aA?

IN THE SUPREME COURT OF OHIO

Defendant-Appellant.

C.A. Case No. -^ - / z- -c-+4 - 3 3;

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT 64A c i'S y

STATE OF OHIO,

vs.

Plaintiff-Appellee,

^, 423' qbjNAME AND NUMBER

INSTITUTION

f ^ i3,^x ^r3 iADDRESS

Lie vt*Ff6bvti^ 1011 ,^CITY. STATE &ZIP

,^lIt

DEFENDANT-APPELLANT, PRO SE

j q,,y7 ;f s ^ - Yx^+ YtizPROSECUTOR NAME

CG.^ytr^^ 5AD RESS

'77 s"".'CITY. STATE & ZIP

-';^ePHONE

COUNSEL FOR APPELLEE, STATE OF OHIO

. ^ ^..^,. C 6 6 9Case No.

On Appeal from the ^;th4^l-40+County Court of Appeals

rl F4-1, Appellate District

^APR 2 ^ 2013

^LEHK 0^ COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

Page No.

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION ....................................................................................................

STATEMENT OF THE CASE AND FACTS . .............................................................................. e

.............................ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ...............................

PROPOSITION OF LAW: .. ........................................................................................................>..Y..

CONCLUSION ..................................................................................................................................

CERTIFICATE OF SERVICE ..........................................................................................................

APPENDIX

Judgment Entry and Opinion, Court of Appeals, /6Inx.I63 County,( DATE ) ...................................................... A-1...............................................................

i

EXPLANATION WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case is one of great public interest as it contains constitutional issues involving

liberty interests. The Courts in Ohio are confronted with the issue of standard needed to ensure

the attainment of the substantial burden of proof that must be proven to a jury of one's peer

before liberty can be taken away from an Ohio an American citizen. The citizen's guilt must be

proven beyond a reasonable doubt, or a manifest injustice ensues. This case deals with the

establishment of that standard. the Courts have also struggled with the proper use of the "lesser-

included offense' instruction to the jury claiming the need of "persuasiveness" of the evidence,

which previous Courts have ruled is unnecessary. In the interests ofjustice and clarity within the

law of State of Ohio, the Defendant respectfully requests the this Honorable Court accept this

case to establish continuity and conformity with the principles of justice.

i.

STATEMENT OF THE FACTS

25, 2012, the Defendant-Appellant went to a bar named Kostas located inOn December ellant arrived at the bar with another person named

Mansfield, Ohio. The Defendant -App ellant bought a six pack of beer andKenneth Graves. At about 1:45 am the Defendant^ Athpa time, the Defendant-Appellant sat downheaded for the exit of the bar. Instead of leaving entl is against the rules of the bar.at the front door of the bar with the beer, which app^ y bar with a beer. The

The Defendant-Appellant was told that he could not sit at the ^on and proceeded to

Defendant-Appellant walked back into the bar, met up with his comp

leave the bar.llant was leaving, the victim was also exiting

lot.At the same ho had a drink, setit down eand began to walk as if going to the parking ot

the bar. The victun,the Defendant-Appellant and the victim

Apparently at this time in front of the bar, ellant.ords. An altercation then ensued between the victo and the Dand during the

exchanged words. end up punchingBoth the victim and the Defendant-App At some point in time during thealtercation both p altercation,arties crashed through a gate. ellant gets access to a gun and shoots the victimwhich lasted only seconds, the Defendant-App

three (3) times.ellant then leaves the scene, but is shortly arrested by the police in

The Defendant-App was later found in the open in a notch of a tree closesome trees and bushes near the lban^ ^ Th a^ ed:to where the Defendant-App counts of crimes. Count I

ellant was charged with six (6)As a result, the Defendant-App dong with a Firearms

is the charge of Murder in violation o0 O.R.C. t Count II, Mm'der as defined in O.R.C.hSlleSection

specification pursuant to O.R.C Secti Count EI, Having Weapons Walong with a firearms specification 2941.145; 3 Count ^,Carr,yu^g a Concealed

2903.02(B)Under Disability in violation of O.R.C Section 2923.13(A)( ; e^g With Evidence inWeapon in violation of O.R.C. Section 2923.12(A)(2); Count V, Tamp

Section 2921.12(A)(1); Count VI, Possession of Criminal Tools in violationviolation of O.R.C.of O.R.C. Section 2923.24(A). counts. The Defendant-

ellant was convicted by a jury on all six (6)The Defendant-App Judgment Entry was

p, pl?ellant was sentenced on March 26, 201 S^ encing Entry filed on March 29,2012, anfiled on March 29, 2012. Subs^o quthee sentence on Count VI only, was filed on April 10, 2012.amended Sentencing Entry as

IL.

PROPOSITION OF LAW NO. 1

The sufficiency and the manifest weight of the evidence are standards defined in the Ohio

Justice system. Defendant requires clarification of these standards to show the burden of

proof was not met by the state in proving his guilt beyond a reasonable doubt.

This Court shall examine the entire Record in order to determine whether the

nted was of a sufficient probative force to support a finding of Guilt , beyond aevidence prese

reasonable doubt. State v- Sae 31 Oh. St. 3`d 17 (1987)_ is

to the O.R.C. Section 2901.05 (1) the definition of "Reasonable Doubt" s as

follows:"Reasonable Doubt" is present when in this case the Trial Judge who considered and

convinced of the truth of the charge. It iscompared all the evidence, cannot say that he is firmly

doubt based on reason and common sense. Reasonable. Doubt is not mere possible doubt,

because everytbing relating to human affairs or depending on moral evidence is open to some

e or ima inary doubt. "Proof Beyond a Reasonable Doubt" is proof of such character thatpossibl g

ordin person would be willing to rely and act upon in the most important of his affairs.an arY

roven beyond a reasonable doubt. State v. Jenks61 Ohio St. 3d 259 (1988).

provenfirst count is the charge of Murder as defin.ed in O.R.C. 2903(A). This

cause the deathstates that the Defendant-Appellant did purposely of another. The key

charge

ment to this charge is did the Defendant-Appellant act purposely. purposely is defined inele

O.R.C. 2901.22(A); " a person acts purposely when it is his specific intention to cause a certain

esult or, when the gist of the offense is a prohibition against conduct of a certain nature,r ,re ardless of what the offender intends to accomplish thereby, it is his specific intention to

g

engage in conduct of that nature."

"S

examining the evidence to prove the elements of this first count the Court will fmd thatIn

the elements needed to prove the charge in Count I were not proven "Beyond a Reasonable

Doubt."

First, One witness who was in the parking lot stated; that they felt the altercation

between the Defendant-Appellant and the victim lasted approxiniately five (5) seconds. (Tr.

302) Another witness in the parking lot states that the altercation lasted about twenty (20)

seconds. (Tr 311) From the testimony of these two witnesses the Defendan.t-Appellant contends

that there was not enough time for him to meet the culpable mental state of purposely, as

previously, defined in this argument.

Second, The Defendant-Appellant is arguably the only person who knows how the

altercation between himself and the victim started, and what words were exchanged. The

Defendant-Appellant states that there was no one who clearly observed the altercation or what

was said between himself and the victim. (Tr. 716) The Defendant-Appellant states that the

victim threw the first punch. (Tr. 718) The Defendant-Appellant testifies that he attempted to get

away from the victim. (Tr. 719) The Defendant-Appellant testifies that the victim was

ove owering him. (Tr. 721) The Defendant-Appellant testifies that during the altercation herp

Tr. 722) The Defendant-Appellant testifies that he pickedfound a gun on the floor beside hun. (

and because of the situation of being overpowered by the victim, he shot the victimup the gun,

that no onethree (3) times. (Tr.722) The Defendant-Appellant argues in this assignment of error,

else testified or could testify as to exactly what happened. Based upon this argiunent, the

Defendant-Appellant contends that no evidence was presented to prove "Beyond a Reasonable

Doubt" the elements needed to fmd him guilty of the charge of Murder as previously defined in

this argument.

4

Count II is the charge of Murder as defmed in O.R.C. 2903.02(B) which states,

" the defendant-appellant did cause the death of another as a proximate result of the offenders

committing or attempting to commit an offensive violence that is a felony of the First or Second

Degree, and that is not a violation of Section 2903.03 or 2903.04 of the Ohio Revised Code. The

underlying felony in this charge is Felonious Assault as defmed in O.R.C. 2903.11 (A)(1) which

states, " no person shall knowingly cause serious physical harm to another or to another's

unborn." There was an altercation between the Defendant-Appellant and the victim. (Tr 302,

311) The Defendant-Appellant contends as previously stated in this argument, the he was

actually the only person that knows what words were exchanged and who was the aggressor.

