STATE OF OHIO v. JIMMY SEARLES
No. 96549
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 8, 2011
[Cite as State v. Searles, 2011-Ohio-6275.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-539484
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEY FOR APPELLANT
John T. Castele
614 West Superior Avenue
Suite 1310
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Kerry A. Sowul
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{1} Defendant-appellant, Jimmy Searles (“Searles“), appeals his convictions and sentence. For the reasons that follow, we affirm.
{2} In 2010, Searles was named in a fourteen count indictment arising from a shooting that occurred inside a Cleveland area bar. He was charged with three counts of attempted murder, eight counts of felonious assault, and one count each of having weapons while under disability, carrying a concealed weapon, and tampering with evidence. Additionally, the indictment contained numerous firearm and forfeiture specifications. Searles waived his right to a jury trial and the case was tried to the court.
{3} At the close of the State‘s case, the trial court granted Searles‘s
I. Manifest Weight of the Evidence
{5} The manifest weight of the evidence standard of review requires us to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving 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. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009. The use of the word “manifest” means that the trier of fact‘s decision must be plainly or obviously contrary to all of the evidence. This is a difficult burden for an appellant to overcomе because the resolution of factual issues resides with the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The trier of fact has the authority to “believe or disbelieve any witness or accept part of what a witness says and reject the rest.” State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.
{6} Searles argues that his conviction for attempted murder is against the manifest weight оf the evidence because he did not formulate or
{7} “no person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.”
{8}
{9} The events giving rise to this case were captured on surveillance video inside The Hill bar in Cleveland. In July 2010, victims, Nakia Darling, Gary Darling, and Benjamin Phillips, went to The Hill bar. When they walked in, Gary wеnt directly to the bar while Benjamin and Nakia stood nearby. Nakia testified that a guy, later identified as Searles, said something to him and a verbal nonviolent confrontation ensued. Searles then placed his beer on the bar, turned away from Nakia, pulled a gun from
{10} Searles argues on appeal that he did not have the specific intent to cause the death of Nakia because Nakia was not shot until after the initial struggle with the gun began; thus, arguably, the gun was discharged randomly and at no specific person or with any specific intent. Also, Searles argues that although his pointing the gun at Nakia could constitute felonious assault, the corresponding act of shooting at a person is necessary for murder or attempted murder.
{11} A trier of fact may infer an intent to kill where (1) the natural and probable consequences of a defendant‘s act is to produce death, and (2) all the surrounding circumstances allow the conclusion that a defendant had an intent to kill. State v. Edwards (1985), 26 Ohio App.3d 199, 200, 499 N.E.2d 352, citing State v. Robinson (1954), 161 Ohio St. 213, 118 N.E.2d 517. These circumstances include the means or weapon used, its tendency to destroy life if designed for that purpose, and the manner in which the wounds are inflicted. Robinson, paragraph five of the syllabus. The specific intent to kill may be reasonably inferred from the fact that a firearm is an inherently dangerous instrument, the use of which is likely to produce death. State v. Mackey, Cuyahoga App. No. 75300, citing State v. Widner (1982), 69 Ohio St.2d 267, 431 N.E.2d 1025.
{12} In this case, Searles pointed the gun at Nakia. This fact is not disputed. Searles testified that he was unable to recall any of the events that occurred at the bar, thus whether he acted purposefully is determined by the surrounding circumstances. The best evidence, the surveillance video, shows that Gary stepped between Nakia and Searles and as Gary tried to grab at Searles‘s arm, the gun is fired. From the testimony and the video, it can be inferred that had Gary not intervened, the first shot would have struck Nakia.
{13} Resolving any conflicting interpretation of the facts or the evidence is within the province of the trier of fact. Our review of the record does not demonstrate that the trial court clearly lost its way or created a manifest miscarriage of justice in finding Searles guilty of attempted murder of Nakia.
{15} Therefore, the arguments raised by Searles challenging his attempted murder conviction based on his inability to form the requisite mens rea due to his voluntary intoxication are without merit.
{16} Next, Searles argues that his convictions for felonious assault are against the manifest weight of the evidence because Searles was provoked, initially by the words of Nakia and through the subsequent intervention and struggle over the gun; thus, the court should have consider the lesser charge of aggravated assault.
