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State v. Blevins

Court of Appeals of Ohio, Fourth District, Pickaway

July 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JUSTIN RAY BLEVINS, Defendant-Appellant.

          Dennis C. Belli, Columbus, Ohio, for Appellant.

          Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          SMITH, P.J.

         {¶1} Appellant, Justin Ray Blevins, appeals his convictions and sentences for aggravated murder, murder, and felonious assault. On appeal, Appellant contends that 1) his conviction for aggravated murder is not supported by sufficient evidence of prior calculation and design; 2) a defective voluntary manslaughter instruction rose to the level of plain error and deprived him of his constitutional right to a jury determination of his guilt of a less serious offense than the aggravated murder and murder counts of the indictment; 3) his exclusion from the proceedings involving responses to the jury's questions violated his Crim.R. 43 and constitutional rights to be present for all critical stages of the proceedings; 4) the trial court's incorrect, incomplete, and confusing responses to the jury's questions amounted to an abuse of discretion and deprived him of his right to a fundamentally fair trial and reliable jury verdict; 5) he was denied his right to the effective assistance of counsel due to the combined prejudicial impact of multiple instances of deficient performance; 6) the jury's verdicts of guilty for aggravated murder, murder and felonious assault are against the manifest weight of the evidence; and 7) the record clearly and convincingly does not support the imposition of a life prison term with parole eligibility after serving thirty years.

         {¶2} Because we conclude Appellant's conviction for aggravated murder was supported by sufficient evidence of prior calculation and design, we find no merit to Appellant's first assignment of error and it is overruled. In light of our conclusion that Appellant was not entitled to a jury instruction on voluntary manslaughter, he cannot demonstrate that he was prejudiced by the trial court's alleged error. Thus, we find no merit to Appellant's second assignment of error and it is also overruled. Likewise, because we find that that the trial court's provision of written answers to the jury in response to the jury's written questions did not constitute a critical stage of the proceedings, Appellant's statutory and constitutional rights to be present were not violated. As such, Appellant's third assignment of error is also overruled.

         {¶3} With regard to Appellant's fourth assignment of error, because the jury's first question dealt with the voluntary manslaughter instruction and because we have found Appellant was not entitled to that instruction, any error by the court in answering the question was harmless. Further, as we find no error in the answer provided by the trial court in response to the jury's second question, we find no merit to Appellant's fourth assignment of error and it is likewise overruled. Additionally, in light of our conclusion that trial counsel did not provide ineffective assistance and that Appellant failed to show cumulative error affected the outcome of the proceedings, Appellant's fifth assignment of error is overruled. Likewise, Appellant's sixth assignment of error is overruled because we have found his convictions were not against the manifest weight of the evidence. Finally, because Appellant's sentence is supported by the record and is not clearly and convincingly contrary to law, Appellant's seventh assignment of error has no merit and is also overruled.

         {¶4} Having found no merit in any of the assignments of error raised by Appellant, the judgment of the trial court is affirmed.

         FACTS

         {¶5} Appellant, Justin Ray Blevins, was indicted on July 7, 2017, on four felony counts which included: 1) aggravated murder in violation of R.C. 2903.01(A); 2) murder in violation of R.C. 2903.02(A); 3) murder in violation of R.C. 2903.02(B); and felonious assault in violation of R.C. 2903.11(A)(2). Counts one through three were unspecified felonies and count four was a second-degree felony. Additionally, counts one through four all contained firearm specifications which specified the use of a .40 caliber handgun. The indictment stemmed from an investigation relating to the death of the Samuel Nicholson, the victim herein, a sixteen-year-old male residing in an apartment rented by Darrell Arnett.

         {¶6} The investigation into Nicholson's death began with a 911 call at approximately 5:30 a.m. on the morning of June 11, 2017, from Arnett's sister, who lived in the same apartment complex as Arnett and Nicholson. The call initially reported a burglary and a fight. When law enforcement arrived at the scene they found Arnett waiting outside and subsequently found the victim inside the apartment, deceased, from what appeared to be multiple gunshot wounds. Once the scene was secured and evidence gathered, Arnett was taken to the police station for questioning where he was cooperative and voluntarily gave a statement.