There was no evidence presented which would prove "Beyond a Reasonable Doubt" the

elements necessary for a conviction of a Felonious Assault as previously defined in this

argument, therefore, there is no evidence presented to prove the elements necessary for a

conviction of Murder as defined in Count II if the indictment.

Count III is the charge of Having Weapons While Under Disability as defmed in

O.R.C.2923.13(A)(3)which states, " the defendant-appellant not having been relieved from

disability as provided in Section 2923.14of the Ohio Revised Code, did, knowingly acquire

have, carry, or use a firearm, the offender and having knowledge that he was under indictment

for or convicted of, or being recklessly in that regard, any felony offense involving the illegal

possession, use, sale, administration, distribution, or trafficking in a drug of abuse in violation of

O.R.C. Section 2923.13(A)(3).

. The Defendant-Appellant is arguably the only person who knows how the altercation

between himself and the victim started, and what words were exchanged. The Defendant-

Appellant states that there was no one who clearly observed the altercation or what was said

5'

between himself and the victim. (Tr. 716) The Defendant-Appellant states that the victim threw

the first punch.(Tr. 718) The Defendant-Appellant testifies that he attempted to get away from

the victim. (Tr. 719) The Defendant-Appellant testifies that the victim was overpowering him.

(Tr. 721) The Defendant-Appellant testifies that during the altercation he found a gun on the

floor beside him. (Tr. 722) The Defendant-Appellant testifies that he picked up the gun, and

because of the situation of being overpowered by the victim, he shot the victim three (3) times.

(Tr. 722)

There was testimony presented that the Defendant-Appellant had a previous felony

conviction which meets one of the elements of the charge of Having Weapons Under Disability.

There is no testimony that from any witness that states, prior to the altercation, the Defendant-

Appellant had in his possession a firearm. As previously stated, the Defendant-Appellant

testified that he had attempted to get away from the victim. (Tr. 719 The Defendant-Appellant

testified that the victim was overpowering him. The Defendant-Appellant testified that during the

altercation, he found a gun on the floor beside him.(Tr. 722) The Defendant-Appellant testified

that he picked up the gun because of the situation over being overpowered by the victim, he shot

the victim three (3) times. (Tr. 722)

The case of State v. HardySupra 60 Ohio App 2d 325(1978) states: even a person under

disability is not prevented form "acting in self-defense" when he did not knowingly acquire the

gun, carry or use a firearm previously.

Therefore, the Defendant-Appellant contends that the elements need to prove the crime of

Weapons Under Disability, as defmed in Count III, were not met "Beyond a Reasonable Doubt".

Count IV is "Carrying a Concealed Weapon". It is defined inO.R.C. 2923.12(A)(2)

stating that the Defendant-Appellant did knowingly carry or have, concealed on the offenders

person or concealed ready at hand, a hand gun other than a dangerous ordnance, in the weapon

involved is a firearm which was loaded. The Defendant-Appellant contends that there was no

evidence presented to prove the elements of the Crime of Carrying a Concealed Weapon as

defined in Count IV "Beyond a Reasonable Doubt".

Count V is the charge of " Tampering with Evidence" which is defmed in O.R.C.

2921.12(A)(1) which states that the Defendant-Appellant, knowing that an official proceeding or

investigation was in progress, or was about to be or likely to be instituted, did alter, destroy,

conceal, or remove any record, document or thing, with purpose to impair its value or availability

as evidence in such proceeding or investigation. The Defendant-Appellant contends that there

was no evidence presented "Beyond a Reasonable Doubt" that he was trying to alter, destroy, or

conceal the gun with purpose to impair its value or availability as evidence in the investigation.

The gun was found within the proximity of where the Defendant-Appellant was arrested and

visible. ( Tr. 492, 493) Therefore, the Defendant-Appellant contends that there was no evidence

presented "Beyond a Reasonable Doubt" that he committed the crime of Carrying a Concealed

Weapon as defined in Count V.

Count VI is the charge of "Criminal Tools" which states that the Defendant-Appellant did

possess or have under the offenders control, any substance, device, instrument, or article, with

purpose to us it criminally, the circumstances indicate that the substance, device, instrument, or

article involved in the offense was intended for use in the commission of a felony.

The Defendant-Appellant contends that there was no evidence presented to show that

prior to the altercation between the Defendant-Appellant and the victim, that the Defendant-

Appellant had a gun in his possession with purpose to use it criminally or intended to use said

gun in the commission of a felony. Therefore, the Defendant-Appellant contends that there was

`1

PROPOSITION OF LAW NO.

Defendant was denied due process by the denial of requested Motion in Opposition to the

State's Motion for Jury View

On FebruarY 22, 2012, the Plaintiff-Appellee filed a Motion for Jury View. ( see exhibit

ebru 23, 2012, the Defendant- Appellant filed a Motion in Opposition to State'sG) On F ^Y

View. (see exhibit H) On February 24, 2012, the trial court granted the Plaintiff-Motion for Jury

Appellee's Motion for a Jury View. (see exhibit 1).

Rule 403(A) states that "although relevant evidence is not admissible ifOhio Evidence

value is substantially outweighed by the danger of unfair prejudice of confasion ofit5 s probative

the issues or misleading the jury"-case, a video of the actual area and incident was shown to the jury. (see

Inthis particular

Trial Transcript) This video is clearly relevant evidence. do

However, a Jury View should be considered irrelevant evidence as it has nothmg to

with the incident which led to the charges filed against the Defendant-Appellant.

n if this Court considers the Jury View to be relevant evidence, it clearly falls in theEve

province of Ohio Evidence Rule 403(A).

The De View,fendant-Appellant understands that granting or denying a Motion for a Jury

the 'ud e's sound discretion and will not be reversed on appeal unless there is a clearis vvithul J g

owin that under the circumstances an abuse of discretion is found. In this case, thesh g

endant-A pellant believes that the language used in the case ofBlakem®re v. Blakemore

Def p

Supra, to define abuse of discretion has been met.

PROPOSITION OF LAW NO. 3

Defendant was denied due process by the denial of requested Motion to Continue which

was a abuse of discretion by trial court.

's Jud ment Entry, which over-rules the Defendant-Appellan.t's Motion

In the Trial Courtg f^e s^ ^6^ factors

e the Trial Court in said Judgment Entry never addresses any oto Contmu ,

case of State v. BlairSupra. The case of State v. Blair

Supra, states that a

that are stated in theconsider these factors in denying a continuance constitutes an abuse of

judges failure to sthe Defendant-APpellant of his right to due proces. The Trial

discretion and thereby deprives

Court in zt's Judgment Entryover-ruling the Defendant-APPellant's Motion to Continue, states

_A ellant's Motion for Continuance, lacks merit. The Trial Court, by

only that the Defendant PPmerit" gives us no idea if the trial

ndant-Appellant's Motion " lacksonly stating that the Defe

any of the factors set forth in the case ofState v. Blair Supra. Surely, a

judge considered case, shouldent Entry denying a Motion to Continue in a serious case such as this, or any

Judgm

h in the case of State v. BlairSupra were considered by the judge in

include what factors set forth motion,

motion. By not stating what factors the judge considered in denying

denymg said ellant's attorney had no idea why the motion was over-ruled. Furthe^ore,by

the Defendant-App ^g the Defendant-

Appellant

not stating which factors were considered, does not allow the attorney pTeP the

eal to roperly pTeP^e an argument as to whether the over-ruling of's app P

lant's Motion to Continued was an abuse of discretion, and denied theDefendant-Appel

Defendant-Appellant's due process.

R

PROPOSITION OF LAW NO. 4

Defendant was denied due process by the denial of requested instructions to the jury in

violation of Ohio Rev. Code Ann. § 2945.74.

Ohio Rev. Code Ann. § 2945.74. governs the State's ability to convict an accused on a

lesser included offense and provides, in part:

When the indictment or information charges an offense, including different degrees, or if

other offenses are included within the offense charge, the jury may find the defendant not

guilty of the degree charged but guilty of an inferior degree thereof or lesser included

offense.