{18} Aggravated assault is not a lesser-included offense of the offense of felonious assault. Instead, aggravated assault is an inferior degree of felonious assault because its elements are identical to or contained within the offense of felonious assault, coupled with the additional presence of one or both mitigating circumstances of sudden passion or a sudden fit of rage brought on by serious provocation occasioned by the victim. State v. Logan, Franklin App. No. 08AP-881, 2009-Ohio-2899, citing State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294; see, also,
{19} We find nothing in the record to suggest that the trial court did not give due and fair consideration to the inferior offense of aggravated assault or that his convictions are against the manifest weight of the
{20} Searles was charged with eight counts of felonious assault, but only convicted of seven of those counts. A frame-by-frame review of the video shows Searles knowingly pointed and fired his gun at Nakia and, but for Gary‘s intervention, the bullet would have struck him. Searles continued shooting during the subsequent struggle and Gary was shot in the head. Basеd on the doctrine of transferred intent,2 Searles is criminally liable for his actions towards Gary, even if he did not act knowingly when Gary was shot because Searles acted knowingly when he pointed his gun and shot at Nakia.
{21} Nakia also testified that Searles‘s second shot struck him in the hand, the third shot did not hit him, the fourth shot struck him in the side of
{22} Benjamin testified that Searles was wrestling on the floor with Gary. He testified he started punching Searles from behind. Searles then pointed the gun backward and fired two shots at Benjamin‘s forehead, missing him. At that point, Benjamin was able to wrestle the gun away.
{23} The evidence and testimony show that Searles acted knowingly in discharging his firearm at the victims. Accordingly, we cannot say that the trial court failed to give due consideration to the inferior offense of aggravated assault or that his convictions for felonious assault are against the manifest weight of the evidence.
{24} Accordingly, his first assignment of error is overruled.
II. Sentence
{25} In his second аssignment of error, Searles contends that the sentence imposed by the trial court is inconsistent with the principles and purposes of sentencing under the Ohio Revised Code and therefore is contrary to law. To support a claim that a “sentence is disproportionate to sentences imposed upon other offenders, a defendant must raise this issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal.” State v. Edwards, Cuyahoga App. No. 89191, 2007-Ohio-6068, ¶ 11. In this
{26} To determine whether a sentence is contrary to law, we reviеw felony sentences using the Kalish framework. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion, the Kalish court declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a two-step approach.” Kalish at ¶ 4. Appellate courts must first “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is cleаrly and convincingly contrary to law.” Id. at ¶ 26. See, also,
{27} In the first step of our analysis, we review whether Searles‘s sentence is contrary to law as required by
{28}
{29}
{30} The Kalish court also noted that
{31} We do not find Searles‘s sentence contrary to law. Searles was found guilty of (1) attempted murder, a first-degree felony, which carries a maximum penalty of ten years in prison; (2) seven counts of felonious assault, second-degree fеlonies, which carry a maximum penalty of eight years imprisonment; (3) having weapons while under disability, a third-degree felony, which carries a maximum sentence of three years, and (4) carrying a concealed weapon, a fourth-degree felony, which carries a maximum penalty of 18 months. Moreover, Searles was convicted of three-year firearm specifications, which carry a mandatory prison term that must be served prior and consecutive to any other prison sentence. Therefore, we find that a sentence of 15 years is within the statutory range allowed by law.
{32} Furthermore, the sentencing journal entry reflects that the trial court considered all required factors of law and found that prison was consistent with the purposes of
{33} We next consider whether the trial court abused its discretion in imposing the sentence. Kalish at ¶ 4 and 19. An abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary or unconscionable, which is more than an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{34} We find nothing in the record to suggest that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. At sentencing, the trial court had the benefit of a presentence investigation report and heard impact statements from a victim, Benjamin Phillips, and Gary Darling‘s daughter. The trial court also considered mitigation testimony and evidence from Searles, his neighbor, a family friend, and his attorney.
{35} At sentencing, the trial judge noted the difficulty in sentencing an individual under these circumstances and expressed that the purpose of sentencing is not to consider vengeance or render revenge, but justice. The trial court‘s statements, the circumstances surrounding the offenses, and mitigation demonstrate thаt the trial court did not abuse its discretion sentencing Searles to 15 years in prison. The second assignment of error is overruled.
Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR