State v. Carmen ( 2013 )

[Cite as State v. Carmen, 2013-Ohio-3325.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120692
TRIAL NO. B-1200408
Plaintiff-Appellee, :
vs. : O P I N I O N.
CHARLES CARMEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 31, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Phil Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela Stagnaro, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Following a bench trial, defendant-appellant Charles Carmen was
found guilty of one count of attempted murder, two counts of felonious assault, one
count of having a weapon under a disability, and the accompanying firearm
specifications in connection with his shooting of Alvin Sanders. At sentencing, the
trial court merged the felonious assaults with the attempted murder. It also merged
the firearm specifications. The trial court sentenced Carmen to eight years for the
attempted murder, to 36 months for the weapons-under-disability offense, and to
three years on the merged firearm specifications. The trial court ordered the terms
be served consecutively for a total sentence of 14 years in prison.
{¶2} In two assignments of error, Carmen claims (1) that his convictions are
not supported by the sufficiency and the weight of the evidence, and (2) that his
sentence is contrary to law because the trial court failed to consider the purposes and
principles of sentencing and the factors in R.C. 2929.12 and failed to make the findings
to impose consecutive prison terms. Finding merit in neither assignment of error, we
affirm the trial court’s judgment and sentences.
{¶3} On the afternoon of January 16, 2011, Alvin Sanders was sitting in his car
when he saw Carmen across the street. Sanders testified that he was angry with Carmen
because Carmen owed him money and Sanders had been unable to “catch up” with him.
Sanders got out of his car, crossed the street, and confronted Carmen, asking him for the
money. When Carmen refused to pay him, Sanders began cussing at Carmen and
threatening to “kick his ass.” Carmen pulled a gun from his coat and told Sanders that
he was “going to die today.” He shot Sanders at close range multiple times in the face
and body. Sanders fell to the ground after the first or second shot, but Carmen
continued shooting. Carmen then ran off.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Sanders’s girlfriend, Tamara Taylor, and James Marion, an uninterested
bystander, both witnessed the shooting. Marion called the police. When they arrived,
they found Sanders lying unconscious on the sidewalk. Because Sanders had sustained
life-threatening injuries, he was immediately transported to the hospital. Sanders
testified that he had suffered gunshot wounds to multiple parts of his body, and that he
had remained in the hospital for months, undergoing several surgeries. He stated that
he was using a wheelchair while he learned to walk again, but that he would never
completely recover from his injuries.
{¶5} At the scene of the shooting, the police collected evidence. They
recovered three .25-caliber casings on the sidewalk. They interviewed Taylor and
Marion, and they obtained still photographs of a man taken just before and after the
shooting by a surveillance camera at a nearby convenience store. After identifying
Carmen as the man in the photos, the police gave the photos to the local news media in
hopes of learning Carmen’s whereabouts.
{¶6} The following day, Carmen turned himself in to the police. He was
arrested, advised of his Miranda rights, and interviewed by the police. Carmen’s
interview was recorded and played during the trial. Carmen told police that Sanders
had confronted him two times. He had tried to walk away, but Sanders had continued to
pursue him. Carmen told police that he had dated Sanders’s sister, but that he did not
know why Sanders had confronted him. Carmen told police that Sanders often carried a
gun, and that Sanders had kept his hands in his pockets during their altercation. He
said that he had shot Sanders with a semi-automatic pistol because he was afraid that
Sanders was going to shoot him.
{¶7} Sanders, Taylor, and Marion testified at trial. Taylor and Marion
corroborated Sanders’s testimony. They testified that Sanders had initiated the incident
3
OHIO FIRST DISTRICT COURT OF APPEALS
by running across the street to confront Carmen, and that Sanders had yelled and
threatened to harm Carmen, but that he had never actually raised his hand to strike
Carmen or pulled a weapon on Carmen. Carmen had then stepped forward, pulled a
gun from his pocket, and shot Sanders multiple times. Carmen made no attempt to walk
away from Sanders before firing. Carmen did not testify at trial, but relied on his earlier
statement to police that he had shot Sanders in self-defense.
{¶8} In his first assignment of error, Carmen argues that his convictions
for attempted murder and felonious assault were supported by insufficient evidence
and were contrary to the manifest weight of the evidence.
{¶9} While the trial court found Carmen guilty of attempted murder and
two counts of felonious assault, it merged the felonious assaults with the attempted
murder and sentenced Carmen only on the attempted-murder offense. Thus,
Carmen was never convicted of the felonious assaults. See State v. Robinson, 187
Ohio App.3d 253, 2010-Ohio-543, 931 N.E.2d 1110, ¶ 26–27 (1st Dist.) As a result,
we confine our analysis to the attempted-murder conviction.
{¶10} In reviewing a challenge to the sufficiency of the evidence, this
court must determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d
380, 386, 678 N.E.2d 541 (1997). In addressing a manifest-weight-of-the-evidence
challenge, we must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the 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. Id. at 387.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} To convict Carmen of attempted murder, the state had to prove
that he had purposely engaged in conduct, which if successful, would have
constituted or resulted in murder. See R.C. 2923.02(A) and 2903.02(A).
