IN THE COURT OF COMMON PLEAS OF CLARK COUNTY, OHIO

STATE OF OHIO, ^^

Plaintiff,
OPINION OF THE C5QURT w' |_
FINDINGS OF FACT AND 3 I.
-v-
CONCLUSIONS OF|EAW en
REGARDING IMPOSITION-OF
CHARLES ALLEN CUNNINGHAM,
DEATH PENALTY

Defendant.

On May 6 2010 the defendant was convicted of one count of aggravated murder
involving the killing of Jessica Serna, and a specification that the defendant committed the
offense of aggravated murder as part of a course of conduct involving the purposeful killing of
two or more persons. The defendant was also convicted of one count of murder for the
purposeful killing of Jessica Serna, one count of murder of Jessica Serna as the proximate result
of the commission of felonious assault, and one count of felonious assault for causing physical
harm to Jessica Serna by means of a deadly weapon.
Further the defendant was convicted of one count of murder for the purposeful killing of
Heidi Shook, one count of murder as the proximate result of the commission of felonious assault,
and one count of felonious assault for causing physical harm to Heidi Shook by means of a
deadly weapon.

The defendant was also found guilty of two counts of having a weapon while under
disability and one count of tampering with evidence.
For the purpose of this opinion, the defendant was convicted of purposely, and with prior
calculation and design, causing the death of Jessica Serna and the aggravating circumstance that
the defendant committed the offense of aggravated murder as part of a course of conduct
involving the purposeful killing of two or more persons.

The trial proceeded to the mitigation phase on the first count of the indictment.
The following factors were considered by the Court in possible mitigation of the death
penalty:
1 The Court considered whether the victim of the offense induced or facilitated the offense.
While it may be true that the victim, who was the mother of two of the defendant's
children had begun seeing someone else and had resisted attempts to reconcile, including
on the night of the offense when she avoided the defendant's attempts to communicate
with her, this would carry no weight as to mitigation for this offense.
2 In considering whether it is unlikely that the offense would have been committed, but for
the fact that the offender was under duress, coercion, or strong provocation, the Court

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 finds no evidence that the defendant was under duress, coercion, or strong provocation
which would cause this offense to be committed. The defendant testified that he was not
upset with the victim, nor in any rage that night. However, the evidence would indicate
the defendant was, at least, in a higher state of anger which may have affected his thought
process. This factor is given some weight in mitigation.

3. There is no evidence that, at the time of committing the offense, the defendant suffered
from a mental disease or defect causing a lack of substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of the law.

4. The defendant was born on March 23, 1971. He was 37 years old at the time of the
offense. He age has no weight as a mitigating factor.

5. The defendant has prior convictions for aggravated assault and possession of drugs. His
criminal history has very little weight as a mitigating factor.

6. The defendant's participation in the offense was as the principal offender. Therefore, his
degree of participation carries no weight as a mitigating factor.

7. The Court considered the defendant's use of alcohol and marihuana prior to the
commission of the offense, but finds no evidence as to its effect on the defendant in
relation to the event. Therefore, this deserves very little weight as a mitigating factor.

8. The Court also considered as a mitigating factor that the defendant has been a good father
to his children. He has been active in making certain that they kept in school and worked
at their academic assignments. He has also been active in their other activities, including
sports. This factor is due some weight in mitigation.

9. The Court also considered as a mitigating factor that the defendant has friends and family
members who saw good qualities in him. He is a good son and father. He always
showed respect to his elders, teachers, and mentors. This factor is due some weight in
mitigation.

10. In the defendant's sworn testimony he denied committing the offense, blaming it on his
passenger, Mr. Robinson. This testimony is inconsistent with any remorse.

11. The Court further considered the nature and circumstances of the offense. The victim
was the mother of two of the defendant's five children. They had been having problems
in their relationship. They had separated on September 8 or 9, 2010. The defendant had
arranged for counseling for the couple in an effort to maintain his relationship with the
victim. Both were seeing other people. There were many instances of communication
between the defendant and Jessica Serna via text messages and voice mails. A number of
the messages from the defendant were threatening in nature.

The victim was out partying with her roommate, Heidi Shook, and some other friends.
They were celebrating Ms. Shook's birthday. The defendant was also out partying with a
friend, Kenneth Robinson. The two groups first met at a downtown bar, G Z Pete's
where everyone was drinking. The defendant was attempting to party with Ms. Serna and

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 Ms. Shook including buying them drinks. Evidence indicated the defendant had smoked
marihuana and the Ms. Seraa had used cocaine. Jessica Serna and Heidi Shook left that
bar and went to a second bar, the Night Gallery. The defendant arrived shortly thereafter.
Again the defendant tried to join in with the victims, but Jessica Serna and Heidi Shook
left and returned to the first bar. The defendant also returned to the first bar. Jessica
Serna continued to dissociate herself from the defendant. The victims then left G. Z.
Pete's with a third person, Robert Carson. Outside, at the Shook vehicle, the defendant
again tried to talk with Ms. Serna, but she did not want to talk with him. Heidi Shook
then drove Jessica Serna and Robert Carson to a Burger King on East Main Street. While
they were at the drive-thru window, the defendant, with Kenneth Robinson, as a
passenger, drove his vehicle up to the side of Heidi Shook's car and walked up to the
passenger's front door. He attempted to talk to the Jessica Serna, but she would not agree
to talk with him. The store manager came outside and told them they would have to leave
the premises. Heidi Shook pulled out into the street and headed west, back toward the
downtown area. The defendant followed them.

