[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 : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, case no. 2021CR0856
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 13, 2022
APPEARANCES:
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 44702-1413
Stark 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, she
Stark 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 manifest
Stark 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 the
Stark 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 relationship
Stark 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 opening
Stark 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 of
Stark 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 show
Stark 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 appeals
Stark 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.
