[Cite as State v. Nelson , 2022

- Ohio

- 4499.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. W. Scott Gwin, P.J.

Plaintiff

- Appellee : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

- vs

- :

: Case No. 2021CA00130

:

RICHARD JAMES NELSON :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of

Common Pleas, case no. 2021CR0856

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: December 13, 2022

For Plaintiff

- Appellee: For Defendant

- Appellant:

KYLE L. STONE TY A. GRAHAM

STARK CO. PROSECUTOR 4450 Belden Village St. NW

TIMOTHY E. YAHNER Suite 703

110 Central Plaza South, Ste. 510 Canton, OH 44718

Canton, OH 44702

- 1413Stark County, Case No. 2021CA00130 2

Delaney, J.

{¶1} Appellant Richard James Nelson appeals from the October 25, 2021,

Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state of

Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on April 16, 2021, when R.R. was murdered at her workplace

in Canton, Ohio, by her ex

- boyfriend, appellant. The following facts are adduced from

the record of appellant’s jury trial.

Carl Andrews takes appellant’s call on R.R.’s phone

{¶3} As of April 16, 2021, Carl Andrews had been dating R.R. for several weeks,

and R.R. spent the night at his house on the evening of April 15, 2021. The next day, the

couple arose around 7:00 a.m. because R.R. had to work at the Canton Bob Evans

location at 8:00 a.m. R.R. told Carl there were 99 missed calls on her cell phone from

her ex

- boyfriend, “Chillie Mo,” later identified as appellant. Carl saw the record of missed

calls on R.R.’s phone.

{¶4} As Carl looked at the phone, yet another call came in from “Chillie Mo.” Carl

answered and a man on the other end began yelling at him. Carl told the man that R.R.

had moved on and didn’t want to speak to him, which escalated the argument. During

the call, the man mentioned an STD. Carl ended the call after about a minute and a half.

{¶5} These phone calls were the latest in R.R.’s tumultuous relationship with

appellant. Although the relationship ended four months prior, R.R. told Carl that on April

14, she was in a grocery store parking lot when appellant approached her with a gun. He

pointed it first at her, then at himself, threatening to “blow his brains out.”Stark County, Case No. 2021CA00130 3

{¶6} R.R. asked Carl to take her to work because she was afraid. Carl drove

R.R. to work and dropped her off directly in front of the restaurant shortly before 8:00 a.m.

Carl returned to the restaurant a short time later to pick up breakfast, but found the

restaurant surrounded by police, SWAT, and an ambulance.

Restaurant employees witness murder

{¶7} Bob Evans employees, R.R.’s co

- workers and friends, testified to events on

the morning of April 16. Jane Doe knew R.R. for several years and was familiar with her

ex

- boyfriend, “Chillie Mo.” Although Jane did not know appellant’s real name, she

identified him in the courtroom as the man she knew as R.R.’s ex

- boyfriend. On the

morning of April 16, R.R. showed Jane the many missed calls from appellant on her

phone. Jane was working the carryout station of the restaurant and a man called to ask

if R.R. was working. Jane lied and said she was not. A short time later, she observed

appellant enter the restaurant in dark clothing and a black Covid mask, with only his eyes

showing. He followed R.R. into the rear of the restaurant, an area not authorized for

customers, and Jane saw him pull out a gun. Jane heard R.R. scream, followed by

approximately four gunshots.

{¶8} Mary Roe, a prep cook, was also working on the morning of April 16. She

too was familiar with “Chillie Mo” as R.R.’s ex

- boyfriend and identified him in the

courtroom. Mary was working at her station when she heard a commotion and R.R. came

around the corner, screaming, followed by a man. The two passed Mary at the stove.

She heard R.R. scream, followed by four or five gunshots.

{¶9} Beth Poe, another co

- worker, knew R.R. had been in a long

- term

relationship with appellant which had recently ended. On the morning of April 16, sheStark County, Case No. 2021CA00130 4

observed that R.R. was frightened and nervous because appellant and her new boyfriend

had argued, and she was afraid appellant might show up at the restaurant. Around 9:30

a.m., Beth saw appellant enter the restaurant and she knew immediately something was

not right because appellant walked at a steady, determined pace and proceeded directly

into an unauthorized area of the restaurant. Beth testified appellant “looked crazy” and

was “obviously deranged.” Beth tried to stop appellant from following R.R., but he would

not be deterred. When she was unable to stop appellant, Beth ran out of the restaurant.

