[Cite as State v. Searles, 2011-Ohio-6275.]




          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 96549




                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    JIMMY SEARLES
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                           Case No. CR-539484

      BEFORE:     Keough, J., Sweeney, P.J., and E. Gallagher, J.

    RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEY FOR APPELLANT

John T. Castele
614 West Superior Avenue
Suite 1310
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Andrew J. Santoli
      Kerry A. Sowul
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:
       {¶ 1} Defendant-appellant, Jimmy Searles (“Searles”), appeals his

convictions and sentence. For the reasons that follow, we affirm.

       {¶ 2} In 2010, Searles was named in a fourteen count indictment

arising from a shooting that occurred inside a Cleveland area bar. He was

charged with three counts of attempted murder, eight counts of felonious

assault, and one count each of having weapons while under disability,

carrying a concealed weapon, and tampering with evidence. Additionally, the

indictment contained numerous firearm and forfeiture specifications.   Searles waived his right

to a jury trial and the case was tried to the court.

       {¶ 3} At the close of the State’s case, the trial court granted Searles’s

Crim.R. 29 motion for judgment of acquittal on the tampering with evidence

charge. At the close of the all the evidence, Searles was found not guilty of

two counts of attempted murder and one count of felonious assault, but guilty

of all remaining counts as indicted, including the firearm specifications. The

trial court sentenced Searles to an aggregate prison term of 15 years and

ordered the firearm forfeited. Searles now appeals.

                           I. Manifest Weight of the Evidence
      {¶ 4} In his first assignment of error, Searles contends that his

convictions for attempted murder and felonious assault are against the

manifest weight of the evidence.1

      {¶ 5} The manifest weight of the evidence standard of review requires

us to review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. State v. Otten (1986), 33 Ohio App.3d 339,

340, 515 N.E.2d 1009. The use of the word “manifest” means that the trier of

fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution

of factual issues resides with the trier of fact. State v. DeHass (1967), 10

Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The trier of

fact has the authority to “believe or disbelieve any witness or accept part of

what a witness says and reject the rest.” State v. Antill (1964), 176 Ohio St.

61, 67, 197 N.E.2d 548.

      {¶ 6} Searles argues that his conviction for attempted murder is

against the manifest weight of the evidence because he did not formulate or


       Searles does not raise any argument on appeal challenging his convictions for having
      1


weapons while under disability or carrying a concealed weapon.
possess the requisite intent of acting “purposely,” and even if he did formulate

the requisite intent, his voluntary intoxication negated the mens rea element

of “purposely.”   R.C. 2923.02(A), murder, provides that “no person shall

purposely cause the death of another * * *.” R.C. 2903.02(A), the “attempt”

statute, provides that

      {¶ 7} “no person, purposely or knowingly, and when purpose or

knowledge is sufficient culpability for the commission of an offense, shall

engage in conduct that, if successful, would constitute or result in the

offense.”

      {¶ 8} R.C. 2901.22(A), “a person acts purposely when it is his specific

intention to cause a certain result, or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is his specific intention to engage in

conduct of that nature.”

      {¶ 9} The events giving rise to this case were captured on surveillance

video inside The Hill bar in Cleveland. In July 2010, victims, Nakia Darling,

Gary Darling, and Benjamin Phillips, went to The Hill bar.           When they

walked in, Gary went directly to the bar while Benjamin and Nakia stood

nearby.     Nakia testified that a guy, later identified as Searles, said

something to him and a verbal nonviolent confrontation ensued.           Searles

then placed his beer on the bar, turned away from Nakia, pulled a gun from
under his shirt, cocked it, and pointed it directly at Nakia. The video tape

evidence as well as the testimony demonstrate that Gary stepped between

Nakia and Searles and as Gary grabbed at Searles’s arm, the gun is

discharged. Thereafter, a struggle began between Searles and the victims

and Searles discharged his firearm approximately seven more times — three

of which struck Nakia in the hand, head, and leg; one struck Gary in the

head; and two were fired at Benjamin. This entire altercation, from the time

the first words were exchanged between Searles and Nakia until Searles got

up off the floor after the struggle with the men, lasted approximately one

minute and fifteen seconds.

