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State v. Hunter

Court of Appeals of Ohio, Ninth District, Summit

February 14, 2018

STATE OF OHIO Appellee
v.
CHRISTOPHER HUNTER Appellant

         APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          TEODOSIO, JUDGE.

         {¶1} Appellant, Christopher Hunter, appeals from his convictions in the Summit County Court of Common Pleas. We affirm.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} Mr. Hunter now appeals from his convictions and raises three assignments of error for this Court's review.

         II.

         ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUESTED JURY INSTRUCTION REGARDING VOLUNTARY MANSLAUGHTER AS AN INFERIOR DEGREE OFFENSE TO MURDER.

         {¶5} 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.

         {¶6} "[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.

         {¶7} 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).

         {¶8} 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 is sought.

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).

         {¶9} "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 (1998).

         {¶10} 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.

         {¶11} 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 ...


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