FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2016 06 1937
JEFFREY N. JAMES, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
Appellant, Christopher Hunter, appeals from his convictions
in the Summit County Court of Common Pleas. We affirm.
On the night of May 25, 2016, Mr. Hunter was drinking his
second bottle of Hennessey and decided to go to the apartment
of his ex-girlfriend ("DC"). Although uninvited, he
knocked on the door while carrying a bottle of Hennessey and
a loaded gun on his person. D.C.'s fiancé
("M.G") answered the door while only wearing a pair
of boxer shorts. Mr. Hunter wanted to talk to D.C., but M.G.
said that D.C. did not want to talk to him and closed the
door. According to D.C, M.G. put on some clothes several
minutes later and went outside to smoke a cigarette.
According to Mr. Hunter, M.G. came toward him with his hands
in his pockets while looking reckless and biting his lip, so
he shot M.G. in the neck. M.G. fell down and then retreated
back into the apartment. Mr. Hunter followed M.G. into the
apartment. Once inside the apartment, Mr. Hunter tried to
shoot M.G. in the back, but the gun jammed, so he had to
un-jam and reload it. Mr. Hunter resumed shooting at M.G. as
he retreated down the hallway and then followed M.G. into the
back bedroom to shoot him four more times, killing him.
Overall, Mr. Hunter shot M.G. a grand total of ten times.
After a jury trial, Mr. Hunter was found not guilty of
aggravated murder and several other felonies, but guilty of
murder and felonious assault with accompanying firearm
specifications. The trial court denied Mr. Hunter's
motion to merge the two convictions for sentencing and
ultimately sentenced Mr. Hunter to an aggregate total of 29
years to life in prison.
Mr. Hunter now appeals from his convictions and raises three
assignments of error for this Court's review.
OF ERROR ONE
TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUESTED JURY
INSTRUCTION REGARDING VOLUNTARY MANSLAUGHTER AS AN INFERIOR
DEGREE OFFENSE TO MURDER.
In his first assignment of error, Mr. Hunter argues that the
trial court erred in denying his request for a jury
instruction on voluntary manslaughter because his rage at the
crime scene was compounded by fear, and thus his intent to
kill was awakened in a sudden fit of passion. We disagree.
"[A] trial court must fully and completely give the jury
all instructions which are relevant and necessary for the
jury to weigh the evidence and discharge its duty as the fact
finder." State v. Comen, 50 Ohio St.3d 206
(1990), paragraph two of the syllabus. "[A] trial court
must instruct the jury on a lesser[-]included offense if
'the evidence presented at trial would reasonably support
both an acquittal on the crime charged and a conviction on
the lesser- included offense.'" State v.
Lockhart, 9th Dist. Summit No. 28053, 2017-Ohio-914,
¶ 14, quoting State v. Carter, 89 Ohio St.3d
593, 600 (2000). "In deciding whether to instruct the
jury on a lesser-included or inferior-degree offense, the
trial court must view the evidence in a light most favorable
to the defendant." State v. Meadows, 9th Dist.
Summit No. 26549, 2013-Ohio-4271, ¶ 8.
This Court reviews a trial court's refusal to give a
requested jury instruction for abuse of discretion.
Id. at ¶ 7. "The term 'abuse of
discretion' connotes more than an error of law or
judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable."
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). When applying an abuse of discretion standard, a
reviewing court is precluded from simply substituting its own
judgment for that of the trial court. Pons v. Ohio State
Med. Bd, 66 Ohio St.3d 619, 621 (1993).
Murder requires an offender to "purposely cause the
death of another * * *." R.C. 2903.02(A). Voluntary
manslaughter requires an offender to knowingly cause the
death of another while "under the influence of sudden
passion or in a sudden fit of rage, either of which is
brought on by serious provocation occasioned by the victim
that is reasonably sufficient to incite the person into using
deadly force * * *." R.C. 2903.03(A). Because "its
elements contained within the indicted offense, except for
one or more additional mitigating elements[, ]"
voluntary manslaughter is not a lesser-included offense of
murder. State v. Terrion, 9th Dist. Summit No.
