “requires only that the defendant ‘knowingly’ acquired, had, carried, or used
a firearm or dangerous ordnance while such a disability existed. Thus, a defendant
need only have knowledge as to the possession element of the offense and not
knowledge of a disability.” Id. Accordingly, the state was not required to prove that
the juvenile court informed Gatewood of his weapons disability.
{¶23} This is not to say that we are unsympathetic to Gatewood’s argument.
This case brings to life the concerns raised by Chief Justice O’Connor in her dissent
in State v. Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138. “The effect
is that a juvenile adjudication and disposition may punish an offender through
adulthood without any notice to the juvenile that the disability exists or procedure
for the juvenile court to consider whether the facts of the case warrant the disability.”
Id. at ¶ 23. As expressed by the Chief Justice:
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OHIO FIRST DISTRICT COURT OF APPEALS
Not one person on this court, in the legislature, and I dare say, in the
public at large would want to be held accountable, years later, as an
adult, for decisions that were made as a 16-year-old and adjudicated in
the juvenile system. * * * And when a juvenile does not know that he
has a weapons disability, the process to relieve himself of that
disability has zero meaning. Without substantial procedural
protections, the consequences of an adjudication of delinquency must
have an end that is linked to the age of the child. To have the
consequences follow the juvenile when he becomes an adult, with no
time limitation, is profoundly unfair.
Id. at ¶ 43.
{¶24} Nonetheless, we are bound by the plain language of R.C. 2923.13 and
the majority’s decision in Carnes, neither of which requires notification that the
juvenile adjudication carries with it a weapons disability.
C. Relief from Disability
{¶25} Gatewood further challenges the sufficiency of the evidence, claiming
that he was not under a weapons disability at the time of the assault. Gatewood
asserts that any disability was relieved on his 23rd birthday, when his record was
eligible to be automatically sealed pursuant to former R.C. 2151.358(C)(2).
{¶26} R.C. 2923.13 prohibits any person previously adjudicated delinquent
of a felony offense of violence from possessing a firearm “[u]nless relieved from
disability by operation of law or legal process.” “The burden of establishing one falls
within an exception or exemption of a crime falls upon the defendant-appellant[.]”
State v. Perkins, 1st Dist. Hamilton No. C-75537, 1976 WL 189947, *2 (May 24,
1976), citing State v. Casper, 106 Ohio App. 176, 154 N.E.2d 9 (1st Dist.1958). Thus,
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OHIO FIRST DISTRICT COURT OF APPEALS
proving relief from a disability is an affirmative defense that must be raised by the
defendant. Id.{¶27} At trial, Gatewood presented a theory of defense that he was never
under a weapons disability. Gatewood vehemently maintained that he pled to a
lesser charge. Evidence supporting a relief-from-disability defense was never
elicited, developed, or before the jury for consideration. By not raising it at trial,
Gatewood waived the defense of relief from the weapons disability. See State v.
Haslam, 7th Dist. Monroe No. 08 MO 3, 2009-Ohio-1663, ¶ 26.
{¶28} Gatewood’s first assignment of error is overruled.
III. Evidentiary Issues
{¶29} In his second assignment of error, Gatewood challenges several
evidentiary rulings. Gatewood argues that the trial court erred in admitting two
unrelated firearms, a bulletproof vest, and a pair of gloves, in violation of Evid.R.
404(B) and 403(A). Gatewood also argues that the trial court erred in allowing
testimony about a 20-year-old juvenile arrest for aggravated robbery, in violation of
Evid.R. 403(A). Finally, Gatewood argues that the cumulative effect of these errors
deprived him of a fair trial.
{¶30} The trial court is vested with the sound discretion to rule on the
admission or exclusion of evidence, and those rulings will not be overturned absent
an abuse of discretion. Renfro v. Black, 52 Ohio St.3d 27, 33, 556 N.E.2d 150 (1990).
