[Cite as State v. Kortz , 2013-Ohio-121.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Ca se No. 25041 Plaintiff-Appellee : : Trial Court Ca se No. 10-CR-3142 v. : : SHAWN W. KORTZ : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 18th day of January, 2013.

. . . . . . . . . . . MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee MICHAEL C. THOMPSON, 5 North Williams Street, Wright-Dunbar Business Village, Dayton, Ohio 45407 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Shawn W. Kortz appeals from his c onviction and sentence on charges offelony murder and having a weapon while under disability. {¶ 2} Kortz advances three assignments of e rror on appeal. First, he contends the trial court erred in not inst ructing the jury on involuntary manslaughter, assault, and recklessness. Second, he challe nges the legal sufficiency of the evidence to support his felony-murder conviction. Third, he argues that the felony-mur der conviction is against the manifest weight of the evidence. {¶ 3} The evidence at trial established that Kortz, a truck driver, had driven from Gloucester, Massachusetts, to his home in Moraine, Ohio, on September 18, 2010. He spent that evening drinking in his driveway w ith Rick Johnson and Michael Hollon, who lived together down the street. Kortz maintained a social relationship with the two men, and Hollon had helped him work on a vehicle earlier that day. At some point that evening, Johnson returned to the house he shared with Hollon a nd went to bed. Johnson awoke later that night and discovered that Hollon had not returned. Johnson could see a light in Kortz’s garage. He assumed Kortz and Hollon were still drinking. Johnson went back to bed after sending Hollon a text message and getting no response. When J ohnson awoke in the morning, he saw police at Kortz’s residence and di scovered Hollon was dead. {¶ 4} Another neighbor, Jeffrey Soter, ha d found Hollon’s lifeless body face down across a broken table in Kortz’s lower-level family room. Some furniture in the room was overturned. Hollon’s denture pl ate was found outside his m outh, his face was bloody, and there was a pool of blood on the floor. Police found blood spatter on the walls, ceiling, and furniture. They also found blood in the master bathroom upstairs and diluted blood in a sink. An autopsy revealed that Holl on had sustained bruising, swellin g, and abrasions on his face, bruising on his arms, chest, and upper abdomen, fifteen rib fractures, a broken nose, bruising 3

 in the muscles around his face, internal bruisi ng of the head, and damaged neck cartilage. A toxicology analysis revealed that Hollon’ s blood-alcohol level wa s .375, which was “a very high level.” The coroner determined Hollon’s cause of death to be multiple blunt-force trauma with evidence of strangulation. {¶ 5} Police located Kortz in Kentucky on September 19, 2010. He was taken into custody after trying to elude police in his vehicle. A loaded handgun was found on his front passenger seat. Police observed a significant am ount of cuts, bruising, and swelling on Kortz’s right hand, particularly compared to his left hand. Police did not notice any injuries to Kortz’s face. He did have some bruising on his arms and chest as well as some scratches and scrapes. {¶ 6} At trial, Kortz, who is right handed, testified that he ha d no recollection how Hollon had died. Kortz claimed he remembered being downstairs with Hollon in his “man cave.” The next thing he recalled was standing in his bathroom, shirtless, with blood on his body. Kortz remembered calling his wife, who wa s out of town, and telling her he did not know how he had gotten blood on himself. According to Kortz, he proceeded to take a shower before going downstairs and disc overing Hollon’s body. Kortz tes tified that he “freaked out” and called his wife again to te ll her Hollon appeared to be d ead. His next memory was of driving on the highway before being stopped by police. {¶ 7} The trial court denied Kortz’s request to have the jury instructed on the lesser-included offense of invol untary manslaughter. Kortz soug ht the instruction based on a theory that he had killed Hollon in the c ourse of committing simple assault under R.C. 2903.13(B) by recklessly causing serious physical harm. Kortz did not dispute that Hollon had suffered serious physical harm . He argued, however, that the jury reasonably could find he 4

 had inflicted the harm recklessl y rather than knowingly. The tr ial court disagreed and denied the request. {¶ 8} The jury found Kortz guilty of felony murder and having a weapon while under disability. He was acquitted on an eviden ce-tampering charge based on his act of showering and washing away Hollon’s blood. Th e trial court imposed an aggregate prison sentence of eighteen years to life. This appeal followed. {¶ 9} In his first assignment of error, Kortz challenges the trial court’s denial of a jury instruction on involuntary ma nslaughter, assault, and reckle ssness. Kortz notes that he specifically requested instructi ons on involuntary manslaughter and recklessness. Although he did not specifically ask for an assault instructi on, he contends the reque st was encompassed by and implicit in his request for an involuntary manslaughter instru ction based on a killing in the course of a simple assault. In response, the State asserts that none of the instructions were warranted. {¶ 10} “Jury instructions on lesser included offenses must be given when the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser include d offense.” (Citations omitted.) State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶47. “I n other words, the trial court must instruct the jury on the lesser included offense if under any reasonable view of the evidence it would be possible for the jury to find defendant not guilty of the greater offense and guilty of the lesser offense. The trial court’s decision regarding whether to give a jury instruction on a lesser included offense will not be disturbed on appeal absent an abuse of the court's discretion.” Id.[Cite as State v. Kortz , 2013-Ohio-121.] {¶ 11} With the foregoing standards in mind, we turn to Kortz’s arguments. Kortz expressly requested a jury instruction on i nvoluntary manslaughter based on a killing during the commission of a simple assault. (Tr. Vol. III at 500-501; Tr. Vol. IV at 724-727). A conviction for involuntary manslaughter based on assault under R.C. 2903.13(B) would require a finding that he recklessly caused serious physical harm to Hollon. 1 In making his argument, Kortz specifically asked for an instruction defining recklessness. (Tr. Vol. III at 500). Therefore, he properly preserved his jury-i nstruction issues for a ppellate review and we disagree with the State’s argument that we s hould review the jury instruction question under a plain-error analysis. 2 Despite this conclusion, we find no abuse of discretion in the trial court’s denial of a jury instruction on i nvoluntary manslaughter, simple assault, and recklessness.

1 Alternatively, misdemeanor assault under R.C. 2903.13(A) would require a finding that Kortz “knowingly” caused “physical harm” to Hollon. Although Kortz br iefly mentions R.C. 2903.13(A) under his first assignment of error, he conceded at trial that Hollon had suffered “serious physical harm,” not just “physical harm.” In addressing the lesser-included-offense issue, defense counsel ad mitted to the trial court: “I just don’t see how it canno t be serious physical harm * * *.” (Tr. Vol. III at 501). Therefore, for purposes of appeal, Kortz has waived any argument with regard to assault under R.C. 2903.13(A).

2 The State maintains that we are limited to plain-error review for all of the instructions at issue because Kortz made no writte n request under Crim.R. 30(A). We disagree. A defendant’s object ion to the lack of a lesser-included-offense instruction preserve s the issue for appeal whether or not their has been a written proffer of the desired instruction. State v. Montgomery , 2d Dist. Montgomery No. 17203, 1999 WL 252711, *4 (April 30, 1999) (“By objecting to the trial cour t’s refusal to instruct the jury on the lesser offense of volunt ary manslaughter, Montgomery preserved the error for appellate review.”). {¶ 12} To establish felony murder ba sed on felonious assault under R.C. 2903.11(A)(1), the State was requi red to prove that Kortz knowingly caused serious physical harm to Hollon. The requested involuntary mans laughter instruction would have required proof that Kortz recklessly caused serious physical harm to Hollon. See R.C. 2903.13(B). Kortz was not entitled to an instruction on i nvoluntary manslaughter, simple assault, and 6

