State v. Kimmie

[Cite as State v. Kimmie, 2013-Ohio-4034.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99236
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYSHAWN KIMMIE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-560898
BEFORE: McCormack, J., Stewart, A.J., and Keough, J.
RELEASED AND JOURNALIZED: September 19, 2013
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kevin R. Filiatraut
Daniel A. Cleary
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Tyshawn Kimmie (“Kimmie”), appeals his
convictions for reckless homicide, murder, two counts of felonious assault, and firearm
specifications. For the reasons that follow, we affirm Kimmie’s convictions, but we
reverse the trial court’s sentence and remand for resentencing consistent with this
opinion.
Procedural History
{¶2} On April 10, 2012, Kimmie and codefendants, Jontez Robinson and
Kenneth White, were charged with aggravated murder in Count 1, murder in Count 2, and
felonious assault in Counts 3 and 4, along with firearm specifications. The felonious
assault charges also carried a criminal gang specification.
{¶3} On October 10, 2012, Kimmie filed a motion to suppress his post-arrest oral
statement to the police. The trial court heard Kimmie’s motion on October 15, 2012,
and, thereafter, denied the motion on October 17, 2012. Following Kimmie’s rejection
of any plea discussions, a jury trial began on October 17, 2012. The jury found Kimmie
guilty of a lesser included offense of Count 1 — reckless homicide, murder of Danica
Nelson in Count 2, two counts of felonious assault, and the firearm specifications. Upon
Kimmie’s Crim.R. 29 motion for acquittal, the court dismissed the criminal gang
specifications of Counts 3 and 4.
{¶4} The trial court sentenced Kimmie on November 2, 2012, to 15 years to life
on Count 2 (merging Count 1 into Count 2 for sentencing purposes), three years on Count
3, and three years on Count 4. The court ordered all counts to run consecutively and
consecutive to the three-year firearm specification (merged), for a total of 24 years to life.
Kimmie objected to the court’s imposition of consecutive sentences. Thereafter,
Kimmie filed this timely appeal.
Substantive Facts
{¶5} Kimmie’s convictions arose out of events that occurred following a
back-to-school party held in the area of Longwood Ave. and East 36th Street in
Cleveland, on August 26, 2011.
{¶6} In support of the charges, the state presented at trial the following evidence
against Kimmie: security officer James Morgan’s (“Morgan”) testimony that the shooter,
who was shooting toward E. 39th St. and Longwood Ave., was wearing a red jacket;
state’s exhibits Nos. 193 and 194, which contain front and back view photos of a
distinctive hooded red, black, and white jacket, identified by Morgan as the jacket worn
by the shooter; Morgan’s testimony that the shooter with the red jacket threw the gun at
Morgan; state’s exhibit No. 232, referred to in trial as “the Kimmie weapon,” which was
identified by Morgan as the gun the shooter in the red jacket threw at him; security
officers Drummond’s and Tate’s testimony confirming shooting from the van in the area
of E. 38th St. and Longwood Ave.; expert testimony that both the red jacket and the gun
tested positive for Kimmie’s DNA; the 16-year-old victim, K.J.’s, out-of-court and
in-court identification of Kimmie as the shooter; expert testimony that the “Kimmie
weapon” had fired six shots; Lizaria Moore’s testimony identifying the red jacket as
belonging to one of the boys in the area from where she heard gunshots; Raynell
Williams’s testimony placing Kimmie at the scene prior to hearing gunfire; and Kimmie’s
own statement in which he admitted shooting at the “Valley Boys.”
TD Security
{¶7} The area of Longwood Ave. and E. 36th St., where the party was held, was
patrolled by TD Security. James Morgan, a security officer with TD Security, testified
that he and other security officers were patrolling the area on the evening of August 26,
and they broke up the party about 11:00 p.m.
{¶8} Morgan testified that while helping a stranded motorist in the area at
approximately 1:00 a.m. on August 27, he heard shots fired about 50 feet away from
where he and the other security officers were situated on the north side of E. 38th St.
Among those shots, three or four were fired close to the security officers. Morgan and
the other security officers, Victor Drummond (“Drummond”) and William Tate (“Tate”),
ran toward the area of the gunfire. Morgan saw two to three shooters standing behind a
black van in a parking space on the corner of E. 38th St. and Longwood Ave. The
shooters were standing on the north side of the van, leaning around the van and shooting
into a crowd, southeast, toward the area of E. 39th St. and Dillard Ave. Morgan could
not identify the object at which they were shooting, but he stated the shooters “were
trying to fire at something.”
{¶9} Morgan identified one of the shooters as wearing a white cap, a red and
white jogging coat, and dark colored jeans, “somewhat skinny * * * maybe roughly 160,
170 pounds.” He had a gun cocked to the side, like a “gangster,” and he was shooting
toward the sidewalk on Longwood Ave. Morgan saw another individual near the van
who was “a little bit shorter, a little bit heavier, * * * probably 180, 190,” wearing a black
t-shirt and “light colored jeans, possibly shorts.”
{¶10} Morgan heard constant firing from Longwood Ave. at E. 38th St., where he
and his partners were situated. He focused on the shooter wearing the red jacket and
screamed for the shooter to drop his weapon. The shooter in the red jacket ran toward
Morgan, threw his gun at him, and ran away, toward the Bivens courtyard. Morgan
picked up the discarded gun and locked it in his patrol car.
{¶11} Drummond and Tate also testified that they saw an individual shooting from
the area of the van, on the corner of E. 38th St. and Longwood Ave., near the security
officers. Tate saw one person shooting and one person holding a weapon. The person
shooting from behind the van was “blindly firing into a crowd.” The first shots he heard
were fired from E. 38th St. and Longwood Ave., toward Dillard Ave. and E. 39th St., and
then there was return fire from Dillard Ave. Tate saw two shooters, one with dark
clothing and the other with a “light colored hat on.” The shooter “with the dark bottom
* * * [and] lighter hat” threw his gun at Morgan. Drummond testified that he saw the
male with the white hat run through the courtyard entrance. The other male who was
running from the area, “down 38th [street],” was wearing a red top. Tate confirmed on
the stand that he recognized the following images taken from TD Security’s surveillance
video (state’s exhibit No. 247) on the night of the shooting: the van from where the
shooting had come, one of the shooters shooting his weapon, and the Bivens courtyard
toward which four individuals had run.
{¶12} After the shooters ran off, Morgan, Drummond, and Tate proceeded to the
area of Longwood Ave., where they heard there were shooting victims. The security
officers observed gunshot wounds to James Willingham’s foot, K.J.’s wrist, and Danica
Nelson’s head. Morgan himself saw shell casings “everywhere,” including a few to the
east and west of Danica Nelson’s lifeless body, and “a lot [from] where the black van and
* * * the shooters” were shooting.1
{¶13} Morgan saw Nelson lying in the area toward which the shooter in the red
jacket had been shooting. He identified state’s exhibit No. 232 — a Star .9mm caliber
pistol — as the handgun that the shooter in the red jacket had thrown at him before
running away and the same one that he had locked in his patrol car. Morgan also
identified state’s exhibits Nos. 193 and 194 as photographs of a red jacket like the one he
saw the shooter wearing. While Morgan testified that he saw the face of the shooter
wearing the red jacket, he could not identify the shooter from the police photo arrays with
“100 percent certainty.” Morgan did not know who fired the first shot.
Detective James Kooser, the state’s firearms expert, explained to the jury that a cartridge
1
case (or casing) consists of four parts: bullet, cartridge case, primer, and gunpowder. He further
explained that the cartridge case is the part remaining after firing a gun, stating that the cartridge cases
“fly all over wherever you’re shooting, all over the crime scene,” leaving evidence of the shooting.
The Red Jacket
{¶14} Police officer Frederick Beverly was dispatched to perform crowd control
duties during a vigil held for Danica Nelson a day or two following the shooting.
Beverly testified that during the vigil, a young lady handed him a plastic bag with a red
jacket inside. Beverly identified state’s exhibits Nos. 193 and 194 — photographs of the
red jacket James Morgan testified the shooter who threw the gun at him was wearing —
as that same jacket.
{¶15} Curtiss Jones, supervisor of the trace evidence department at the medical
examiner’s office, tested the jacket identified above as state’s exhibits Nos. 193 and 194
for gunshot residue. He found three particles characteristic of gunshot primer residue on
the right sleeve of the jacket. He removed samples from the hood and sleeve cuffs of the
jacket in order to submit them for DNA testing.
{¶16} Dr. Nasir Butt, director of the DNA laboratory at the Cuyahoga County
Regional Forensic Science Laboratory in the medical examiner’s office, tested the swabs
of DNA collected from the red jacket. He determined that Kimmie cannot be excluded
as a possible contributor to that mixture.
The Kimmie Weapon
{¶17} Detective Michael Gibbs, a detective in the crime scene unit of the
Cleveland Police Department, processed the crime scene in the early morning hours of
August 27, 2011. He swabbed the collected items, which included the handgun retrieved
by Morgan and identified in trial as “the Kimmie weapon,” for DNA evidence.
{¶18} Dr. Butt tested the swabs of DNA collected from the weapon. He found
Kimmie’s DNA on the trigger and the back strap of the gun. He testified that the
probability of finding an unrelated individual at random from the public “as a possible
source of the major DNA component obtained” from the back strap of the gun is one in
94 million in African-Americans. Dr. Butt referred to Kimmie as “the major
contributor” of the DNA. With respect to the trigger of the same gun, Dr. Butt found the
DNA to be a mixture of two individuals, of which Kimmie is a “possible contributor.”