Defendant-Appellant in his proposed jury instructions (see exhibit M) requests theThe

court to instruct the jury on the Lesser Included Offense of Voluntary Manslaughter. Pursuant to

.C. Section 2945.74 and Ohio Criminal Rule 31(C) a jury may consider three groups ofO.R

offenses on which, when supported by the evidence at trial, it must be charged on which itlesser

may reach a verdict. Tnferior degrees of the indicted offenses is one group of lesser offenses as

defined in O.R.C. Section 2945.74 and Ohio Criminal Rule 31 (C).

10

An offense is "an inferior degree" of the offense set out at the indictment or other

charging instrument where its elements are identical to, or contained within the indicted offense,

t for one or more additional mitigating elements. An offense of "inferior degree " is anexcep

u on proof of a mitigating element is a sign a lesser "degree" of punishment.State

offense which p

v. Deem 40 Ohio St 3d 205 (1988).

anslau hter is an inferior degree of Murder.State v. Tvler (1990)50 Ohio St.

Voluntary M g

3d 24 This assertion is also stated in the case ofStat=ill

(1996) 108 Ohio App 3d 279. The

State v. T lerSupra, states that Voluntary Manslaughter is an inferior degree of Murder

case of . St yidence resented at trial would reasonably support both an Acquittal on the charge of

when the ev p

the crime of Murder and a conviction on Voluntary Manslaughter.

The case ofState v. Loudermill(1965)2 Ohio St. 2d 79, states that when there is evidence

ted at trial, going to a lesser included offense "or inferior-degree offense" meets the testpresen

set forth in the case of . State v. TylerSupra, the trial judge must instruct the jury on the lesser "

or inferior-degree" offense.

Voluntary Manslaughter is defined in O.R.C. Section 2903.03(A) as follows: "No person

er the influence of sudden passion or in a sudden fit of rage, either of which is broughtwhile und

us rovocation occasioned by the victim that is reasonably sufficient to insight theon by seno p

o using deadly force shall knowingly cause the death of another or the termination ofperson mt

another's pregnancY•"

In this case it is clear that an altercation occurred between the victim and the Defendant-

ellant. Tr. 718, 719, 720, 721) No testimony was presented except that of the Defendan.t-App (

t's as to what words were exchanged between the Defendant-Appellant and the victim^,-ppellan

to rovoke this altercation. The Defendant-Appellant states that the victim initiated thep

t1'

altercation by becoming verbally abusive to him. (Tr. 718) The Defendant-Appellant testifies

ellee in his closing argument statesthat the victim punched him first. (Tr. 718) The Plaintiff-App

that the victim punched the Defendant-Appellant first, but claims he did so because he saw a

Tr. 769) There is no evidence presented at trial to back this statement up. The witnessguu (

Katherine Curatti, testifies that she saw a scuffle between the victim and the Defendant-

ellant and she heard some "pops". (Tr. 302) Another witness, Adam Kleshinski, states thatApp

o observed a scuffle between the victim and the Defendant-Appellant and that he alsoheals

heard some "pops"• (Tr. 310)

The onlyperson who can actually testify about what happened between the victim and

fendant-Appellant is the Defendant-Appellant. Again, the Defendant-Appellant claims thatthe De

e victim unched him first. (Tr. 718) The Defendant-appellant states that the victim was largerth p

ore owerful than he was. (Tr. 720, 721) The Defendant-Appellant testifies that the victimand m p

threw him through a railing. (Tr. 720) The Defendant-Appellant testifies that the victim was on

of him. (Tr. 720) The Defendant-Appellant testifies that the victim was overpowering him,top

Tr. 721) The Defendant-Appellant states that a gun was involved.(Tr. 722) The Defendant-

( ound next to himAppellant goes on to state that during the altercation, he found the gun on the gr

g^^ andellant states that after picking up theand picked it up. (Tr. 722) The Defendant-App

during the altercation, he shot the victim three (3) times. (Tr. 722) The Defendant-Appellant

/J"of killing the victim. (

Tr. 723) Clearly, this testimony could cause a

testifies that he had intentionManslau hter.

jury to fmd the Defendant-Appellant not guilty of Murder, but guilty of Voluntary g

offered in the Transcript, meets the test set forth in.St_

This scenario and the testimony

Su ra. Therefore, pursuant to State v. LoudermillSupra, the trial judge should have put in

T^r p

his instructions to the jury, the inferior degree charge of Voluntary Manslaughter.

I'Z

Defendant-Appellant also includes in his proposed Jury Instructions as to Count I,The

e Court instruct the jury as to Involuntary Manslaughter. Involuntary Manslaughter isthat th

O.R. C Section 2903.04(A) as "No person shall cause the death of another or thedefined inunlawful termination of another's pregnancy as a proximate result of the offender's committing

or attempting to commit a felony."

The Defendant-Appellant asserts that based upon the testimony presented, that

ta Manslaughter fits the test of being an "inferior degree" charge as set for inSta_

Involun ry ud e in his

ler Su ra. Therefore, as stated in the case ofState v. Loudermill Supra, the trial J g

ptions to the Jury should have included the instruction as to Involuntary Manslaughter.

Instrucount II of the indictment the Defendant-Appellant was charged and found guilty of

in C ellante char e of Murder as defined in O.R.C. 2903.02(B) which states that" the defendant-appth gdid cause the death of another as proximate result of the offenders committing or attempting to

t an offensive violence that is a felony of the First or Second Degree and that is not acommi

Section 2903.03 or 2903.04 of the Ohio Revised Code, to wit: Felonious Assault, inviolation of

violation of Section 2903.02(B) of the Ohio Revised Code.

The Defendant-Appellant requested the Trial Court to include in its Instructions to the

defined charge of Voluntary Manslaughter and the lesser degree charge of

J^' ^e previously shallwhich states; " No personReckless Homicide as defined O.R.C. Section 2903.041(A)

1 cause the death of another or the unlawful termination of another's pregnancy.reckless y

as "A person acts recklessly when, with heedlessRecklessly is defined in O.R.C. 2901.22(C)

nse uences, he perversely disregards a known risk that his conduct is likelyindifference to the co q

se a certain result or is likely to be of a certain nature. A person is reckless with respect toto cau

13

i

es, he perversely disregards amstances when, with heedless indifference to the consequenc

c^rcu

known risk that such circumstances are likely to exist." (Tr. 801)

As previously argued in the assignment of error, the Defendant-Appellant believes that

based upon the testimony set forth in the Trial Transcript, that the charges of VoluntarY

T lManslaug hter and Reckless Homicide meet the test set forth in

State v. ye^ Supra, as being

inferior offenses and that pursuant to the case ofState v. Loudermill Supra, the trial judge should

have included in his Instructions to the Jury these two (2) inferior charges.

dK

CONCLUSION

This case raises a substantial constitutional question, involves a felon and is one of great

public or general interest. For all of the foregoing reasons outlined in the propositions of law, the

appellant respectfully requests that this Honorable Court overturn his conviction for Count 1,

Murder with a gun specification in violation of O.R.C §2903.02(A) and 2941.145; Count 2

,Murder with a gun specification in violation of O.R.C §2903.02(B) and 2941.145; Count 3,

Having Weapons While Under Disability in violation of O.R.C § 2923.13(A)(3); Count 4, Carry

a Concealed Weapon in violation of O.R.C § 2923.12(A)(2); count 5, Tampering with Evidence

in violation of O.R.C § 2921.12(A)(1); Possession of Criminal Tools in violation of O.R.C §

2923.24(A) along with additional relief this.Court deems just and appropriate. This ruling is

requested based on the verdict being against the manifest weight and sufficiency of evidence and

that the preponderance of the evidence proved that the trial court should have provided the jury

with the requested instruction on lesser-included offense of manslaughter and reckless homicide.

the trial court should have also granted Defendant's requested Motion in Opposition to the State's

Motion for Jury View and granted his Motion to Continue which was a abuse of discretion by

trial court.

cl--ES ob rn,,

o,F'2:vc 4

^^ -(3-Y, °lo /

a6

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandum in Support of Jurisdiction was

forwarded by regular U.S. Mail to Prosecuting Attorney,

iif6'k tot -, ^ County, 3 a sa , Ohio

,qq 70 2 , this day of tG -Gt , 20 ^3

SIGNATURE

NAME AND NUMBER

DEFENDANT-APPELLANT, PRO SE

16

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,Case No.

Plaintiff-Appellee,On Appeal from the

vs. County Court of AppealsL, Appellate District

Defendant-Appellant.

