Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas, Mahoning County, Ohio
Case No. 15 CR 588 A
Plaintiff-Appellee Attorney Paul Gains Mahoning County
Prosecutor Attorney Ralph Rivera Assistant Prosecutor
Defendant-Appellant Attorney Francisco Luttecke Assistant
Public Defender Office of the Ohio Public Defender
JUDGES: Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Cheryl
Defendant-Appellant, Robert Sutherland, appeals the trial
court judgment convicting him of felonious assault and an
accompanying firearm specification. On appeal, Sutherland
argues the trial court erred in failing to provide jury
instructions on self-defense, that his attorney was
ineffective, and that his conviction was against the manifest
weight of evidence. For the following reasons,
Sutherland's assignments of error are meritless and this
matter is affirmed.
and Procedural History
Sutherland was indicted on one count of felonious assault
(R.C. 2903.11(A)(2)(D)) and one count of aggravated assault
(R.C. 2903.11(A)(2)(D)), each with a firearm specification
(R.C. 2941.145(A)). The following facts were presented at
On the evening giving rise to the charges, between 5:00 and
6:00 p.m. Eric Van Cobb's girlfriend, Keisha Pugh, drove
him to Daniel Bosak's house to purchase marijuana while
she waited in the car. Van Cobb told Bosak that he wanted to
buy four ounces of marijuana, but Bosak did not have it
available at that time. Bosak testified that he had known
Eric Van Cobb for about three weeks, and met with him
exclusively for drug transactions.
After Van Cobb left, Robert Sutherland came to Bosak's
house to help him move. Bosak had known Sutherland since he
was a child and considered him an uncle. Bosak asked
Sutherland to get the marijuana for Van Cobb. Sutherland left
and returned with the marijuana which he kept in a small
Van Cobb returned to Bosak's around 7:00-8:00 p.m. with
two hundred dollars and planned to buy as much marijuana as
he could with that amount. Pugh again drove him there and
remained outside in her vehicle.
Van Cobb, Bosak, and Sutherland went into the living room
where they smoked marijuana. After about thirty minutes, Van
Cobb decided that he was not going to pay for the marijuana.
Van Cobb asked Bosak for a cigarette, and Bosak went upstairs
to retrieve one. While Sutherland was not paying attention,
Van Cobb grabbed the marijuana and ran out the front door.
Sutherland chased Van Cobb outside the house. Van Cobb stated
he ran off the porch when he heard the first shot.
Pugh, who was waiting in her vehicle, observed the front door
open and Van Cobb running towards the vehicle being chased by
Sutherland with a gun in his hand. Pugh heard the first shot
fired by Sutherland while Van Cobb was still running. Pugh
opened the car door for Van Cobb so that he could get in when
she heard the second shot. Van Cobb got in the car while a
third shot broke the back window of Pugh's vehicle. Van
Cobb was hit by a bullet before he reached the vehicle, but
still managed to get inside the car. As Pugh was driving, Van
Cobb slumped over and stated he had been shot.
Michelle Fleming lived across the street from Bosak, and
shortly after 9:00 p.m. heard gunshots outside. Fleming
observed a male shooting at another male who was running
towards a vehicle parked on the street. Fleming was unable to
give a detailed description of the men because a vehicle
obscured her view.
Sutherland testified in his own defense stating that when
Bosak went upstairs, he went outside to get water from his
truck. As he walked down the front steps towards his truck,
Van Cobb rushed out the front door, demanded money and stated
he had a gun and would use it if he did not receive money.
Sutherland did not see a gun, but noted that Van Cobb
"had one hand cupped holding something under his shirt,
and it was like tucked up into his waist." Sutherland
was frightened and thought he could be shot or ...