[Cite as State v. Wilson, 2011-Ohio-5653.]

                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 96098



                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   JESSIE WILSON, JR.
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-540498

        BEFORE: Stewart, J., Blackmon, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                     November 3, 2011
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road, Suite 300
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Marcus L. Wainwright
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

       {¶ 1} A jury found defendant-appellant Jessie Wilson, Jr. guilty of attempted

murder and felonious assault on evidence that he discharged a gun at a police officer from

close range during a foot chase. Wilson complains on appeal not only that there was

insufficient evidence to show that he possessed and discharged a firearm, but that the

jury’s verdict on those points was against the manifest weight of the evidence. He also

complains that the court erroneously allowed a police officer to testify to a statement he

made after being apprehended but before he had voluntarily waived his right against

self-incrimination.

                                                I
      {¶ 2} Wilson first argues that the state failed to provide sufficient evidence to

prove his convictions.

                                               A

      {¶ 3} We determine whether the evidence is sufficient to sustain a verdict by

examining the evidence in the light most favorable to the prosecution and determining

whether any rational trier of fact could have found that the prosecution proved the

essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio

St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶78, quoting Jackson v. Virginia (1979),

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.

                                               B

      {¶ 4} The state charged Wilson with attempted murder under R.C. 2903.02(A),

which states that “[n]o person shall purposely cause the death of another ***.” It also

charged Wilson with felonious assault under R.C. 2903.11(A)(2), which stated that “[n]o

person shall knowingly *** [c]ause or attempt to cause physical harm to another or to

another’s unborn by means of a deadly weapon or dangerous ordnance.”

      {¶ 5} The state’s evidence showed that police officers were on patrol in a marked

zone car as a result of several calls reporting drug activity in a neighborhood. They were

on the lookout for a blue, Ford Thunderbird automobile that had been the subject of

specific complaints. A dashboard-mounted video camera on the police car shows the

officers slowing as they passed a parked, blue Thunderbird on a side street. The police

car reversed and pulled behind the Thunderbird. There were three occupants in the car:
a driver and passenger in the front seat and Wilson sitting in the back seat. Wilson

exited the car and the officers did the same. Without warning, Wilson then bolted across

the street. One of the officers followed. When the officer was within arm’s reach of

Wilson, Wilson produced a black handgun and fired a shot. The officer immediately

moved out of the way and heard a second shot. He rolled to the ground and pulled his

service weapon, momentarily losing sight of Wilson. When the officer recovered, he

resumed pursuit on foot and radioed that shots had been fired and gave Wilson’s

description. As other officers converged in response to the pursuing officer’s reports,

they cornered and apprehended Wilson.

       {¶ 6} Viewing this evidence in a light most favorable to the state, we conclude

that the pursuing officer’s testimony that Wilson discharged a gun at him was sufficient to

prove both the attempted murder and felonious assault charges. Because a firearm is a

deadly weapon, see R.C. 2923.11(B)(1), it may be inferred from the act of discharging a

firearm in another’s direction that the shooter had the specific intent to kill. State v.

Mackey (Dec. 9, 1999), 8th Dist. No. 75300, citing State v. Widner (1982), 69 Ohio St.2d

267, 431 N.E.2d 1025. And if the act of discharging a firearm at another is sufficient

proof of intent to kill, it necessarily follows that the felonious assault element of

attempting to cause physical harm is likewise established.1


         The court correctly merged the attempted murder and felonious assault counts at sentencing
       1


under R.C. 2941.25(A) because the offenses could be committed by the same conduct and were, in
fact, committed by “a single act, committed with a single state of mind.” State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶49.
                                                 II

       {¶ 7} Wilson next argues that his convictions were against the manifest weight of

the evidence because the police were unable to find the firearm he used despite days of

searching a fairly confined chase area and that gunshot residue tests on his hands yielded

no results. He maintains these deficiencies show that the state failed to prove that he

possessed a firearm as predicate for both offenses.

       {¶ 8} 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.

       {¶ 9} Could any trier of fact rationally believe the officer’s testimony despite

there being no corroborating physical evidence of a gun? The dashboard-mounted video
showed that as Wilson fled, he was holding the waistband of his pants in a manner that

could be viewed as his attempt to keep a firearm from falling from his pants.   The audio

on the recording distinctly features the sound of two gunshots.        The sound of two

gunshots was consistent with the pursuing officer’s radio reports that Wilson had fired

shots at him with a 9mm handgun. The officer’s statements were very much like present

sense impressions because the circumstances under which they were made left little doubt

as to the veracity of the officer’s observations — being in hot pursuit of a suspect it was

highly unlikely that the officer had the presence of mind to fabricate a claim that Wilson

fired shots.    These statements, coupled with evidence documenting the sound of

gunshots, were credible evidence from which the jury could find that Wilson fired a gun

despite the inability to recover the gun or its shell casings.

       {¶ 10} The narrow standard of review we employ in appeals challenging the

sufficiency and manifest weight of the evidence requires us to determine whether any

rational trier of fact could view the evidence in this case as establishing the essential

elements of the charged offense and whether the verdict is contrary to all of the evidence.

 Had there been no video and audio evidence describing the circumstances of the

officer’s pursuit, Wilson might have prevailed in his arguments. It is even possible that a

different jury, presented with the same evidence, might have found Wilson’s arguments

compelling. But we are unable to say that no rational trier could have viewed the

evidence presented as proof that Wilson possessed and discharged a firearm.

                                                  III
       {¶ 11} Wilson next argues that he was deprived of a fair trial because the court

allowed a police officer who questioned Wilson immediately after his capture to testify

that Wilson said: “All I know, I’m going to jail for a long time.” Wilson maintains that

he had not been read his Miranda rights before making this statement and, even though he

failed to seek suppression of the statement prior to trial, the state failed to show that he

validly waived his right against self-incrimination.

       {¶ 12} Crim.R. 12(C)(3) provides that certain motions to suppress evidence must

be filed before trial. The failure by the defendant to raise defenses or objections “or to

make requests that must be made prior to trial *** shall constitute waiver of the defenses

or objections,” unless the court grants relief from the waiver for good cause shown. See

Crim.R. 12(H); State v. Campbell (1994), 69 Ohio St.3d 38, 44, 630 N.E.2d 339 (“By

failing to file a motion to suppress illegally obtained evidence, a defendant waives any

objection to its admission”); State v. Chandler, 8th Dist. No. 81817, 2003-Ohio-6037, ¶32

(“[b]y failing to file a motion to suppress illegally obtained evidence, a defendant waives

any objection to its admission.”)

       {¶ 13} Wilson argues that to the extent he is deemed to have waived his right to

seek suppression of statements he made to the police by failing to file a motion to

suppress evidence, the court nonetheless had the obligation to inquire into the factual

basis for the waiver. We reject this argument because the right against self-incrimination

“is not a self-executing mechanism; it can be affirmatively waived, or lost” if an

individual fails to assert it “in a timely fashion.” Maness v. Meyers (1975), 419 U.S.
449, 466, 95 S.Ct. 584, 42 L.Ed.2d 574.           In other words, “the privilege against

self-incrimination must be claimed.” Emspak v. United States (1955), 349 U.S. 190, 196,

75 S.Ct. 687, 99 L.Ed. 997. A motion to suppress evidence is the mechanism by which

the accused asserts claimed violations of the right against self-incrimination. Wilson,

through defense counsel, is presumed to know that this mechanism is available, so the

court had no independent obligation to inquire into whether his failure to file a motion to

suppress was itself knowing and voluntary.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT
ONLY
