State v. Welninski

• Decision Date: 02 March 2018
• Docket Number: WD–16–040,Nos. WD–16–039,s. WD–16–039
• Citation: 2018 Ohio 778,108 N.E.3d 185
• Parties: STATE of Ohio, Appellee v. Jack WELNINSKI, Appellant
• Court: Ohio Court of Appeals

108 N.E.3d 185

2018 Ohio 778

STATE of Ohio, Appellee

v.Jack WELNINSKI, Appellant

Nos. WD–16–039

WD–16–040

Court of Appeals of Ohio, Sixth District, Wood County.

Decided: March 2, 2018

Paul A. Dobson, Wood County Prosecuting Attorney, Thomas Matuszak and David T. Harold, Assistant Prosecuting Attorneys, for appellee.

Mollie B. Hojnicki–Mathieson, for appellant.

DECISION AND JUDGMENT

MAYLE, J.

Introduction

{¶ 1} In these consolidated appeals, appellant Jack Welninski, appeals a jury verdict finding him guilty as to two, multiple count indictments. The indictments describe a course of events that occurred in the early morning hours of December 18, 2015, beginning at a bar in Lucas County, where Welninski pistol-whipped a patron on the head and then fired his gun, twice. A short time later, Welninski, his wife and his brother fled from the police into Wood County, where Welninski and his wife engaged in a gun battle with the police. In the end, Welninski was apprehended, and his wife Erica Lauro¹ committed suicide at the scene.

{¶ 2} Welninski was found guilty of all charges against him. Many of the charges carried with it a gun specification and/or a repeat violent offender specification. The Wood County Court of Common Pleas sentenced him to an aggregate term of 97 years in prison, 88 years of which are mandatory. Welninski appealed. As set forth below, we affirm the convictions but we find that the trial court erred when it failed to merge Welninski's attempted murder and felonious assault convictions in case No. 15–CR–552 because the two convictions are allied offenses of similar import under R.C. 2941.25. Accordingly, the judgment of the trial court is reversed, in part, and the matter is remanded for a limited resentencing in case No. 15–CR–552, where the state will elect which of these convictions to pursue for sentencing.

Facts and Procedural History

{¶ 3} The following evidence was offered at trial: Welninski, Lauro, and Welninski's half-brother, Kenneth ("Kenny") Maldonado, were traveling from Chicago to New York on December 17, 2015. After a brief detour to Detroit, they stopped for the night and rented a room at the Holiday Inn Express in Oregon, Ohio. Once inside the hotel, Welninski told his brother to go to a nearby restaurant and bring back some food. When Maldonado returned to report that the restaurant was closed, they decided to eat out. While Welninski showered, Maldonado looked through his brother's travel bag and saw two handguns: a silver one and a black one. While in the room, each consumed one alcoholic beverage.

{¶ 4} Around 10:30 p.m., the three left the hotel and walked to a restaurant next door, Icon's Bar and Grille, on Navarre Avenue in Oregon. Maldonado testified that he did not bring a weapon with him to the bar, and, at that time, he did not know if Welninski or Lauro had one either. While at Icon's, Maldonado said that each of them consumed "maybe two shots and a couple of beers." Video surveillance from the bar and testimonial evidence established that Welninski and Maldonado were both wearing grey hooded sweatshirts. Welninski had a number of tattoos that were visible that night. Maldonado had no visible tattoos and was wearing a baseball hat.

{¶ 5} Also at Icon's that evening were Ana Pecina, Jay Davis, and Brandon Vergara. The three went there together, around 12:40 a.m., now December 18, 2015, to meet a mutual friend. Within a few minutes of entering the bar, they found their friend. All but Pecina went to an outdoor patio where smoking was allowed. Pecina used the restroom, and then began looking for her friends. As Pecina walked throughout the bar looking for them, she was approached by a man, later identified as Welninski, near the entrance. Welninski asked for her name, and when she ignored him, he asked again. Pecina testified that a woman suddenly got "in [Pecina's] face" and told her "not to be talking to him" because "he has a wife," and the woman called Pecina a "bitch." Silent video footage captured part of that exchange, including: Pecina walking in front of the camera; Welninski speaking to somone (who was not within view of the camera); Lauro physically directing, almost pushing, Welninski out the door; and Welninski continuing to talk over his shoulder to someone. The video also shows Welninski with his hood pulled up over his head. At trial, the woman yelling at Pecina was identified as Erica Lauro, Welninski's wife.

{¶ 6} Pecina walked away, in search of her friends and called Jay Davis to ask where in the bar they were. When Davis answered the call, he could hear a woman, not Pecina, yelling, "[b]itch, I will beat your ass." Pecina found her friends outside, on the patio. The patio is enclosed by a fence that is chest high and has no separate entry, other than through the bar. Pecina reported that "some girl was trying to fight [me] because the dude had said ‘hi’ to [me] and [the girl] got mad." As Pecina was retelling the story, Lauro, Welninski, and Maldonado were exiting the bar and appeared on the other side of the patio fence. The argument between the women then resumed. Lauro was described as "going crazy" and "trying to fight" and "jumping up and down and yelling and screaming and cussing."

{¶ 7} The spat escalated to a physical altercation almost immediately, with Pecina's friends (Davis and Vergara) leaned up against one side of the fence, and the other two men (Welninski and Maldonado) outside of the fence. As described by Davis and Vergara, one of the men grabbed Vergara and tried to pull him over the fence. The other man, who was initially holding back Lauro, soon joined in and began punching Vergara. Vergara's view was obstructed by his tee-shirt that was pulled up over his head, but he insisted that he received blows to his torso from two different people. Davis, who was beside his friend Vergara, tried to free Vergara from the others' hold and punches.

{¶ 8} Vergara described feeling "something [hard] hit me on the top of my head." Davis testified that the person who was not wearing a baseball hat, i.e. Welninski, was the one who pulled out a gun and hit Vergara over the head with it. The gun came within six inches of Davis' face, and Davis found himself "holding * * * [the] hand [of the person] with the gun in it and he is aiming it at me [in an] up and down motion."

{¶ 9} With Davis' help, Vergara broke free. Once freed, Vergara grabbed a patio chair and threw it over the fence at Welninski and Maldonado. According to Vergara, the two men "stumble[d] back" and "two gunshots * * * were fired." Davis gave a similar account. He testified that the chair "[flew] over the gated area and hit [the shooter] in the face and chest area and he falls, stumbles back, and that is when two rounds are fired."

{¶ 10} At trial, during their direct examination by the state, Pecina, Vergara, and Davis independently identified Welninski as the person who was responsible for pistol-whipping Vergara and for firing two shots. Their respective testimony was challenged on cross-examination. For example, during her direct examination, Pecina testified that the person with the gun and the person who asked her name earlier were one and the same, and she identified Welninski as that person. Under cross-examination, Pecina acknowledged that she told the police that night that the person with the girl inside the bar was not the person who pistol whipped Vergara. Moreover, she repeated the latter version just days before trial, when she was interviewed by Welninski's investigator. And while Vergara and Davis testified that they told police that the guy with a gray hoodie and tattoos had pistol-whipped Vergara on the patio, on cross examination they both acknowledged that neither had told police that the assailant had tattoos.

{¶ 11} Maldonado also testified. He stated that he was testifying voluntarily, and not as part of any plea agreement with the state. Maldonado identified his brother as the one who pistol-whipped Vergara and who fired the gun. As he described the scene, Maldonado left the bar around 1:30 a.m., which was right after Welninski and Lauro had left. Once outside, he saw that his brother "had a guy by the shirt and he was like face-to-face with him saying something to him." Maldonado moved closer to Lauro, who was "in a run-in with this girl and I stopped [Lauro] and told her ‘it isn't worth it.’ " Maldonado watched his brother "let [the man] go" but when the man said something to Welninski, that is when Welninski "started hitting him—pulled a gun out and started hitting him * * * on top of his head." Maldonado described the gun as the same silver gun that he had seen in the hotel room. Welninski hit the person two or three times. Once Maldonado realized what was happening, he "went to pull [his brother] back and the gun went off in the air when I pulled him back."

{¶ 12} After the gun went off, everyone scattered. Vergara, Davis, and Pecina ran inside, to the kitchen bar, where Davis called 911. After reporting Vergara's injury, Davis told the 911 operator that the assailant and two others ran inside the hotel next door. Vergara received treatment at St. Charles Hospital and was diagnosed with a concussion. A scar remains on Vergara's head, along with two indents in his scalp.

{¶ 13} The incident at Icon's lasted a little over three minutes, from 1:06 a.m., when Pecina called Davis from within the bar, until 1:09 a.m., when Davis called 911.

{¶ 14} Maldonado felt "scared" when the gun went off and ran to the hotel ahead of Welninski and Lauro. Back in the room, Welninski started to pack and told Maldonado that they were leaving. When Maldonado said that he thought they should stay in the hotel, Welninski "hit [him] in the back of the head with a gun and said ‘we are leaving.’ " Welninski also instructed that Maldonado would drive. Maldonado testified, "[w]ell, he said we're leaving and said I was going to drive and I took it that I was going to drive."

{¶ 15} As planned, the...