{¶10} Ruth Coe was also working on the morning of April 16 and had known R.R.

for 10 years. She knew R.R.’s relationship history with appellant. On this day, R.R. was

frightened and nervous and showed Ruth the missed calls from appellant on her phone.

Ruth testified that appellant entered the restaurant around 9:30 a.m., followed R.R. into

the back, and she heard screams and gunshots. Ruth testified that appellant’s eyes

“looked like he wasn’t there.”

{¶11} Witnesses reported that R.R. begged appellant “Don’t do this to me” and he

shot her repeatedly without saying a word.

Canton police investigate

{¶12} Canton police were dispatched to the Bob Evans location around 9:30 a.m.

for reports of an active shooter. Officer Chris Heslop was the first to arrive on scene and

entered the restaurant. He cleared the restaurant and worked his way back to the kitchen,

attempting to locate the shooter or victim. He reached a long hallway that led to a storage

area and break room, with carts overturned in the hallway. He encountered R.R. lying on

her back, under a table, and observed two gunshot wounds, to her chest and hip. Heslop

also observed a shell casing.Stark County, Case No. 2021CA00130 5

{¶13} R.R. was treated by SWAT medics but succumbed to her injuries.

{¶14} Appellant fled into the woods and was found by police, talking to his ex

- wife

on his cell phone. Appellant claimed he wanted to kill himself, but his ex

- wife talked him

out of it. Appellant refused to surrender until a K

- 9 was deployed and apprehended him.

{¶15} Police questioned the Bob Evans co

- workers and obtained R.R.’s cell

phone records. On April 15, 2021, R.R. had 134 calls from appellant. On April 16, 2021,

R.R. received 176 calls from appellant, with 70 of those calls occurring between 7:36 a.m.

and 9:17 a.m.

{¶16} A Cuyahoga County coroner performed R.R.’s autopsy and described two

gunshots to her chest area, either of which would have been fatal.

{¶17} Appellant called a single defense witness, Quasim Faheem, who refers to

appellant as his father. Faheem testified about appellant’s relationship with R.R. and said

he visited with the two together on April 14, 2021, and saw no issues. Appellant

contended through phone calls that R.R. gave him an STD.

{¶18} Appellant was charged by indictment with one count of aggravated murder,

an unclassified felony, pursuant to R.C. 2903.01(A) and R.C. 2929.02(A). The count was

accompanied by a firearm specification pursuant to R.C. 2941.145(A). Appellant entered

pleas of not guilty and the matter proceeded to trial by jury. Appellant moved for

judgments of acquittal at the close of appellee’s evidence and at the close of all the

evidence; the motions were overruled. The jury found appellant guilty as charged.

{¶19} The trial court sentenced appellant to a term of life without the possibility of

parole upon the single count of aggravated murder, consecutive to a mandatory 3

- year

prison term on the firearm specification.Stark County, Case No. 2021CA00130 6

{¶20} Appellant now appeals from the judgment entry of his convictions and

sentence.

{¶21} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶22} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST

BE REVERSED.”

{¶23} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”

{¶24} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DENIED APPELLANT’S REQUEST TO GIVE A JURY INSTRUCTION OF

VOLUNTARY MANSLAUGHTER BECAUSE EVIDENCE OF REASONABLY

SUFFICIENT PROVOCATION OCCASIONED BY THE VICTIM WAS PRESENTED BY

APPELLANT TO WARRANT SUCH AN INSTRUCTION.”

{¶25} “IV. APPELLANT’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HE

WAS DENIED APPELLATE REVIEW OF HIS SENTENCE UNDER R.C. 2953.08, AS

SUBSECTION (D)(3) UNCONSTITUTIONALLY PROHIBITS REVIEW OF A SENTENCE

IMPOSED FOR AGGRAVATED MURDER.”

ANALYSIS

I., II.