         {¶7} Arnett reported that he had known the victim since they were children and that he had allowed the victim to live with him because he had nowhere else to stay. He reported he went to bed the night before and the apartment was empty with the exception of the victim. He stated he awoke in the early morning to the sound of gunshots and then heard the victim yell "What the fuck?" He then heard additional gunshots. He reported he got up, grabbed his hatchet and ran downstairs where he saw the victim lying in the floor. He stated he caught a glimpse of someone exiting the apartment wearing red shorts and a red shirt. He reported that he kicked the victim and told him to get up but he didn't respond. He reported that the assailant returned to the apartment and an altercation ensued. He reported that he scratched the assailant and that the assailant placed him in a headlock. He explained that when he was finally able to free himself, he ran out of the apartment to his sister's apartment and asked her to call for help. Arnett advised law enforcement he believed the assailant was Appellant, Justin Blevins. DNA samples were taken from underneath Arnett's fingernails which ultimately matched Appellant's DNA. Arnett's statements along with law enforcement's subsequent investigation led to Appellant's arrest and subsequent indictment.

         {¶8} The matter proceeded to a jury a trial on December 11, 2017. The State introduced several witnesses, including: 1) Darrell Arnett, the victim's roommate; 2) Sergeant James Zimmerman, who first arrived at the scene and confirmed the victim was deceased; 3) Dr. John Ellis, the county coroner; 4) Special Agent Todd Fortner, who took photographs and helped process the evidence; 5) Logan Schepeler, a forensic scientist in the DNA section of the Bureau of Criminal Investigation (hereinafter "BCI") who confirmed the Appellant's DNA matched the sample taken from under Arnett's fingernails; 6) Andrew McClelland, a forensic scientist and firearms examiner with BCI, who examined the gun recovered from the scene, along with the spent and unspent bullets and cartridge cases recovered as a result of the investigation; 7) Lieutenant Detective Jeffrey George, the lead detective on the case from the Ashville Police Department; 8) Chloe Brady, a mutual friend of the victim and Appellant; 9) Dwight Haddox, the boyfriend of Appellant's mother, who had contact with Appellant in the days following the murder; and 10) Detective Phil Roar, who conducted a search of the cell phones pertinent to the investigation. Appellant introduced five witnesses, and also testified on his own behalf.

         {¶9} Pertinent to this appeal, Darrell Arnett testified at trial that he was able to identify Appellant by his voice because he had viewed several videos Appellant had placed on the internet. He also testified he had seen Appellant on prior occasions. Sergeant James Zimmerman testified that when he responded to the scene he found the apartment in a disheveled state with furniture knocked over. He also testified he found a hatchet and a semi-automatic pistol near the couch. Dr. John Ellis, the county coroner, testified that the apartment was a mess when he observed it. He testified that when he encountered the victim, it appeared he had been rolled over by someone. Dr. Ellis testified that the victim sustained three bullet wounds to his head, three bullet wounds to his torso, four bullet wounds to his upper left extremities, and four bullet wounds to his upper right extremities. Dr. Ellis went over each entrance and exit wound and testified that he suspected some of the bullets created more than one entrance and exit wound. He testified that in his opinion ten or eleven shots were fired. Importantly, Dr. Ellis testified that several of the shots entered posteriorly and exited anteriorly, which indicates the victim was shot from behind. Dr. Ellis also testified that the trajectory of a shot that entered the victim's jaw and exited his chin was in a downward motion, rather than an upward motion, as testified to later by Appellant. Further, Dr. Ellis testified that the shots to the victim's upper extremities suggested "defensive wounds" from where the victim was likely holding his arms up to defend himself. Dr. Ellis testified that one of the shots to the victim's head had a gunpowder burn, suggesting it was a contact wound. Lastly, Dr. Ellis testified that the victim died from multiple gunshot wounds.