K.J.’s Testimony and Identifications
{¶19} K.J., who was shot in the wrist, testified that she attended the back-to-school
party in the area of E. 36th St. and Longwood Ave. with Danica Nelson, Lizaria Moore,
and K.J.’s sister, Demetria Linder. After they left the party, K.J. and her friends went to
Longwood Ave., where they were standing around and talking. Nelson sat on the curb
with Moore and another girl. K.J. heard an initial shot coming from Dillard Ave. going
toward E. 38th St. “and then a lot [of shooting] started coming from E. 38th” toward their
location.
{¶20} When K.J. heard the shots, she ran and hid under a white car, while Nelson
and Moore lay on the ground under a tree. K.J. said her head was pointed east toward
Dillard Ave. and her feet were pointed west toward E. 39th St. While K.J. was under the
car, she looked up and saw one of the shooters shooting toward Dillard Ave. She saw
the shooter point his gun straight out and not in the air. When she realized Nelson had
been shot in the head, she placed her purse near the wound in order to stop the bleeding.
{¶21} K.J. testified that the shooter was “about 19 or 20 years old, brown skin,
short haircut,” about 5’3” or 5’4”, wearing a black shirt and denim pants, and she had
seen him earlier that evening at the party. While K.J. initially told police that she could
not see the shooter’s face, she stated in court that she meant that she could not see any
facial hair or tattoos. K.J. identified Kimmie as the shooter in a police photo array and
also in the courtroom.
Crime Scene Evidence
{¶22} Detective Lem Griffin, the lead investigator in this case, testified that, based
upon statements he obtained, he arrested Kimmie, who goes by the name “T.Y.,” in
connection with the homicide.
{¶23} Griffin testified that there were two sets of people, or two locations,
involved in a “shoot-out,” as evidenced by the shell casings discovered in both locations.
These locations were E. 38th St. – Longwood Ave., where “numerous” casings were
found, and Dillard Ave. – Longwood Ave., where “maybe a couple shell casings or a
bullet” were discovered. Griffin testified that Nelson was shot at 3914 Longwood Ave.
According to Griffin, the angle from which Nelson was shot is not consistent with a shot
having come from Dillard Ave. – Longwood Ave.
{¶24} Detective Gibbs collected several items from the crime scene, including
spent shell casings from both ends of Longwood Ave. Gibbs testified that the majority
of the shell casings were located in front of 3805 and 3809 Longwood Ave., the location
from which Morgan testified the shooter with the red jacket was shooting around the van.
Detective James Raynard, a technician with the crime scene unit, collected additional
evidence from the scene. He testified that the majority of the suspected copper jackets
and lead-bullet fragments were discovered near Longwood Ave. and Dillard Ave., the
area toward which witnesses say the shooters were aiming and where Danica Nelson was
found shot.2
{¶25} Detective James Kooser, an expert in firearms examination, testified that he
examined bullets, bullet fragments, and 30 spent cartridge cases that were collected from
the crime scene. He also examined state’s exhibit No. 232, the gun that the shooter with
the red jacket threw at Morgan (“the Kimmie weapon”). He identified the gun as a Star
.9mm, and he found it to be operable.
{¶26} Upon examining the 30 spent cartridge cases, Kooser determined that there
were four firearms involved in the incident of August 27th, all of which were .9mm
pistols. Of these cartridge cases, Kooser testified that 5 were from an unknown firearm,
four were from a second unknown .9mm firearm, 15 were from a third unknown firearm,
and 6 were fired from the Star .9mm pistol (state’s exhibit No. 232) that the shooter in the
red jacket threw at Morgan. Kooser testified, however, that he was not able to determine
which weapon fired the shot that killed Nelson.
{¶27} Kooser examined the bullet fragment that came from the morgue where the
medical examiner performed the autopsy of Danica Nelson. According to Kooser, this
Detective James Kooser explained to the jury that a copper jacket, like those discovered at
2
the crime, covers the lead of a bullet and will often break into fragments when the bullet hits its
target.
fragment, known as the morgue pellet, “is of no analytical value” because it is “[j]ust a
teeny tiny fragment.” He acknowledged, however, that it is possible that the fragment
was fired from one of the four guns to which the 30 cartridge cases were attributed.
Additional Witness Testimony
{¶28} K.J.’s sister, Demetria Linder, testified that she was sitting on the curb with
Nelson, Moore, and others when she first heard shots coming from E. 38th St. and
Longwood Ave. She stated that shots were being fired back toward E. 38th St. from the
corner where Linder and her friends had been standing. Linder testified that she knew
there was more than one shooter from the different sounds the guns were making. She
identified Kimmie’s codefendant, Jontez Robinson, as a shooter. She stated that
Robinson was with a group of boys who were not from the Longwood Ave.
neighborhood. Prior to the shooting, she had witnessed two arguments. One of the
arguments involved an older man she recognized from the Longwood Ave. neighborhood
who was arguing with people she did not recognize. This group was on the southeast
corner of Longwood Ave. and Bivens. She had also witnessed two girls fighting over a
boy earlier in the evening.
{¶29} Lizaria Moore was at the party with K.J. and Nelson. She also testified that
there was a fight during the party between two girls. After Moore and her friends left the
party, they walked toward E. 39th St. and sat on the curb. She testified that she saw a
group of boys she did not know, one of whom was wearing black, and one who was
wearing a red and black hoodie. Some of the gunshots she heard came from the area
where she saw the group of unknown boys. Moore identified state’s exhibits Nos. 193
and 194 as the jacket one of the boys in that group was wearing.
{¶30} James Willingham was with Linder and the others after the party in the area
of E. 39th St. – Longwood Ave. and Dillard Ave. – Longwood Ave. He testified that he
was standing in front of 3914 Longwood Ave., facing the houses, when shots were fired
from behind his right shoulder. After he heard the first shot from behind him, he then
heard multiple shots firing. He pushed Linder to the ground and hid by the white car
where K.J. was hiding. While hiding, he realized he had been shot in the foot. Once the
shooting stopped, he hopped up and ran “around the corner” onto Dillard Ave. While
running, he saw Nelson on the ground and realized that she had been shot.
{¶31} Raynell Williams, a resident of Longwood Ave., testified that he was home
the night of the back-to-school party and was looking out his window after the party
broke up. He heard arguing east of E. 39th St. on Longwood Ave. and he saw Kimmie
standing outside with other people, “talking to his friends.” Williams testified that he
heard gunfire, “[m]ore than 10 maybe,” though he gave conflicting accounts as to the
direction from which the gunfire came. Williams stated that he saw Kimmie before he
heard the gunfire. He testified that upon hearing gunfire, he and his family got down on
the floor and took cover.
{¶32} Prior to the trial, Williams gave a statement to the police and made a pretrial
photo identification of Kimmie as the shooter, writing on the photo, “shooting, dropping
the gun.” His statement included a description of how Kimmie was shooting and a
demonstration of how Kimmie fell. Williams also identified codefendant Robinson in a
photo lineup. On the stand, however, Williams surprised the court when he stated that
his statement was not his own; rather, he “was told this whole story,” and based on
rumors, he “put the pieces together.” After this statement, Williams admitted that he had
previously expressed concern about testifying in open court.
Kimmie’s Statement
{¶33} Officer Ryan McMahon, a Cleveland police officer in the fourth district,
assisted in Kimmie’s arrest on September 14, 2011, after a warrant was issued for his
arrest. McMahon testified that after calling Kimmie’s mother, he searched the home and
discovered Kimmie hiding under a blanket in the basement. McMahon arrested Kimmie
and took him to the homicide unit.
{¶34} Following Kimmie’s arrest, Detectives Griffin and Ansari interviewed
Kimmie. In the course of the interview, Kimmie made a statement concerning the
shooting. Detective Griffin read Kimmie’s statement to the jury. In his written
statement, Kimmie states, “the Valley Boys got to busting us, so we started shooting at
them.” He also states, “I was shooting. I turned around and TD Security was standing
there. I ran from them. I threw the gun on the ground. * * * I had on a red jacket. I
took my jacket off and threw it on the ground near the parking lot.”
{¶35} Kimmie later states, however, that he will “tell the truth now.” Thereafter,
Kimmie states, “After they started shooting, I went to the ground and shot four times in
the air. I did not aim toward where the shots were coming from. I just shot in the air.”
Kimmie also denies shooting Nelson in his statement, saying, “Shawn told me that as they
drove by the girl on the ground Shawn said, ‘that’s what that ho’ get.” Kimmie provides
in his statement that no one from the police department induced him into making the
statement.
Assignments of Error
I. The trial court erred by denying appellant’s motion to suppress in
violation of appellant’s constitutional rights.
II. The trial court erred by denying appellant’s request for jury instructions
on negligent assault, involuntary manslaughter, and self-defense.
III. Appellant’s constitutional rights were violated when the trial court
denied his request to admit the transcript of his police interview into
evidence where the state had introduced only a portion of it through an
officer’s testimony about appellant’s written statement.
IV. Appellant was denied a fair trial when the trial court allowed
inadmissible evidence to be introduced at trial.
V. The trial court erred when it denied appellant’s motion for acquittal
under Crim.R. 29 because the state failed to present sufficient evidence to
establish beyond a reasonable doubt the elements necessary to support the
convictions for felonious assault and murder.
VI. Appellant’s convictions for felonious assault and murder are against
the manifest weight of the evidence.
VII. The trial court erred by imposing consecutive sentences.
I. Motion to Suppress
{¶36} Detectives Griffin and Ansari interviewed Kimmie after his arrest. Griffin
testified that prior to interviewing Kimmie, he phoned Kimmie’s mother and informed her
that the detectives had her son and they were not going to speak to him until his parents
arrived, “out of due respect to them.” Griffin testified that he verbally advised Kimmie
of his Miranda rights, and he produced a written advisement of his rights as well. With
both his mother and father present, Kimmie made a three-page written statement to the
police. The entire interview was videotaped and a transcript was made of the interview.
{¶37} Prior to trial, Kimmie filed a motion to suppress his post-arrest statement to
police, claiming that his statement was obtained in violation of Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Kimmie also argued that his statement
was involuntary because he was not advised of his rights under Doyle v. Ohio, 426 U.S.