      {¶ 10} Searles argues on appeal that he did not have the specific intent

to cause the death of Nakia because Nakia was not shot until after the initial

struggle with the gun began; thus, arguably, the gun was discharged

randomly and at no specific person or with any specific intent. Also, Searles

argues that although his pointing the gun at Nakia could constitute felonious

assault, the corresponding act of shooting at a person is necessary for murder

or attempted murder.

      {¶ 11} A trier of fact may infer an intent to kill where (1) the natural

and probable consequences of a defendant’s act is to produce death, and (2) all

the surrounding circumstances allow the conclusion that a defendant had an

intent to kill. State v. Edwards (1985), 26 Ohio App.3d 199, 200, 499 N.E.2d
352, citing State v. Robinson (1954), 161 Ohio St. 213, 118 N.E.2d 517.

These circumstances include the means or weapon used, its tendency to

destroy life if designed for that purpose, and the manner in which the wounds

are inflicted. Robinson, paragraph five of the syllabus. The specific intent

to kill may be reasonably inferred from the fact that a firearm is an

inherently dangerous instrument, the use of which is likely to produce death.

State v. Mackey Cuyahoga App. No. 75300, citing State v. Widner (1982), 69

Ohio St.2d 267, 431 N.E.2d 1025.

      {¶ 12} In this case, Searles pointed the gun at Nakia.   This fact is not

disputed. Searles testified that he was unable to recall any of the events

that occurred at the bar, thus whether he acted purposefully is determined by

the surrounding circumstances. The best evidence, the surveillance video,

shows that Gary stepped between Nakia and Searles and as Gary tried to

grab at Searles’s arm, the gun is fired. From the testimony and the video, it

can be inferred that had Gary not intervened, the first shot would have struck

Nakia.

      {¶ 13} Resolving any conflicting interpretation of the facts or the

evidence is within the province of the trier of fact. Our review of the record

does not demonstrate that the trial court clearly lost its way or created a

manifest miscarriage of justice in finding Searles guilty of attempted murder

of Nakia.
      {¶ 14} We further find Searles’s voluntary intoxication argument

unpersuasive.    “In Ohio, prior to October 2000, evidence of voluntary

intoxication was available as an affirmative defense in instances where a

defendant was charged with a specific intent crime and could demonstrate

that he was ‘so intoxicated as to be mentally unable to intend anything.’

State v. Otte (1996), 74 Ohio St.3d 555, 564, 660 N.E.2d 711.         However,

pursuant to R.C. 2901.21(C), as amended effective October 27, 2000,

‘voluntary intoxication may not be taken into consideration in determining

the existence of a mental state that is an element of a criminal offense.’

Accordingly, the defense of voluntary intoxication is no longer applicable.”

State v. Stockhoff, Butler App. No. CA2001-07-179, 2002-Ohio-1342; see, also,

State v. Fredericy, Cuyahoga App. No. 95677, 2011-Ohio-3834.

      {¶ 15} Therefore, the arguments raised by Searles challenging his

attempted murder conviction based on his inability to form the requisite mens

rea due to his voluntary intoxication are without merit.

      {¶ 16} Next, Searles argues that his convictions for felonious assault are

against the manifest weight of the evidence because Searles was provoked,

initially by the words of Nakia and through the subsequent intervention and

struggle over the gun; thus, the court should have consider the lesser charge

of aggravated assault.
      {¶ 17} R.C. 2903.11(A), felonious assault provides that “no person shall

knowingly * * * (1) Cause serious physical harm to another * * *; [or] (2)

Cause or attempt to cause physical harm to another * * * by means of a

deadly weapon or dangerous ordnance.”

      {¶ 18} Aggravated assault is not a lesser-included offense of the offense

of felonious assault.   Instead, aggravated assault is an inferior degree of

felonious assault because its elements are identical to or contained within the

offense of felonious assault, coupled with the additional presence of one or

both mitigating circumstances of sudden passion or a sudden fit of rage

brought on by serious provocation occasioned by the victim. State v. Logan,

Franklin App. No. 08AP–881, 2009-Ohio-2899, citing State v. Deem (1988), 40

Ohio St.3d 205, 533 N.E.2d 294; see, also, R.C. 2903.12; State v. Stewart,

Franklin App. No. 10AP–526, 2011-Ohio-466, ¶7.         A defendant bears the

burden of proving the mitigating factor by a preponderance of the evidence.

State v. Rhodes (1992), 63 Ohio St.3d 613, 590 N.E.2d 261, syllabus. “Words

alone will not constitute reasonably sufficient provocation to incite the use of

deadly force in most situations.” State v. Shane (1992), 63 Ohio St.3d 630,

637, 590 N.E.2d 272.

      {¶ 19} We find nothing in the record to suggest that the trial court did

not give due and fair consideration to the inferior offense of aggravated

assault or that his convictions are against the manifest weight of the
evidence. Moreover, because Searles was unable to recall any of the events

leading up to or during the altercation, he was unable to withstand his

burden of proving that he was under the influence of sudden passion or a

sudden fit of rage to satisfy the subjective standard of whether sufficient

provocation existed.           See State v. Stewart, Franklin App. No. 10AP-526,

2011-Ohio-466, ¶9-11.

        {¶ 20} Searles was charged with eight counts of felonious assault, but

only convicted of seven of those counts. A frame-by-frame review of the video

shows Searles knowingly pointed and fired his gun at Nakia and, but for

Gary’s intervention, the bullet would have struck him. Searles continued

shooting during the subsequent struggle and Gary was shot in the head.

Based on the doctrine of transferred intent,2 Searles is criminally liable for

his actions towards Gary, even if he did not act knowingly when Gary was

shot because Searles acted knowingly when he pointed his gun and shot at

Nakia.

        {¶ 21} Nakia also testified that Searles’s second shot struck him in the

hand, the third shot did not hit him, the fourth shot struck him in the side of




        “The doctrine of transferred intent indicates that where an individual is attempting to harm
        2


one person and as a result accidentally harms another, the intent to harm the first person is transferred
to the second person and the individual attempting harm is held criminally liable as if he both
intended to harm and did harm the same person.” State v. Mullins (1992), 76 Ohio App.3d 633, 636,
602 N.E.2d 769.
the head, the fifth shot went into the floor, and the sixth shot struck him in

the leg as he was crawling behind the bar.

      {¶ 22} Benjamin testified that Searles was wrestling on the floor with

Gary. He testified he started punching Searles from behind. Searles then

pointed the gun backward and fired two shots at Benjamin’s forehead,

missing him. At that point, Benjamin was able to wrestle the gun away.

      {¶ 23} The evidence and testimony show that Searles acted knowingly in

discharging his firearm at the victims. Accordingly, we cannot say that the

trial court failed to give due consideration to the inferior offense of

aggravated assault or that his convictions for felonious assault are against

the manifest weight of the evidence.

      {¶ 24} Accordingly, his first assignment of error is overruled.

                                 II. Sentence

      {¶ 25} In his second assignment of error, Searles contends that the

sentence imposed by the trial court is inconsistent with the principles and

purposes of sentencing under the Ohio Revised Code and therefore is contrary

to law.     To support a claim that a “sentence is disproportionate to

sentences imposed upon other offenders, a defendant must raise this issue

before the trial court and present some evidence, however minimal, in order

to provide a starting point for analysis and to preserve the issue for appeal.”

State v. Edwards, Cuyahoga App. No. 89191, 2007-Ohio-6068, ¶11. In this
case, Searles did not raise this issue of proportionality with the trial court.

Moreover, and although he argues his sentence is disproportionate, Searles

has failed to identify or demonstrate how his sentence is disproportionate to

any other offender similarly situated.        Accordingly, even if properly

preserved, Searles has failed to withstand his burden of showing

disproportionality.

      {¶ 26} To determine whether a sentence is contrary to law, we review

felony sentences using the Kalish framework.       State v. Kalish, 120 Ohio

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.       In its plurality opinion, the

Kalish court declared that in applying State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts

“must apply a two-step approach.” Kalish at 4. Appellate courts must first

“examine the sentencing court’s compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is

clearly and convincingly contrary to law.”      Id. at 26.    See, also, R.C.

2953.08(G). If this first prong is satisfied, then we review the trial court’s

decision under an abuse of discretion standard. Id. at 4 and 19.

      {¶ 27} In the first step of our analysis, we review whether Searles’s

sentence is contrary to law as required by R.C. 2953.08(G). As the Kalish

court noted, post-Foster “‘trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make
findings and give reasons for imposing maximum, consecutive, or more than

the minimum sentence.’” Id. at 11, quoting Foster at paragraph seven of the

syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,

paragraph three of the syllabus. The Kalish court held that although Foster

eliminated mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12

intact. Kalish at 13. Therefore, the trial court must still consider those

statutes when imposing a sentence. Id., citing Mathis at 38.

       {¶ 28} R.C. 2929.11(A) provides that: “[A] court that sentences an

offender for a felony shall be guided by the overriding purposes of felony

sentencing[: ] * * * to protect the public from future crime by the offender and

others and to punish the offender. To achieve those purposes, the sentencing

court shall consider the need for incapacitating the offender, deterring the

offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or both.”

       {¶ 29} R.C. 2929.12 provides a nonexhaustive list of factors a trial court

must consider when determining the seriousness of the offense and the

likelihood that the offender will commit future offenses.

       {¶ 30} The Kalish court also noted that R.C. 2929.11 and 2929.12 are

not fact-finding statutes like R.C. 2929.14. 3                 Instead, they “serve as an


        In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme
       3


Court addressed Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, holding that Ice
“does not revive Ohio’s former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
overarching guide for trial judges to consider in fashioning an appropriate

sentence.” Kalish at 17. Thus, “[i]n considering these statutes in light of

Foster, the trial court has full discretion to determine whether the sentence

satisfies the overriding purposes of Ohio’s sentencing structure.” Id.

       {¶ 31} We do not find Searles’s sentence contrary to law.                   Searles was

found guilty of (1) attempted murder, a first-degree felony, which carries a

maximum penalty of ten years in prison; (2) seven counts of felonious assault,

second-degree felonies, which carry a maximum penalty of eight years

imprisonment; (3) having weapons while under disability, a third-degree

felony, which carries a maximum sentence of three years, and (4) carrying a

concealed weapon, a fourth-degree felony, which carries a maximum penalty

of 18 months.          Moreover, Searles was convicted of three-year firearm

specifications, which carry a mandatory prison term that must be served

prior and consecutive to any other prison sentence. Therefore, we find that a

sentence of 15 years is within the statutory range allowed by law.

       {¶ 32} Furthermore, the sentencing journal entry reflects that the trial

court considered all required factors of law and found that prison was

consistent with the purposes of R.C. 2929.11.                       See State v. El-Berri,


2929.41(A), which were held unconstitutional in Foster. Trial court judges are not obligated to
engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly
enacts new legislation requiring that findings be made.” Hodge at paragraphs two and three of the
syllabus.
Cuyahoga App. No. 92388, 2010-Ohio-146.         Accordingly, we find that the

sentence is not contrary to law.

      {¶ 33} We next consider whether the trial court abused its discretion in

imposing the sentence. Kalish at 4 and 19. An abuse of discretion implies

that the court’s attitude is unreasonable, arbitrary or unconscionable, which

is more than an error of law or judgment. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

      {¶ 34} We find nothing in the record to suggest that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. At sentencing, the

trial court had the benefit of a presentence investigation report and heard

impact statements from a victim, Benjamin Phillips, and Gary Darling’s

daughter. The trial court also considered mitigation testimony and evidence

from Searles, his neighbor, a family friend, and his attorney.

      {¶ 35} At sentencing, the trial judge noted the difficulty in sentencing an

individual under these circumstances and expressed that the purpose of

sentencing is not to consider vengeance or render revenge, but justice. The

trial court’s statements, the circumstances surrounding the offenses, and

mitigation demonstrate that the trial court did not abuse its discretion

sentencing Searles to 15 years in prison. The second assignment of error is

overruled.

      Judgment affirmed.
      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