25368, 2011-Ohio-3800, ¶ 11, quoting State v.
Deem, 40 Ohio St.3d 205, 209 (1988); State v.
Shane, 63 Ohio St.3d 630, 632 (1992). Instead, voluntary
manslaughter is an inferior degree of murder.
Terrion at ¶ 11, citing Shane at 632.
Even though voluntary manslaughter is not a lesser[-]included
offense of murder, the test for whether a judge should give a
jury an instruction on voluntary manslaughter when a
defendant is charged with murder is the same test to be
applied as when an instruction on a lesser[-]included offense
Terrion at ¶ 12, quoting Shane at 632.
The instruction is warranted if the evidence presented at
trial would reasonably support both an acquittal on murder
and a conviction on voluntary manslaughter. Terrion
at ¶ 12. However, an instruction on voluntary
manslaughter is not required in every murder prosecution
where "some evidence" exists that an offender
satisfied the elements of voluntary manslaughter.
Shane at 632. "A trial court need not give a
voluntary manslaughter instruction if the evidence shows that
a defendant had sufficient time to 'cool down' after
being provoked." State v. Little, 9th Dist.
Lorain No. 10CA009758, 2011-Ohio-768, ¶ 27, quoting
State v. Huertas, 51 Ohio St.3d 22, 32 (1990).
"Before giving a jury instruction on voluntary
manslaughter in a murder case, the trial judge must determine
whether evidence of reasonably sufficient provocation
occasioned by the victim has been presented to warrant such
an instruction." Shane at paragraph one of the
syllabus. Both objective and subjective standards are used in
the analysis of provocation. Id. at 634. First, an
objective standard is used in determining whether the
provocation was "reasonably sufficient to bring on
sudden passion or a sudden fit of rage * * * "
Id. If evidence of reasonably sufficient provocation
does not exist, the inquiry ends and the trial court may not
give an instruction on voluntary manslaughter. Id.
"Provocation, to be reasonably sufficient, must be
serious." (Emphasis sic.) Id. at 638.
The provocation must also be reasonably sufficient to incite
the offender to use deadly force. Id. at 635. If
evidence of reasonably sufficient provocation does exist, a
subjective standard is then used to determine "whether
this actor, in this particular case, actually was under the
influence of sudden passion or in a sudden fit of rage."
Id. at 634. "It is only at that point that the
'emotional and mental state of the defendant and the
conditions and circumstances that surrounded him at the
time' must be considered." Id., quoting
Deem at paragraph five of the syllabus. "Fear
alone is insufficient to demonstrate the kind of emotional
state necessary to constitute sudden passion or fit of
rage." State v. Mack, 82 Ohio St.3d 198, 201
In the case sub judice, the record reflects that defense
counsel requested a jury instruction regarding voluntary
manslaughter as a lesser-included offense to aggravated
murder or murder. The State opposed the instruction and the
trial court denied Mr. Hunter's request to give the
instruction to the jury. The court stated that, even when
considered in a light most favorable to Mr. Hunter, there was
not enough evidence of provocation to require the
instruction. Moreover, the court stated that even if there
was sufficient provocation, the fact that Mr. Hunter took the
time to un-jam the weapon and reload it "sort of
strip[ped] the sudden fit of rage or passion" and
provided time in between to cool off, even if it was only for
a few seconds, which was enough to not require an instruction
on voluntary manslaughter in this case. The court noted
defense counsel's objection for the record.
At trial, Mr. Hunter testified that he went back out to his
car after M.G. closed the apartment door on him. D.C.
testified that M.G. put some clothes on several minutes later
and went outside to smoke a cigarette. Mr. Hunter testified
that M.G. came outside and was "looking reckless"
and "biting his bottom lip" while coming toward Mr.
Hunter with his hands in his pockets, which scared Mr.
Hunter. He admitted on cross-examination that M.G. did not
draw a weapon. When M.G. was about an arm's length away,
Mr. Hunter shot him in the neck. M.G. fell down and then
retreated toward the apartment. On cross-examination, the