A. Other-Weapons Evidence
{¶31} Evid.R. 404(B) precludes evidence of other acts “to prove the character
of a person in order to show action in conformity therewith.” In State v. Thomas,
152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, the Ohio Supreme Court warned
that other-weapons evidence—i.e., irrelevant evidence of weapons unrelated to the
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OHIO FIRST DISTRICT COURT OF APPEALS
charges—falls within the scope of Evid.R. 404(B). Therefore, evidence of dangerous
weapons, even though found in the defendant’s possession, must be excluded when
they are not relevant to the crimes charged and lead only to improper inferences
about the defendant’s character. Id. at ¶ 36 and 41; State v. Jones, 2020-Ohio-281,
151 N.E.3d 1059, ¶ 32 (1st Dist.), appeal allowed on other grounds, 159 Ohio St.3d
1413, 2020-Ohio-3275, 147 N.E.3d 655.
{¶32} Evid.R. 403 also seeks to eliminate the potential for prejudice. Evid.R.
403(A) provides that “evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice[.]”
{¶33} Here, the state sought to admit evidence that Gatewood had one
firearm on his person and two firearms in his vehicle at the time of the offense. Over
Gatewood’s objection, all three firearms were permitted to be introduced into
evidence. Gatewood admitted, and the state does not dispute, that he used only the 9
mm semiautomatic pistol during the commission of the offense. The other two
firearms remained in Gatewood’s vehicle during all relevant times. When ruling on
Gatewood’s objection, the trial court stated:
It looks like somehow that he has [sic] a gun toting vigilante. When
this fact whether he admits that he had one gun and he shot the victim,
there is no issue of whether he had it in his possession and shot this
individual. I can see where your argument would be that this is just too
prejudicial for it to come in. However, I’m going to allow the
prosecutor to go into the car. Your objection is duly noted.
{¶34} For the first time on appeal, the state contends that the other two
firearms were relevant to prove the weapons-under-disability charge. However,
Count Three of the indictment charged Gatewood with knowingly having, carrying,
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OHIO FIRST DISTRICT COURT OF APPEALS
or using “a firearm.” And to satisfy its burden of proof at trial, the state repeatedly
argued that Gatewood knowingly possessed “the firearm” during the commission of
the offense. In closing, the state asked the jury to find Gatewood guilty of having
weapons while under a disability, stating: “He knowingly possessed the firearm on
that day. He admits to having a firearm on that day * * * and the firearm was
recovered.” Thus, the state chose to focus solely on the firearm Gatewood had in his
possession at the time of the offense to prove the weapons-under-disability charge.
{¶35} The state only mentioned the other firearms during rebuttal, wherein
the state argued: “Mr. Gatewood claims that a teenager was throwing rocks at him.
He’s the one with three firearms, but yet he’s afraid of rocks being thrown at him?
He left because he knew what he did was wrong, and he had to come up with a good
story to try to get himself out of a situation.” This is exactly the type of evidence that
the court in Thomas warned against—irrelevant evidence of other weapons that
prejudicially portrays the defendant as a violent or dangerous person.
{¶36} The concurring opinion claims that the firearms were relevant to
proving the weapons-under-disability count because the count in the indictment
contained “three specifications” for each weapon found in Gatewood’s possession.
However, the three specifications that the concurrence refers to are forfeiture
specifications pursuant to R.C. 2941.1417. In this case, the jury did not make a
determination concerning the forfeiture specifications. In fact, the state did not seek
forfeiture of the weapons at all. Perhaps under different circumstances, the state
could introduce multiple weapons in a prosecution for having weapons while under
disability, but the weapons would have to be relevant to the particular count charged.
In this case, the other weapons in the vehicle were not relevant to proving Count
Three and lead only to improper inferences about Gatewood’s character. Admission
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OHIO FIRST DISTRICT COURT OF APPEALS
of the other weapons was more prejudicial than probative. Accordingly, the trial
court abused its discretion in admitting evidence of the two unrelated firearms.