610, 611, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The trial court denied the motion,
finding that Kimmie received adequate warning of his Miranda rights, and he voluntarily
waived those rights.
{¶38} In his first assignment of error, Kimmie contends that the trial court erred
when it denied his motion to suppress his statement to the police.
{¶39} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
In considering a motion to suppress, the trial court assumes the role of trier of fact and,
therefore, is in the best position to resolve factual questions and evaluate the credibility of
witnesses. Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).
Consequently, a reviewing court must accept the trial court’s findings of fact as long as
they are supported by competent, credible evidence. State v. Preztak, 181 Ohio App.3d
106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.), citing State v. Lloyd, 126 Ohio
App.3d 95, 709 N.E.2d 913 (7th Dist.1998). Once we accept those facts as true,
however, we must independently determine, “as a matter of law and without deference to
the trial court’s conclusion, whether the trial court met the applicable legal standard.” Id.The Miranda Rights
{¶40} In Miranda, the United States Supreme Court held that a defendant who is
subjected to custodial interrogation must be advised of his or her constitutional rights and
make a knowing and intelligent waiver of those rights before statements obtained during
the interrogation will be admissible. 384 U.S. at 478-479, 86 S.Ct. 1602, 16 L.Ed.2d
694.
A suspect in police custody ‘must be warned prior to any questioning that
he has the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.’”
State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 6, quoting
Miranda at 479.
{¶41} Juveniles are afforded the same protection outlined in Miranda.
“‘“Juveniles are entitled both to protection against compulsory
self-incrimination under the Fifth Amendment and to Miranda warnings
where applicable.”’ [In re K.W., 3d Dist. Marion No. 9-08-57,
2009-Ohio-3152, ¶ 12, quoting State v. Thompson, 7th Dist. Jefferson Nos.
98 JE 28, 98 JE 29, 2001-Ohio-3528, citing In re Gault, 387 U.S. 1, 54, 87
S.Ct. 1428, 18 L.Ed.2d 527 (1967).] Any statements made by a suspect may
not be used in evidence where those statements were made during a
custodial interrogation unless Miranda warnings were properly given to the
suspect. State v. Andrews, 3d Dist. No. 1-05-70,2006-Ohio-3764, ¶ 18,
citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966); State v. Mason, 82 Ohio St.3d 144, 153, 1998-Ohio-370, 694
N.E.2d 932.”
In re M.W., 8th Dist. Cuyahoga No. 94737, 2010-Ohio-6362, ¶ 20, quoting In re Forbess,
3d Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, ¶ 27.
{¶42} In this case, Detectives Jamal Ansari and Lem Griffin conducted Kimmie’s
interview at the police station. According to the transcript of the interview and Detective
Ansari’s testimony at the suppression hearing, the detectives did not begin the interview
until Kimmie’s parents, Marcus Kimmie and Lakisha Bennett, had been contacted and
had arrived. The detectives allowed Kimmie to speak with his parents before the
interview began. In the presence of his mother and father, Detective Griffin explained
the charges against Kimmie and advised Kimmie not to speak at that time, but rather, he
said, “I just want you to listen to me.” Thereafter, Griffin told Kimmie that “before you
say anything, I got to read you your rights. Before you talk to me * * *, I got to give you
your rights.” Griffin then ensured that Kimmie could read and gave him a placard that
outlined the Miranda rights. Kimmie read the placard aloud, and Griffin ensured, once
again, that Kimmie understood what he had just read.
{¶43} After Kimmie read the Miranda placard, Griffin asked Kimmie if he wanted
to talk with him, “tell [his] side of the story.” Kimmie responded, “Yeah.” The
detectives proceeded to explain and review the advice of rights and waiver form with
Kimmie and his parents. Kimmie and his parents signed the form. At the suppression
hearing, Kimmie’s mother testified that her son was not confused by the Miranda rights
as they were explained to him.
{¶44} Additionally, prior to obtaining Kimmie’s written statement, the detectives
presented him with a document that stated:
Before making any written statement that may be used against you at the
time of your trial, we wish to repeat these instructions prior to our oral
interrogation:
That you have the right to counsel appointed or retained, before
interrogation, that you have the right to remain silent, and that anything you
say may be used against you.
You have the right to have an attorney present while making this statement.
Below these words, Kimmie signed his name, acknowledged that he understood the rights
as stated above, and indicated that he wanted to make a statement.
{¶45} We, therefore, find that the evidence presented at the suppression hearing
demonstrates that Kimmie was properly advised of his Miranda rights and that he
acknowledged his understanding of these rights both verbally and in writing.
Voluntary Waiver
{¶46} Kimmie also contends that he did not voluntarily, knowingly, and
intelligently waive his Miranda rights in making his statement to Detectives Ansari and
Griffin.
{¶47} A criminal suspect may waive his or her Miranda rights; however, the
waiver must be made voluntarily, knowingly, and intelligently. State v. Kent, 8th Dist.
Cuyahoga No. 90795, 2009-Ohio-3889, ¶ 26, citing Miranda at 444. In order to
determine whether a defendant voluntarily, knowingly, and intelligently waived his
Miranda rights, a reviewing court must examine the totality of the circumstances of the
waiver. State v. Gumm, 73 Ohio St.3d 413, 429, 1995-Ohio-24, 653 N.E.2d 253. The
totality of the circumstances includes “the age, mentality and prior criminal experience of
the accused; the length, intensity, and frequency of interrogation; the existence of physical
deprivation or mistreatment; and the existence of threat or inducement.” State v.
Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 57, quoting State v.
Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus.
This same review applies to juveniles in a custodial interrogation. In re M.W., 8th Dist.
Cuyahoga No. 94737, 2010-Ohio-6362, at ¶ 21.
{¶48} Under the totality of the circumstances, we cannot say that Kimmie’s waiver
of his Miranda rights was involuntarily or unknowingly made. Kimmie was 17 years old
at the time of his arrest. There is nothing in the record, however, to suggest that his age
impaired his ability to understand or appreciate his rights as advised by the detectives
upon his arrest. There is also nothing in the record to suggest that Kimmie’s mental
capacity is diminished or impaired in any way. The detectives reviewed with Kimmie
and his parents the advice of rights and waiver form before all three signed the form. In
response to the detective’s repeated questions as to whether Kimmie understood the
Miranda placard, what Kimmie read aloud, and what the detectives told him before
beginning the interrogation, Kimmie responded, “Yeah.” His mother testified that
Kimmie was not confused by the Miranda rights as they were explained to him.
Furthermore, Kimmie’s parents were present during the entire interrogation, and Kimmie
was permitted to consult with his parents outside the presence of the detectives.3
{¶49} Kimmie contends that he was intimidated by his father during the
interrogation and, thus, his statement was coerced. We cannot find, however, that
Kimmie’s statements to the detectives were coerced or involuntary in this regard. First,
there is no evidence of threats, inducement, or coercion by Detectives Ansari and Griffin.
While not obligated to do so, the detectives waited for Kimmie’s parents to arrive.
They removed Kimmie’s handcuffs; they allowed Kimmie to wear his father’s coat as it
appeared cold in the interrogation room; and they allowed Kimmie to speak with his
parents outside the presence of the detectives. Finally, the detectives repeatedly
explained Kimmie’s rights to remain silent and to consult with an attorney before
answering any questions during the initial phase of the interview.
{¶50} Second, there is no evidence that the detectives used Kimmie’s parents to
pressure Kimmie into making a statement or that Kimmie was, in fact, intimidated by his
father’s presence. While Kimmie’s grandmother, Ms. Brown, testified that Kimmie
Kimmie’s grandmother, Mae L. Brown, testified that Kimmie’s parents had a “learning
3
disability” during school, and Ms. Bennett admitted she “can’t read that much” and “doesn’t
understand a lot of things.” There is no evidence to suggest, however, that this learning disability
impaired their ability to support Kimmie or to understand or appreciate Kimmie’s arrest. There is also
no evidence that the mental capacities of Kimmie’s parents interfered with Kimmie’s own ability to
understand and appreciate his rights as explained to him during the interrogation.
was “intimidated by the situation” and “intimidated with his father being there,” the
evidence does not support this statement.
{¶51} On the contrary, Kimmie’s father displayed affection and support for his son
throughout the interview, hugging Kimmie upon arrival at the police station. While the
transcript of the interview demonstrates Mr. Kimmie used some harsh language in
expressing his feelings toward his son’s situation, the trial court indicated that it observed
no evidence of intimidation by Mr. Kimmie. Rather, Mr. Kimmie told his son that he’s
“got [his] back.” He also said, “We’ll be here for you * * * until the end of time. * * *
All I can do is hold your hand and show you I’ll be with you and fight * * *.” Mr.
Kimmie also expressed disappointment as a parent in Kimmie not coming to his father for
help, saying, “[Y]ou should have came and talked to me first. I wouldn’t have turned
you in or nothing like that. You’re my son and I love you.” Mr. Kimmie promised his
son that he would get a lawyer to defend him. These statements, as the trial court
observed, indicate that Mr. Kimmie was encouraging his son to cooperate with the police
while promising to help his son. Mr. Kimmie’s statements are not indicative of threats or
intimidation.
{¶52} Kimmie also claims that his parents’ statements concerning obtaining a
lawyer confused him and, therefore, rendered his statement to the detectives involuntary.
The evidence, however, does not support Kimmie’s assertion.
{¶53} After Kimmie reads the Miranda placard aloud, Mr. Kimmie, said to his
son:
I’m going to tell you like this, I ain’t going to sugar coat nothing. You’re
going to do some time. Regardless of the fact, you’re going to do some
time because somebody got killed and you was implicated in it. How much
time you do is on you. I don’t want you to do no time, but I can’t save you.
But I can’t save you from this one. All I can do is hold your hand and
show you I’ll be with you and fight * * *.
Now, me myself, I want you to sit here and tell them what happened. I
really do. But then I also want you to consult with a lawyer.
Kimmie’s mother, Lakisha Bennett, interjected, “You’re going to get a lawyer,” which
was confirmed by Mr. Kimmie, saying, “Regardless. There’s no ifs, ands, and buts about
it. We’re going to get you a lawyer.” Immediately following this exchange, Kimmie
told Detective Griffin that he wished to tell his side of the story. Kimmie did not express
confusion, ask for clarification, or otherwise question his parents or the detectives
concerning the rights that were just explained to him.
{¶54} Additionally, prior to signing the advice of rights and waiver form and prior
to Kimmie making a statement, Mr. Kimmie said to his son, “T, I want you to do this.
Like I said, it’s your right, it’s your decision. Everything you’re saying now you’re
doing it without the consult of a lawyer. That’s what you want to do, right? Hum?
You’re 17.” Again, Kimmie did not express confusion or indicate that he did not
understand his rights. Further, at no time during the 3½ hour interview process did
Kimmie or his parents inform the detectives that they wished to stop the interrogation and
obtain a lawyer. The above statements made by Kimmie’s parents indicate, rather, their
desire to obtain an attorney on their son’s behalf in the future.
{¶55} At best, Kimmie’s parents’ expressed desire to obtain counsel on their son’s
behalf was ambiguous. Such ambiguity is not an effective assertion of the right to
counsel that requires the cessation of questioning in a custodial interrogation. The
United States Supreme Court has held that when a defendant invokes his right to counsel,
police must cease interrogation until his counsel is present. Edwards v. Arizona, 451
U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Police officers, however, are not
required to stop questioning a suspect immediately upon the making of an “ambiguous or
equivocal reference to an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S. Ct.
2350, 129 L.Ed.2d 362 (1994). Rather, the suspect must unambiguously request counsel.
He must articulate his desire to have counsel present sufficiently clearly that
a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney. If the statement fails to meet the
requisite level of clarity, Edwards does not require that the officers stop
questioning the suspect.
Id. In this case, Mr. Kimmie’s and Ms. Bennett’s statements concerning obtaining
counsel for their son were equivocal and do not rise to the level of a request for counsel
that would require Detectives Ansari and Griffin to stop Kimmie’s interrogation.
{¶56} During the suppression hearing, Ms. Brown, Kimmie’s paternal
grandmother, testified that upon learning of Kimmie’s arrest, she called the police and
asked that Kimmie not be interviewed without her and that she told them she had
contacted a lawyer. She stated that the lawyer advised her that her grandson should not
speak with anyone. She could not, however, recall the name of the lawyer, nor was there
any evidence that she hired a lawyer.
{¶57} Ms. Brown testified that a detective on the case told her not to come to the
police station because they had contacted Kimmie’s parents and his parents were on their
way to the police station. According to Ms. Brown, she believed she had custody of
Kimmie — not Kimmie’s parents. There is no independent evidence, however, of Ms.
Brown’s custody of Kimmie to support Ms. Brown’s belief. Furthermore, Kimmie was
living with his mother at the time of his arrest.
{¶58} Regardless of the custody arrangement, however, the law in Ohio does not
require that a juvenile’s parent or legal custodian be present during a custodial
interrogation. This court has held that “[t]hough the greatest care must be taken to assure
a juvenile’s admissions are voluntary, parental presence is not constitutionally mandated.”
State v. Bates, 8th Dist. Cuyahoga No. 92323, 2009-Ohio-5819, ¶ 10, quoting State v.
Bobo, 65 Ohio App.3d 685, 690, 585 N.E.2d 429 (8th Dist.1989); see also In re Gault,
387 U.S. at 55, 87 S.Ct. 1428, 18 L.Ed.2d 527. The presence of a parent or custodian
during a juvenile’s interrogation, therefore, is only one factor to consider in determining
whether, under the totality of the circumstances surrounding the juvenile’s statements,
there is a valid waiver of the juvenile suspect’s Miranda rights. Id.{¶59} In this case, Detectives Ansari and Griffin contacted Kimmie’s parents and
conducted Kimmie’s interview in the presence of his parents. The detectives contacted
Ms. Bennett and Mr. Kimmie as a courtesy to Kimmie’s parents, not out of legal
obligation to do so. The detectives were not required to wait for Kimmie’s legal
custodian, whether it was Kimmie’s parents or his grandmother. Therefore, in light of
the circumstances surrounding Kimmie’s statement, Ms. Brown’s absence, in and of
itself, does not render Kimmie’s statements to the detectives involuntary.
{¶60} Ms. Brown also testified that she told the lawyer with whom she spoke on
the telephone that Kimmie’s parents were going to the police station. Ms. Brown stated
that the lawyer told her to have Kimmie’s parents call him. According to Ms. Brown,
Mr. Kimmie was aware of her conversation with the lawyer; nonetheless, Mr. Kimmie did
not share this information with the detectives, nor did he at any time during the interview
stop the interrogation and advise the detectives that his son would not speak to the
detectives without a lawyer. Additionally, Ms. Bennett testified that Ms. Brown told her
not to let “T-Y” talk. Ms. Bennett, however, stated that she did not inform the police
about her conversation with Ms. Brown and she did not advise police that she wanted a
lawyer for her son. Ms. Bennett admitted that she signed the advice of rights and waiver
forms, though she did not know why and that she was “scared and confused.”
{¶61} In considering the totality of the circumstances outlined above, we find the
evidence demonstrates that Kimmie was repeatedly advised of his rights during the
interview and he understood those rights as they were explained to him. Kimmie did not
at any time express confusion with respect to his rights or request a lawyer and stop the
interrogation. There is also no evidence that Kimmie’s statement to the detectives was
coerced — either by threat or intimidation. Therefore, we find that Kimmie voluntarily,
knowingly, and intelligently waived his Miranda rights.
The Doyle Right
{¶62} Lastly, Kimmie argues that his statement should have been suppressed
because he could not have adequately understood the full scope of his Fifth Amendment
rights before he began speaking to the detectives, based upon the fact that he was not
advised of his Doyle right to protected silence. Kimmie essentially argues that the
Miranda warnings, including the right to remain silent, should be expanded to include the
rights outlined in Doyle, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, specifically that a
defendant’s silence cannot be used against the defendant at trial. We decline to do so
here.
{¶63} In Doyle, the Supreme Court of the United States held that using a
defendant’s silence at the time of arrest and after the administration of Miranda rights, for
purposes of impeachment at trial, violates the Due Process Clause of the Fourteenth
Amendment. In so holding, the Supreme Court determined that once a criminal
defendant receives the Miranda warnings, the state may not impeach the defendant by
causing the jury to draw an impermissible inference of guilt from the defendant’s
post-arrest silence. Id. “Doyle rests on ‘the fundamental unfairness of implicitly
assuring a suspect that his silence will not be used against him and then using his silence
to impeach an explanation subsequently offered at trial.’” Wainwright v. Greenfield, 474
U.S. 284, 291, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), quoting South Dakota v. Neville,
459 U.S. 553, 565, 103 S. Ct. 916, 74 L.Ed.2d 748 (1983).
{¶64} As we previously stated, Miranda requires that a suspect in custody be
advised prior to any questioning that he has the right to remain silent, anything he says
can be used against him in a court of law, he has the right to the presence of an attorney,
and if he cannot afford an attorney one will be appointed for him. Lather, 110 Ohio
St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, at ¶ 6, quoting Miranda at 479. Miranda
does not require, however, any additional warnings beyond what has been stated. State
v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 69. See also United
States v. Ricks, 6th Cir. No. 92-5503, 1993 U.S. App. LEXIS 6517 (March 19, 1993)
(suspect need not be informed that he has the right to stop answering questions at any
time); United States v. Lares-Valdez, 939 F.2d 688 (9th Cir.1991) (suspect need not be
advised of the right to have questioning stopped at any time, of the option to answer some
questions but not others, or that some questions may call for incriminating responses);
United States v. Caldwell, 954 F.2d 496, 501-504 (8th Cir.1992) (suspect need not be
explicitly advised of his right to counsel before and during questioning); United States v.
DiGiacomo, 579 F.2d 1211, 1214 (10th Cir.1978) (no express requirement under
Miranda to advise suspects of the right to terminate questioning).
{¶65} In this case, Detectives Ansari and Griffin did not begin questioning
Kimmie until both his parents arrived, despite no legal obligation to do so. The
detectives fully and properly advised Kimmie of his rights as required by Miranda. They
allowed Kimmie to speak with his parents alone. They began the interrogation after
Kimmie was advised of his Miranda rights, and they ensured that he understood those
rights. At no time did Kimmie — or his parents — ask for a further explanation of his
rights or that the interview be stopped. The detectives were not required to anticipate a
misunderstanding of his rights, repeatedly advise Kimmie of his right to ask for a lawyer,
or stop the interrogation at any time after the interview had begun. “[T]here are
numerous circumstances and ways in which the right to silence may be invoked and
officers could not possibly warn of all of them. Having advised of the essential rights,
the officers are not obliged to warn of any or all of the circumstances or manners in which
the right may be invoked.” Foust at ¶ 71, quoting United States v. Alba, 732 F.Supp.
306, 310 (D.Conn.1990). We, therefore, find that Kimmie was given adequate warning
of his Miranda rights, and no further warning was required.
{¶66} Based upon the foregoing, we find the trial court had competent, credible
evidence to refute Kimmie’s claims that his post-arrest statement to the police was in
violation of his Miranda rights. As such, the trial court did not err in denying Kimmie’s
motion to suppress.
{¶67} Kimmie’s first assignment of error is overruled.