         {¶10} Special Agent Todd Fortner testified that the condition of the apartment showed obvious signs of a struggle. He testified that he recovered the murder weapon, which was a Daewoo .40 caliber Smith and Wesson (hereinafter "S&W") semi-automatic pistol, which is rare.[1] He testified that he found the gun with an empty magazine seated in it, with the slide locked and pulled back, as you would find when a gun is completely expended. He testified it was easy to conclude that whoever had the gun emptied it. He further testified that he recovered several spent bullets and cartridge cases. He explained that all of the cartridge cases were on one side of the room and all of the fired bullets were found on the opposite side of the room where the victim was located. He testified he found bullets in the wall, baseboard, carpet and in a game controller, indicating all the shots that were fired were fired in the direction of the victim. He also testified that he subsequently executed a search warrant of Bret Taylor's vehicle, which was determined to the be the vehicle Appellant drove that night, and that he recovered an unspent bullet, or cartridge case, with a .40 S&W with a headstamp N.F.C.R. on it, which matched the other cartridge cases found at the scene.

         {¶11} Andrew McClelland testified regarding his forensic examination of the murder weapon. He confirmed the gun recovered was a Daewoo model DH40 .40 caliber S&W semi-automatic pistol bearing serial number DA100522 with one magazine. He testified that the gun had a capacity of ten cartridges and was able to hold one bullet before firing, explaining that "it can hold what's referred to as ten plus one, meaning one in the chamber of the firearm plus ten additional cartridges in the magazine." He further testified that as part of examination he was able to conclude that the firearm was discharged and that the eight recovered, fired .40 caliber S&W cartridges were identified as having been fired from that firearm. He also testified that the unspent bullet, or unfired cartridge, that was recovered had been cycled through the submitted magazine and bore the same markings as the fired cartridges.

         {¶12} Lieutenant Detective Jeffery George also testified as part of the State's case. He served as the lead detective and interviewed multiple individuals identified as friends or acquaintances of Appellant and the victim, who had been with or spoken with Appellant or the victim just before the murder. Some of these individuals included Chloe Brady, Bryce Sparks, Autumn Leach, Halee Hilton and Dwight Haddox. He testified that he learned during his investigation that Chloe Brady, Halee Hilton and Autumn Leach had all seen a Facebook message sent from Appellant the day prior to the murder, which included a photo of the gun used in the murder along with the comment "I gotta go take care of some b.s." The message was sent by Appellant through Facebook messenger to Halee Hilton, and also possibly Autumn Leach. Chloe Brady testified as well, regarding the photo sent to Hilton from Appellant.

         {¶13} Dwight Haddox testified that he was called to go pick up Appellant in Londonderry the day after the murder. He testified that while in the car with Appellant, as well as Appellant's sister and mother, Appellant made a loud outburst, almost a cry, and stated he had killed Sammy. He stated Appellant and his sister were in the car with him the next day as well and that he heard a comment made about the gun being emptied. He testified that at that point he figured Appellant was on the run and that he dropped Appellant off on the side of the road and subsequently went to the Sheriff's station to make a report.

         {¶14} Finally, Detective Phil Roar testified for the State. He testified that he examined cell phones and phone records as part of the investigation. He testified to a series of text messages between Appellant and the victim leading up to the day of the murder which suggested a disagreement was beginning to develop over drug transactions and money owed to the victim. He recited several threatening messages between the two, indicating the victim told Appellant he was "strapped" and that both of them may lose their lives over $700.00. The last text communication between the two took place around 11:00 p.m. the night before the murder.

         {¶15} Appellant testified on his own behalf at trial. He did not deny going to the victim's house with a loaded gun, nor did he deny shooting the victim to death. Although he suggested Darrell Arnett may have been the one to empty the gun and ultimately kill the victim, there was absolutely no evidence introduced to support this theory. Further, Appellant's main theory at trial seemed to be that he was justified in killing the victim, either based upon a theory of provocation or self-defense. Appellant testified that he owed the victim $700.00 for marijuana that the victim had fronted him and that the victim had been threatening to kill him if he didn't pay. He admitted to sending the message with the photo of the gun but stated it was in reference to a dispute with another person. He testified that he borrowed Bret Taylor's car and drove it to the victim's apartment at 5:10 in the morning on June 11, 2017, knocked on the door and entered with permission of the victim. He stated he advised he had the $700.00 but that the victim began arguing with him. He stated they began cussing at one another and that the victim pushed him down to the ground. Appellant testified that his gun fell out of his pants when he was shoved to the ground. He testified that the victim began to reach for a gun so he grabbed his own gun and began shooting the victim from his position on the floor in an upward direction. He testified he didn't know if the victim's gun was loaded, but that he fired three or four shots. He testified that he ran out of the apartment, vomited and then returned to the apartment because he realized he left his gun. When he returned, he encountered Darrell Arnett with a hatchet and fought with him. He testified he got away from Arnett and ran out of the apartment, leaving Arnett there.