At one point the defendant passed Shook's vehicle and pulled in front of it forcing Heidi
Shook to bring her car to a stop. Heidi Shook called 911 and was on the phone with a
dispatcher when the defendant and Jessica Serna both got out of their cars and began
arguing on the passenger side of Shook's vehicle. At this time, the defendant had not
produced a weapon. According to the testimony, it was only after Jessica Serna had
pushed the defendant that he responded by punching her, which caused her to fall to the
ground and then he produced the handgun and shot her in the upper back side of her leg.
Heidi Shook had gotten out of the car during the confrontation between the defendant and
Ms. Sema. She went around to the passenger side and was yelling at the defendant to
stop. When she observed the defendant shoot Jessica Serna Heidi Shook began to run
back to the driver side of the vehicle. The evidence would indicate that the defendant
pursued her around the vehicle and shot her five times in the back causing her to collapse
by the driver's door and die at the scene.

In further consideration of the nature and circumstances of the offense, the Court notes
that the jury found the defendant not guilty of the aggravated murder of Heidi Shook.
The jury did not find that her death was the result of prior calculation and design. The
jury did find that the death of Jessica Serna was the result of prior calculation and design.
The law does not require the prior calculation and design to be of any particular length of
time or detail as long as there are sufficient time and opportunity for the planning of an
act of homicide, and the circumstances surrounding the homicide show a scheme
designed to carry out the calculated decision to cause the death. No definite period of
time must elapse and no particular amount of consideration must be given, but acting on
the spur of the moment or after momentary, consideration of the purpose to cause the
death is not sufficient. In reviewing the evidence, the jury could find that the defendant
had become frustrated with the apparent failure of his attempts to keep his relationship
with Jessica Serna. The jury could have reached the conclusion that he had formatted
some plan that if he could not keep that relationship with Ms. Serna, he would kill her. It

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 does not appear to the Court that at the time the defendant pulled over Ms Shook's
vehicle he was doing so with the intent of carrying out his preconceived plan to cause the
death of Ms. Serna. However, it is conceivable the jury could have concluded from the
evidence that forcing the Shook vehicle to stop on the road was the defendant's attempt to
bring the issue to a final resolution. Jessica Serna's continued resistance to the
defendant's attempt to get her to respond as he wished resulted in the defendant punching
her and then shooting her while she lay on the ground. Heidi Shook's interference at this
time resulted in her intentional albeit unplanned homicide. After shooting Heidi Shook
the defendant could have decided to walk back to his vehicle and leave. Instead he made
the calculated decision to go back to the other side of the Shook vehicle and kill Jessica
berna. It would have been with this in mind that the defendant walked back to the
passenger side of the vehicle, stood over Jessica Serna, who was still laying face down on
the ground, and shot her in the head. This was the fatal wound. The jury could have
concluded that this was evidence that the shooting of Ms. Shook was a final factor in the
defendant s plan that he would take the life of Ms. Serna. It was then that he made the
calculated decision to kill Ms. Serna. The evidence could be interpreted in this way to
show a prior contingency plan brought to its final conclusion by an unanticipated act
Ms Shook's death was the unanticipated result of her courageous act to aid her friend It
is the Court's opinion that there is a fine line between this interpretation of the evidence
and the interpretation that the defendant was continuing in his ill conceived efforts to
reestablish his prior relationship with Ms. Serna, and had become extremely frustrated in
his failure to do so, and then on the spur of the moment or after momentary consideration
of the purpose to cause the death of Ms. Sema walked back to where Ms. Serna was lying
on the ground and shot her in the head. This later interpretation of the evidence would be
contrary to a finding of the element of prior calculation and design. While this alternate
interpretation of the evidence was not the finding of the jury, it is the Court's opinion that
these fact and circumstances must be given considerable weight as factors in mitigation.
Jessica Serna was taken to the local hospital then taken by Care Flight to a Dayton
hospital where she died as a result of the gunshot wound.

Following the shootings, The defendant ordered Mr. Robinson, his passenger, to drive his
vehicle from the scene. The defendant walked across the street and ordered the Mr
Carson, the male passenger from the victims' vehicle, to accompany him as he left the
scene. Perhaps he felt the man, having witnessed the event, would be too frightened to
ever tell what he had seen. As the defendant walked away, he engaged in a phone
conversation with the other woman he was seeing at the time, without giving any
indication that anything wrong had just occurred. When he called Jessica Serna's phone
later that morning and left, a message on her voice mail, it was an effort to set up
evidence that he was not aware of the fact she had been killed. The defendant took the
firearm from the scene and it has never been found.

The nature and circumstances of the offense are not part of the aggravating circumstance
and can only be considered for any mitigating values they may contain. The Court finds
that any prior calculation and planning may have included some contingency to resolve

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 the differences between the defendant and Ms. Serna without lethal violence. It is the
Court's opinion that these facts and circumstances must be given significant weight as
mitigation.

Upon consideration of the relevant evidence presented at trial, including the relevant
evidence presented during the mitigation hearing, in particular the Court's opinion regarding the
weight which needs to be given facts relating to the nature and circumstances of the offense, and
the arguments of counsel, it is the judgment of this Court that the aggravated circumstance in
Count One of this case does not outweigh the mitigating factors by proof beyond a reasonable
doubt.

Date
JUDGE RKgJSSb J. O'NEILL

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 CERTIFICATION OF SERVICE

I hereby certify that a copy of the foregoing opinion was hand delivered to Attorney
Stephen Schumaker, Attorney D. Andrew Wilson, Attorney Brian Driscoll, Attorney William
Merrell, Attorney David Smith this 26th day of May 2010.

JUDGE RICH^ZfJ. O'NEILL

I also hereby certify that a copy of the foregoing opinion was duly mailed by ordinary
U.S. Mail to the Clerk of Courts of the Supreme Court of Ohio, 65 S. Front St., Columbus, OH
43215, this 26th day of May 2010.

JUDGE RICHARD J. O'NEILL

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