State v. Flemming9/5/1996
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Generally, the law presumes that a person intends " * the natural, reasonable and probable consequences of his voluntary acts." State v. Johnson (1978), 56 Ohio St.2d 34, 39. Appellant herein admitted that he pulled the gun out when Batista grabbed his arms. The gun was a semi-automatic handgun which required some act of appellant to cause its discharge. Appellant explained that he pulled out the gun to scare Batista off, not to shoot him. Batista was struck in the forehead with a bullet from appellant's gun from a distance of one and one half to three feet.
Given the evidence presented by the state, and the jury's rejection of appellant's intoxication defense, a reasonable jury could not have found that appellant did not have the requisite purpose to support an aggravated murder conviction. The trial court, therefore, did not commit plain error in not instructing the jury on involuntary manslaughter. Campbell; Jenkins; Coulter. Compare, State v. Clark (1988), 38 Ohio St.3d 252, certiorari denied (1989), 489 U.S. 1071, 109 S.Ct. 1355, 103 L.Ed.2d 823, rehearing denied (1989), 490 U.S. 1042, 109 S.Ct. 1946, 104 L.Ed.2d 416 (defendant's claim that he only wanted to frighten victim was patently unreasonable as he shot victim in chest); State v. Dean (Sept. 29, 1995), Montgomery App. No. 14721, unreported (defendant acted purposely, despite claim that shots were fired to scare victim, where victim was shot three times from close range, with two bullets striking him in the back); State v. Knuckles (Jan. 23, 1995), Butler App. No. CA93-11-222, unreported (intent to kill present where victim shot in head at close range).
Appellant next asserts that the trial court committed plain error by failing to charge the jury on the defense of accident. He maintains that he did not intend to shoot Batista, but the shooting occurred as an accident during their struggle.
The defense of accident is not an affirmative defense. Rather, a defendant denies he committed an unlawful act when raising accident as a defense. See State v. Poole (1973), 33 Ohio St.2d 18. "Accident" is defined as "an unfortunate event occurring casually or by chance." State v. Brady (1988), 48 Ohio App.3d 41, 42, citing State v. Lovejoy (M.C. 1976), 48 Ohio Misc. 20. See 4 Ohio Jury Instructions (1993), Section 411.01. By raising the defense, a defendant argues that the state failed to prove the intent element of the crime beyond a reasonable doubt. See Brady. If the evidence supports the defense, a trial court must include the charge in its instructions to the jury. Id., 42; see State v. Rivers (1977), 50 Ohio App.2d 129.
In the instant case, appellant admitted to pulling out the gun during his confrontation with Batista. Assuming arguendo that appellant and Batista were struggling over the gun, even though there was no conclusive evidence to this effect, " t is reasonably foreseeable that a gun could fire during a struggle *." State v. King (Oct. 13, 1994), Cuyahoga App. No. 65511, unreported. Under these circumstances, and noting our previous conclusion that the state provided sufficient evidence of appellant's intent, appellant was not entitled to a jury instruction on accident. Rivers; Brady; King; see State v. Staats (Apr. 13, 1994), Summit App. No. 15706, unreported (the effect of an accident instruction simply reminds the jury that defendant presented evidence to negate the element of purpose). Additionally, given appellant's claim that he could not remember how the gun fired due to his intoxication, we question how he could remember that the gun fired accidentally. Compare, State v. Whitlow (Sept. 15, 1994), Mahoning App. No. 91 C.A. 38, unreported (accident instruction not warranted where record conta
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