         {¶16} The matter was eventually submitted to the jury for deliberations after the trial court instructed the jury on the indicted offenses, as well as voluntary manslaughter, without objection by the State. The jury submitted two questions in writing to the trial court during their deliberations, which were answered in writing by the trial court. These questions will be discussed further below. The jury ultimately returned verdicts finding Appellant guilty of all the counts contained in the indictment. The trial court merged counts two through four for purposes of sentencing and sentenced Appellant to life in prison with eligibility for parole after thirty years for the aggravated murder of Samuel Nicholson. Appellant now brings his timely appeal, setting forth the following assignments of error for our review.

         ASSIGNMENTS OF ERROR

I. "DEFENDANT-APPELLANT'S CONVICTION FOR AGGRAVATED MURDER IS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF 'PRIOR CALCULATION AND DESIGN' TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION."
II. "A DEFECTIVE VOLUNTARY MANSLAUGHTER INSTRUCTION ROSE TO THE LEVEL OF PLAIN ERROR AND DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT, UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, TO A JURY DETERMINATION OF HIS GUILT OF A LESS SERIOUS OFFENSE THAN THE AGGRAVATED MURDER AND MURDER COUNTS OF THE INDICTMENT."
III. "THE EXCLUSION OF DEFENDANT-APPELLANT FROM THE PROCEEDINGS INVOLVING RESPONSES TO THE JURY'S QUESTIONS VIOLATED CRIM. R. 43 AND DEPRIVED HIM OF HIS RIGHT TO BE PRESENT FOR ALL CRITICAL PROCEEDINGS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
IV. "THE TRIAL COURT'S INCORRECT, INCOMPLETE, AND CONFUSING RESPONSES TO THE JURY'S QUESTIONS AMOUNTED TO AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT TO A FUNDAMENTALLY FAIR TRIAL AND RELIABLE JURY VERDICT UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION."
V. "DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, DUE TO THE COMBINED PREJUDICIAL IMPACT OF MULTIPLE INSTANCES OF DEFICIENT PERFORMANCE."
VI. "THE JURY'S VERDICTS OF GUILTY FOR AGGRAVATED MURDER, MURDER AND FELONIOUS ASSAULT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
VII. "THE RECORD CLEARLY AND CONVINCINGLY DOES NOT SUPPORT THE IMPOSITION OF A LIFE PRISON TERM WITH PAROLE ELIGIBILITY AFTER SERVING 30 YEARS."

         ASSIGNMENT OF ERROR I

         {¶17} In his first assignment of error, Appellant contends his conviction for aggravated murder is not supported by sufficient evidence of "prior calculation and design" to satisfy the requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. Appellant argues that the fact he armed himself with a gun for his own protection because he anticipated a possibility of violence does not equate to "a scheme designed to implement a calculated decision to kill[, ]" and that the State failed to prove beyond a reasonable doubt this element of aggravated murder. The State contends the jury verdict, including the finding of prior calculation and design, was supported by the testimony introduced at trial.

         {¶18} A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, an appellate court's inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." Thompkins at 390.

         {¶19} Thus, when reviewing a sufficiency of the evidence claim, an appellate court must construe the evidence in a light most favorable to the prosecution. E.g., State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency of the evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001). Here, after our review of the record, we believe the State presented sufficient evidence to support the finding of prior calculation and design.

         {¶20} The jury convicted Appellant of aggravated murder in violation of R.C. 2923.01(A), which provides that "[n]o person shall purposely, and with prior calculation and design, cause the death of another * * *." Appellant does not contest, under this assignment of error, that the State established that he purposely caused the death of the victim, Sammy Nicholson. Instead, he limits his argument to a claim that the State did not introduce sufficient evidence that he acted with prior calculation and design.

