State v. Robert Gondor
| Decision Date | 11 December 1992 |
| Docket Number | 90-P-2260,92-LW-5530 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. ROBERT GONDOR, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Portage County Court of Common Pleas Case No 90CR0067.
ATTY GARY H. LEVINE, 6200 Rockside Road, Cleveland, Ohio 44131 (For Defendant-Appellant).
DAVID W. NORRIS, PORTAGE COUNTY PROSECUTOR, EUGENE L. MULDOWNEY ASSISTANT PROSECUTOR, 466 S. Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Before HON. DONALD R. FORD, P.J., HON. JOSEPH E. MAHONEY, J., and HON. ROBERT A. NADER, J.
Appellant, Robert Gondor, appeals his conviction for involuntary manslaughter, kidnapping and obstructing justice.
On April 5, 1990, appellant was indicted in a multi-count indictment for complicity to commit aggravated murder, in violation of R.C. 2923.03(A)(2) and (D) and 2903.01(B) and (C); obstructing justice in violation of R.C. 2921 .32(A)(1), (2), (4), (5) and (B); kidnapping in violation of R.C. 2905.01(A)(4) and (C); and attempted rape in violation of R.C. 2921.02(A) and (E). The count for complicity to commit aggravated murder contained two specifications which elevated the case to a capital murder prosecution. These specifications, which alleged capital felony murder per R.C. 2929.04(A)(7) and murder to escape detention, apprehension, trial and punishment per R.C. 2929.04(A)(3), were later withdrawn when the state amended the indictment.
These charges arose from appellant's role in the murder of Connie Nardi. Trial before a jury commenced on September 11, 1990, at which the following facts were established.
On August 14, 1988, at approximately 5:30 p.m., Troy Busta met Connie Nardi at the Upper Deck bar in Mantua, Ohio. Connie Nardi was intoxicated and dancing around the bar looking for a dancing partner. Busta danced with Nardi on top of the bar.
Randy Resh and appellant arrived at the Upper Deck after Busta. Resh and Busta worked together and Busta knew the appellant through Resh and as an acquaintance at the bar. At some point before 7:00 p.m., Busta met Resh in the rest room where he sold cocaine to Resh and discussed Nardi. Resh suggested that Busta take Nardi down to the river to see if Nardi would do anything. This was a reference to sex. Busta and Nardi left the bar on Busta's motorcycle and went to the washed out old bridge on Allyn Road where they talked and cooled off. Nardi left her purse at the bar and Busta left his belt there. Approximately forty-five minutes later, Busta and Nardi returned to the Upper Deck where they drank more beer and played a bowling machine.
Busta met Resh in the rest room for a second time and Resh asked Busta if he had sex with Nardi. Busta, wanting to appear macho, lied and stated that he did. Appellant walked into the rest room at some point and heard the conversation. Resh wanted to have sex with Nardi and suggested that Busta buy a six-pack and take Nardi back to the river and that "we" (meaning he and appellant) would follow fifteen to twenty minutes behind.
Busta purchased the beer and again, at around 9:00 p.m., left with Nardi for the river. Nardi was not aware of the plan. Busta and Nardi sat on a boulder by the river and talked. Resh and appellant arrived in appellant's white Ford pickup truck. Pleasantries were exchanged and then Resh asked Nardi if she wanted to have sex with them. Nardi responded "no." Resh then stated, "You mean you don't want to screw us?" Nardi was again responding "no" when Resh grabbed her in a bear hug and shoved her to the ground. Resh told Busta and appellant to grab her feet and hands. Busta grabbed Nardi's hands and held them down and appellant grabbed her feet and held them down. Resh.sat on her chest and stomach and told her to calm down, that he was going to "fuck" her. Nardi was struggling and repeatedly saying, "no," "let go" and "stop." Resh was angry that she did not submit and struck her with his elbow on both sides of her head. Appellant took Nardi's shorts off and one of her legs broke loose and kicked him. Busta pushed her head down when it came up once. Resh grabbed Nardi around the neck and strangled her to death as Busta and appellant held her down. When Busta realized that Nardi was not moving and limp and was dead, Resh stated, "we got problems," and both Busta and appellant started screaming at Resh that it should not have gone that far. Resh told them to "shut up or the same will happen to you." Resh wanted to dump the body in the river, but Busta stopped him and suggested they dump Nardi in the pond on Rapids Road. Resh and appellant carried Nardi's dead body up to appellant's truck and threw her in the back on top of scrap two by four's on the passenger side. Busta took the beer and Nardi's purse and all three headed for the pond. Resh and appellant disposed of Nardi's body in the pond, and Busta threw the purse in a ditch near his parents' home and the beer on the other side of the bridge.
