In his opinion, O’Neill wrote there is a fine line between the interpretation that Cunningham made a pre-calculated decision to kill Serna and the interpretation that he did so on the spur of the moment.
“This later interpretation of the evidence would be contrary to a finding of the element of prior calculation and design,” O’Neill writes. “While this alternate interpretation of the evidence was not the finding of the jury, it is the court’s opinion that these facts and circumstances must be given considerable weight as factors in mitigation.”
The aggravated circumstance in the case does not outweigh the mitigating factors by proof beyond a reasonable doubt, the judge concludes.
O’Neill, Clark County Prosecutor Stephen Schumaker and defense attorney William Merrell couldn’t be reached for comment on Thursday evening.
Schumaker previously has said that he agreed with the jury’s recommendation but respected the court’s ruling.
Cunningham was convicted in the deaths of Serna, 27, and Shook, 28. They were found shot on North Street shortly before 3 a.m. Oct. 4, 2008.
Shook died at the scene and Serna died a day later at Miami Valley Hospital.
According to O’Neill’s summary of the evidence, Cunningham had pursued Serna, the mother of two of his children, to several downtown bars that night. He cut off the car she was in to make her stop and talk. They argued while standing by the side of the road, then Serna pushed Cunningham, who took out a gun and shot Serna in the leg. Shook ran toward the fight then back toward her car, and Cunningham pursued her and shot her several times, killing her. He then returned to Serna and shot her again, killing her.
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