         {¶21} "The phrase 'prior calculation and design' by its own terms suggests advance reasoning to formulate the purpose to kill. Evidence of an act committed on the spur of the moment or after momentary consideration is not evidence of a premeditated decision or a studied consideration of the method and the means to cause a death." State v. Walker, 150 Ohio St.3rd 409, 2016-Ohio-8295, 82 N.E.2d 1124, ¶18; see also State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶151. As this Court recently observed in State v. Phillips, 4th Dist. Scioto No. 18CA3832, 2018-Ohio-5432, at ¶28, "[t]here are three factors courts generally consider to determine whether a defendant acted with prior calculation and design: (1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or an almost instantaneous eruption of events? Walker at ¶20. Although these factors provide guidelines, there is no bright-line test for prior calculation and design, and each case instead turns upon the particular evidence introduced at trial. Walker at ¶19; State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶16.

         {¶22} Here, regarding the first factor, the State presented evidence that established Appellant and the victim knew one another and had a "business relationship" to the extent they cooperated with one another in the illegal sale of drugs. Further, the State introduced evidence indicating their relationship had recently become strained because Appellant owed the victim $700.00 for drugs that were "fronted" to him to sell.

         {¶23} Regarding the second factor, the State introduced evidence in the form of a text message that included a photo of Appellant's gun (the gun used in the murder), along with a comment stating Appellant needed to go "take care of some b.s." The evidence introduced at trial indicated Appellant sent this message from his phone to more than one individual the evening prior to the murder. The record further reveals that Appellant borrowed a vehicle to drive to the victim's residence at 5:00 in the morning, allegedly to pay him the money that was owed. However, instead of leaving the money in a grill outside the victim's apartment, as had been customary in the past, Appellant went into the victim's apartment with a loaded gun on his person. Additional evidence indicated an unspent bullet, of the same type used in the murder, was found in the vehicle Appellant drove, which supports an inference that he loaded the gun just prior to either driving to, or entering, the victim's residence.

         {¶24} Finally, with respect to the final factor which considers the duration of the events at issue, the State argued Appellant went to the victim's residence with a mission and that he walked in and shot the victim without a struggle. As such, the State argued the incident was an "instantaneous eruption of events" which, in the State's view, mitigated in favor of a finding of prior calculation and design. Appellant argued that there was a struggle and that he shot the victim in self-defense after the victim shoved him to the ground. Appellant further argues that the State's theory that the murder occurred as part of an "instantaneous eruption of events" mitigates against, rather than in favor of, a finding of prior calculation and design.

         {¶25} In truth, it cannot be discerned from the record whether this incident was a drawn-out struggle, or whether it was an instantaneous eruption of events. The crime scene certainly indicated a struggle had taken place, but that could have been a result of the struggle between Appellant and Darrell Arnett (the victim's roommate) after the victim was murdered. In any event the first two factors indicate Appellant planned to murder the victim, rather than simply go to his apartment in the middle of the night to pay him the money that was owed. As set forth above, the factors are only guidelines and there is no bright-line test. Based upon the evidence before it, we believe the jury could justifiably conclude that Appellant was determined to complete a specific course of action. Thus, the jury's aggravated murder conviction, including their finding of prior calculation and design, was supported by sufficient evidence. Accordingly, Appellant's first assignment of error is overruled.

         ASSIGNMENT OF ERROR II

         {¶26} In his second assignment of error, Appellant contends the trial court provided the jury with a defective voluntary manslaughter instruction that rose to the level of plain error and deprived him of his rights under the Sixth and Fourteenth Amendments to the United States Constitution to a jury determination of his guilt of a less serious offense than the aggravated murder and murder counts of the indictment. The State concedes the voluntary manslaughter instructions were erroneous to the extent the instructions treated voluntary manslaughter as a lesser included offense, rather than an inferior degree offense. However, the State argues the error was harmless, reasoning that Appellant was arguably not entitled to the provision of a voluntary manslaughter instruction based upon the absence of evidence Appellant acted as a result of a sudden fit of rage or passion.

         {¶27} Generally, our review of "whether jury instructions correctly state the law is de novo." State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶15; citing State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶34. "[R]eversible error should not be predicated upon one phrase or one sentence in a jury charge; instead, a reviewing court must consider the jury charge in its entirety." Id.; citing State v. Porter, 14 Ohio St.2d 10, 13, 235 N.E.2d 520 (1968). "[I]f an instruction correctly states the law, its precise wording and format are within the trial court's discretion." Kulchar at ¶15.

         {¶28} However, implicit in Appellant's argument is the fact that he failed to object to the voluntary manslaughter instruction given by the trial court. Thus, he has waived all but plain error. "'To constitute plain error, a reviewing court must find (1) an error in the proceedings, (2) the error must be a plain, obvious or clear defect in the trial proceedings, and (3) the error must have affected "substantial rights" (i.e., the trial court's error must have affected the trial's outcome).'" State v. Blanton, 4th Dist. Adams No. 16CA1031, 2018-Ohio-1275, ¶85; quoting State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶31 (4th Dist.); citing State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.

         {¶29} "'Furthermore, notice of plain error must be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.'" Blanton at ¶85; citing State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. "A reviewing court should notice plain error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. "'A defective jury instruction does not rise to the level of plain error unless the defendant shows that the outcome of the trial clearly would have been different but for the alleged erroneous instruction.'" Blanton at ¶87; quoting Dickess at ¶32; citing State v. Campbell, 69 Ohio St.3d 38, 41, 630 N.E.2d 339 (1994), and Cleveland v. Buckley, 67 Ohio App.3d 799, 805, 588 N.E.2d 912 (8th Dist.1990).

         {¶30} Appellant argues the jury instructions provided by the trial court improperly foreclosed the jurors from considering voluntary manslaughter in the event they found that the prosecution had proven the elements of aggravated murder and murder. Appellant further argues that the defective instructions deprived him of his constitutional right to a jury finding as to the presence of sudden passion or sudden fit of rage, as a circumstance mitigating aggravated murder and murder to voluntary manslaughter. Appellant argues the trial court further confused the jury by providing a lesser included offense instruction, when voluntary manslaughter is, instead, an inferior degree offense of aggravated murder and murder.

         {¶31} The trial court instructed the jury as follows:

"If the defendant failed to establish the defense of voluntary manslaughter, the State still must prove to you beyond a reasonable doubt that the defendant knowingly caused the death of Samuel Nicholson, II.
* * *
If you find that the State proved beyond a reasonable doubt all the essential elements of any one or more of the offenses charged in the separate counts in the indictment, your verdict must be guilty as to such offense or offenses according to your finding. If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of any one or more of the offenses charged in the separate counts of the indictment, your verdict must be not guilty as to such offense or offenses according to your findings. You will then continue your deliberations to decide whether the State has proved beyond a reasonable doubt all the essential elements of the inferior degree offense of voluntary manslaughter. If all of you are unable to agree on a verdict of either guilty or not guilty of any or all of the charged offenses, then you will continue your deliberations to decide whether the State has proved beyond a reasonable doubt all the essential elements of the inferior degree offense of voluntary manslaughter. If the evidence warrants it, you may find the defendant guilty of an offense lesser than that charged in the indictment; however, notwithstanding this right, it is your duty to accept the law as given to you by the court, and if the facts and law warrant a conviction of the offense charged in the indictment, then it is your duty to make such a finding uninfluenced by your power to find a lesser offense.
* * *
Next page is the inferior degree of voluntary manslaughter.

         This charge shall only be considered if either of the following apply:

One: The defendant has been found not guilty of aggravated murder, murder, and felony murder;
Or Two: You are unable to reach a verdict with respect to aggravated murder, murder, and felony murder.

         Thus, the trial court instructed the jury that voluntary manslaughter was (1) an inferior degree offense; (2) a lesser included offense; and (3) also a defense. It further instructed the jury that the burden of proving the elements of voluntary manslaughter was upon the State, rather than the defendant, and that it must be proven by proof beyond a reasonable doubt, rather than by a preponderance of the evidence.

         {¶32} As this Court noted in State v. Goff, 4th Dist. Lawrence No. 11CA20, 2013-Ohio-42, ¶46, "'[v]oluntary manslaughter is an inferior degree of murder." Quoting State v. Alexander, 4th Dist. Scioto No. 08CA3221, 2009-Ohio-1401, ¶62; accord State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992); see also State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294, paragraphs two and three of the syllabus.[2] As further set forth in Goff at ¶46:

"A defendant on trial for murder or aggravated murder bears the burden of persuading the fact finder, by a preponderance of the evidence, that he or she acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite the defendant into using deadly force, R.C. 2903.03(A), in order for the defendant to be convicted of voluntary manslaughter rather than murder or aggravated murder. State v. Rhodes, 63 Ohio St.3d 613, 590

         N.E.2d 261 (1992), syllabus." Additionally, as explained in Goff at ¶47, "when a voluntary manslaughter instruction is appropriate, a trial court should instruct the jury 'to consider the mitigating evidence to determine whether [the defendant] proved voluntary manslaughter.'" Citing State v. Benge, 75 Ohio St.3d 136, 140- 141, 661 N.E.2d 1019 (1996).

         {¶33} As set forth above, the State conceded the jury instructions were erroneous to a certain extent. Thus, we will assume the trial court's instructions, as they pertained to the consideration of voluntary manslaughter as an inferior degree offense, were defective and prevented the jury from considering the voluntary manslaughter charge. However, as observed in Goff, "in order for there to be reversible error, there must be prejudice to the appellant." Goff at ¶48 (internal citations omitted). In the case sub judice, as was the situation in Goff, Appellant cannot demonstrate prejudice because the evidence introduced at trial did not warrant a voluntary manslaughter instruction.

         {¶34} In order for a voluntary manslaughter instruction to be given, there is a requirement of both objective and subjective evidence. Goff at ¶50. Appellant first had to show "evidence of reasonably sufficient provocation occasioned by the victim * * * to warrant such an instruction. Id.; quoting Shane at 630. This determination is to be made using an objective standard. Goff at ¶50. For example, we have explained that "'[f]or provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control.'" Id.; quoting State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶81; in turn quoting Shane at 635. If the objective component is satisfied, the inquiry then "shifts to the subjective component, which considers whether this particular actor, in this particular case, was actually under the influence of sudden passion, or was in a sudden fit of rage. Goff at ¶51; citing Shane at 634.

         {¶35} We explained analysis of the subjective component in Goff as follows:

"When analyzing the subjective component, 'evidence supporting the privilege of self-defense, i.e., that the defendant feared for [her] own and [others'] personal safety, does not constitute sudden passion or a fit of rage as contemplated by the voluntary manslaughter statute.' State v. Harris, 129 Ohio App.3d 527, 535, 718 N.E.2d 488 (10th Dist.1998). 'While self-defense requires a showing of fear, voluntary manslaughter requires a showing of rage, with emotions of "anger, hatred, jealously, and/or furious resentment."' State v. Levett, 1st Dist. No. C-040537, 2006-Ohio-2222, ¶29, quoting State v. Perdue, 153 Ohio App.3d 213, 2003-Ohio-3481, 792 N.E.2d 747, ¶12 (7th Dist.), in turn quoting Harris at 535; accord State v. Sudderth, 4th Dist. No. 07CA38, 2008-Ohio-5115, ¶14; see also [State v.Hendrickson, 4th Dist. Athens No. 08CA12, 2009- Ohio-4416, ¶45-46]; State v. Caldwell, 10th Dist. No. 98AP- 165, 1998 WL 890232, *7 (Dec. 17, 1998)." Goff at ¶52.

         {¶36} Assuming arguendo the objective component was met, the record before us reveals that Appellant introduced no subjective evidence that he killed the victim while he was under the influence of sudden passion or in a sudden fit of rage. Therefore, Appellant cannot demonstrate that he was prejudiced if the trial court's jury instructions did, in fact, prevent the jury from considering the voluntary manslaughter instruction. As set forth above, Appellant argued theories of voluntary manslaughter, as a result of provocation. He also raised the affirmative defense of self-defense. In his trial testimony, Appellant alleged he was frightened by threats made by the victim towards him in the days leading up to the incident. He also testified that in shooting the victim, he acted out of fear because he was afraid if he didn't shoot, the victim would shoot him first. There is no evidence, after a thorough review of Appellant's trial testimony, that he was actually under the influence of sudden passion or in a sudden fit of rage when he shot the victim. Thus, there was insufficient evidence introduced at trial to warrant a voluntary manslaughter instruction. As such, assuming the manner in which the trial court instructed the jury prevented the jury from considering the voluntary manslaughter charge, Appellant cannot demonstrate he was prejudiced by the alleged error. Accordingly, we find no merit to Appellant's second assignment of error and it is overruled.