II. Jury Instructions
{¶68} With respect to Kimmie’s second assignment of error, the trial court
instructed the jury as follows: (1) Count 1 — aggravated murder and the lesser included
offenses of murder and reckless homicide; (2) Count 2 — murder and the lesser included
offense of reckless homicide; and (3) Counts 3 and 4 — felonious assault. Kimmie
contends that the trial court erred in denying his request for jury instructions on
involuntary manslaughter and negligent assault as lesser offenses to murder and felonious
assault, respectively, in Counts 2, 3, and 4, and in refusing to instruct on self-defense.
Kimmie argues that the evidence warranted such instructions. We disagree.
{¶69} We review a trial court’s issuance of jury instructions for an abuse of
discretion. State v. Williams, 8th Dist. Cuyahoga No. 90845, 2009-Ohio-2026, ¶ 50. To
constitute an abuse of discretion, the ruling must be unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Further, jury instructions are reviewed in their entirety to determine if they contain
prejudicial error. State v. Fields, 13 Ohio App.3d 433, 436, 469 N.E.2d 939 (8th
Dist.1984).
Negligent Assault and Involuntary Manslaughter
{¶70} Kimmie requested jury instructions on negligent assault in Counts 3 and 4
and involuntary manslaughter in Count 2. Kimmie claims that the instructions should
have been included because they are lesser included offenses and because the evidence
warrants such inclusion.
{¶71} In order to determine whether an instruction on a lesser included offense is
warranted, the trial court must conduct a two-part test. First, the trial court must
determine if the requested charge is a lesser included offense of the charged crime. State
v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). Second, the trial court must
look at the particular evidence in the case and determine if the evidence adduced at trial
would reasonably support both an acquittal on the crime charged and a conviction upon
the lesser included offense. State v. Benson, 8th Dist. Cuyahoga No. 87655,
2007-Ohio-830, ¶ 112, citing State v. Thomas, 40 Ohio St.3d 213, 216, 533 N.E.2d 286(1988); Kidder. A lesser included offense instruction, therefore, requires more than
“some evidence” that a defendant may have acted in such a way as to satisfy the elements
of the lesser offense. State v. Shane, 63 Ohio St.3d 630, 633, 590 N.E.2d 272 (1992).
Moreover, a defendant’s own testimony that he did not intend to kill his victim does not
alone entitle him to a lesser included offense instruction. See State v. Campbell, 69 Ohio
St.3d 38, 48, 630 N.E.2d 339 (1994) (denying jury instructions on involuntary
manslaughter where evidence showed a purposeful killing); Shane at 633 (rejecting jury
instructions on involuntary manslaughter because “some evidence” of involuntary
manslaughter was insufficient). Thus, an involuntary manslaughter instruction is
justified “only when, on the evidence presented, the jury could reasonably find against the
state on the element of purposefulness and still find for the state on the defendant’s act of
killing another.” Thomas at 216.
{¶72} In this case, the trial court instructed the jury in Counts 3 and 4 on felonious
assault in violation of R.C. 2903.11(A)(2), which provides that “[n]o person shall
knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a
deadly weapon or dangerous ordnance.” A person acts knowingly, “regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist.” R.C. 2901.22(B). Kimmie requested
additional instructions on negligent assault. Ohio’s negligent assault provision provides
that “[n]o person shall negligently, by means of a deadly weapon or dangerous ordnance *
* * cause physical harm to another * * *.” R.C. 2903.14(A). “A person acts negligently
when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that
his conduct may cause a certain result or may be of a certain nature.” R.C. 2901.22(D).
{¶73} The trial court also instructed the jury on murder in Count 2 in violation of
R.C. 2903.02(B), which provides that “[n]o person shall cause the death of another as a
proximate result of the offender’s committing or attempting to commit an offense of
violence that is a felony of the first or second degree * * *.” Kimmie, however,
requested instruction on involuntary manslaughter under R.C. 2903.04(B). Involuntary
manslaughter, which is a lesser included offense of murder, is defined as follows: “No
person shall cause the death of another * * * as a proximate result of the offender’s
committing or attempting to commit a misdemeanor of any degree * * *.” R.C.
2903.04(B).
{¶74} As outlined above, the difference between the instructions the trial court
gave the jury (murder and felonious assault) and those instructions Kimmie requested for
the lesser included offenses (involuntary manslaughter and negligent assault) is the
culpable mental state — the difference between acting knowingly and acting negligently.
{¶75} The state concedes, in this case, that negligent assault is a lesser included
offense of felonious assault and involuntary manslaughter is a lesser included offense of
murder. The state contends, however, that the trial court did not err in refusing to
instruct on negligent assault and involuntary manslaughter based upon the evidence
adduced at trial. The question, therefore, is whether the evidence would reasonably
support both an acquittal on the crimes charged and a conviction upon the lesser included
offenses. Benson, 8th Dist. Cuyahoga No. 87655, 2007-Ohio-830, at ¶ 112.
{¶76} In support of his request for instruction on the lesser included offenses,
Kimmie claims that he shot his weapon four times into the air. This statement, however,
is only “some evidence” going to the lesser included offenses. It is not enough evidence
to warrant the jury charge on those lesser included offenses. Campbell, 69 Ohio St.3d at
47, 630 N.E.2d 339; Shane, 63 Ohio St.3d at 632-633, 590 N.E.2d 272.
{¶77} Several witnesses testified that they heard shots coming from E. 38th St. and
Longwood Ave. toward the area of Dillard Ave., where the victims — Nelson, K.J., and
Willingham — had been standing. Officer Tate testified the person shooting from
behind the van, in that area of E. 38th St. and Longwood Ave., was “blindly firing into a
crowd.” Morgan testified that he saw two to three shooters reaching over a black van
shooting into the crowd, toward the victims. Cumulatively, as the trial court found, the
evidence as presented above does not demonstrate “mere negligence” in discharging a
weapon, stating that “there is no evidence that this was any kind of accidental shooting.”
The court further found that “the discharge of a firearm over a public road or highway as
a misdemeanor offense that would end up causing the loss of life” is not supported by the
facts and evidence of this case in order to support the charge of involuntary manslaughter.
Rather, the evidence supports a knowing act as provided in the jury instructions on
murder and felonious assault.
{¶78} Moreover, this court has previously held that evidence that a defendant shot
a gun into a crowd of people was sufficient to establish the purposefulness element of
R.C. 2903.02(A). State v. Williamson, 8th Dist. Cuyahoga No. 95732, 2011-Ohio-4095,
at ¶ 19.
{¶79} In light of the above, we cannot find that the trial court abused its discretion
in refusing to instruct the jury on negligent assault and involuntary manslaughter. As the
trial court determined, the evidence on the whole does not reasonably support an acquittal
on the charged crimes of murder and felonious assault and a conviction upon the lesser
included offenses.
Self-Defense
{¶80} Kimmie also claims that the trial court erred in denying his request to
include the jury instruction for self-defense. We disagree.
{¶81} In order to establish self-defense, Kimmie must demonstrate by a
preponderance of the evidence that (1) he was not at fault in creating the situation giving
rise to the affray; (2) he had a bona fide belief that he was in imminent danger of great
bodily harm and that his only means of escape from such danger was in the use of such
force; and (3) he must not have violated any duty to retreat or avoid danger. State v.
Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990); see also State v. Robbins, 58
Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus. The elements of
self-defense are cumulative and “‘[i]f the defendant fails to prove any one of these
elements by a preponderance of the evidence, he has failed to demonstrate that he acted in
self-defense.’” Williford, quoting State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d
893 (1986).
{¶82} In this case, the trial court concluded that an instruction on self-defense was
not warranted because the evidence did not support a claim of self-defense. The trial
court found that the only evidence of self-defense in this case was testimony that someone
other than Kimmie fired the first shot.
{¶83} The overwhelming evidence, however, demonstrated that there was a
shoot-out between two groups, located at opposing ends of Longwood Ave. In his
statement to police, Kimmie stated that “the Valley Boys got to busting us, so we started
shooting at them.” There was constant firing and more than 30 spent shell casings
discovered at the crime scene. Furthermore, there is no evidence that Kimmie was in
fear for his life and not at fault in creating the affray, that his only means of escape from
such danger was in the use of such force, or that he attempted to withdraw from the
conflict. Robbins at 80-81. As such, the evidence adduced at trial could not reasonably
support a jury conclusion that Kimmie acted in self defense when he engaged in a gun
fight.
{¶84} Additionally, Kimmie cannot claim that his actions were both negligent and
in self-defense. Kimmie’s self-defense argument negates his claim that the jury should
have been instructed on the lesser included offense of negligent assault. State v.
Mobley-Melbar, 8th Dist. Cuyahoga No. 92314, 2010-Ohio-3177, ¶ 28, citing State v.
Coleman, 8th Dist. Cuyahoga No. 80595, 2002-Ohio-4421, ¶ 25. “[B]ecause the claim
of self-defense is inconsistent with an unintentional shooting, an instruction on negligent
assault where the defendant claims self-defense would be unwarranted.” Coleman,
citing State v. Parra, 61 Ohio St.2d 236, 400 N.E.2d 885 (1980).
{¶85} Given the above, we cannot find that the trial court abused its discretion in
denying Kimmie’s proposed jury instructions on self-defense.
{¶86} We, therefore, find that the trial court properly denied instructing the jury on
negligent assault, involuntary manslaughter, and self-defense. Accordingly, Kimmie’s
second assignment of error is overruled.
III. Videotaped Interview
{¶87} Kimmie’s entire police interview was recorded, and a transcript of the
interview was prepared. During the interview, Kimmie made a written statement after
waiving his Miranda rights. At trial, the state introduced only a portion of the interview
— Kimmie’s written statement — through the testimony of Detective Griffin, who
conducted the police interview along with Detective Ansari. In Kimmie’s third
assignment of error, Kimmie argues that his constitutional rights were violated when the
trial court denied his request to admit the entire transcript of his videotaped police
interview where the state had introduced only a portion of the interview through the
detective’s testimony. Kimmie contends that the videotape is admissible and should
have been considered at trial. For the following reasons, we find no merit to Kimmie’s
argument.