{¶12} The state presented sufficient evidence to support Carmen’s
conviction for attempted murder. Multiple witnesses, including Sanders, testified
that following a verbal altercation between Sanders and Carmen, Carmen had pulled
out a weapon and shot Sanders, who was unarmed, at close range multiple times in
the face and body. Although Carmen argues that the state failed to prove that he had
purposely attempted to cause Sanders’s death, the trial court could have inferred that
Carmen had acted purposely, given Carmen’s statement to Sanders prior to the
shooting that Sanders was “going to die today,” Carmen’s repeated shooting of
Sanders even after Sanders had fallen to the ground, and the nature and extent of the
wounds Sanders had suffered.
{¶13} Carmen also argues that the trial court lost its way in finding him
guilty of the attempted murder of Sanders. He claims that he was acting in self-
defense when he shot Sanders.
{¶14} Under Ohio law, “self-defense is an affirmative defense that legally
excuses admitted criminal conduct.” State v. Edwards, 1st Dist. Hamilton No. C-
110773, 2013-Ohio-239, ¶ 5, citing State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d
888 (1973). To establish self-defense, Carmen had to prove by a preponderance of
the evidence (1) that he was not at fault in creating the situation giving rise to the
affray, (2) that 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) that he did not violate any duty to retreat or avoid the danger.
State v. Robbins, 58 Ohio St.2d 74, 79-80, 388 N.E.2d 755 (1979); see R.C.
5
OHIO FIRST DISTRICT COURT OF APPEALS
2901.05(A). The elements of the defense are cumulative. Thus, Carmen’s failure to
prove any one of the three elements by a preponderance of the evidence would
negate the defense. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d
81, ¶ 73; see Edwards at ¶ 9.
{¶15} The trial court concluded that Carmen had failed to prove the
second element of the defense―that he had acted upon a bona fide belief that he was
in imminent danger of death or great bodily harm―and that Carmen had used
excessive force in pulling out a gun to shoot Sanders, who had been unarmed and
incapable of inflicting death or great bodily harm upon Carmen. See In re Maupin,
1st Dist. Hamilton No. C-980094, 1998 Ohio App. LEXIS 5907, *5-6 (Dec. 11, 1998).
{¶16} Based upon our review of the record, we cannot say that the trial
court lost its way in concluding that Carmen had failed to carry his burden to
establish that he had acted in self-defense. Edwards at ¶ 10. The trial evidence
established that Sanders had approached Carmen, cussing at him and threatening to
“kick his ass,” but that he had never actually raised his hand to hit Carmen. Carmen
then responded by shooting Sanders multiple times in the face and body.
{¶17} Although Carmen argues that Sanders had a prior criminal history,
which included a conviction for possession of an AK-47, and that he feared Sanders
would pull out a weapon and shoot him, there is no evidence that Sanders had a gun
the day Carmen shot him. And multiple witnesses testified, despite Carmen’s claims
to the contrary, that Carmen could have retreated from Sanders had he chosen to do
so. Accordingly, we conclude that Carmen’s attempted-murder conviction was not
contrary to the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387,
678 N.E.2d 541; see also State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 8936
OHIO FIRST DISTRICT COURT OF APPEALS
(1986); State v. McLeod, 82 Ohio App. 155, 157, 80 N.E.2d 699 (9th Dist.1948). We,
therefore, overrule his first assignment of error.
{¶18} In his second assignment of error, Carmen argues that his 14-year
prison sentence was contrary to law because (1) the trial court failed to consider the
purposes and principles of sentencing in R.C. 2929.11 and the factors set forth in R.C.
2929.12 and (2) it failed to make the appropriate findings to impose consecutive
sentences as set forth in R.C. 2929.14(C).
{¶19} Although we may presume that the trial court considered the
factors under R.C. 2929.11 and R.C. 2929.12, here the trial court, prior to imposing
Carmen’s sentence, orally stated the applicable R.C. 2929.12 seriousness and
recidivism factors. See State v. Alexander, 1st Dist. Hamilton Nos. C-110828 and C-
110829, 2012-Ohio-3349, ¶ 24. The trial court stated that Carmen was 23-years-old,
had four delinquency adjudications, had two felony and four misdemeanor
convictions as an adult, had failed to successfully complete felony probation, and had
served a prior prison term. The trial court further stated that Carmen had been
released from prison on July 1, 2008, and was considered a high risk to reoffend.
The trial court acknowledged that Sanders had been the aggressor and had started
the incident, but stated that Sanders had been shot several times and had been
seriously injured.
{¶20} The trial court additionally journalized a sentencing-findings
worksheet which contained findings under R.C. 2929.12 as well as the necessary
findings to impose consecutive sentences under R.C. 2929.14(C)(4). The trial court
found that consecutive terms were necessary to protect the public and to punish
Carmen and were not disproportionate to the seriousness of Carmen’s conduct and
the danger he posed to the public. The trial court further found that the harm caused
7
OHIO FIRST DISTRICT COURT OF APPEALS
by the offenses was so great or unusual that no single term would adequately reflect
the seriousness of Carmen’s conduct, and that his criminal history showed a need to
protect the public. See R.C. 2929.14(C)(4)(b) and (c).
{¶21} The record reflects that the trial court expressly considered the
seriousness and recidivism factors in R.C. 2929.12 and made the necessary findings for
imposing consecutive sentences on the journalized sentencing-findings worksheet. The
record, furthermore, supports the court’s findings. Therefore, we overrule Carmen’s
second assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J, and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry this date.
8