         ASSIGNMENT OF ERROR III

         {¶37} In his third assignment of error, Appellant contends that his exclusion from the proceedings involving responses to the jury's questions violated Crim.R. 43, which governs the presence of defendants at every stage of the criminal proceedings and at trial, with certain exceptions. He also contends he was deprived of his constitutional right to be present for all critical stages of the proceedings. "An accused has a fundamental right to be present at all critical stages of his criminal trial." State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶100. "An accused's absence, however, does not necessarily result in prejudicial or constitutional error." State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶90. "'[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" Hale at ¶100; quoting Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 17, 84 S.Ct. 1489, (1964). The question is whether his presence has a "reasonably substantial" relationship to "the fullness of his opportunity to defend against the charge." Id.; quoting Snyder at 105-106.

         {¶38} In his brief, Appellant appears to contend that neither he, nor his counsel were present when the trial court considered and responded in writing to written questions submitted by the jury during their deliberations. For instance, Appellant argues that Volume 4 of the trial transcript indicates there were no proceedings held in open court in which he was present during the time in between the jury being released for deliberations and the announcement of the verdict nearly five hours later. A review of the transcript indicates no proceedings were held in open court during that time. However, the State represents that the written questions submitted by the jury were reviewed by the court and counsel, and then "returned to the jury following an agreed upon answer by all parties." Further, our review of the record indicates Appellant's trial counsel filed a post-trial motion for a new trial in which he referenced the fact that he was surprised by a statement contained in one of the jury's questions.

         {¶39} Thus, contrary to Appellant's suggestion on appeal, it appears counsel was present and participated in a review of the jury's questions and may have even approved the answers provided to the jury by the trial court. We are unable to confirm this, however, as there is no reference to the jury's questions other than the fact that the jury's handwritten notes, along with the trial court's written answers, are taped onto a paper in the trial transcript. What is clear, however, is that there were no proceedings held in open court in response to the jury's submission of questions. Instead, it appears the trial court simply communicated with the jury via written answers to their written questions.

         {¶40} In State v. Lee, 8th Dist. Cuyahoga No. 104682, 2017-Ohio-1449, ¶66, the Eighth District Court of Appeals recently held that a court's "written response sent to the jury room was not a critical phase of the trial that required [the defendant's] presence." In Lee, much like in the case sub judice, the jury submitted written questions during their deliberations. Id. at ¶63. In response, the court met with the attorneys and drafted a written response that was provided to the jurors. Id. In reaching its decision, the Lee court relied upon the reasoning of State v. Campbell, 90 Ohio St.3d 320, 346738 N.E.2d 1178 (2000), which found no error "'where a capital murder defendant was absent from an in-chambers discussion between the court and counsel regarding the trial court's response to a jury question.'" The Lee court noted that Campbell held as follows on this particular issue:

"'Campbell had no right to be present at the legal discussion of how the question should be answered. Nor did he have a right to be present when the judge sent the note to the jury room. Although the oral delivery of jury instructions in open court is a critical stage of trial, the trial court here did not instruct the jury in open court; instead, he sent a note. A defendant benefits from his presence, and may be harmed by his absence, when instructions are given in open court. But these potential benefits and harms do not exist when the judge merely sends a note to the jury room. We therefore hold that the sending of the note was not a critical stage of the trial. (Citations omitted.) Id. at 346. See also State v. Ferguson, 8th Dist. Cuyahoga No. 86439, 2006-Ohio-799, ¶56 (concluding that "the discussion regarding the jury question was not a critical stage of the trial.").'" Lee at ¶61.

         {¶41} In light of the foregoing case law and consistent with the reasoning of the Supreme Court of Ohio in State v. Campbell, supra, we find the trial court's provision of written answers to written questions from the jury cannot be considered a critical stage of the proceedings to which Appellant had statutory and constitutional rights to be ...


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