C.A. Case No. 2-,:, i 24LIA - 33 r^

APPENDIX TO

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT L^ ^^^ ^ s L / N z

s

^ • r ;:'`:; .-,.;?,•'- r.; .

IN THE COURT OF APPEALS FOR RICHLAND COUNTV(//gp^0R^^• ".'^..

FIFTH APPELLATE DISTRICT ^^^^^ n•;;. ( y 3^

STATE OF OHIO

• ^. ^' J., ^ , r:, ,,,, .

Plaintiff-Appellee

-vs- JUDGMENT ENTRY

CAREES LINZY

Defendant-Appellant : CASE NO. 2012-CA-33

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, of Richland County, Ohio, is affirmed. Costs to appellant.

L^ ) -r---^-

Gt-C^ 1"'3zHON. W. SCOTT GWIN

1' /- - - a- /_^2ON. P^T CIA A. DELANEY

. JOHN W. ISE

[Cite as State v. Linzy, 2013-Ohio-1129.1

STATE OF OHIO

-vs-

CAREES LINZY

COURT OF APPEALSRICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:Hon. Patricia A. Delaney, P.J.Hon. W. Scott Gwin, J.

Plaintiff-Appellee . Hon. John W. Wise, J.

Defendant-Appellant

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

JAMES J. MAYERBY: JOHN NIEFT38 South Park StreetMansfield, OH 44902

Case No. 2012-CA-33

OPINION

Criminal appeal from the Richland CountyCourt of Common Pleas, Case No. 2012-CR-37H

Affirmed

March 25, 2013

For Defendant-Appellant

RANDALL FRY10 West Newlon PlaceMansfield, OH 44902

[Cite as State v. Linzy, 2013-Ohio-1129.1

Gwin, J.

{¶1} Defendant-appellant, Carees Linzy, ["Linzy"] appeals his convictions on

two count of murder, each with a firearm specification, having a weapon while under

disability, carrying a concealed weapon, tampering with evidence and possession of

criminal tools. Plaintiff-appellee is the State of Ohio.

Facts and Procedural History

(12} On December 25, 2011, Linzy and his friend Kenny Graves went to

Kostas Bar in Mansfield, Ohio. Linzy drank, shot pool, and ordered a six-pack of beer

to go. Around 1:45 a.m. on December 26, 2011, Linzy left the bar carrying the six-pack

of beer he had purchased. He sat down outside the bar at the table normally reserved

for the bouncer and waited for his friend Graves.

{¶3} Gary Hall approached Linzy and told him he could not sit at that table. Hall

then went back inside the bar. Graves came outside and spoke with Linzy. Hall came

outside again to get a pack of cigarettes out of his car. Linzy followed behind Hall to his

car, yelling and taunting him. As Hall attempted to return to the bar, he tried to avoid

Linzy and Graves. However, Linzy and Graves encircled Hall. Linzy was yelling at Hall

and got in his face.

{14} Hall punched Linzy in his left eye. A fight ensued. Linzy and Hall wrestled

and fell into the fence that surrounded the smoking area. Linzy pointed a revolver and

shot Hall twice. One shot was in the side of Hall's neck down into his lung. The next

shot was across Hall's body. Hall then began to back up into the bar when Linzy shot

Hall a third time. This bullet went through Hall's body and out his back, lodging in the

wall of the Kostas Bar.

Richland County, Case No. 2012-CA-333

{15} Gary Hall ran inside the bar saying someone outside had a gun. Hall then

ran to the kitchen and fell down, where he died.

{16} Steve Bulakovski, manager of the Kostas Bar that night, went outside to

investigate. He asked Linzy who had the gun. Linzy said he did not know. Bulakovski

then saw Linzy with the gun. Linzy began to walk away from the bar up Tower Drive

and into a wooded lot. Bulakovski followed Linzy up the street.Officer Joseph

Soehnlen of Mansfield Police Department arrived and followed them.

{17} Linzy attempted to hide behind a tree with a brush pile. Officer Soehnlen

drew his weapon and approached. Linzy came out with his hands up and was arrested

without incident. The search incident to arrest did not reveal the presence of a gun on

Linzy's person. The gun was found hidden in a nook in the tree behind which Linzy had

attempted to hide. The nook in the tree was above eye level, about seven feet off the

ground. An examination of the revolver revealed three spent shell casings and two live

rounds contained in the chambers.

{18} A gunshot residue kit was performed on Linzy and photographs were

taken of the blood on his knuckles and hands. Upon booking, it was revealed that Linzy

also had a bruised left eye.

{¶9} Linzy declined to make a statement and exercised his right to consult an

attorney. While being transported to the jail, and after being told that he would be

charged with murder, Linzy made an unsolicited statement to Officer Soehnlen, "I did

not want that man to die, but he shouldn't have put his fucking hands on me. You live

by the sword, you die by it."

Richland County, Case No. 2012-CA-334

{110} Evidence was collected after the homicide. A DVD copy of the video

security system recording some of the incident was collected. DNA standards from

Linzy, Gary Hall, and Kenny Graves were, collected. Thecar in which Kenny Graves

had fled in and his coat and sweater that had blood on them were collected.

{111} DNA testing of the handle, the trigger, and the front of the gun revealed

that Linzy was the major contributor. Both Hall and Graves were excluded from that

sample. The blood on Graves' jacket and sweater was Linzy's blood. Linzy was found

positive for gunshot residue, as was Hall, but not Graves.

{112} A jury convicted Linzy on all six counts and specifications. The trial court

sentenced Linzy on March 26, 2012, and a subsequent Sentencing Judgment Entry

was filed on March 29, 2012. Subsequent to the Sentencing Entry filed on March 29,

2012, an amended Sentencing Entry was filed on April 10, 2012 after the Court

discovered that it had neglected to include Linzy's sentence on count six of the

indictment (criminal tools) in the previous sentencing entry. Linzywas sentenced to an

aggregate sentence of 21 years to life with five years post-releasecontrol.

Assignments of Error

{¶13} Linzy raises six assignments of error:

{114} "I. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT-

APPELLANT'S MOTION TO CONTINUE THE JURY TRIAL.

{115} "II. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT-

APPELLANT'S MOTION IN OPPOSITION TO THE STATE'S MOTION FOR JURY

VIEW.

Richland County, Case No. 2012-CA-335

{116}"Ill. THE TRIAL COURT ERRED IN OVER-RULING [sic.] THE

DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO

CRIMINAL RULE 29(A).

{117}"IV. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-

APPELLANT'S OHIO CRIMINAL RULE 29(C) MOTION FOR ACQUITTAL.

{¶18} 'V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT

INCLUDING THE DEFENDANT-APPELLANT'S PROPOSED REQUEST FOR

INFERIOR DEGREE CHARGES IN THE COURTS JURY INSTRUCTION.

{119}"VI. THE VERDICT OF THE JURY FINDING TILE DEFENDANT-

APPELLANT GUILTY ON ALL SIX CHARGES IN THE INDICTMENT WAS NOT

SUPPORTED BY THE EVIDENCE."

{120} Linzy argues that the court erred in denying his motion to continue. Linzy

argued that the state intended to call 34 witnesses at trial and that counsel had

insufficient time to prepare for trial.'

{121} Ordinarily a reviewing court analyzes a denial of a continuance in terms of

whether the court has abused its discretion. Ungar v. Sarafite,376 U.S. 575, 589, 84

S.Ct. 841, 11 L.Ed.2d 921(1964). If, however, the denial of a continuance is directly

linked to the deprivation of a specific constitutional right, some courts analyze the

denial in terms of whether there has been a denial of due process.Bennett v. Scroggy,

793 F.2d 772 (6th Cir. 1986). A defendant has an absolute right to prepare an

adequate defense under the Sixth Amendment of the United States Constitution and a

1 Linzy was arraigned on January 17, 2012 and trial commenced on March 19, 2012.

Richland County, Case No. 2012-CA-33 6

right to due process under the Fifth and Fourteenth Amendments. United States v.

Crossley, 224 F.3d 847, 854(6th Cir. 2000).

{122} Among the factors to be considered by the court in determining whether

the continuance was properly denied are: (1) the length of the requested delay, (2)

whether other continuances had been requested and granted, (3) the convenience or

inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was

for legitimate reasons or whether it was "dilatory, purposeful or contrived", (5) whether

the defendant contributed to the circumstances giving rise to the request, (6) whether

denying the continuance will result in an identifiable prejudice tothe defendant's case,

and (7) the complexity of the case. Powell v. Collins,332 F.3d 376, 396(6th Cir.2003);

State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078, 1080(1981);State v.

