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State v. Sutherland

Court of Appeals of Ohio, Seventh District, Mahoning

December 29, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ROBERT SUTHERLAND DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas, Mahoning County, Ohio Case No. 15 CR 588 A

          For Plaintiff-Appellee Attorney Paul Gains Mahoning County Prosecutor Attorney Ralph Rivera Assistant Prosecutor

          For Defendant-Appellant Attorney Francisco Luttecke Assistant Public Defender Office of the Ohio Public Defender

          JUDGES: Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Cheryl L. Waite

          OPINION

          DeGENARO, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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 trial:

         {¶3} 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.

         {¶4} 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 cooler.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 ...


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