{¶88} Kimmie claims that, pursuant to Evid.R. 106, either the videotape or the
transcript should have been admitted. Because the entire interview was not admitted,
Kimmie argues that he was deprived of a fair trial.
{¶89} Evid.R. 106 is known as the “rule of completeness.” Perry v. Univ. Hosps.,
8th Dist. Cuyahoga No. 83034, 2004-Ohio-4098, ¶ 57. This rule states that if one party
moves to introduce parts of a document, the opposing party can request that the entire
document be immediately submitted:
When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require him at that time to introduce any other
part or any other writing or recorded statement which is otherwise
admissible and which ought in fairness to be considered contemporaneously
with it.
Evid.R. 106.
{¶90} The overriding purpose of the rule is to prevent adverse parties from taking
statements or writings out of context and distorting them. Perry. The Staff Note to
Evid.R. 106 warns that the rule applies to writings and recordings and parts of the
recording that are “otherwise admissible”; it does not apply to conversations. Evid.R.
106; State v. Lewis, 7th Dist. Mahoning No. 03 MA 36, 2005-Ohio-2699, ¶ 126.
{¶91} In Lewis, supra, a factually similar case, the appellant argued that his entire
videotaped confession should have been played for the jury so that they could hear parts
of the tape where he made certain exculpatory statements. As in this case, the state in
Lewis did not introduce the videotaped statement, however; it questioned the detective
who interviewed the appellant about what appellant told him. In denying the admission
of appellant’s entire videotaped confession, the Seventh District Court of Appeals
determined that the state could ask the detective to testify as to what appellant told him
under Evid.R. 801(D)(2)(a), which provides that a statement is not hearsay if it is offered
against a party and is his own statement: “This rule explicitly demonstrates that
appellant’s statement is admissible non-hearsay only if it is offered by the state.” Lewis
at ¶ 127.
{¶92} The court, therefore, found that appellant could not use this rule to offer his
own out-of-court statement. Id., citing In re Coy, 67 Ohio St.3d 215, 218,
1993-Ohio-202, 616 N.E.2d 1105; State v. Wilson, 12th Dist. Clermont No.
CA2001-09-072, 2002-Ohio-4709, ¶ 57 (defendant cannot offer exculpatory hearsay
statement); State v. Gatewood, 15 Ohio App.3d 14, 16, 472 N.E.2d 63 (1st Dist.1984)
(holding that the defendant is not entitled to introduce taped interview with police).
Thus, if the defendant does not take the stand, he cannot introduce his own statements
made in a videotaped statement unless he can point to a hearsay exception. Lewis at ¶
128; State v. Vidu, 8th Dist. Cuyahoga Nos. 71703 and 71704, 1998 Ohio App. LEXIS
3390 (July 23, 1998).4
{¶93} Kimmie argues one such exception — that the videotape was the best
evidence under Evid.R. 1002 and, therefore, admissible. Evid.R. 1002 requires an
original document or recording “[t]o prove the content of a writing, recording, or
photograph, * * * except as otherwise provided in these rules * * *.” The Staff Notes to
Evid.R. 1002 provide that the original of a writing or photograph or recording is required
as the “best evidence” if the particular writing or photograph or recording is introduced to
prove its “content.” “Thus, if a confession is recorded on tape, the original tape
recording would be introducible as the best evidence for its ‘content.’” Id.{¶94} The “best evidence” rule, however, does not apply where an officer testifies
as to what he heard first-hand. Lewis, 7th Dist. Mahoning No. 03 MA 36,
2005-Ohio-2699, at ¶ 132; State v. Cechura, 7th Dist. Columbiana No. 99CO74,
2001-Ohio-3250, *19. “[W]hen a person testifies from memory about a conversation
While the videotape is admissible if offered by the state, there is no obligation by the state to
4
play it. Lewis at ¶ 129, citing State v. Scales, 2d Dist. Champaign No. 2002CA27, 2004-Ohio-175,
¶ 9. Rather, the state can ask the interviewing officer to testify about the appellant’s statements. Id.they had with a defendant that just so happened to be recorded, they are not attempting to
prove the contents of a recording.” Cechura; see also State v. Turvey, 84 Ohio App.3d
724, 735, 618 N.E.2d 214 (4th Dist.1992). This is true where an officer testifies about a
confession and the state presents the written confession itself, because neither the
testimony nor the written confession is dependent upon the existence of the videotaped
confession. Id. Therefore, the “best evidence” rule would not apply.
{¶95} In light of the above, we find that Kimmie was not denied a fair trial when
the trial court denied his request to admit his entire videotaped interview. Evid.R. 106 is
limited to those parts of Kimmie’s statements that are otherwise admissible. Detective
Griffin testified as to what Kimmie said during his confession, and the state provided
Kimmie’s written statement that was obtained during the videotaped interview. When
offered by the state, this testimony is admissible as a party admission under Evid.R.
801(D)(2)(a). Kimmie’s statement is admissible non-hearsay only if offered by the state.
Kimmie cannot, however, use Evid.R. 106 to offer his own out-of-court statement.
Moreover, the video is not the “best evidence” that is admissible under Evid.R. 1002
because Detective Griffin testified about Kimmie’s confession and the state presented the
written confession itself. Neither the detective’s testimony nor the written confession
was dependent upon the existence of the videotaped confession. As such, Kimmie’s
videotaped statements to Detectives Griffin and Ansari that were not offered by the state
are inadmissible hearsay.
{¶96} Accordingly, Kimmie’s third assignment of error is overruled.
IV. Inadmissible Evidence
{¶97} In his fourth assignment of error, Kimmie claims that he was denied a fair
trial when the trial court allowed, over Kimmie’s objection, the admission of the
following evidence at trial: (1) testimony regarding the use of one of the discovered
weapons being used in an unrelated crime; (2) Raynell Williams’s pretrial identifications
and testimony;5 and (3) K.J.’s pretrial identification. Kimmie contends that the above
evidence was either hearsay, in violation of Evid.R. 801(C), or not relevant, in violation
of Evid.R. 402 and 403. Additionally, Kimmie argues that the admission of K.J.’s
pretrial identification violated Crim.R. 16 in that the identification was not disclosed prior
to trial. For the following reasons, we disagree.
The NIBIN evidence
{¶98} Kimmie claims that testimony regarding the use of one of the recovered
weapons being used in an unrelated crime should have been excluded because its
probative value was outweighed by unfair prejudice.
{¶99} Under Evid.R. 402, only relevant evidence is admissible. Evid.R. 401
defines relevant evidence as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Although relevant, evidence is not
Kimmie claims that the trial court erred by admitting the pretrial identifications and
5
statements made by Raynell Williams through state’s exhibits Nos. 226, 227, and 228. Our review
of the transcript, however, reveals that all exhibits pertaining to Williams were withdrawn by the state,
including those referenced in Kimmie’s fourth assignment of error.
admissible “if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury. Evid.R. 403. Unfair
prejudice is “that quality of evidence which might result in an improper basis for a jury
decision.” State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 24.
{¶100} A trial court has broad discretion in admitting evidence. Absent an abuse
of that discretion and a showing of material prejudice, a trial court’s ruling on the
admissibility of evidence will be upheld. Fackelman v. Micronix, 8th Dist. Cuyahoga
No. 98320, 2012-Ohio-5513, ¶ 17. State v. Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d
1157 (1985). Because fairness is subjective, the determination as to whether evidence is
“unfairly prejudicial” is left to the sound discretion of the trial court, and the decision will
be overturned only if that discretion is abused. State v. Robb, 88 Ohio St.3d 59, 68,
2000-Ohio-275, 723 N.E.2d 1019.
{¶101} Detective Kooser testified that the third unknown weapon that fired the 15
shots was also used in another crime. According to Kooser, there was a match between
one of those 15 shots to a cartridge case found in the national database known as the
National Integrated Ballistics Information Network (“NIBIN”), which records crime
scene cartridge cases. On cross-examination, Kooser testified that the NIBIN “hit” was
not on the weapon connected to Kimmie.
{¶102} The state contends that it elicited the detective’s testimony concerning the
NIBIN hit for the purpose of establishing that the police continue to look for that
particular weapon. The state claims that it did not elicit testimony pertaining to the
particular facts associated with the use of that gun, such as whether the gun matches the
group of 15 shell casings or another group. Rather, the defense raised that issue on
cross-examination.
{¶103} The trial court overruled Kimmie’s objection and allowed the detective’s
testimony for the state’s aforementioned limited purpose. In doing so, the trial court
determined that Detective Kooser’s testimony in this regard was relevant to the issue of
the criminal gang specification. There is no evidence that this limited testimony resulted
in an improper basis for the jury’s decision or was otherwise unfair or prejudicial. The
trial court, therefore, did not abuse its discretion in allowing the relevant testimony.
Raynell Williams
{¶104} Kimmie also objected to the testimony of Raynell Williams and Williams’s
pretrial identifications, stating they were based on hearsay. The state contends that parts
of Williams’s testimony is hearsay; however, the trial court permitted the state to treat
Williams as a hostile witness because Williams surprised the court with his testimony on
the stand, and this treatment was necessary in order to ask leading questions and impeach
his testimony.
{¶105} Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered to prove the truth of the matter asserted. Evid.R.
801(C). These statements are generally prohibited unless an exception or exclusion
exists to allow such a statement to be used in court. Evid.R. 802.
{¶106} A “hostile witness” is one who surprises the calling party at trial by turning
against him while testifying. State v. Darkenwald, 8th Dist. Cuyahoga No. 83440,
2004-Ohio-2693, ¶ 15-16. The traditional hostile witness is addressed under Evid.R.