{¶26} Appellant’s first two assignments of error are related and will be considered

together. Appellant argues his aggravated murder conviction is against the manifestStark County, Case No. 2021CA00130 7

weight and sufficiency of the evidence because there is no evidence he acted with prior

calculation and design. We disagree.

{¶27} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins

, 78 Ohio St.3d 380,

1997

- Ohio

- 52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks

, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

{¶28} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned, and a new trial ordered.” State v. Thompkins

, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.Stark County, Case No. 2021CA00130 8

{¶29} Appellant was found guilty of one count of aggravated murder pursuant to

R.C. 2903.01(A), which states in pertinent part, “No person shall purposely, and with prior

calculation and design, cause the death of another.” “‘Prior calculation and design’ are

not defined in the Revised Code but is more than just an instantaneous decision to kill; it

encompasses planning ‘a scheme designed to carry out the calculated decision to cause

the death.’” State v. Calvert

, 5th Dist. Guernsey No. 03CA19, 2004

- Ohio

- 6366, ¶ 49, citing

State v. Jones, 91 Ohio St.3d 335, 348, 2001

- Ohio

- 57, 744 N.E.2d 1163, internal citations

omitted. Prior calculation and design are considered “a more stringent element than

premeditation.” Id., citing State v. Green, 90 Ohio St.3d 352, 357, 738 N.E.2d 1208,

internal citation omitted.

{¶30} Appellant argues there is no evidence of prior calculation and design in the

instant case; instead, the evidence suggested his actions were driven by a “sudden heat

of passion” provoked by his telephone conversation with Carl on the morning of April 16,

which is allegedly the first he knew of the relationship between Carl and R.R.

{¶31} In State v. Taylor

, 78 Ohio St.3d 15, 18

– 20, 676 N.E.2d 82, 88

– 89 (1997),

the Ohio Supreme Court considered the meaning of “prior calculation and design,” noting

the following at page 19:

* * * *

According to [the 1973 Technical Committee Comment to

Am.Sub.H.B. No. 511, a Legislative Service Commission summary],

“the phrase ‘prior calculation and design’ [was employed] to indicate

studied care in planning or analyzing the means of the crime as well

as a scheme encompassing the death of the victim. Neither theStark County, Case No. 2021CA00130 9

degree of care nor the length of time * * * are critical factors in

themselves, but they must amount to more than momentary

deliberation.”

In State v. Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381

N.E.2d 190, at paragraph one of the syllabi, we agreed that “‘prior

calculation and design’ is a more stringent element than the

‘deliberate and premeditated malice’ which was required under prior

law.” The General Assembly's apparent intention “was to require more

than the few moments of deliberation permitted in common law

interpretations of the former murder statute, and to require a scheme

designed to implement the calculated decision to kill.” Id., 56 Ohio

St.2d at 11, 10 O.O.3d at 6, 381 N.E.2d at 193. Also, in Cotton, at

paragraph two of the syllabus, we held that “[i]nstantaneous

deliberation is not sufficient to constitute ‘prior calculation and

design.’”

* * * *.

In State v. Jenkins, 48 Ohio App.2d at 102, 2 O.O.3d at 75,

355 N.E.2d at 828, the court of appeals found three factors important

in determining whether prior calculation and design exists: (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”?Stark County, Case No. 2021CA00130 10

Our review of the preceding cited cases convinces us that it is

not possible to formulate a bright

- line test that emphatically

distinguishes between the presence or absence of “prior calculation

and design.” Instead, each case turns on the particular facts and

evidence presented at trial.

State v. Taylor

, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997).

{¶32} In the instant case, then, the issue is whether appellant acted with “more

than momentary deliberation,” or whether the act was “an almost instantaneous eruption

of events.” Taylor, supra. We find overwhelming evidence of the former, and the

evidence at trial contradicts appellant’s argument on appeal.

{¶33} This was not “an almost instantaneous eruption of events” caused when

appellant suddenly learned of an STD or a new boyfriend. The evidence showed that he

called the victim’s phone literally hundreds of times, beginning on April 15, 2021. In the

two hours leading up to the murder, appellant called the phone 70 times. There was

some evidence that appellant stalked R.R. the night before and the morning of her

murder, including circling the restaurant in his vehicle. Appellant’s conduct was overt and

put the victim was in fear, asking Carl to take her to work and showing her co

- workers the

missed calls from appellant. Appellant called the Bob Evans restaurant to ask if the victim

was working, prompting her friend to lie on her behalf, to no avail. Appellant appeared

and entered the restaurant; the victim’s co

- workers were unable to deter him. He pursued

the victim to the back of the restaurant and shot her multiple times.