After riding around for a while, Busta returned to the Upper Deck at around 11:00 p.m. Resh and appellant went to the Village Tavern where they were served two drinks and then returned to the Upper Deck. The three remained at the Upper Deck until it closed at midnight. When the owner of the bar left for the night, he saw the three men near appellant's pickup truck. Blood was noticed on the wood in appellant's truck, and the men began throwing pieces of the wood across the street. The owner of the bar across the street came out and threatened to call the sheriff because pieces of the wood hit his bar. They all left and followed Busta home but left Busta's home because Busta's father was yelling at him. Resh and appellant returned to Resh's home and ordered a pizza from Domino's.
The next day, August 15, 1988, Connie Nardi's body was found by a fisherman at the Hiram Rapids Pond. On August 19, 1988, Troy Busta was arrested for the murder of Connie Nardi and on March 23, 1989, he pled guilty to the murder. Resh and appellant became suspects after they gave inconsistent statements about following Busta home that evening from the Upper Deck, and also because they were attempting to create an alibi before Nardi's body was discovered.
At appellant's trial, Resh, who had been convicted for Nardi's murder, was called as a witness but invoked his Fifth Amendment right and refused to testify. Busta testified for the state as to the aforementioned facts. Appellant also testified on his own behalf but denied any involvement in Nardi's murder or following Busta home from the Upper Deck.
On September 20, 1990, the jury returned a verdict, finding appellant guilty of involuntary manslaughter, an aggravated felony of the first degree, in violation of R.C. 2903.04, finding that the involuntary manslaughter was committed while the offender committed or attempted to commit the felony of.kidnapping; kidnapping, an aggravated felony of the first degree, in violation of R.C. 2905.01; and obstructing justice, a felony of the fourth degree, in violation of R.C. 2921.32.
On October 12, 1990, the trial court sentenced appellant to prison for a period of not less than ten nor more than twenty-five years on the involuntary manslaughter charge, not less than ten nor more than twenty-five years on the charge of kidnapping and eighteen months on the charge of obstructing justice. The sentences were ordered to run consecutively.
Appellant has filed a timely appeal and presents six assignments of error for our review.
In the first assignment of error, appellant contends that the admission of expert testimony regarding the laboratory tests performed on a black plastic bedliner of appellant's truck should not have been admitted pursuant to Evid.R. 403(F) since the prejudicial effect on the jury outweighed any probative value the evidence may have had.
The tests performed on the bedliner only established the presence of human blood. The tests were inconclusive as to the blood type or the age of the stain. Nevertheless, the state presented the expert testimony regarding this test and the results to corroborate Busta's testimony that Connie Nardi's body was thrown in the back of the truck and that the pieces of wood were stained with Nardi's blood. Appellant argues that this evidence was prejudicial because it invited the jury to speculate that the blood was Connie Nardi's blood.
The determination regarding the admissibility of the evidence is within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173. Prejudicial effect alone is not sufficient to exclude the evidence since most inculpatory evidence will be prejudicial to the defendant. State v. Bematowicz (1989), 62 Ohio App.3d 132. In making its decision, the court balances the probative value against the danger of unfair or material prejudice. State v. Rahman (1986), 23 Ohio St. 3d 146. Where there is no abuse of discretion, the court's determination whether to admit or exclude relevant evidence will not be disturbed. State v. Davis (1988), 49 Ohio App. 3d 109.
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