607. Id. Pursuant to Evid.R. 607, “[t]he credibility of a witness may be attacked by any
party except that the credibility of a witness may be attacked by the party calling the
witness by means of a prior inconsistent statement only upon a showing of surprise and
affirmative damage * * *.”
{¶107} Evid.R. 611(C) provides that “[w]hen a party calls a hostile witness, * * *
interrogation may be by leading questions” on direct examination. In re D.C.J., 8th Dist.
Cuyahoga Nos. 97681 and 97776, 2012-Ohio-4154, ¶ 19. The decision to allow leading
questions in the direct examination of a witness is within the trial court’s discretion.
State v. Williams, 8th Dist. Cuyahoga No. 95748, 2011-Ohio-5385, ¶ 20, citing Ramage v.
Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 1992-Ohio-109, 592 N.E.2d 828,
paragraph six of the syllabus.
{¶108} In this case, prior to testifying, Williams made a statement to the police in
which he related the events of the shooting on Longwood Ave. and identified Kimmie as
the shooter, noting on the police photo, “shooting, dropping gun.” Williams told the
police that Kimmie was shooting at people, not in the air, and he identified the location
from where Kimmie was shooting. On the stand, however, Williams told the court, for
the first time, that he “was told the whole story,” and based on rumors, he “put the pieces
together.” Williams told the court that he actually got down on the floor and took cover
when he first heard the shots.
{¶109} Upon hearing this new version of events, the prosecutor requested and
received permission to treat Williams as a hostile witness. In granting the state’s request,
the trial court determined that there was surprise and affirmative damage in Williams’s
testimony on the stand. The prosecutor then proceeded to ask leading questions in order to
attack Williams’s credibility and impeach his testimony. The record shows that the
prosecutor used Williams’s written statement solely for purposes of impeachment rather
than as an attempt to introduce improper hearsay evidence. We, therefore, find that the
trial court did not abuse its discretion in permitting the prosecutor to ask leading questions
of Williams and in limiting those questions only to prior inconsistent statements.
K.J.’s Pretrial Identification
{¶110} Kimmie claims that the trial court erred in admitting K.J.’s pretrial
identification of Kimmie as the shooter in a photo array because it was not disclosed prior
to trial in violation of Crim.R. 16. The state provides that it was unaware of K.J.’s
pretrial identification prior to trial.
{¶111} The purpose of Crim.R. 16 is to provide all parties in a criminal case with
the information necessary for a full and fair adjudication of the facts, to protect the
integrity of the justice system and the rights of defendants, and to protect the well-being
of witnesses, victims, and society at large. Crim.R. 16(A). In that regard, the criminal
rules mandate that the prosecutor
shall provide * * * the following items related to the particular case
indictment, information, or complaint, and which are material to the
preparation of a defense, or are intended for use by the prosecuting attorney
as evidence at the trial, * * * subject to the provisions of this rule: * * * (5)
any evidence favorable to the defendant and material either to guilt or
punishment.
Crim.R. 16(B)(5). If a party fails to comply with Crim.R. 16 or an order issued under it,
“the court may * * * prohibit the party from introducing in evidence the material not
disclosed, or it may make such other order as it deems just under the circumstances.”
Crim.R. 16(L)(1).
{¶112} A trial court has discretion in deciding whether to permit witness
testimony. State v. Wheeler, 8th Dist. Cuyahoga No. 66923, 1995 Ohio App. LEXIS
2146 (May 28, 1995). Upon review of the trial court’s order, an appellate court
considers whether there was a willful violation of the discovery rules, if foreknowledge
would have benefitted the defendant in preparation of his defense, and whether the
accused was unfairly prejudiced. State v. Wilson, 8th Dist. Cuyahoga No. 87429,
2006-Ohio-5253, ¶ 21, citing State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983),
syllabus.
{¶113} In this case, the trial had commenced, and in anticipation of the state’s
calling K.J. to testify, Kimmie objected, in part, to K.J.’s testimony. Specifically,
Kimmie objected to K.J.’s pretrial identification on May 16, 2012, of Kimmie as the
shooter. The state began to argue against Kimmie’s objection, stating that when the
Cleveland police initially showed K.J. a series of photographs, K.J. told the police that
they had not shown her a picture of the shooter. In the course of arguing, however,
Detective Griffin informed the state that on May 16, K.J. had made an out-of-court
identification of Kimmie as the shooter. Thereafter, the trial court permitted K.J.’s
testimony concerning her pretrial identification.
{¶114} In order to determine whether the state violated the criminal rules of
discovery in not providing K.J.’s pretrial identification, we must find that this evidence to
which Kimmie objected is “favorable to the defendant.” Crim.R. 16(B)(5); State v.
Smith, 8th Dist. Cuyahoga No. 96348, 2011-Ohio-6466. K.J. testified that, on May 16,
she positively identified Kimmie as the shooter from a photo array. This identification,
therefore, is not favorable to the defense. Wilson at ¶ 19.
{¶115} Secondly, we must determine whether the evidence is “material either to
guilt or punishment.” Crim.R. 16(B)(5); Smith. The state did not present K.J.’s
out-of-court identification at trial in order to prove Kimmie’s guilt. Rather, K.J.’s
pretrial identification was merely one evidentiary item presented at trial on behalf of the
state. K.J. also made a positive in-court identification of Kimmie as the shooter.
Moreover, K.J.’s in-court identification was cumulative to additional evidence presented
by the state, which is further discussed under Kimmie’s sixth assignment of error. We,
therefore, cannot say that K.J.’s out-of-court identification was material to Kimmie’s guilt
or punishment or that the outcome of the trial would have been different had K.J.’s
pretrial identification been prohibited. Wilson, 8th Dist. Cuyahoga No. 87429,
2006-Ohio-5253, at ¶ 20. As such, we find the state did not violate the rules of discovery
concerning K.J.’s pretrial identification of Kimmie as the shooter.
{¶116} Even if we had found a violation, we cannot find that the trial court abused
its discretion in allowing K.J.’s pretrial identification. First, there is no evidence that the
state intentionally and willfully withheld evidence of K.J.’s pretrial identification, as the
transcript reveals the state’s initial discovery of the identification in the course of arguing
against Kimmie’s objection to K.J.’s testimony. Second, because the pretrial
identification was not favorable to Kimmie, the prior knowledge of the identification
would not have benefitted him in the preparation of his defense. Finally, Kimmie was
not unfairly prejudiced by the out-of-court identification because K.J. positively identified
him at trial. See Wilson, supra at ¶ 21-22.
{¶117} Accordingly, because we find that the trial court did not abuse its
discretion concerning the admission of the NIBIN evidence, Raynell Williams’s
testimony, and K.J.’s pretrial identification, Kimmie’s fourth assignment of error is
overruled.
V. Sufficiency of the Evidence
{¶118} Under his fifth assignment of error, Kimmie claims his conviction for
murder and felonious assault is not supported by sufficient evidence. We disagree.
{¶119} When reviewing a challenge of the sufficiency of the evidence, a reviewing
court examines the evidence admitted at trial and determines whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “The relevant inquiry is 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.” Id. A sufficiency challenge
requires us to review the record to determine whether the state presented evidence on
each of the elements of the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). A reviewing court is not to assess “whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390,
1997-Ohio-52, 678 N.E.2d 541.
{¶120} Kimmie claims that there was insufficient evidence to convict him on the
murder and the felonious assault charges because, by rendering a guilty verdict on
reckless homicide as opposed to the aggravated murder charge, there was no evidence
that Kimmie had the requisite knowledge to support the conviction on the murder charge.
Further, Kimmie claims that the jury’s verdict of guilty on the reckless homicide and
guilty on the murder and the felonious assault charges was inconsistent.
{¶121} As noted earlier, under R.C. 2903.02(B), a person commits murder by
proximately causing another’s death while possessing the mens rea element set forth in
the underlying felony offense. The underlying offense in this case is felonious assault:
“[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another *
* * by means of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(2). One
acts knowingly, regardless of purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. R.C. 2901.22(B). This
court has previously held that evidence that the defendant shot a gun into a crowd of
people was sufficient to establish the purposefulness element of murder as defined by
R.C. 2903.02(A). Williamson, 8th Dist. Cuyahoga No. 95732, 2011-Ohio-4095, at ¶ 19.
Because proof of any degree of culpable mental state is sufficient to prove all lesser
degrees, purpose is sufficient to prove knowledge. R.C. 2901.22(E).
{¶122} Here, Kimmie claims that he shot into the air four times; however, the
evidence does not support his claim. Rather, the record contains evidence that Kimmie
fired a gun in the direction of a crowd of people. Morgan testified that he saw a shooter
in a red jacket “shooting at something.” The victim, K.J., made in-court and out-of-court
identifications of Kimmie as the shooter who was shooting toward Dillard Ave., not in the
air. K.J. testified that she heard shots coming from Dillard Ave. going toward E. 38th St.
and return fire from E. 38th St. toward the victims’ location. Further, Detective Kooser,
the firearms expert, examined the gun that the shooter with the red jacket threw at
Morgan — “the Kimmie weapon” — and found that this gun had fired six shots.
{¶123} Moreover, while the jury found Kimmie guilty of reckless homicide in one
count, requiring a reckless act, and guilty of murder and felonious assault in another
count, requiring knowledge, it is well established in Ohio that consistency in the verdict is
not required. In criminal cases, consistency between verdicts on several counts of an
indictment is unnecessary “where the defendant is convicted on one or some counts, and
acquitted on others.” In such cases, the conviction will generally be upheld, “irrespective
of its rational incompatibility with the acquittal.” State v. Sailor, 8th Dist. Cuyahoga No.
83552, 2004-Ohio-5207, ¶ 88, citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d
1018 (10th Dist.1985).