{¶34} To answer the questions posed by Jenkins and re

- emphasized by the Ohio

Supreme Court, supra, the victim and appellant knew each other, and their relationshipStark County, Case No. 2021CA00130 11

was strained. The victim ended her relationship with appellant, and he was aware of her

new relationship with another man. Appellant called the victim repeatedly and

obsessively, arguing with Carl, who told him the victim had moved on and didn’t want to

speak to him. Appellant looked for the victim and called to ensure that she was at her

workplace, therefore giving thought and preparation to choosing the murder site. He

entered the restaurant wearing all black, with only his eyes exposed, giving himself the

advantage of surprise. He deliberately entered the restaurant with a gun, chased R.R. to

the back of the restaurant in front of many witnesses, and shot her repeatedly in cold

blood while she begged for her life. The act was drawn out, traumatic, and terrifying; this

was no spontaneous eruption of events.

{¶35} Appellant also suggests that the jury in part lost it way due to prosecutorial

misconduct during closing argument but did not raise this argument as a separate

assignment of error. The test for prosecutorial misconduct is whether the prosecutor's

comments and remarks were improper and if so, whether those comments and remarks

prejudicially affected the substantial rights of the accused. Sunbury v. Sullivan

, 5th Dist.

Delaware No. 11CAC030025, 2012

- Ohio

- 3699, 2012 WL 3525617, ¶ 30 citing State v.

Lott , 51 Ohio St.3d 160, 555 N.E.2d 293 (1990). In reviewing allegations of prosecutorial

misconduct, it is our duty to consider the complained of conduct in the context of the entire

trial. Darden v. Wainwright

, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial

is not unfair, if, in the context of the entire trial, it appears clear beyond a reasonable

doubt the jury would have found the defendant guilty even without the improper

comments. State v. Treesh

, 90 Ohio St.3d 460, 464, 2001

- Ohio

- 4, 739 N.E.2d 749.

Furthermore, both the prosecution and the defense have wide latitude during openingStark County, Case No. 2021CA00130 12

and closing arguments. State v. Edwards

, 5th Dist. Licking No. 21CA0083, 2022

- Ohio

3534, ¶ 34. We find no plain error in admission of the cited comments, in the context of

the entire closing argument, and it is evident beyond a reasonable doubt the jury would

have found appellant guilty even without the comments. Id.

, ¶ 36.

{¶36} When viewed in the light most favorable to appellee, there exists sufficient

evidence to support the appellant's conviction of aggravated murder. The jury’s finding

is not against the manifest weight of the evidence. Further, there is no evidence that the

jury lost its way in the instant case.

{¶37} Appellant’s first and second assignments of error are overruled.

III.

{¶38} In his third assignment of error, appellant argues the trial court should have

given an instruction upon voluntary manslaughter. We disagree.

{¶39} A jury charge on a lesser included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser or inferior offense. See, e.g., State v. Thomas

,

40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. In making this

determination, the court must view the evidence in a light most favorable to the defendant.

State v. Smith

, 89 Ohio St.3d 323, 331, 731 N.E.2d 645(2000). Nevertheless, an

instruction is not warranted every time any evidence is presented on a lesser

- included

offense. There must be sufficient evidence to allow a jury to reasonably reject the greater

offense and find the defendant guilty on a lesser

- included offense. State v. Shane

, 63

Ohio St.3d at 632

– 633, 590 N.E.2d 272; State v. Conway

, 108 Ohio St.3d at 240,842

N.E.2d at 1027, 2006

– Ohio

– 791 at ¶ 134.Stark County, Case No. 2021CA00130 13

{¶40} When reviewing a trial court's jury instructions, the proper standard of

review for an appellate court is whether the trial court's refusal to give a requested jury

instruction constituted an abuse of discretion under the facts and circumstances of the

case. State v. Miku

, 5th Dist. Stark No. 2017 CA 00057, 2018

- Ohio

- 1584, 111 N.E.3d

558, ¶ 53.

{¶41} Appellant requested an instruction upon voluntary manslaughter, which is

defined by R.C. 2903.03 as follows in pertinent part:

(A) No person, 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, shall knowingly cause the

death of another * * *.

{¶42} Appellant argues there was serious provocation occasioned by R.R.

because he “had just learned” that his long

- term relationship was over and that she had

a new boyfriend, and allegedly he contracted an STD. Appellant also points to the

testimony of one of the Bob Evans witnesses who testified R.R. said Carl and appellant

got into a physical fight on April 15, 2021. As noted in our discussion of the first and

second assignments of error supra, appellant’s argument is belied by the evidence of the

phone calls. He did not “just learn” of R.R.’s new relationship the morning of the murder;

he was obsessively calling her throughout the 15th and the morning of the 16th. He had

the presence of mind to investigate her whereabouts that morning and to stalk her at her

workplace. We disagree with appellant’s assertion that he acted under the influence ofStark County, Case No. 2021CA00130 14

sudden passion or in a sudden fit of rage, brought on by serious provocation occasioned

by the victim.

{¶43} Sudden rage or passion has been described as, “anger, hatred, jealousy,

and/or furious resentment.” State v. Smith

, 5th Dist. Guernsey No. 2012

- CA

- 17, 2013

-

Ohio

- 1226, ¶ 65, citing State v. Harris, 129 Ohio App.3d 527, 535, 718 N.E.2d 488(10th

Dist.1998). To determine whether sufficient evidence of serious provocation exists, a trial

court must engage in a two

- part inquiry. First, the court must objectively determine

whether the alleged provocation is reasonably sufficient to bring on a sudden passion or

fit of rage. Smith

, supra, 2013

- Ohio

- 1226, ¶ 67, citing State v. Mack, 82 Ohio St.3d 198,

201, 1998

– Ohio

– 375, 694 N.E.2d 1328. “If this objective standard is met, the inquiry shifts

to a subjective standard, to determine whether the defendant in the particular case

‘actually was under the influence of sudden passion or in a sudden fit of rage.’ “Id.

, quoting

State v. Shane, 63 Ohio St.3d 630, 634

– 35, 590 N.E.2d 724 (1992).

{¶44} In examining whether provocation is reasonably sufficient to bring on a

sudden fit of passion or fit of rage, the Ohio Supreme Court has stated “[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.” State v. Shane, 63 Ohio St.3d at 635, 590

N.E.2d 272. In determining whether the provocation was reasonably sufficient, the court

must consider the emotional and mental state of the defendant and the conditions and

circumstances that surrounded him at the time. State v. Mabry, 5 Ohio App.3d 13, 449

N.E.2d 16 (8th Dist.1982), paragraph five of the syllabus, approved.

{¶45} Unlike self

- defense, the issue of who was the aggressor is not the

determinative issue in a voluntary manslaughter defense; rather the appellant must showStark County, Case No. 2021CA00130 15

that he acted under a sudden rage or passion. Further, past incidents or verbal threats

do not satisfy the test for reasonably sufficient provocation when there is sufficient time

for cooling off. Smith

, supra, 2013

- Ohio

- 1226 at ¶ 70, citing State v. Huertas, 51 Ohio

St.3d 22, 31

– 32, 553 N.E.2d 1058, 1068

– 1069 (1990) and State v. Pierce, 64 Ohio St.2d

281, 18 O.O.3d 466, 414 N.E.2d 1038 (1980); State v. Mowls

, 5th Dist. Stark No.

2017CA00019, 2017

- Ohio

- 8712, ¶ 29.

{¶46} Voluntary manslaughter instructions are warranted only when there is

sufficient evidence presented at trial which would allow a jury to reasonably to reject the

greater offense of aggravated murder or murder and find defendant guilty of lesser

offense of voluntary manslaughter. State v. Byerly

, 5th Dist. Richland No. 02

- CA

- 81,

2003

- Ohio

- 6911, ¶ 33. In determining whether evidence has been presented to warrant

a voluntary manslaughter instruction, the trial court is required to consider the facts of the

case and “evaluate the evidence in the light most favorable to the defendant, without

weighing the persuasiveness of the evidence.” Id. citing State v. Wilkins (1980), 64 Ohio

St.2d 382, 388, 415 N.E.2d 303. In Shane, supra, 63 Ohio St.3d at 635, 590 N.E.2d 272,

the Ohio Supreme Court also held that the interval between the provocation and the fatal

blow must be so close in time that the defendant had no time to “cool off.”

{¶47} In the instant case, whether appellant fought with Carl the night before, or

only argued with him on the phone at 7:30 a.m., there was clearly a cooling

- off period of

two hours before appellant stalked R.R. at the restaurant and shot her. See, Byerly

,

supra, 5th Dist. Richland No. 02

- CA

- 81, 2003

- Ohio

- 6911, ¶ 36. During that time,

however, appellant was stalking R.R.’s whereabouts. Moreover, even if the events could

be viewed as sufficiently provocative under an objective standard in the case sub judice,Stark County, Case No. 2021CA00130 16

defendant was not entitled to a voluntary manslaughter instruction as a matter of law since

there is no evidence defendant subjectively acted under the influence of sudden passion

or in a sudden fit of rage brought on by serious provocation occasioned by the victim that

was reasonably sufficient to incite defendant into using deadly force. Id., citing State v.

Shane, supra, 63 Ohio St.3d at 634, 590 N.E.2d 272. He entered the restaurant through

the carry

- out door and pursued R.R. into the back, undeterred by the efforts of her co

workers and friends. R.R. did nothing to provoke appellant’s murderous rage that day

other than attempt to live her life without him in it.

{¶48} In Byerly, supra, at ¶ 39

- 40, we concluded the defendant was not entitled

to an instruction on voluntary manslaughter under similar circumstances as the instant

case, and the rationale is instructive in the instant case:

The record contains absolutely no testimony that defendant was

under the influence of sudden passion or in a sudden fit of rage at any time

during the incident. Upon entering the mobile home, Appellant did not

become involved in an argument with the victim, nor did he find the victim

and his wife in a situation which could be argued to enrage him.

There is no evidence of any provocation by the victim which would

justify the use of deadly force. [The victim] never had an opportunity to even

speak with Appellant prior to being shot by him, let alone add fuel to his

rage. Appellant came to the trailer armed with at least one loaded gun.

From the evidence presented, we find no reason for the trial court to

have charged on voluntary manslaughter.Stark County, Case No. 2021CA00130 17

{¶49} In the instant case, appellant stalked R.R. to the restaurant, entered,

pursued her to the back of the building, and shot her multiple times. There is no evidence

the two argued, or that R.R. provoked appellant in any way. Appellant appeared at the

restaurant for the sole purpose of killing R.R. in cold blood.

{¶50} Under the circumstances, based on our review of the record, no evidence

was adduced at trial which would allow the jury to reasonably reject the greater offense

of aggravated murder and find defendant guilty of the lesser offense of voluntary

manslaughter in the case. Byerly

, supra, 2003

- Ohio

- 6911, ¶ 41. Appellant was not

entitled to an instruction upon voluntary manslaughter and the trial court did not err in this

regard.

{¶51} Appellant’s third assignment of error is overruled.

IV.

{¶52} In his fourth assignment of error, appellant argues R.C. 2953.08(D)(3) is

unconstitutional because the statute states that a sentence imposed for aggravated

murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not

subject to appellate review. We disagree.

{¶53} Appellant challenges R.C. 2953.08(D)(3) as unconstitutional, arguing it

precludes appellate review of his sentence of life imprisonment without parole, asserting

that because R.C. 2953.08(D)(3) does not allow sentences for murder and aggravated

murder to be appealed under that statute, it violates his constitutional rights to due

process and equal protection. This argument has been reviewed and rejected in other

cases, as noted infra.Stark County, Case No. 2021CA00130 18

Note on the Appellate Record

{¶54} We agree with appellee that appellant did not properly raise a constitutional

argument before the trial court. Generally, a constitutional argument that is not raised in

the trial court is “waived and cannot be raised for the first time on appeal.” In re L.Z.

, 5th

Dist. No. 15

- CA

- 36, 2016

- Ohio

- 1337, 61 N.E.3d 776, ¶ 29, citing State v. Brewer, 2nd

Dist. Montgomery No. 26153, 2015

- Ohio

- 693, 2015 WL 848406, ¶ 36.

{¶55} Notwithstanding the issue of waiver, we find appellant's constitutional

arguments to be unpersuasive. We first note statutes enjoy a strong presumption of

constitutionality. L.Z

., supra, 5th Dist. No. 15

- CA

- 36, 2016

- Ohio

- 1337, 61 N.E.3d 776, ¶

30, citing State v. Galloway

, 5th Dist., 2015

- Ohio

- 4949, 50 N.E.3d 1001, ¶ 18.

{¶56} Moreover, appellant’s argument that he is foreclosed from appealing his

sentence is unavailing. Appellant correctly asserts that R.C. 2953.08(D) governs review

of felony sentencing and prevents appellate review of sentences for aggravated murder

under that statutory section. Specifically, R.C. 2953.08(D)(3) provides that “[a] sentence

imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the

Revised Code is not subject to review under this section. ” (Emphasis added.)

{¶57} However, R.C. 2953.08(D)(3) is not the exclusive basis for appealing a

sentence. State v. Jenkins

, 5th Dist. Muskingum No. CT2021

- 0001, 2021

- Ohio

- 4100, ¶

35, citing State v. Patrick, 164 Ohio St.3d 309, 2020

- Ohio

- 6803, 172 N.E.3d 952, ¶ 15.

“Indeed R.C. 2953.02 also provides a right to appeal a judgment or final order to the court

of appeals ‘[i]n a capital case in which a sentence of death is imposed for an offense

committed before January 1, 1995, and in any other criminal case * * *.’ (Emphasis

added.) R.C. 2953.02 also provides, ‘A judgment or final order of the court of appealsStark County, Case No. 2021CA00130 19

involving a question arising under the Constitution of the United States or of this state

may be appealed to the supreme court as a matter of right.’ The final judgment for

purposes of appeal under R.C. 2953.02 is the sentence.” Id., citing Patrick at ¶ 16.

Therefore, R.C. 2953.08(D)(3) does not preclude an appellate court's review of a

constitutional challenge to a sentence for aggravated murder or murder. Id. at ¶ 22.

{¶58} We do not reach the merits of appellant’s fourth assignment of error. State

v. Beard

, 11th Dist. Lake No. 2019

- L

- 165, 2021

- Ohio

- 2384, ¶ 26. As the First District

recently noted in State v. Stumph

, 1st Dist. Hamilton No. C

- 190318, 2021

- Ohio

- 723, at ¶

39, in finding it was not “absolutely” necessary to reach the appellant's constitutional

challenges to R.C. 2953.08(D)(3) in that case:

The law is clear that ‘courts should avoid reaching

constitutional issues if they can decide the case on other grounds.’

DeVan v. Cuyahoga Cty. Bd. of Revision

, 2015

- Ohio

- 4279, 45 N.E.3d

661, ¶ 10 (8th Dist.). Courts should ‘not reach constitutional issues

unless absolutely necessary.’ See In re D.S.

, 152 Ohio St.3d 109,

2017

- Ohio

- 8289, 93 N.E.3d 937, ¶ 7, quoting State v. Talty

, 103

Ohio St.3d 177, 2004

- Ohio

- 4888, 814 N.E.2d 1201, ¶ 9.

{¶59} We therefore decline to consider the constitutionality of R.C. 2953.08(D)(3)

in this case. Beard

, supra, 2021

- Ohio

- 2384, ¶ 28. Appellant’s sole argument is that R.C.

2953.08 is unconstitutional because it forecloses appellate review of his sentence.

However, in Patrick

, the Supreme Court of Ohio clearly held that R.C. 2953.08(D)(3) does

not preclude all appellate review of sentences imposed for murder and aggravated

murder offenses.Stark County, Case No. 2021CA00130 20

{¶60} Appellant’s fourth assignment of error is overruled.

CONCLUSION

{¶61} Appellant’s four assignments of error are overruled, and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.