 recklessness, however, because the evidence at trial does not reasonabl y support an acquittal on the crime charged and a conviction on th e lesser included offense of involuntary manslaughter predicated on s imple assault. Specifically, the evidence does not support a finding that Kortz recklessly, but not knowin gly, caused serious physical harm to Hollon. {¶ 13} “A person acts knowingly, regardless of hi s purpose, when he is aware that his conduct will probably cause a cer tain result[.]” R.C. 2901.22(B). “A person acts recklessly when, with heedless indifference to the conseque nces, he perversely disregards a known risk that his conduct is likely to cause a certain result[.]” R.C. 2901.22(C). Ko rtz testified he did not know what happened. We can see no reasonabl e view of the evidence where it would be possible for the jury to find that Kortz reckle ssly caused serious physical harm to Hollon but did not knowingly cause that harm. The evidence suggested that Hollon strangled and suffered numerous blunt-force blows to his face, head, and chest. A jury could not reasonably conclude that Kortz engaged in this attack without bein g aware that serious physi cal harm was probable. According to the coroner, in addition to be ing severely bruised a nd bloodied, Hollon’s nose was fractured, fifteen ribs were broken, and he suffered damage to the cartilage in his neck that indicated manual strangulation. Even if the two men were engaged in “mutual combat,” as Kortz theorizes on appeal, that would not negate the evidence that he knowingly caused serious physical harm when he st rangled and severely beat Hollon. {¶ 14} Kortz also separately contends the tr ial court should have instructed the jury on recklessness because it is the culpable me ntal state for having a weapon while under disability. In support, he cites State v. Clay , 120 Ohio St.3d 528, 2008-Ohio-6325, 900 N.E.2d
1000. In Clay , the Ohio Supreme Court held that to prove the offense of having a weapon 7

 while under a disability in violation of R. C. 2923.13(A)(3), the State had to show the defendant acted recklessly regarding his awaren ess that he was under indictment. The Ohio Supreme Court took a “fresh look” at that issue, however, in State v. Johnson , 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, ¶40. In so doing, it declined to import the catch-all mental state of recklessness into the weapon-under-disability statute, reasoning: Johnson was charged with having weapons while under disability as defined in R.C. 2923.13(A)(3): “(A) * * * [N]o person shall knowingly acquire, have, carry, or use any firearm or danger ous ordnance, if any of the following apply: * * * (3) The person is under indic tment for or has been convicted of any offense involving the illegal possession, us e, sale, administration, distribution, or trafficking in any drug of abuse * * *.” (Emphasis added.). In defining the offense, the Gene ral Assembly chose to specify a culpable mental state fo r the element of possession of a weapon, but it did not assign an additional mens rea for th e additional elements of being under indictment or having been convicte d. Because R.C. 2923.13(A), which is part of the definition of the offense, alread y contains the mens rea of “knowingly,” R.C. 2901.21(B) does not apply. We ther efore need not determine whether there is a plain indication of purpose to impose strict liability for these additional elements. Furthermore, b ecause R.C. 2901.21(B) does not apply, there is no statutory provision that allows us to insert the mens rea recklessness into the statute. As a result, for th e offense of having weapons while under disability defined by R.C. 2923.13(A)(3), the state is not required to prove a 8

 culpable mental state for th e element that a defendant is under indictment for or has been convicted of any offens e involving a drug of abuse. Id. at ¶41-42. {¶ 15} In the present case, Kortz was charged with violating R.C. 2923.13(A)(1), which prohibits a person from knowingly carrying a firearm if the person is a fugitive from justice. Although Johnson involved a violation of subsection (A)(3), its rationale is equally applicable here. Cf. State v. Lofton , 10th Dist. Franklin No. 11AP-865, 2012-Ohio-2527, ¶18 (finding Johnson applicable to a violation of R. C. 2923.13(A)(2)). Because the statute required proof that Kortz knowingly possessed a fi rearm, the State was not required to prove a culpable mens rea for the additional element that he was a fugitive from justice. Therefore, the trial court did not err in failing to give a recklessness in struction in connection with the weapons-under-disability charge. The firs t assignment of error is overruled. {¶ 16} In his second and third assignments of error, Kortz challenges the legal sufficiency and manifest weight of the evid ence to support his felony-murder conviction. In both assignments of error, he contends the evidence does not support a finding that he knowingly caused serious physical harm to Holl on. Kortz maintains that “[i]t is just as plausible, with Hollon’s high level of intoxica tion that he could have fallen down stairs onto furniture, or received [his] injuries in a fight he started.” He also asserts that “[k]nowingly cause serious physical harm ca nnot be inferred without eviden ce establishing a proximate connection between Hollon’s injuries an[d] appe llant’s conduct.” Finally, Kortz suggests that “he did not have the ability to knowingly cause or attempt to cause serious physical harm to Michael Hollon because his intoxication was i nvoluntary.” More specifi cally, Kortz contends 9