{¶37} The state also admitted evidence that Gatewood had a bulletproof vest
in his vehicle at the time of the offense. The state argues that the vest was relevant to
counter Gatewood’s claim of self-defense. However, there is no evidence that
Gatewood wore the vest during the commission of the offense. Thus, any probative
value of the bulletproof vest was substantially outweighed by the danger of unfair
prejudice. Accordingly, the trial court abused its discretion in admitting evidence of
the bulletproof vest.
{¶38} “Error in admitting other weapons evidence falls generally into one of
two categories: harmless error or prejudicial error requiring reversal.” Thomas, 152
Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, at ¶ 38. “If a court determines that
the error did not affect the defendant’s substantial rights, then the error is harmless
and shall be discarded.” State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24
N.E.3d 1153, ¶ 23; Crim.R. 52(A).
{¶39} “[W]hen a defendant asserts the affirmative defense of self-defense, an
appellate court cannot determine whether the errors are harmless simply by looking
at the strength of the remaining evidence.” Jones, 2020-Ohio-281, 151 N.E.3d 1059,
at ¶ 41. We instead look at the impact of the evidence on the verdict. Id.{¶40} Although this was not a case of overwhelming evidence of guilt, there
was certainly strong evidence of guilt. The evidence in this case showed that
Gatewood had heard Jackson sexually assaulted his daughter. Gatewood
immediately went to Jackson’s house unannounced with a concealed weapon, asking
to speak to Jackson outside. Two of the state’s witness testified that Gatewood was
wearing gloves as he walked outside. It is undisputed that Jackson was wearing only
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OHIO FIRST DISTRICT COURT OF APPEALS
basketball shorts and sandals, no shirt. The two briefly spoke in the front yard
before Gatewood pulled out a gun and shot Jackson. The state’s witnesses testified
there was no yelling, arguing, or physical altercation before the gunshot. And
although Gatewood and his witnesses testified that they believed Jackson had a gun,
the responding officers never recovered a gun at the scene, in the house, or in the
neighbor’s yard.
{¶41} Gatewood never disputed that he purposefully shot Jackson. Instead,
Gatewood asserted that he acted in self-defense. Gatewood testified that Jackson
reached behind his back and lunged forward, and his own witnesses corroborated as
much. However, the credibility of Gatewood’s witnesses was questionable. Gatewood
never informed the police of the witnesses and none of the state’s witnesses placed
them at the scene. Furthermore, the witnesses admitted that they had poor
memories with regard to many details of the day in question, except for details that
were favorable to Gatewood. For example, Marlow testified during cross-
examination that he could not recall the weather conditions, the time of day, or the
clothing worn by Jackson. The following exchange then took place:
A. Can I be honest? * * * I smoke weed, marijuana. And I don’t recall
what he had on.
Q. Were you smoking marijuana that day?
A. I smoke marijuana every day.
Q. So is it fair to say that you were under the influence of marijuana
that day?
A. No.
Q. You just said you smoked it every day.
A. Yes. But it could have been a day or time that I wasn’t.
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Q. All right. Mr. Marlow, and so do you think that smoking marijuana
might alter your brain in any way?
A. No. Because I remember exactly what happened.
Thereafter, Marlow again testified that he could not recall the weather conditions,
the time of day, or the clothing worn by Jackson. However, Marlow testified that he
did remember seeing Jackson reach behind his back, grab something black, and
lunge towards Gatewood. Shields’s testimony was likewise vague and conclusory,
detailing only those facts favorable to Gatewood’s defense.
{¶42} Gatewood also admitted that he owned multiple firearms and
frequently carried guns. As part of his defense to having weapons under a disability,
Gatewood testified that he obtained a concealed-carry permit through the state of
Virginia and purchased two semiautomatic pistols from a firearms dealer. Therefore,
Gatewood cannot demonstrate prejudicial error. Any error as a result of the
admission of other-weapons evidence was harmless.
