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State v. Kimmie - 2013-Ohio-4034 (Ct. App.)


Appellate review of a motion to suppress presents a mixed question of law and fact. In considering a motion to suppress, the trial court assumes the role of trier of fact and, therefore, is in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, a reviewing court must accept the trial court's findings of fact as long as they are supported by competent, credible evidence. Once the reviewing court accepts those facts as true, however, it must independently determine, as a matter of law and without deference to the trial court's conclusion, whether the trial court met the applicable legal standard.


On April 10, 2012, defendant-appellant Tyshawn Kimmie and codefendants, Jontez Robinson and Kenneth White, were charged with aggravated murder in Count 1, murder in Count 2, and felonious assault in Counts 3 and 4, along with firearm specifications. The felonious assault charges also carried a criminal gang specification.

On October 10, 2012, Kimmie filed a motion to suppress his post-arrest oral statement to the police. The trial court heard Kimmie's motion on October 15, 2012, and, thereafter, denied the motion on October 17, 2012. Following Kimmie's rejection of any plea discussions, a jury trial began on October 17, 2012. The jury found Kimmie guilty of a lesser included offense of Count 1 — reckless homicide, murder of Danica Nelson in Count 2, two counts of felonious assault, and the firearm specifications. Upon Kimmie's Crim.R. 29 motion for acquittal, the court dismissed the criminal gang specifications of Counts 3 and 4.

The trial court sentenced Kimmie on November 2, 2012, to 15 years to life on Count 2 (merging Count 1 into Count 2 for sentencing purposes), three years on Count 3, and three years on Count 4. The court ordered all counts to run consecutively and consecutive to the three-year firearm specification (merged), for a total of 24 years to life. Kimmie objected to the court's imposition of consecutive sentences. Thereafter, Kimmie filed this timely appeal.


Was the denial of criminal defendant Kimmie’s motion to suppress his post-arrest oral statement to the police proper?




The Court of Appeals of Ohio affirmed defendant-appellant Kimmie's convictions, but reversed the trial court's sentence. The evidence presented at a suppression hearing demonstrated that Kimmie was properly advised of his Miranda rights and that he acknowledged his understanding of these rights both verbally and in writing. There was no evidence that his statement to detectives was coerced. The State presented sufficient evidence to sustain Kimmie’s convictions for murder (R.C. 2903.02) and felonious assault (R.C. 2903.11), as the record contained evidence that he fired a gun in the direction of a crowd of people, and a victim made in-court and out-of-court identifications of Kimmie. The trial court's statements in imposing consecutive sentences, along with the record, were devoid of the statutorily mandated findings required by R.C. 2929.14, and the sentence the trial court imposed was contrary to law, thus requiring resentencing.

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