 “his fatigue from driving 13 to 14 hours cause d him to experience diminished mental and memory functions.” Although hi s own consumption of alcohol was voluntary, Kortz argues that his “intoxication could have been involuntary if it was an unanticipated side effect of extreme fatigue and alcohol.” {¶ 17} When a defendant challenges the sufficiency of the evidence, he is arguing that the State presented inadequate evidence on an element of the offense to sustain the verdict as a matter of law. State v. Hawn , 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “An appellate court’s f unction when reviewing the sufficien cy of the evidence to support a criminal conviction is to examine the evidence admitted at trial to de termine whether such evidence, if believed, would convince the av erage mind of the defendant’s guilt beyond a reasonable doubt. The relevant inqui ry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could ha ve found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragra ph two of the syllabus. {¶ 18} Our analysis is different when reviewing a manifest-weight argument. When a conviction is challenged on appeal as being agai nst the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a ma nifest miscarriage of jus tice that the conviction must be reversed and a new trial ordered.” State v. Thompkins , 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A judgment should be reversed as being against the manifest weight of the evidence “only in the exceptiona l case in which the evidence weighs heavily 10

 against the conviction.” State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 19} With the foregoing standards in mind, we conclude that Kortz’s felony-murder conviction is supported by legally sufficient ev idence and is not against the weight of the evidence. The State’s evidence established th at the right-handed Kortz had a significant amount of cuts, bruising, and swelling on hi s right hand. Hollon’s body sustained numerous blunt-force trauma injuries that the coroner testified were consistent with being punched. Hollon’s neck also revealed evidence of ma nual strangulation. The only person in the house with Hollon was Kortz, who admitted having blood on himself. Under these circumstances, the State presented legally sufficient evidence to establish that Kortz caused the death of Hollon as a proximate result of committing felonious assault. Such a conclusion also is not against the manifest weight of the evidence. Ko rtz’s theory that Hollon may have sustained his injuries during a fall down the stairs is inconsiste nt with the injuries to Kortz’s right hand, the evidence of manual strangulation, and the blood sp atter on the walls and ceiling. In assessing witness credibility and resolving c onflicts in the evidence, we cannot say the jury clearly lost its way and created a miscarriage of justice. {¶ 20} Finally, we reject Kortz’s suggestion that his intoxication may have been involuntary due to fatigue and may have caused him to lack the capacity to act knowingly. Involuntary intoxication is an affirmative defense. State v. LeMasters ,11th Dist. Lake No. 2007-L-129, 2008-Ohio-2139, ¶42. Kortz has not identif ied anywhere in the record where he raised that defense below. Nor did he request a jury instruction on involuntary intoxication. In any event, we would find that involuntary into xication was not proven by a preponderance of 11

 the evidence even if Kortz had raised it below. The second and third assignments of error are overruled. {¶ 21} The judgment of the Montgomery C ounty Common Pleas Court is affirmed.

. . . . . . . . . . . . .
FAIN, P.J., and DONOVAN, J., concur.
Copies mailed to: Mathias H. Heck R. Lynn Nothstine Michael C. Thompson Hon. Barbara P. Gorman