But how did it hap
Bunking with the D
The Beginning of t
What you're tellin
try to hold it in
Get to Gettin'
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A Diamond in the R
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I'm in Such a Hot she had heard noises and felt a presence. This evidence was
sufficient to support a finding that "the defendant knowingly and
intentionally caused his wife bodily injury, as defined in Title 13
of the Revised Code, or caused her physical contact with his
genitals, with the intention of arousing, appealing to, or
gratifying the sexual desire of any person." R.C. 2903.13(A)(1).
A "knowing" mental state "refers to knowledge of circumstances that
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are sufficient to put a person on notice that his conduct may
lead to the proscribed result." State v. Cunningham, 31 Ohio St.3d
40, 42, 508 N.E.2d 1145 (1987). A "purposeful" mental state
"necessarily requires proof that the person knew that his conduct
would probably cause a certain result or, with respect to a result
that is an element of an offense, that he caused or created a
substantial risk that the result would occur." Id. R.C.
2901.22(A) (emphasis added). The evidence introduced at trial,
viewed in a light most favorable to the prosecution, was sufficient
to support a conviction for domestic violence.
To support a conviction for felonious assault, the state was
required to prove that Sifuentes "knowingly * * * cause[d] or attempt[ed]
to cause physical harm to another * * * by means of a deadly
weapon." R.C. 2903.11(A)(2). The evidence presented at trial was
sufficient to support a finding that Sifuentes knowingly committed
assault.
Sifuentes's contention that there was insufficient evidence
to support a conviction for attempted murder is meritless. A
conviction for attempted murder requires the state to prove
beyond a reasonable doubt that the defendant "purposely engage[d]
in conduct that, if successful, would result in the death of another
* * * and the conduct constitutes a substantial step in a
course of conduct intended to culminate in the person's death."
R.C. 2903.02(A) and 2903.01(A); see also State v. Ashcraft, 9th Dist.
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No. 09CA0030, 2009-Ohio-5553, ¶ 11. The Ohio Supreme Court has
construed the statutory phrase "substantial step" as "some act or
obstacle in immediate pursuit that would have been more
than mere preparation and that would have resulted in the crime
except for circumstances unknown or unforeseen by the offender."
State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980,
¶ 56 (quoting State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059
(1976), paragraph one of the syllabus).
When Sifuentes fired the gun from inside the truck, he knew
that bullets were going to penetrate Ms. Nahia’s van and possibly
travel another sixty feet and hit her car. At that point, he
could have chosen to cease fire or turn himself in to the police.
Instead, he chose to continue shooting at the vehicles.
Moreover, as the state argued at trial, Sifuentes’s efforts to
conceal his identity and identity are indicative of his conscious
and knowing effort to kill Ms. Nahia, a complete stranger to him.
When Sifuentes shot her in the arm and fled the scene, he made a
substantial step towards committing murder.
Therefore, because there was sufficient evidence that Sifuentes
knowingly committed murder, attempted murder, and felonious assault,
the first three subsections of his first assignment of error are
overruled.
Prosecutorial Misconduct
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1. Standard of Review
{¶31} Sifuentes next contends that the prosecutor’s closing
statement constituted misconduct and the trial court erred by not
sustaining his objection. His sole argument in support of this
assignment of error is that the prosecutor “blamed Mr. Sifuentes’s
wife for the situation and, [by] doing so, [the prosecutor] took
the focus off of the gun and on to the wife instead of Mr.
Sifuentes.” Sifuentes did not object to this statement at trial.
{¶32} This Court has held:
An appellant waives the right to assert prejudicial error
on appeal if the appellant fails to timely and properly
raise the issue. A failure to timely object to
alleged error, however, does not waive the appellant's
right to assert such error as error on appeal. The
failure to object to the alleged error in the trial
court must be raised by the defendant before the trial
court has had an opportunity to consider and correct
any error that may have been made, otherwise this court
is precluded from addressing any error on appeal.
Our review of claimed prosecutorial misconduct is limited
to consideration of objections made at trial. * * * A
party is not permitted to remain silent, speculating on
a possible error, and, when the verdict is unfavorable,
complain of the error.
{¶33} State v. Smith, 93 Ohio St.3d 144, 151, 2001-Ohio-1594,
751 N.E.2d 858, quoting State v. Williams, 79 Ohio St.3d 1, 12,
679 N.E.2d 646 (1997) (internal citations omitted). As the court
stated in Williams, “the existence of an objection alone does not
satisfy the contemporaneous objection rule; the objection must be
‘timely and specific.’” Id. “In other words, the defendant must
object as soon as the grounds for the objection become apparent
and must continue to object each time an objectionable question or
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argument is made.” State v. Williams, 8th Dist. No. 82825,
2003-Ohio-2949, ¶ 35, citing State v. Hancock, 108 Ohio St.3d 57,
2006-Ohio-160, 840 N.E.2d 1032, ¶ 62.
{¶34} By failing to object to the alleged prosecutorial
misconduct, Sifuentes has waived all but plain error. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.
For the reasons set forth below, Sifuentes's assignment of error
is meritless for failure to preserve the error at trial. Id.
2. No Plain Error
{¶35} In the first sentence of his argument, Sifuentes concedes
that “[t]he evidence of [his] guilt was overwhelming.” He also
concedes that “there was no reason to believe that the jury was
influenced by the prosecutor’s arguments.” He maintains, however,
that the prosecutor “blamed Mr. Sifuentes’s wife for the situation
and, [by] doing so, [the prosecutor] took the focus off of the gun
and on to the wife instead of Mr. Sifuentes.” He maintains that
“[t]his is not consistent with the extremely substantial
overwhelming evidence presented by the State.”
{¶36} Having concluded that the evidence of Sifuentes’s guilt
was overwhelming, we conclude that there was nothing improper in
the prosecutor’s arguments. Sifuentes’s third assignment of error
is meritless.
Weight of the Evidence
{¶37} We have reviewed the record to determine if any “evidence
of prosecutorial misconduct affected Sifuentes's substantial
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rights.” Underwood, at ¶ 44, fn. 10. None is apparent.
3. Ineffective Assistance of Counsel
{¶38} In his fourth assignment of error, Sifuentes contends his
defense counsel was ineffective.
{¶39} To prevail on a claim of ineffective assistance of
counsel, a defendant must show that (1) his counsel's performance
was deficient and (2) the deficient performance prejudiced the
defense and deprived him of a fair trial. Strickland v. Washington,