{¶124} In light of the above, and in viewing the evidence in a light most favorable
to the prosecution, a rational trier of fact could find that Kimmie had the requisite
knowledge sufficient to commit felonious assault and murder, regardless of its verdict on
the reckless homicide. We find, therefore, that the state presented sufficient evidence to
sustain Kimmie’s convictions of murder and felonious assault. Accordingly, Kimmie’s
fifth assignment of error is overruled.
VI. Manifest Weight
{¶125} Having concluded that the evidence on the record is sufficient to support a
conviction of murder and felonious assault, we now review the record to determine
whether Kimmie’s convictions are against the manifest weight of the evidence.
{¶126} Unlike sufficiency of the evidence, manifest weight of the evidence raises
a factual issue.
“The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.”
Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541, quoting Martin, 20
Ohio App.3d at 175, 215, 485 N.E.2d 717.
{¶127} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. When examining witness credibility, “the
choice between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of the
finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A
factfinder is free to believe all, some, or none of the testimony of each witness appearing
before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.
{¶128} We find, in light of the record before us, that Kimmie’s convictions are not
against the manifest weight of the evidence.
{¶129} Morgan testified that he heard constant gunfire from E. 38th St., where he
saw two or three shooters standing behind a van, leaning around the van and shooting into
the crowd toward E. 39th St. and Dillard Ave., where the victims were located. Morgan
testified that before retrieving the weapon, he screamed for the shooter in the red jacket to
drop his weapon, which he did. Morgan then retrieved the weapon. Morgan testified
that he saw this shooter run away, toward the Bivens courtyard. Tate testified that he
saw two people near the same van — one person was “blindly firing into a crowd” and
the other was holding a weapon. Tate testified that he first heard shots coming from
E. 38th St. toward Dillard Ave. and there was return fire. Drummond testified that he
saw a male with a red top running from the area.
{¶130} The red jacket, identified as state’s exhibits Nos. 193 and 194, and this
shooter’s weapon were recovered, and both tested positive for Kimmie’s DNA.
Dr. Nasir Butt found that Kimmie was a “major contributor” of the DNA on the back
strap of the gun. He also determined that Kimmie cannot be excluded as a possible
contributor to the DNA found on the red jacket. The firearms expert testified that the
recovered weapon, identified as the “Kimmie weapon,” fired six shots out of the 30
recovered spent cartridges. Detective Griffin testified that there were two sets of people,
or two locations, involved in a “shoot-out,” as evidenced by the shell casings discovered
in both locations. He stated that he recovered “numerous shell casings or bullets at E.
38th St. – Longwood Ave.” and “maybe a couple” shell casings at Dillard Ave. –
Longwood Ave.
{¶131} K.J., who was shot in the wrist, identified Kimmie from a police photo
array prior to trial, and she identified Kimmie in court as the shooter. K.J. also testified
that she heard shots coming from E. 38th St. and Dillard Ave. Lizaria Moore, who
attended the party before the shooting with K.J. and Danica Nelson, testified that she
heard gunshots come from an area where she saw a group of boys she did not know.
Moore identified state’s exhibits Nos. 193 and 194 as the jacket one of the boys in that
group was wearing. Raynell Williams placed Kimmie at the scene prior to hearing
gunfire.
{¶132} Finally, Kimmie provided a statement to the police following his arrest. In
his own statement, Kimmie admitted that “the Valley Boys got to busting at us, so we
started shooting at them * * * I was shooting.” He further stated that while he was
shooting, he turned around and saw TD Security; he threw the gun on the ground, ran
from security, and threw his red jacket near the parking lot. While Kimmie varied his
statement to say that he shot four times in the air, this conflicting testimony rests solely
with the jury and we may not substitute our judgment. The jury is free to believe all,
some, or none of the testimony of each witness appearing before it.
{¶133} Having reviewed the entire record, we cannot say that this is one of the
exceptional cases in which the evidence weighs heavily against Kimmie’s conviction.
Accordingly, Kimmie’s sixth assignment of error is overruled.
VII. Kimmie’s Sentence
{¶134} Under Kimmie’s final assignment of error, Kimmie contends that the
imposition of consecutive sentences was contrary to law because the trial court did not
make the statutory findings required by R.C. 2929.14(C)(4). He also contends that the
court erred in imposing multiple sentences for allied offenses of similar important under
R.C. 2941.25.
Allied Offenses
{¶135} Kimmie argues that the shooting was a single act and, therefore, his
convictions for murder and felonious assault should be deemed allied offenses and
merged for sentencing. We disagree.
{¶136} R.C. 2941.25 provides as follows:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶137} The Ohio Supreme Court established the proper analysis for determining
whether offenses qualify as allied offenses subject to merger pursuant to R.C. 2941.25:
In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A), the question is whether it is possible to commit one
offense and commit the other with the same conduct * * *. If the offenses
correspond to such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other, then the
offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same
conduct, i.e., “a single act, committed with a single state of mind.”
(Citations omitted.) State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, ¶ 48-49.
{¶138} This court has previously held that “where a defendant commits the same
offense against different victims during the same course of conduct and the offense is
defined in terms of conduct toward another, then there is a dissimilar import for each
person subjected to the harm or risk of harm.” State v. Phillips, 8th Dist. Cuyahoga No.
98487, 2013-Ohio-1443, ¶ 10, citing State v. Dix, 8th Dist. Cuyahoga No. 94791,
2011-Ohio-472, ¶ 22. In Phillips, the charges arose from a drive-by shooting during
which multiple shots were fired into a vehicle containing four occupants, a police chase
ensued, and additional shots were fired. The defendant was charged with multiple counts
of felonious assault and multiple counts of attempted murder. The court determined that
“by firing multiple shots at an occupied vehicle, or acting in complicity with the shooter
in this regard, appellant attempted to purposely cause the death of each victim.” Phillips.
Because he created a known risk of harm to four different people, there was separate
animus as to each victim, and therefore, the offenses are not allied offenses of similar
import. Id.6
{¶139} Likewise, in this case, Kimmie fired multiple shots into a crowd of people
while engaging in a shoot-out. He acted in complicity with the other shooters and
created a known risk of harm to the crowd of people caught in the middle of the gunfire,
including the three victims. Kimmie’s two felonious assault convictions pertaining to
K.J. and James Willingham and his conviction for the murder of Danica Nelson are,
therefore, not allied offenses of similar import.
Consecutive Sentences
{¶140} Kimmie also contends that the court erred in imposing consecutive
sentences. The trial court sentenced Kimmie on November 2, 2012, to 15 years to life on
In State v. Sutton, 8th Dist. Cuyahoga No. 90172, 2011-Ohio-2249, this court found that the
6
act of shooting multiple, successive shots into an occupied vehicle was one act. However, in Sutton,
we considered the offenses only as they related to each individual victim, not as they related to the
multiple victims, finding that the trial court erred “in failing to merge the felonious assault and
attempted murder convictions as to each of the four victims.” Id. at ¶ 10; Phillips at ¶ 9.
Count 2, three years on Count 3, and three years on Count 4. The court ordered all
counts to run consecutively and consecutive to the three-year firearm specification, for a
total of 24 years to life.
{¶141} We review consecutive sentences using the standard set forth in R.C.
2953.08. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 8-10. That
statute provides two grounds for an appellate court to overturn the imposition of
consecutive sentences: (1) the sentence is “otherwise contrary to law”; or (2) the appellate
court, upon its review, clearly and convincingly finds that the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4). Venes at ¶ 11; R.C.
2953.08(G)(2).
{¶142} H.B. 86, effective on September 30, 2011, revived the requirement that
trial courts make certain findings before imposing consecutive sentences. State v. Graves,
8th Dist. Cuyahoga No. 98559, 2013-Ohio-2197, ¶ 11. Under current R.C.
2929.14(C)(4), when imposing consecutive sentences, the trial court must first find the
sentence is “necessary to protect the public from future crime or to punish the offender.”
Next, the trial court must find that consecutive sentences are “not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.”
Finally, the trial court must find the existence of one of the three statutory factors set forth
in R.C. 2929.14(C)(4)(a)-(c).
{¶143} Compliance with this statute “requires separate and distinct findings in
addition to any findings relating to purposes and goals of criminal sentencing.” Venes at
¶ 17, citing State v. Jones, 93 Ohio St.3d 391, 399, 2001-Ohio-1341, 754 N.E.2d 1252.
“By stating the findings on the record, the reviewing court will not have to guess as to the
trial court’s thought process or impose its own. This helps the reviewing court to
understand whether the trial court made the appropriate analysis.” State v. Davis, 8th Dist.
Nos. 97689, 97691, and 97692, 2012-Ohio-3951, ¶ 16 (Blackmon, J., concurring). The
failure to make these findings is contrary to law. Venes at ¶ 12.
{¶144} In this case, in sentencing Kimmie for the murder, the trial court found that
prison is necessary to protect the public from future crime and not demean the seriousness
of the offense. In imposing a sentence for the two charges of felonious assault, the trial
court reiterated the injuries to the victims and stated that “because of the nature of the
offense, they are separate crimes, they should be separately punished, the court is
imposing that time consecutively to one another.” We find, however, that these
statements, along with the record in this case, are devoid of the statutorily mandated
findings required by the statute as outlined above. The consecutive sentence the trial
court imposed, therefore, is clearly and convincingly contrary to law.
{¶145} Accordingly, we sustain Kimmie’s seventh assignment of error as it relates
to consecutive sentences and remand this case to the trial court for the limited purposes of
resentencing consistent with R.C. 2929.14(C). The resentencing hearing on remand will
be limited only to the issue found to be in error on appeal. See State v. Huber, 8th Dist.
Cuyahoga No. 98206, 2012-Ohio-6139, ¶ 17.
{¶146} Affirmed in part; reversed in part.
{¶147} It is ordered that appellant and appellee share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
MELODY J. STEWART, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR