[Cite as State v. Gore, 2016-Ohio-7667.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 15AP-686 

 (C.P.C. No. 14CR-2828) 

v. : 

 (REGULAR CALENDAR) 

Anthony K. Gore, : 

 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on November 8, 2016 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B. 

Swanson, for appellee. 

On brief: Yeura R. Venters, Public Defender, and Timothy E. 

Pierce, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} Anthony K. Gore, defendant-appellant, appeals the judgment of the 

Franklin County Court of Common Pleas, in which the court found him guilty of voluntary 

manslaughter with specification, a violation of R.C. 2903.03 and a first-degree felony. 

{¶ 2} At the plea hearing, counsel for the State of Ohio, plaintiff-appellee, entered 

the following facts into the record: 

Thank you, Your Honor. This incident happened back on 

May 5, 2015, * * * Pannell Avenue in Franklin County, State 

of Ohio. The facts that gave rise to the incident actually began 

the day before when the victim, Mr. Roderick Davis and his 

girl friend [Danielle Johns] had an argument. The argument 

sort of continued into the next day, when the victim and his 
No. 15AP-686 2 

girl friend went to a doctor appointment for their children, at 

which point he leaves the appointment, goes back to the house 

on Pannell Avenue. 

The defendant was staying there at that time with a couple 

other witnesses to this matter. He pulls up to the house 

quickly on the curb. There was an argument between an 

individual that came with the victim, as well as the defendant 

and some other people at the house. The argument moves into 

the back of the house, at which point there is a physical 

altercation between a witness by the name of Eric Robinson, 

as well as the defendant, I am sorry, Your Honor, the victim -- 

scratch that, the victim and Mr. Robinson are similar size. Mr. 

Robinson by all accounts does not witness the physical 

altercation. 

From there, there is further fighting. At that point the victim 

kind of pushes the defendant. The defendant sort of pushes 

back and then shoots the victim two times, one time in the 

thigh, one time in the head. 

After this, some people leave the scene. Investigators were 

called. The above witnesses were interviewed. After a time, the 

defendant does turn himself in on this matter. 

(Apr. 27, 2105 Tr. at 12-13.) 

{¶ 3} Appellant's counsel then recited the following additions and exceptions: 

In our view, this was a case involving a substantial 

provocation on behalf of Mr. Davis. 

As indicated earlier, he was at a doctor's office regarding his 

children. He was very irate and argumentative with the 

mother of his children. Several phone calls were made from 

that location by way of a cell phone to my client, and 

ultimately Mr. Robinson, and for reasons that still has not 

been made clear, it was clear that when Mr. Davis left the 

doctor's office, [he] told his girl friend that he was heading to 

work. 

He did otherwise. He then drove back and stopped at a 

friend's house -- I can't remember the gentleman's name -- 

picked him up. That individual was very concerned about 

what was about ready to take place. Mr. Davis said to him, we 

have got work to do, work meaning fight. 
No. 15AP-686 3 

They pull up to this residence, to this location, driving up on 

the curb, squealing tires, high rate of speed. Prior to that 

arrival, Mr. Davis had indicated, as was indicated, had been in 

an ongoing confrontation, verbal confrontation between he 

and his girl friend, extremely violent history with, threats by 

Mr. Davis to shoot up her and everybody else within that 

house. 

In that house is my client's girl friend and his children. My 

client's girl friend and his children, which is * * * why my 

client was there. He was concerned about the nature of the 

threats made. A physical altercation takes [place] between Mr. 

Davis and Mr. Robinson. Mr. Robinson was choked to the 

point he believes he is going to die or pass out. 

After that physical confrontation, he then turns his attention 

to Mr. Gore. Mr. Gore -- there is a substantial size difference 

both in terms of height, weight, and physicality. Mr. Gore 

made several attempts to try to back away to avoid 

confrontation. 

Mr. Davis struck my client a number of times. There is some 

dispute as to how he was struck. My client pulled out the 

weapon, displayed it to him, look, back away, I don't want 

trouble, and Mr. Davis continued to aggressively approach 

my client, and it was within that climate that my client 

ultimately then fired the shot initially in the leg, hoping that 

would bring the situation to an end. After having been shot, 

Mr. Davis got up, again went after Mr. Gore, and during this 

entire sequence makes it very clear he doesn't care that he has 

a firearm. 

There was a black bag that Mr. Davis came to that scene with. 

It is our belief that that black bag had a firearm, which would 

be consistent with Mr. Davis's behavior, and Mr. Gore saw Mr. 

Davis reach in that black bag, which also raised his level of 

fear and concern. 

As I said before, this was an extremely close call, and this is 

why an Alford plea is being entered. In other words, in regard 

at the time of sentencing, I did want to add that for purposes 

of the record for today's proceeding. 

(Apr. 27, 2015 Tr. at 14-16.) 
No. 15AP-686 4 

{¶ 4} Appellant was indicted on one count of murder, in violation of R.C. 

2903.02(A), and one count of murder, in violation of R.C. 2903.02(B). Both of the 

murder counts included three-year firearm specifications. He was also indicted on one 

count of kidnapping in regard to Justin Willis, which also included a three-year firearm 

specification. 

{¶ 5} On April 27, 2015, appellant entered a guilty plea, pursuant to North

Carolina v. Alford, 400 U.S. 25 (1970), to voluntary manslaughter with a firearm 

specification, and the state dismissed the kidnapping count and murder count. At the 

plea hearing, the trial court stated: "The record will reflect that [the] court finds that there 

is sufficient evidence presented by the state through the presentation of facts to sustain a 

conviction of the offense to voluntary manslaughter." (Apr. 27, 2015 Tr. at 18.) 

{¶ 6} On June 18, 2015, a sentencing hearing was held, at which the court 

reiterated: "Based on the facts as entered into the record by Mr. Simms on April 27, the 

court found that there was sufficient evidence to find Mr. Gore, Jr., guilty of the charge to 

which he entered an Alford plea." (June 18, 2015 Tr. at 21.) 

{¶ 7} On June 19, 2015, the trial court issued a judgment entry in which the court 

sentenced appellant to terms of imprisonment of eight years on the voluntary 

manslaughter count and three years on the firearm specification, to be served 

consecutively. The court also ordered that appellant, either personally or through others, 

must stay away from and have no contact with the victim's family. Appellant appeals the 

judgment, asserting the following assignments of error: 

[I.] The sentence imposed below violated Appellant's right to 

due process of law under the Fifth and Fourteenth 

Amendments of the United States Constitution, Article I, 

Sections 1 and 16 of the Ohio Constitution, and was contrary 

to law in violation of R.C. 2953.08(A)(4) and R.C. 

2953.08(G)(2)(b). 

 

[II.] The trial court erred when it ordered as a condition of the 

sentence that Appellant by himself or through his family stay 

away from and have no contact with the victim's family in 

violation of the Fifth and Fourteenth Amendments of the 

United States Constitution and Article I, Sections 1 and 16 of 

the Ohio Constitution, and R.C. 2929.13, 2929.14, and 

2929.15. 

 
No. 15AP-686 5 

{¶ 8} Appellant argues in his first assignment of error that the sentence imposed 

below violated his right to due process of law and was contrary to law. "[A]n appellate 

court may vacate or modify a felony sentence on appeal only if it determines by clear and 

convincing evidence that the record does not support the trial court's findings under 

relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 146 

Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Under Ohio law, "[a] sentence is not clearly and 

convincingly contrary to law where [the] trial court 'considers the principles and purposes 

of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease 

control, and sentences the defendant within the permissible statutory range.' " State v. 

Julious, 12th Dist. No. CA2015-12-224, 2016-Ohio-4822, ¶ 8, quoting State v. Ahlers, 12th 

Dist. No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. 

{¶ 9} The voluntary manslaughter statute, R.C. 2903.03(A), provides that "[n]o 

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." Voluntary manslaughter is an inferior degree of murder because " ' "its elements 

are * * * contained within the indicted offense, except for one or more additional 

mitigating elements." ' " State v. Shane, 63 Ohio St.3d 630, 632 (1992), quoting State v. 

Tyler, 50 Ohio St.3d 24, 36 (1990), superseded on other grounds, quoting State v. Deem, 

40 Ohio St.3d 205, 209 (1988). "Our criminal law recognizes that the provoked defendant 

is less worthy of blame than the unprovoked defendant, but the law is unwilling to allow 

the provoked defendant to totally escape punishment," as opposed to a killing in selfdefense. Id. at 635. State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 54 

{¶ 10} Here, appellant contends the trial court failed to properly apply the 

statutory seriousness and recidivism factors contained in R.C. 2929.12 while applying 

appellant's sentence. Appellant points out that, at both the plea and sentencing hearings, 

the trial court acknowledged the record contained sufficient evidence through the 

presentation of facts by the state to sustain a conviction for voluntary manslaughter and 

the three-year firearm specification. Despite such findings, contends appellant, as the 

sentencing hearing progressed, the trial court rejected the provocation element of 

voluntary manslaughter by finding the victim lacked any responsibility in provoking 
No. 15AP-686 6 

appellant. Appellant points out that the trial court's findings under the R.C. 2929.12 

factors strongly implied that the shooting was less the result of sudden passion or sudden 

fit of rage generated by the victim's actions but, instead, was an indication of purposeful 

choice on appellant's part. Although appellant concedes a trial court can sentence a 

defendant according to the "real facts" of the case instead of the elements of a reduced 

offense arrived via plea bargain, here, appellant asserts the trial court specifically found at 

the time of the plea that the "real facts" supported appellant's conviction for voluntary 

manslaughter and its provocation element. 

{¶ 11} We disagree with appellant. As stated above, this court's standard of review 

in determining if a trial court's sentence is clearly and convincingly contrary to law is 

whether the court considered the principles and purposes of R.C. 2929.11, as well as the 

factors listed in R.C. 2929.12, and sentenced the defendant within the permissible 

statutory range. Julious at ¶ 8. Here, the trial court clearly considered the principles and 

purposes of R.C. 2929.11 and engaged in a thoughtful and thorough analysis of the R.C. 

2929.12 factors during the sentencing hearing. There is also no dispute that the court 

sentenced appellant within the permissible statutory range. Thus, the trial court's 

sentence was not clearly and convincingly contrary to law. 

{¶ 12} Appellant's main contention that the trial court was required to find 

provocation because the court was constrained by its express finding that there was 

sufficient evidence to support the plea of voluntary manslaughter is without merit. Where 

a defendant has pled guilty to a lesser crime than originally charged as part of a plea 

bargain, "the trial court is permitted to consider the original charge when sentencing." 

State v. Dari, 8th Dist. No. 99367, 2013-Ohio-4189, ¶ 15. Thus, the sentencing court is 

free to consider the underlying facts when considering what sentence would be 

appropriate where the defendant has entered a plea to a lesser charge. Id. at ¶ 17; see also

State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, ¶ 17 (2d Dist.) (court may consider 

underlying facts in imposing sentence where defendant pleaded guilty to unindicted 

charge as part of plea bargain), citing State v. Mayor, 7th Dist. No. 07 MA 177, 2008-

Ohio-7011, ¶ 17 (sentencing court may consider the circumstances of the offense for which 

the defendant was indicted, even if he negotiated a plea at odds with the indicted 

elements). " '[N]o caselaw * * * would prohibit a trial judge from taking into account 
No. 15AP-686 7 

charges that are reduced or dismissed as a result of a plea bargain, [and] in fact, the 

history of Ohio law indicates that the sentencing judge may consider such factors.' " State 

v. Watson, 7th Dist. No. 09 MA 62, 2011-Ohio-1178, ¶ 15, quoting State v. Starkey, 7th 

Dist. No. 06 MA 110, 2007-Ohio-6702, ¶ 19. 

{¶ 13} Furthermore, pursuant to the concept of "real offense" sentencing: 

[J]udges have been accustomed to sentence an offender based 

on the judge's perception of the true facts even though such 

facts may be inconsistent with a plea bargain. For example, a 

robbery charge may be plea bargained to an attempted 

robbery. A charge of grand theft of a motor vehicle may be 

plea bargained to attempted grand theft of a motor vehicle. 

Notwithstanding the plea bargain the judge may sentence the 

offender within the statutory parameters of the plea bargained 

offense based upon what the record shows to have been the 

real facts of the offense. Thus, seriousness of the offense will 

generally be based upon the judge's perception of the real 

facts of what occurred, and the plea bargained offense will 

simply set a ceiling on what the judge can impose. 

State v. Frankos, 8th Dist. No. 78072 (Aug. 23, 2001), citing Griffin & Katz, Ohio Felony 

Sentencing Law (2000 Ed.) 450-51. Accordingly, in the present case, the trial court could 

consider the "real facts" as the trial judge perceived them, despite the original murder 

charge being plea bargained to voluntary manslaughter. 