B. Evidence of Gloves
{¶43} Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Evid.R. 401. In determining
relevance, we look to the elements of the offense charged and whether the evidence
tends to prove or disprove any material element. State v. Gardner, 59 Ohio St.2d 14,
20, 391 N.E.2d 337 (1979). In the case of self-defense, we also look to the elements
of the defense and whether the evidence tends to prove or disprove any material
element. State v. Nemeth, 82 Ohio St.3d 202, 207, 694 N.E.2d 1332 (1998).
{¶44} In this case, the state had to prove that Gatewood did not act in self-
defense. Under a theory of self-defense, the defendant claims that he had “a bona
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OHIO FIRST DISTRICT COURT OF APPEALS
fide belief that he was in imminent danger of death or great bodily harm and that his
only means of escape from such danger was in the use of such force.” State v.
Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.
Because Ohio has adopted a subjective standard for determining whether a
defendant acted in self-defense, “[t]he defendant’s state of mind is crucial to this
defense.” State v. Purcell, 107 Ohio App.3d 501, 505, 669 N.E.2d 60 (1st Dist.1995).
{¶45} At trial, Jackson and Melinda testified that Gatewood wore gloves
during the commission of the offense. A review of the record shows that an inside-
out glove was found in the front yard of Jackson’s house. The glove appeared to have
rubber grips on the outside of the palm.
{¶46} The state argued that evidence of the gloves proved a prior intent to
shoot Jackson and disproved any theory of self-defense. The state pointed to the fact
that Gatewood put on the gloves as he was walking outside and took off the gloves
after the shooting. The state also pointed to the fact that one glove was recovered at
the scene and the other glove was recovered with the gun in Gatewood’s car.
Furthermore, the state noted that the gloves “aren’t just regular gloves either. These
are the type of gloves that have the grippers on them.” Based on these facts, the state
contended that “[Gatewood] put on gloves because he was going to shoot Mr.
Jackson, and he wanted to make sure he had a good grip on that gun[.]”
{¶47} Because a glove was found at the scene and tended to show Gatewood’s
state of mind, it was relevant evidence under Evid.R. 401.
{¶48} Gatewood countered that it had no bearing on whether he justifiably
acted in self-defense and was unfairly prejudicial. He explained, “I have palmer
hydrosis. * * * It’s a sweating disorder. * * * If I did have them on, it was because
my hands were sweating.” However, any question about the inferences to be drawn
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OHIO FIRST DISTRICT COURT OF APPEALS
from the evidence was a question of weight, not admissibility. State v. Smith, 4th
Dist. Pickaway No. 19CA33, 2021-Ohio-2866, ¶ 100, citing State v. Irvine, 9th Dist.
Summit No. 28998, 2019-Ohio-959, ¶ 31. See State v. Moore, 10th Dist. Franklin
No. 19AP-464, 2021-Ohio-1379 (holding that alternative explanations for social-
media postings went to weight rather than admissibility of the evidence).
{¶49} Under these circumstances, the trial court did not err in admitting
photographs and testimony of the gloves into evidence.
C. Testimony of Officer Rackley
{¶50} Rackley testified at trial that in February 1999, he arrested then-12-
year-old Gatewood for felonious assault and aggravated robbery. The state does not
argue, and the record does not show, that evidence of the aggravated-robbery charge
was relevant to prove or disprove any material element.
{¶51} However, any admission of the aggravated-robbery charge was
harmless error. Davis’s testimony, Gatewood’s testimony, and state’s exhibit 13
established that the charge resulted in a dismissal. Therefore, we cannot say that the
trial court’s refusal to strike Rackley’s testimony about the aggravated-robbery
charge impacted the jury’s verdict.
