State v. ThomasState v. Thomas
JUDGMENT: AFFIRMED
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Brian R. Radigan
Anna M. Faraglia
Assistant Prosecuting Attorneys
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, A.J.:
{¶ 1} Appellant David Thomas appeals his convictions for reckless homicide, tampering with evidence, and having a weapon while under disability. For the reasons set forth herein, we affirm.
{¶ 2} On January 30, 2009, Thomas was indicted on three counts: aggravated murder, tampering with evidence, and having a weapon while under disability. On June 30, 2009, the matter proceeded to a jury trial. Three of the state’s witnesses, Nicole Hart, Darryl Hart, and Farah Curry, were eyewitnesses to the events of December 21, 2008, when Thomas shot and killed the victim, Richard Pursley.
{¶ 4} Nicole directed Farah to her second floor bathroom; Farah left her personal belongings in the kitchen when she went upstairs. While Nicole and Thomas waited in the kitchen, Richard and Darryl confronted Thomas about why he would show up at Nicole’s house in the middle of the night with another woman; Richard and Darryl accused Thomas of “disrespecting” Nicole through his actions.
{¶ 5} Soon after this verbal argument, Farah returned to the kitchen, and she and Thomas hurriedly left the house. Richard and Darryl followed them into the yard, and as Thomas drove away, Richard and Darryl chased the car down the street. Darryl admitted to kicking the side of the car and throwing a bottle at it as Thomas drove away. Nicole attempted to calm down her brother and Richard, and told them that Thomas always carries a
{¶ 6} Nicole then received a call from Thomas saying that Farah had left her cell phone in Nicole’s kitchen; Thomas and Nicole agreed to meet at the corner of her street to avoid any further confrontation between Thomas and the other men. According to Nicole, she waited for Thomas to meet her for approximately 20 minutes, but because she was cold, she returned to her house. Shortly thereafter, Nicole heard a car horn in the street; she saw that Thomas was outside, and Nicole went outside to give Farah her cell phone.
{¶ 7} Thomas exited his car, which he left parked one or two houses beyond Nicole’s and slightly blocking the street. Farah remained in the car. Nicole told Thomas that Richard had left the house and that her brother was upstairs. Thomas began calling for Darryl to come out and speak to him. Nicole got into Thomas’s car to move it to the side of the road; she spoke briefly with Farah. Both women then exited the car, and Nicole walked toward Thomas who was, by this time, arguing with Darryl. Nicole testified that Thomas and her brother were “tussling” with one another, that she broke it up, and that the two men stopped and began laughing together. She and Darryl both testified that Thomas attempted to hug her, but that she pushed him away.
{¶ 9} Nicole and Darryl called 911, while they attempted to stop the bleeding from the gunshot wound to Richard’s head. EMS arrived shortly thereafter; however, Richard ultimately died as a result of his injuries. Nicole and Darryl testified that after the paramedics put Richard into the ambulance, they noticed a steak knife in the street where his body had lain. The three eyewitnesses all testified they never saw Richard with the knife or any other weapon as he approached Thomas on the street.
{¶ 10} Farah testified that Thomas drove to a park on Lake Erie, and she believed he threw his gun in the lake. At trial, she testified that right before the shooting occurred, she heard either Thomas, Darryl, or Nicole say “why would you bring a knife to a gun fight?” Farah stated Richard had not arrived on the scene when she heard the comment made. She also testified that Thomas had the gun on his person the whole evening while she was with him.
{¶ 12} Thomas testified on his own behalf. His version of the facts mostly corroborated the three eyewitnesses’ account up until his return to Nicole’s house. Thomas testified he had not tried to hug Nicole, but that he was helping her because she slipped on the snow-covered road. He stated that when Richard exited the car he was riding in, Richard came at Thomas, swearing and reaching under his shirt to grab for something. Thomas believed he was in mortal danger, and that in his experience, the only reason someone would grab for something under his shirt would be because the person was drawing a weapon. He also thought he saw Richard holding a weapon. Thomas testified he fired his gun only because he feared for his life and was acting in self-defense.
{¶ 13} Thomas had provided a statement to the police. He thought he had hit Richard in the leg when he fired his gun. Thomas acknowledged that he knew he was not permitted to carry a gun, and he also admitted that after the shooting, he threw his gun in the lake.
{¶ 14} Thomas renewed his
{¶ 15} Thomas raises four assignments of error for our review. Because of their relatedness, we discuss the first two assigned errors together.
{¶ 16} “I. The trial court erred in denying appellant’s motion for acquittal as to the charges when the state failed to present sufficient evidence against appellant.”
{¶ 17} “II. Appellant’s convictions are against the manifest weight of the evidence.”
{¶ 18} Thomas does not set forth the elements on which the state failed to present sufficient evidence to support his convictions. Essentially, he argues that he acted in self-defense, which is more properly addressed in his second assignment of error. In his second assignment of error, Thomas argues the verdicts were against the manifest weight of the evidence because Richard came at him and Thomas believed he was in imminent danger. He also suggests that his full cooperation with the police after the incident demonstrates his innocence.
{¶ 20} The trial court gave the jury an instruction on self-defense, as well as instructions on the lesser-included offenses of murder and reckless homicide. By finding Thomas guilty of reckless homicide, the jury did not find by a preponderance of the evidence that he acted in self-defense. While it may be true that Thomas did not instigate the fatal confrontation, there was evidence that Thomas returned to Nicole’s house after being told by Darryl and Richard to leave. Upon this evidence, the jury could find that he shared the fault giving rise to the confrontation.
{¶ 21} Thomas further argues that he believed he was in imminent danger of death or great bodily harm because he thought Richard was
{¶ 22} Although Nicole and Darryl discovered a steak knife on the ground where Richard lay, there was no evidence tying the knife to Richard; none of the eyewitnesses saw Richard holding the knife. Furthermore, Nicole’s testimony that the steak knife resembled knives she had in her kitchen did not convince the jury, absent other evidence, that Richard had taken the knife found that morning on the street.
{¶ 23} The jury heard the witnesses, weighed the evidence, and rejected Thomas’s contention that he had a bona-fide belief that he was in imminent danger of death or great bodily harm. There was substantial evidence to support the jury’s conclusion that appellant had not proved this element of self-defense.
{¶ 24} Thomas’s first and second assignments of error are overruled.
{¶ 25} “III. The trial court erred by ordering convictions and a consecutive sentence for separate counts of reckless homicide and having a weapon under disability and tampering with evidence because the offenses are allied offenses pursuant to
{¶ 27} In determining whether offenses are allied offenses of similar import under
{¶ 28} Even a cursory review of the elements that make up reckless homicide,1 tampering with evidence,2 and having a weapon under disability3
{¶ 29} We find that the three crimes that Thomas was convicted of should not have been merged, and there was no error on the part of the trial court in failing to do so. Thomas’s third assignment of error is overruled.
{¶ 30} “IV. Appellant’s consecutive sentences are contrary to law and violative of due process because the trial court failed to make and articulate the findings and reasons necessary to justify it.”
{¶ 31} The issue Thomas raises in his fourth assignment of error has been addressed by this district in several cases decided since the United States Supreme Court decided Oregon v. Ice (2009), 555 U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517.
{¶ 33} Accordingly, Thomas’s fourth assignment of error is overruled. Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
CHRISTINE T. McMONAGLE, J., and
JAMES J. SWEENEY, J., CONCUR