{¶ 14} Appellant's contention that the "real facts" included provocation because 

the trial court found sufficient evidence of the charge of voluntary manslaughter is 

without merit. Appellant's underlying premise is that provocation is an element of 

voluntary manslaughter; thus, a finding of sufficient evidence of voluntary manslaughter 

also includes a finding of sufficient evidence for provocation. However, courts have held 

that serious provocation, as contemplated in R.C. 2903.03, is not an element of the crime 

of voluntary manslaughter, but is rather a circumstance, the establishment of which 

mitigates a defendant's criminal culpability. See, e.g., State v. Wallace, 1st Dist. No. C950465 (Dec. 31, 1996), citing Shane at 638; State v. Heaston, 9th Dist. No. 15138 

(Jan. 29, 1992) (finding "[p]rovocation is not an element of the crime of voluntary 

manslaughter"). In State v. Rhodes, 63 Ohio St.3d 613, 618 (1992), the Supreme Court of 

Ohio found that if a defendant: 
No. 15AP-686 8 

[I]s on trial for voluntary manslaughter, neither party is 

required to establish either of the mitigating circumstances. 

Rather, the court presumes (to the benefit of the defendant) 

the existence of one or both of the mitigating circumstances as 

a result of the prosecutor's decision to try the defendant on 

the charge of voluntary manslaughter rather than murder. In 

that situation, the prosecution needs to prove, beyond a 

reasonable doubt, only that the defendant knowingly caused 

the death of another, and it is not a defense to voluntary 

manslaughter that neither party is able to demonstrate the 

existence of a mitigating circumstance. 

{¶ 15} Applying Rhodes to the case before us, because the state was not required to 

prove provocation as an element of voluntary manslaughter, the trial court's finding that 

there was sufficient evidence to find appellant guilty of voluntary manslaughter did not 

implicitly include a finding that there was sufficient evidence to support provocation, and 

the trial court was free to find the victim did not provoke appellant in analyzing the 

sentencing factors. 

{¶ 16} Based on the same analysis as above, we also reject appellant's arguments 

that the trial court misapplied R.C. 2929.12(C)(1) (that the "victim induced or facilitated 

the offense") and R.C. 2929.12(C)(2) ("[i]n committing the offense, the offender acted 

under strong provocation") when it found that the victim did not induce the offense and 

appellant did not act under strong provocation. The trial court was free to make the 

findings it did and was not constrained by its prior finding that there was sufficient 

evidence to sustain a conviction for voluntary manslaughter. 

{¶ 17} Based on the same argument as above, appellant also argues that the trial 

court's finding under R.C. 2929.12(E)(4)—that appellant was likely to engage in such 

conduct in the future—was highly questionable because the trial court had already found 

that he was provoked when it found that there was sufficient evidence to demonstrate 

voluntary manslaughter. However, as we have found that the trial court did not implicitly 

make a finding of provocation by finding sufficient evidence of voluntary manslaughter, 

this argument is also without merit. 

{¶ 18} Appellant also argues that the trial court erred by taking "under strong 

advisement" the factor found in R.C. 2929.12(B)(9), which provides that an offense is 

more serious if it involves a family or household member and the offender committed the 
No. 15AP-686 9 

offense in the vicinity of children of the offender or victim. (June 18, 2015 Tr. at 53.) The 

trial court explained it was taking this factor under strong advisement because appellant's 

children were in the basement at the time of the offense and heard the gunshots. 

Appellant argues that R.C. 2929.12(B)(9) is only applicable when the defendant has been 

convicted of one of the listed predicate offenses, which are domestic violence, assault, 

aggravated assault, and felonious assault. However, R.C. 2929.12(A) provides that, in 

addition to the factors listed in (B), (C), (D), and (E), the court "may consider any other 

factors that are relevant to achieving those purposes and principles of sentencing," and 

R.C. 2929.12(B) provides that the sentencing court may consider "any other relevant 

factors, as indicating the offender's conduct is more serious than conduct normally 

constituting the offense." Thus, the trial court could take this factor under advisement. 

{¶ 19} For all of the foregoing reasons, appellant's first assignment of error is 

overruled. 

{¶ 20} Appellant argues in his second assignment of error that the trial court erred 

when it ordered as a condition of the sentence that appellant by himself or through his 

family stay away from and have no contact with the victim's family, citing State v. 

Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089. In Anderson, the court held that "[a] 

trial court cannot impose a prison term and a no-contact order for the same felony 

offense." Id. at ¶ 1. The state concedes error. Therefore, we sustain appellant's second 

assignment of error. 

{¶ 21} Accordingly, appellant's first assignment of error is overruled, appellant's 

second assignment of error is sustained, the judgment of the Franklin County Court of 

Common Pleas is affirmed in part and reversed in part, and this matter is remanded to 

that court for further proceedings in accordance with the law, consistent with this 

decision. 

Judgment affirmed in part and reversed in part; 

cause remanded. 

TYACK and KLATT, JJ., concur. 

_________________