D. Cumulative Error
{¶52} Under the doctrine of cumulative error, “ ‘a conviction will be reversed
where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial
court error does not individually constitute cause for reversal.’ ” State v. Leach, 150
Ohio App.3d 567, 2002-Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st Dist.), quoting State v.
Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). “[T]he doctrine most often
applies where the evidence is not overwhelming or when the outcome depends upon
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witness credibility.” State v. Baber, 1st Dist. Hamilton No. C-190338, 2021-Ohio-
1506, ¶ 38.
{¶53} In this case, the trial court erred in admitting evidence of other
weapons and evidence of a 1999 arrest for conduct that would have constituted
aggravated robbery. However, the prejudicial impact of these errors was minimal.
The state presented a strong account of the events, produced 11 witnesses (including
eyewitnesses, police officers, and the victim), introduced corroborating photographs,
and highlighted inconsistencies in the defense’s case. Thus, the cumulative effect of
the errors did not contribute to Gatewood’s convictions and did not deprive him of a
fair trial.
{¶54} Gatewood’s second assignment of error is overruled.
IV. Entrapment by Estoppel
{¶55} In his third assignment of error, Gatewood argues that the issuance of
his concealed-carry permit and his purchase of firearms from a licensed firearms
dealer constituted governmental assurances that his possession of firearms was legal
under state law. Gatewood contends that under these circumstances, his conviction
for having weapons while under a disability violates the constitutional guarantees of
due process and must be barred by estoppel.
{¶56} At the outset, we note that neither this court nor the Ohio Supreme
Court has recognized entrapment by estoppel as a theory of defense. And to the
extent that Gatewood relies upon federal court decisions, his claim of estoppel must
fail.
{¶57} “[E]ntrapment by estoppel is implicated where an agent of the
government affirmatively misleads a party as to the state of the law and that party
proceeds to act on the misrepresentation so that criminal prosecution of the actor
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implicates due process concerns under the Fifth and Fourteenth Amendments.”
United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir.1994). To establish a claim of
estoppel, the defendant must show (1) an affirmative statement by a government
agent that the charged criminal act was legal, and (2) reliance by the defendant. Id.;
United States v. Levin, 973 F.2d 463, 467 (6th Cir.1992), citing United States v.
Smith, 940 F.2d 710 (1st Cir.1991). “[T]he defendant’s reliance must be reasonable
in light of the identity of the agent, the point of law misrepresented, and the
substance of the misrepresentation.” Id.{¶58} Gatewood contends that the state of Ohio should be estopped from
prosecuting his possession of a firearm on two grounds: (1) the state of Virginia
issued him a concealed-carry permit, and (2) the federal government conducted a
background check and allowed him to purchase two firearms from a licensed
firearms dealer. Gatewood argues that those representations were further
compounded by the state of Ohio, which allegedly did not report Gatewood’s
disability-creating offense to any state or federal database. Gatewood asserts that he
reasonably relied on the collective actions of the state of Ohio, the state of Virginia,
and the federal government when he possessed the firearms in question.
{¶59} Contrary to Gatewood’s assertions, an entrapment-by-estoppel defense
is inapplicable here. First, neither the issuance of a concealed-carry permit nor the
sale of a firearm amounts to an affirmative statement by a government agent that
possession of a firearm is legal. What this indicates, at most, is that his disability-
creating adjudication was not in the relevant databases. See State v. Oberender,
Minn.App. No. A14-0477, 2014 WL 3892708, *1 (Aug. 11, 2014) (“[I]ssuance of a
permit to possess firearms is not a government statement giving rise to an
entrapment-by-estoppel due process violation.”); United States v. Shipley, 777
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OHIO FIRST DISTRICT COURT OF APPEALS
Fed.Appx. 203 (9th Cir.2019) (“[F]ederal official’s alleged behind-the-scenes
participation in concealed carry permitting process did not affirmatively mislead
defendant into relying on erroneous advice from federal government.”). See also
United States v. Hullette, 525 F.3d 610, 612 (8th Cir.2008) (“[A] report generated
from the National Instant Criminal Background Check System (NICS) permitting the
dealer to ‘proceed’ with a firearms sale is not the type of statement giving rise to the
entrapment by estoppel defense.”); United States v. Lemieux, 550 F.Supp.2d 127, 133
(D.Maine 2008) (“Mr. Lemieux has not presented the Court with any authority that
an NICB computer check and a dealer sale that relies upon the NICB results amount
to an affirmative statement of legality within the meaning of the entrapment by
estoppel defense.”). Second, Gatewood’s alleged reliance would not have been
reasonable because the concealed-carry permit plainly disavowed any representation
of legality. The back of the permit reads: “The issuance of this permit does not
authorize the holder to carry a concealed handgun if the holder is prohibited by law
from possessing a handgun.” Thus, Gatewood’s conviction for having weapons while
under a disability cannot be barred by estoppel and does not violate the
constitutional guarantees of due process.
{¶60} Gatewood’s third assignment of error is overruled.
V. Sufficiency and Manifest Weight of the Evidence
{¶61} In his fourth assignment of error, Gatewood challenges the sufficiency
and weight of the evidence supporting his convictions.
{¶62} A sufficiency-of-the-evidence argument challenges the adequacy of the
evidence on each element of the offense. In reviewing a sufficiency challenge, we
“view[] the evidence in a light most favorable to the prosecution” and determine
whether “any rational trier of fact could have found the essential elements of the
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OHIO FIRST DISTRICT COURT OF APPEALS
crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 274,
574 N.E.2d 492 (1991).
{¶63} A manifest-weight-of-the-evidence argument challenges the
believability of the evidence. In reviewing a challenge to the weight of the evidence,
we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997). We must review the entire record, weigh the evidence, consider
the credibility of the witnesses, and determine whether the trier of fact clearly lost its
way and created a manifest miscarriage of justice. Id.A. Having Weapons While Under A Disability
{¶64} Gatewood argues that his conviction for having weapons while under a
disability was not supported by sufficient evidence and was against the manifest
weight of the evidence.
{¶65} In his sufficiency argument, Gatewood contends that the state failed to
prove beyond a reasonable doubt that he admitted to a disability-creating offense in
the Hamilton County Juvenile Court case numbered 99/01843X. We already
considered this argument in the first assignment of error and concluded that his
weapons-under-disability conviction was supported by sufficient evidence.
{¶66} In his weight-of-the-evidence argument, Gatewood does not further
challenge the proof of the disability-creating offense. Instead, Gatewood limits his
argument to the weight of the evidence supporting his entrapment-by-estoppel
defense. We already considered this argument in the third assignment of error and
concluded that his weapons-under-disability conviction was not against the manifest
weight of the evidence.
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B. Felonious Assault
{¶67} Gatewood further argues that his conviction for felonious assault was
against the manifest weight of the evidence. Gatewood contends that the state’s
evidence disproving his self-defense claim was not credible and that the jury’s
comments evinced a misapplication of the new self-defense standard.
{¶68} Under a theory of self-defense, the defendant claims that (1) he was
not at fault in creating the situation giving rise to the affray; (2) he had a bona fide
belief that he was in imminent danger of death or great bodily harm and that his only
means of escape from such danger was in the use of such force; and (3) he did not
violate any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74,
388 N.E.2d 755 (1979), paragraph two of the syllabus. If the evidence tends to
support that the defendant acted in self-defense, then the prosecution must prove
beyond a reasonable doubt that the defendant did not act in self-defense. R.C.
2901.05(B)(1).
{¶69} Gatewood argues that his version of events was more credible than the
state’s version of events. Gatewood contends that Jackson’s testimony was
conflicting, and thus, not credible. For instance, at trial, Jackson testified that
Gatewood never wanted to call the police. However, in a prior statement to the
detective, Jackson mentioned that Gatewood threatened to call the police. Although
Jackson’s testimony was not entirely consistent, “[a] defendant is not entitled to a
reversal on manifest weight grounds merely because inconsistent evidence was
presented at trial. The trier of fact is free to believe or disbelieve all or any of the
testimony.” State v. Shine-Johnson, 2018-Ohio-3347, 117 N.E.3d 986, ¶ 65 (10th
Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶70} A review of the record shows there were also reasons to doubt
Gatewood’s version of events. As discussed above, much of the defense testimony
was self-serving, biased, inconsistent, and fragmentary. In these kinds of cases, the
trier of fact is in the best position to balance the competing testimony. Therefore, we
cannot say that the jury clearly lost its way and created such a manifest injustice that
Gatewood’s conviction for felonious assault must be reversed.
{¶71} Gatewood further argues that the jurors’ postverdict comments
demonstrate that they misapplied Ohio’s self-defense law. The record shows that
after the verdict was rendered, defense counsel had the opportunity to speak with the
individual jurors in the presence of the trial judge. At the posttrial hearing on
Gatewood’s motion for a new trial, the court reflected on counsel’s prior discussion
with the jury and stated: “[T]hey felt that your client put himself in a particular
situation where he shouldn’t have put himself in. That he didn’t use good judgment
in dealing with the situation. And they felt that he was spooked or scared in some
fashion or form to let him pull that trigger.” It is this last sentence that Gatewood
seizes upon, arguing that the jury believed he had an honest, subjective belief of
imminent death or great bodily harm.
{¶72} However, “the elements of self-defense are cumulative.” State v.
Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986). Thus, the state need only
disprove one of the elements of self-defense beyond a reasonable doubt. State v.
Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 55 (11th Dist.).
{¶73} Here, if the jury felt that Gatewood put himself in a bad position and
exercised poor judgment, then it was reasonable for the jury to conclude that
Gatewood was at fault in creating the situation giving rise to the affray. Accordingly,
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OHIO FIRST DISTRICT COURT OF APPEALS
his conviction for felonious assault was not against the manifest weight of the
evidence.
{¶74} Gatewood’s fourth assignment of error is overruled.
VI. Conclusion
{¶75} For the foregoing reasons, Gatewood’s assignments of error are
overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
Z AYAS , P.J., concurs.
W INKLER , J., concurs separately.
WINKLER, J., concurring separately,
{¶76} I agree with the majority’s decision to affirm Gatewood’s convictions;
however, I write separately to note my disagreement with the analysis applied by the
majority in resolving Gatewood’s second assignment of error related to the
admission of two firearms police recovered from Gatewood’s vehicle after Gatewood
admitted to shooting Jackson.
{¶77} According to the majority, because Gatewood admitted to using a
Taurus 9 mm semiautomatic pistol to shoot Jackson, the trial court erred in
admitting into evidence the other two firearms found in Gatewood’s vehicle under
Evid.R. 404(B) and State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d
821. The majority opinion appears to cite Thomas for the blanket proposition that
the admission of other-weapons evidence is error. To be clear, Evid.R. 404(B) and
Thomas have no bearing on the initial admission of the weapons in this case.
{¶78} Here, the state indicted Gatewood for not only felonious assault for
shooting Jackson, but also with having weapons while under a disability. The
weapons-under-disability count in the indictment contained three specifications for
each weapon found in Gatewood’s possession: a Taurus 9 mm firearm, a Glock 9 mm
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OHIO FIRST DISTRICT COURT OF APPEALS
firearm, and a Ruger .380 firearm. In proving its case against Gatewood for having
weapons while under a disability, the state was certainly entitled to present evidence
of all three firearms found in Gatewood’s vehicle. Because I fear that the majority’s
opinion could be read to prohibit the introduction of multiple weapons, even in a
prosecution for having weapons while under a disability, I want to clarify that the
initial introduction of such weapons-evidence to prove the offense charged is proper.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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