Wheat, 5th Dist. No. 2003-CA-00057, 2004-Ohio-2088, ¶ 16.

{¶23} In the present appeal, Linzy does not point to any identifiable prejudice to

his case as a result of the denial of his motion to continue the trial date, such as the

inability to subpoena a witness. Further, the trial court was not presented with any facts

to indicate that defense counsel was unable to interview the state's witnesses. There

was no showing of what efforts, if any, had been made to locate and interview state

witnesses. Similarly, with respect to defense witness, he presented no facts to the

court to indicate their identity, the materiality of their testimony, or the reasonable

likelihood that they could be found. Finally, defense counsel gave no specifics to

support his contention that he needed more time to adequately prepare a proper

defense. Counsel did not, for example, state that he was otherwise committed, that he

was unable to obtain sufficient discovery from the prosecutor, or that he needed

Richland County, Case No. 2012-CA-337

additional time to obtain evidence critical to his defense, such as psychiatric evaluation

or medical records. State v. Sowders, 4 Ohio St.3d 143, 145, 447N.E.2d 118(1983).

{124} We must be mindful of the " * * * elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show

some error but must also show that that error was prejudicial to him." See Smith V.

Flesher, 12 Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton,15 Ohio St.2d

215, 217, 239 N.E.2d 92, 94(1968); Wachovia Mtg. Corp. vAleshire, 5th Dist. App. No.

09 CA 4, 2009-Ohio-5097, ¶16. See, also, App.R. 12(D).

{125} Considering the lack of information presented to the trial court at the time

of the request, the trial court clearly felt that competent counsel adequately

represented Linzy and that there was no reason to delay the trial. As such, we find that

the trial court did not abuse its discretion when it denied the motion to continue the trial.

{126} Linzy's first assignment of error is overruled.

II.

{127} Linzy contends that the trial court erred in granting the state's motion for a

jury view.

{128} In the case at bar, the state filed a motion for a jury view February 22,

2012. On February 23, 2012, Linzy filed a motion in opposition to the state's motion.

On February 24, 2012, the trial court granted the state's motion for a jury view.

{129} Linzy submits that where the jury is shown videotape footage of the scene

and portions of the occurrence at the time it happened, a jury view should be

considered irrelevant evidence as it has nothing to do with the incident which led to the

charges filed against Linzy.

Richland County, Case No. 2012-CA-33

{130} R.C. 2945.16, pertaining to a jury view reads as follows,

When it is proper for the jurors to have a view of the place at which

a material fact occurred, the trial court may order them to be conducted in

a body, under the charge of the sheriff or other officer, to such place,

which shall be shown to them by a person designated by the court.

8

{131} A view of a crime scene is not considered evidence, nor is it a crucial step

in the criminal proceedings. State v. Richey, 64 Ohio St.3d 353, 367, 595 N.E.2d 915,

927(1992), overruled on other grounds State v. McGuire, 80 Ohio St.3d 390, 1997-

Ohio-335, 686 N.E.2d 1112; Accord State v. Smith, 90 Ohio App.3d 177, 180, 628

N.E.2d 120, 121(12th Dist. 1993); State v. Hopner, 112 Ohio App.3d 521, 542, 679

N.E.2d 321(2nd Dist. 1996). The trial court has broad discretion in determining whether

to authorize a view of the crime scene. Richey at 367, citing State v. Zuern, 32 Ohio

St.3d 56, 58, 512 N.E.2d 585, 588(1987).

{¶32} We must be mindful of the " * * * elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show

some error but must also show that that error was prejudicial to him." See Smith v.

Flesher, 12 Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton,15 Ohio St.2d

215, 217, 239 N.E.2d 92, 94(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist. App. No.

09 CA 4, 2009-Ohio-5097, ¶16. See, also, App.R. 12(D).

{¶33} Linzy fails to articulate any prejudice he claims resulted from the jury view.

"it is the duty of the appellant, not this court, to demonstrate [his] assigned error

through an argument that is supported by citations to legal authority and facts in the

record." State v. Taylor, 9th Dist. No. 2783-M, 1999 WL 61619(Feb. 9, 1999) at *3.

Richland County, Case No. 2012-CA-33 9

See, also, App.R. 16(A)(7). " It is not the function of this court to construct a foundation

for [an appellant's] claims; failure to comply with the rules governing practice in the

appellate courts is a tactic which is ordinarily fatal." Kremer v. Cox (1996), 114 Ohio

App.3d 41, 60, 682 N.E.2d 1006(9th Dist. Sept. 11, 1996).

{134} From our careful review of the record, we conclude that the trial court did

not abuse its discretion by granting a jury view of the crime scene.

{135} Linzy's second assignment of error is overruled.

III, IV&VI

{136} Because Linzy's third, fourth and sixth assignments of error each require

us to review the evidence, we shall address the assignments collectively.

{137} In his third and fourth assignments of error, Linzy alleges that the trial

court erred in not granting his Crim. R. 29 motions for acquittal at the conclusion of the

State's case and after trial, respectively. In determining whether a trial court erred in

overruling an appellant's motion for judgment of acquittal, the reviewing court focuses

on the sufficiency of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553,

651 N.E.2d 965, 974(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492.

(1991)

{138} In his sixth assignment of error, Linzy maintains that his convictions are

against the sufficiency of the evidence and against the manifest weight of the evidence,

respectively.

{139} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

Richland County, Case No. 2012-CA-33 10

"after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt." Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175

L.Ed.2d 582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926

N.E.2d 1239, 2010-Ohio-1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d

296, 2010-Ohio-2720, ¶ 68.

{¶40} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997),superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio-355. Weight of the evidence concerns "the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence

in their minds, they shall find the greater amount of credible evidence sustains the

issue which is to be established before them: Weight is not a question of mathematics,

but depends on its effect in inducing belief." (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

{141} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

"'thirteenth juror"' and disagrees with the fact finder's resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that "'the jury clearly lost its way and

Richland County, Case No. 2012-CA-3311

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered."' State v. Thompkins, supra, 78 Ohio St.3d at 387, quotingState v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721(1 st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for "`the exceptional case

in which the evidence weighs heavily against the conviction."' Id.

"[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts.

***

"If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment."

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).

Murder and Felony Murder

{¶42} Linzy was convicted of murder in violation of R.C. 2903.02(A), which

***„states: "No person shall purposely cause the death of another

{1143} R.C. 2901.22 Culpable mental states, provides:

(A) A person acts purposely when it is his specific intention to

cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender

Richland County, Case No. 2012-CA-33

intends to accomplish thereby, it is his specific intention to engage in

conduct of that nature.

12

{144} Linzy was also convicted of one count of felony-murder (R.C. 2903.02(B))

based on a predicate felony offense of felonious assault (R.C. 2903.11).

{145} Felonious assault in violation of R.C. 2903.11(A)(2), states that "[n]o

person shall knowingly ***[c]ause or attempt to cause physical harm to another * * *

by means of a deadly weapon ***."

{146} Pursuant to R.C. 2923.11(A), a deadly weapon is "any instrument, device,

or thing capable of inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon."

{147} "A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist." R.C. 2901.22(B).

{¶48} In State v. Jester, 32 Ohio St.3d 147, 152, 512 N.E.2d 962, 968(1987), the

Ohio Supreme Court held:

Where an inherently dangerous instrumentality was employed, a

homicide occurring during the commission of a felony is a natural and

probable consequence presumed to have been intended. Such evidence

is sufficient to allow a jury to find a purposeful intent to kill. State v. Clark

(1978), 55 Ohio St.2d 257, 9 0.O.3d 257, 379 N.E.2d 597, syllabus; State

v. Johnson (1978), 56 Ohio St.2d 35, 10 0.O.3d 78, 381 N.E.2d 637.

Richland County, Case No. 2012-CA-33 13

Accord, State v. Widner, 69 Ohio St.2d 267, 431 N.E.2d 1025(1982) (finding purpose to

kill in passenger's firing gun at individual from moving vehicle); State v. Dunlap, 73 Ohio

St.3d 308, 316, 652 N.E.2d 988(1995), certiorari denied (1996), 516 U.S. 1096, 116

S.Ct. 1096, 133 L.Ed.2d 765. State v. Banks, 10th Dist. No. 01 AP-1179, 2002-Ohio-

3341 at ¶ 24.

The trier of fact may infer an intention to kill from the surrounding

circumstances where the natural and probable consequence of a

defendant's actions is to produce death. State v. Robinson (1954), 161

Ohio St. 213, 118 N.E.2d 517, paragraph five of the syllabus; State v.

Edwards (1985), 26 Ohio App.3d 199, 200, 499 N.E.2d 352. Here,

defendant looked at a group of individuals, pointed a semi-automatic

handgun in their direction, and fired five shots. In so doing, one of the

bullets fired from the handgun struck and killed his driver, Andre J.

Bender. Although defendant claims the evidence equally supports a

conclusion that he was merely trying to scare individuals in the group by

firing the handgun into the air, "[t]he act of pointing a firearm and firing it in

the direction of another human being is an act with death as a natural and

probable consequence." State v. Brown (Feb. 29, 1996), Cuyahoga App.

No. 68761, unreported. Compare State v. Jester (1987), 32 Ohio St.3d

147, 152, 512 N.E.2d 962 (when an inherently dangerous instrumentality

is employed in the commission of a robbery, such evidence permits a jury

to find a purposeful intent to kill).

Richland County, Case No. 2012-CA-33 14

State v. Turner, 10th Dist. No. 97APA05-709, 1997 WL 798770(Dec. 30, 1997),quoting

State v. Brown, 8th Dist. No. 68761, 1996 WL 86627(Feb. 29, 1996)dismissed, appeal

not allowed, 77 Ohio St.3d 1468, 673 N.E.2d 135.

{¶49} In this case, there was security video that showed the yelling at and

taunting of Hall as he was walking to his car. On the way back into the bar, Linzy and

Ken Graves cornered Hall. While cornered, Linzy got in Hall's face, yelling at him. Hall

then punched Linzy in the eye. From there, a fight ensued where Hall and Linzy go off

camera. Linzy admits firing three shot toward Hall at close range. After shooting Hall

Linzy fled the area, hid the weapon and attempted to hide from the police.

{150} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Linzy had committed the crimes charged.

{151} We hold, therefore, that the state met its burden of production regarding

each element of the crimes of murder in violation of R.C. 2903.02(A) and felony-murder

(R.C. 2903.02(B)) based on a predicate felony offense of felonious assault (R.C.

2903.11). Accordingly, there was sufficient evidence to support Linzy's convictions.

{¶52} Counts III; IV, and VI were having weapons while under disability, carrying

a concealed weapon, and possession of criminal tool's respectively. These charges

were all in relation to the gun.

Having Weapons under Disability

{1[53} R.C. 2923.13(A)(3) defines having weapons while under disability,

Richland County, Case No. 2012-CA-33

(A) Unless relieved from disability as provided in section 2923.14 of

the Revised Code, no person shall knowingly acquire, have, carry, or use

any firearm or dangerous ordnance, if any of the following apply:

(1) The person is a fugitive from justice.

(2) The person is under indictment for or has been convicted of any

felony offense of violence or has been adjudicated a delinquent child for

the commission of an offense that, if committed by an adult, would have

been a felony offense of violence.

(3) The person is under indictment for or has been convicted of any

felony offense involving the illegal possession, use, sale, administration,

distribution, or trafficking in any drug of abuse or has been adjudicated a

delinquent child for the commission of an offense that, if committed by an

adult, would have been a felony offense involving the illegal possession,

use, sale, administration, distribution, or trafficking in any drug of abuse.

(4) The person is drug dependent, in danger of drug dependence,

or a chronic alcoholic.

(5) The person is under adjudication of mental incompetence, has

been adjudicated as a mental defective, has been committed to a mental

institution, has been found by a court to be a mentally ill person subject to

hospitalization by court order, or is an involuntary patient other than one

who is a patient only for purposes of observation. As used in this division,

"mentally ill person subject to hospitalization by court order" and "patient"

have the same meanings as in section 5122.01 of the Revised Code.

15

Richland County, Case No. 2012-CA-33 16

{¶54} Linzy admitted firing the firearm at Hall. Accordingly, he had possession

and used a firearm. Linzy fled the scene with the gun after any threat had been

neutralized which showed continued possession beyond any claim of provocation or

self-defense. The evidence, including Linzy's testimony established he was under

disability as provided in section 2923.14 of the Revised Code at the time of the incident

in the case at bar.

{155} We hold, therefore, that the state met its burden of production regarding

each element of the crime of having weapons while under disability. Accordingly, there

was sufficient evidence to support Linzy's conviction.

Carrying Concealed Weapons

{156} R.C. 2923.12 carrying a concealed weapon states, in relevant part,

(A) No person shall knowingly carry or have, concealed on the

person's person or concealed ready at hand, any of the following:

(1) A deadly weapon other than a handgun;

(2) A handgun other than dangerous ordnance;

(3) A dangerous ordnance.

***

{157} If the State relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for "'such evidence to be irreconcilable with any

reasonable theory of innocent in order to support a conviction. " State v. Jenks, 61

Ohio St.3d 259, 272, 574 N.E. 2d 492(1991) at paragraph one of the syllabus.

"`Circumstantial evidence and direct evidence inherently possess the same probative

value [.]"' Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Furthermore,"' [s]ince

Richland County, Case No. 2012-CA-33 17

circumstantial evidence and direct evidence are indistinguishable so far as the jury's

fact-finding function is concerned, all that is required of the jury is that i[t] weigh all of

the evidence, direct and circumstantial, against the standard of proof beyond a

reasonable doubt." Jenks, 61 Ohio St.3d at 272, 574 N.E. 2d 492. While inferences

cannot be based on inferences, a number of conclusions can result from the same set

of facts. State v. Lott (1990), 1 Ohio St.3d 160, 168, 555 N.E.2d 293(1990), citing Hurt

v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 331, 130 N.E.2d 820(1955).

Moreover, a series of facts and circumstances can be employed by a jury as the basis

for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d 293, citing

Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

{¶58} In the case at bar, Linzy is the major contributor to the DNA mix on the

gun handle and Hall and Graves are excluded from the mix. Linzy denied that he had a

gun when confronted by the bar's manager immediately after the shooting. Linzy then

fled the scene with the gun, and concealed it in a tree.

{¶59} Upon a careful review of the record and upon viewing the direct and

circumstantial evidence in the light most favorable to the prosecution, we hold that the

state met its burden of production regarding each element of the crime of carrying a

concealed weapon. Accordingly, there was sufficient evidence to support Linzy's

conviction.

Tampering with Evidence

{160} R.C. 2921.12, tampering with evidence, provides

Richland County, Case No. 2012-CA-33 18

(A) No person, knowing that an official proceeding or investigation

is in progress, or is about to be or likely to be instituted, shall do any of the

following:

(1) Alter, destroy, conceal, or remove any record, document, or

thing, with purpose to impair its value or availability as evidence in such

proceeding or investigation;

(2) Make, present, or use any record, document, or thing, knowing

it to be false and with purpose to mislead a public official who is or may be

engaged in such proceeding or investigation, or with purpose to corrupt

the outcome of any such proceeding or investigation.

{161} In the case at bar, Linzy denied that he had a gun when confronted by the

bar's manager immediately after the shooting. Linzy then fled the scene with the gun,

and concealed it in a tree.

{¶62} Upon a careful review of the record and upon viewing the direct and

circumstantial evidence in the light most favorable to the prosecution, we hold that the

state met its burden of production regarding each element of the crime of tampering

with evidence. Accordingly, there was sufficient evidence to support Linzy's conviction.

Possession of Criminal Tools

{163} R.C. 2923.24, possession of criminal tools, provides,

(A) No person shall possess or have under the person's control any

substance, device, instrument, or article, with purpose to use it criminally.

(B) Each of the following constitutes prima-facie evidence of

criminal purpose:

Richland County, Case No. 2012-CA-33 19

(1) Possession or control of any dangerous ordnance, or the

materials or parts for making dangerous ordnance, in the absence of

circumstances indicating the dangerous ordnance, materials, or parts are

intended for legitimate use;

(2) Possession or control of any substance, device, instrument, or

article designed or specially adapted for criminal use;

(3) Possession or control of any substance, device, instrument, or

article commonly used for criminal purposes, under circumstances

indicating the item is intended for criminal use.

{164} R.C. 2925.01(L) defines "possession" to mean, "having control over a

thing or substance but may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing or

substance is found."

{165} In the case at bar, Linzy clearly exercised dominion and control over the

gun when he used it to shoot Hall. He continued to exercise dominion and control over

the gun when he hides it while denying to the bar's manager that he possessed a gun.

He continued to exercise dominion and control over it while he leaves the scene and

hides the gun in the tree. Linzy could not legally possess a firearm. Linzy admitted that

he hid the gun because he did not want to be caught with it.

{166} Upon a careful review of the record and upon viewing the direct and

circumstantial evidence in the light most favorable to the prosecution, we hold that the

state met its burden of production regarding each element of the crime of possession

Richland County, Case No. 2012-CA-33 20

of criminal tools. Accordingly, there was sufficient evidence to support Linzy's

conviction.

{167} Ultimately, "the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact 'unless it is patently apparent that the

fact finder lost its way."' State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶

81. In other words, "[w]hen there exist two fairly reasonable views of the evidence or

two conflicting versions of events, neither of which is unbelievable, it is not our province

to choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-

1152, at ¶ 13, citing State v. Gore,131 Ohio App.3d 197, 201, 722 N.E.2d 125(1999).

{168} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass,10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter,131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States,315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger,459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the

evidence offered by the parties and assess the witness's credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752

(Mar 23, 2000) citing State v. Nivens,10th Dist. No. 95APA09-1236, 1996 WL 284714

(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but

Rich(and County, Case No. 2012-CA-3321

may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604,

2003- Ohio-958, ¶ 21, citing State v. Antill,176 Ohio St. 61, 67, 197 N.E.2d 548 (1964);

State v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889,citing State v. Caldwell

(1992), 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence

may have been circumstantial, we note that circumstantial evidence has the same

probative value as direct evidence. State v. Jenks, supra.

"[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts. * * *

"If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment."

{169} Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at

191-192 (1978).

{¶70} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for

resolving disputed facts. The degree of proof required is determined by

the impression which the testimony of the witnesses makes upon the trier

Richland County, Case No. 2012-CA-33

of facts, and the character of the testimony itself. Credibility, intelligence,

freedom from bias or prejudice, opportunity to be informed, the disposition

to tell the truth or otherwise, and the probability or improbability of the

statements made, are all tests of testimonial value. Where the evidence is

in conflict, the trier of facts may determine what should be accepted as the

truth and what should be rejected as false. See Rice v. City of Cleveland,

114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

22

{171} Although Linzy cross-examined the witnesses and argued he found the

gun on the ground, that Hall provoked him and that he did not intend to kill Hall, the

weight to be given to the evidence and the credibility of the witnesses are issues for the

trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990).

{¶72} We find that this is not an "`exceptional case in which the evidence weighs

heavily against the conviction."' Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury was in the best

position to evaluate this competent, credible evidence, and we will not substitute our

judgment for that of the trier of fact. The jury neither lost their way nor created a

miscarriage of justice in convicting Linzy of the charges.

{173} Linzy's third, fourth and sixth assignments of error are overruled.

V.

{174} In his Fifth Assignment of Error, Linzy contends that the trial court erred in

failing to give his requested jury instructions. More specifically, Linzy contends that the

Richland County, Case No. 2012-CA-33 23

trial court erred in refusing to instruct the jury regarding voluntary manslaughter

involuntary manslaughter and reckless homicide.

{175} "[A]fter arguments are completed, a trial court must fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh the

evidence and discharge its duty as the fact finder." State v. Comen, 50 Ohio St.3d

206, 553 N.E.2d 206(1990) paragraph two of the syllabus. If a requested instruction

contains a correct, pertinent statement of the law and is appropriate to the facts, the

instruction must be included, at least in substance. State v. Nelson, 36 Ohio St. 2d 79,

303 N.E.2d 865(1973) paragraph one of the syllabus, overruled on other grounds by

State v. Fanning, I Ohio St.3d 19, 437 N.E.2d 583(1982).

{176} However, the corollary of this maxim is also true. It is well established that

the trial court will not instruct the jury where there is no evidence to support an issue.

Riley v. Cincinnati, 46 Ohio St.2d 287, 348 N.E.2d 135(1976);Murphy v. Carrollton

Manufacturing Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828, 832(1991). "ln reviewing

a record to ascertain the presence of sufficient evidence to support the giving of an * * *

instruction, an appellate court should determine whether the record contains evidence

from which reasonable minds might reach the conclusion sought by the instruction."

Feterle v. Huettner, 28 Ohio St.2d 54, 55-56, 275 N.E.2d 340(1971);Murphy v.

Carrollton Manufacturing Co., supra; State v. Coleman, 6th Dist. No. S-02-41, 2005-

Ohio-318, ¶12.

Ohio law permits a trier of fact to consider three types of lesser

offenses when determining a defendant's guilt: "(1) attempts to commit

the crime charged, if such an attempt is an offense at law; (2) inferior

Richland County, Case No. 2012-CA-33

degrees of the indicted offense; or (3) lesser included offenses." State v.

Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph one of the

syllabus, construing R.C. 2945.74 and Ohio Crim.R. 31(C).

In determining whether an offense is a lesser-included offense of

the charged offense, "the evidence presented in a particular case is

irrelevant to the determination of whether an offense, as statutorily

defined, is necessarily included in a greater offense." State v. Barnes

(2002), 94 Ohio St.3d 21, 26, 759 N.E.2d 1240(2002) quoting State v.

Kidder (1987), 32 Ohio St.3d 279, 282, 513 N.E.2d 311(1987); see, also,

State v. Koss, 49 Ohio St.3d 213, 218-219, 551 N.E.2d 970(1990).

However, the evidence in a particular case is relevant in determining

whether a trial judge should instruct the jury on the lesser-included

offense. If the evidence is such that a jury could reasonably find the

defendant not guilty of the charged offense, but could convict the

defendant of the lesser-included offense, then the judge should instruct

the jury on the lesser offense. State v. Shane, 63 Ohio St.3d 630, 632-

633, 590 N.E.2d 272(1992).

24

Shaker Heights v. Mosely, 113 Ohio St.3d 329, 332, 2007-Ohio-2072,865 N.E.2d 859,

¶¶10, 11.

Voluntary Manslaughter

{177} Voluntary manslaughter is defined in R.C. 2903.03(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

Richland County, Case No. 2012-CA-33

occasioned by the victim that is reasonably sufficient to incite the person

into using deadly force, shall knowingly cause the death of another.

25

{178} Voluntary manslaughter is not a lesser-included offense of murder, but

rather is an inferior degree of murder. Nonetheless, when determining whether an

instruction on voluntary manslaughter should have been given, we apply the same test

utilized when determining whether an instruction on a lesser-included offense should

have been given. State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272(1992). An

instruction on voluntary manslaughter is appropriate when "the evidence presented at

trial would reasonably support both an acquittal on the charged crime of murder and a

conviction for voluntary manslaughter." 1d.

{179} "Before giving a jury instruction on voluntary manslaughter in a murder

case, the trial judge must determine whether evidence of reasonably sufficient

provocation occasioned by the victim has been presented to warrant such an

instruction." Shane, at paragraph one of the syllabus. "The trial judge is required to

decide this issue as a matter of law, in view of the specific facts of the individual case.

The trial judge should evaluate the evidence in the light most favorable to the

defendant, without weighing the persuasiveness of the evidence." Id. at 637, citing

State v. Wilkins, 64 Ohio St.2d 382, 388, 415 N.E.2d 303(1980). "An inquiry into the

mitigating circumstances of provocation must be broken down into both objective and

subjective components." Shane, at 634.

{180} When determining whether provocation was reasonably sufficient to

induce sudden passion or sudden fit of rage, an objective standard must be applied. Id.

"For provocation to be reasonably sufficient, it must be sufficient to arouse the

Richland County, Case No. 2012-CA-33 26

passions of an ordinary person beyond the power of his or her control." Shane 63 Ohio

St.3d at 635, 415 N.E.2d 303. Thus, the court must furnish "the standard of what

constitutes adequate provocation, i.e., that provocation which would cause a

reasonable person to act out of passion rather than reason." (Citations omitted.) Shane

at 634, fn. 2. "If insufficient evidence of provocation is presented, so that no reasonable

jury would decide that an actor was reasonably provoked by the victim, the trial judge

must, as a matter of law, refuse to give a voluntary manslaughter instruction." Shane at

364. The subjective component of the analysis requires an assessment of "whether this

actor, in this particular case, actually was under the influence of sudden passion or in a

sudden fit of rage." Id. "Fear alone is insufficient to demonstrate the kind of emotional

state necessary to constitute sudden passion or fit of rage." State v. Mack, 82 Ohio

St.3d 198, 201, 694 N.E.2d 1328(1998).

{181} 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 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. State v. Huertas, 51 Ohio St.3d 22, 31-32, 553 N.E.2d

1058, 1068-1069 (1990). See, also, State v. Pierce, 64 Ohio St.2d 281, 18 0.O.3d 466,

414 N.E.2d 1038 (1980).

{182} The trial court should have given an instruction on voluntary manslaughter

if the evidence presented at trial demonstrated that Linzy had killed Hall while under

the influence of a sudden passion or fit of rage caused by provocation from Hall that

Richland County, Case No. 2012-CA-33 27

was serious enough to incite him into using deadly force. In the case at bar, as we

have already noted, Linzy never denied that he had fired the fatal shots. Linzy testified,

I wouldn't have went through any more assault, the torture. I would

have stopped it from the beginning, after the first hit...I would have shot

the gun then.

5T. at 723. The only act that could arguably provoke a rage is when Hal punched Linzy

in his face. However, one punch in the face is far from sufficient to cause the ordinary

person to become angry beyond his or her control.

{183} Both Graves and Linzy had no memory of the events directly before the

scuffle. Graves said he could remember leaving the bar following Linzy and could

remember nothing else until he was driving away after the shooting of Hall. Linzy does

not remember why he followed behind Hall to Hall's car, nor does Linzy remember

what he, Linzy, was saying while he was pointing at Hall, why he was wagging his

finger at Hall, or why he was in Hall's face. Linzy could not remember what was said by

anybody and did not know why Hall hit him.

{184} In the case at bar, Linzy shot Hall twice at close range. He then fired a

third time as Hall was backing away attempting to get inside the bar. Linzy made the

unsolicited statement to Officer Soehnlen, "I did not want that man to die, but he

shouldn't have put his fucking hands on me. You live by the sword, you die by it."

{185} Linzy's testimony that he did not intend to kill his victim does not entitle

him to a lesser-included offense instruction. See State v. Campbell, 69 Ohio St.3d 38,

48, 630 N.E.2d 339; State v. Thomas, 40 Ohio St.3d 213, 217-218, 533 N.E.2d

286(1988). State v. Wright, 4th Dist. No. 01CA2781, 2002-Ohio-1462, ¶26. Even

Richland County, Case No. 2012-CA-33 28

though the defendant's own testimony may constitute some evidence supporting a

lesser offense, if the evidence on whole does not reasonably support an acquittal on

the murder offense and a conviction on a lesser offense, the court should not instruct

on the lesser offense. Campbell, 69 Ohio St.3d at 47, 630 N.E.2d 339; Shane, 63 Ohio

St.3d 632-633. "To require an instruction * * * every time "some evidence," however

minute, is presented going to a lesser included (or inferior-degree) offense would mean

that no trial judge could ever refuse to give an instruction on a lesser included (or

inferior-degree) offense." Shane at 633, 590 N.E.2d 272. The same logic applies to a

trial court's decision to charge a jury concerning an inferior degree of an offense.

{186} In concluding that the trial court did not err in refusing to give a jury

instruction on voluntarily manslaughter, we find that the evidence presented did not

reasonably support both an acquittal on the crime charged and a conviction for

voluntary manslaughter.

Involuntary Manslaughter

{187} Linzy next contends that he was entitled to an instruction on the lesser

offense of involuntary manslaughter.

{188} Involuntary manslaughter is a lesser-included offense of felony murder.

State v. Tucker, 12th Dist. No. CA2010-10-263, 2012-Ohio-139, ¶ 32, citing State v.

Thomas, 6th Dist. No. L-06-1331, 2009-Ohio-1748, citing State v. Lynch, 98 Ohio

St.3d 514, 2003-Ohio-2284; State v. Watson, Cuyahoga App. No. 87281, 2006-Ohio-

5738

{189} Pursuant to R.C. 2903.04(A), a person commits involuntary

manslaughter when he causes the death of another as proximate result of committing

Richland County, Case No. 2012-CA-33 29

or attempting to commit a felony. Linzy does not specify a felony other than felonious

assault.

{¶90} As previously noted, by his own admission Linzy intended to shoot Hall.

Linzy's admission alone indicates that he was aware that his conduct would probably

cause the certain result of harm to Hall. The intent to kill is presumed where the state

proves the required intent to commit the underlying felony, thereby punishing those

felonious assaults that end in death as murder. State v. Everett, 5th Dist. No.

2011 CA00115, 2012-Ohio-2740, ¶66, citing State v. Mays, 2nd Dist. No. 24168, 2012-

Ohio-838, ¶ 10.

{191} In concluding that the trial court did not err in refusing to give an

instruction on involuntary manslaughter, we determined that the evidence presented

did not reasonably support a conclusion that Linzy did not intend to kill Hall.

Specifically, the fact that Linzy fired at close range, with pinpoint accuracy (hitting Hall

with three of three shots), toward a known inhabited area (the last shot after passing

through Hall lodged in a wall inside the bar), belied Linzy's assertion that he did not

intend to kill Hall. Likewise, in Campbell, the Supreme Court of Ohio determined that

the number (four) and location (vital areas) of the victim's wounds refuted the

defendant's contention that he did not intend to kill his victim, but stabbed him

"reflexively." Campbell, 69 Ohio St.3d at 48, 630 N.E.2d 339. Thus, the Supreme Court

of Ohio in Campbell concluded that the trial court did not err in refusing to instruct the

jury on involuntary manslaughter.

Richland County, Case No. 2012-CA-33

Reckless Homicide

30

{¶92} Linzy further contends that the trial court abused its discretion by

refusing to instruct the jury on reckless homicide.

{193} A person commits reckless homicide when he recklessly causes the

death of another. R.C. 2903.041(A). The difference between felony murder and

reckless homicide is in the requisite mens rea. As noted earlier, one acts knowingly,

regardless of purpose, when he is aware that his conduct will probably cause a certain

result or will probably be of a certain nature. A person acts recklessly, however, when,

with heedless indifference to the consequences, he perversely disregards a known risk

that his conduct is likely to cause a certain result or is likely to be of a certain nature.

R.C. 2901.22(C). State v. Collins, 8th Dist. No. 95415, 2011-Ohio-32412, ¶41.

{194} Generally, courts presume that people intend the natural, reasonable

and probable consequences of their voluntary actions. State v. Williams, 74 Ohio St. 3d

569, 574, 660 N.E.2d 724(1996); Thomas at 217, 533 N.E. 2d 286; State v. Wright,4tn

Dist. No. 01 CA2781, 2002-Ohio-2781 at ¶24.

{¶95} Evidence that the defendant did not appear to be aiming his weapon at

any specific person could support an inference that the defendant fired randomly or

aimlessly to support a jury verdict finding the defendant guilty of reckless homicide

instead of murder. State v. Wright, supra at ¶34. (Citing Young v. Indiana (Ind.1998),

699 N.E. 2d 252).

{196} As previously noted, by his own admission Linzy intended to shoot Hall.

Linzy's admission alone indicates that he was aware that his conduct would probably

cause the certain result of harm to Hall. The intent to kill is presumed where the state

Richland County, Case No. 2012-CA-33 31

proves the required intent to commit the underlying felony, thereby punishing those

felonious assaults which end in death as murder. State v. Everett, 5th Dist. No.

2011CA00115, 2012-Ohio-2740, ¶66, citing State v. Mays, 2nd Dist. No. 24168, 2012-

Ohio-838, 110.

{197} Linzy offers no explanation, nor does he point specifically to the record in

support of his claim that he was entitled to a jury instruction on reckless homicide.

Because Linzy fails to properly reference portions of the record, supporting his claim to

entitled him to have the jury instructed on reckless homicide, Linzy cannot demonstrate

the claimed error. See Daniels v. Santic, 11th Dist. No. No. 2004-G-2570, 2005-Ohio-

1101, ¶ 13-15. See, also, App.R. 12(A)(2) and 16(A)(7); Graham v. City of Findlay

Police Dept. 3rd Dist. No. No. 5-01-32, 2012-Ohio-1215 (stating, "[t]his court is not

obliged to search the record for some evidence of claimed error. **^ Rather, an

appellant must tell the appellate court specifically where the trial court's alleged errors

may be located in the transcript"); State ex rel. Physicians Commt for Responsible

Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, ¶

13; State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943(10th Dist.), ¶ 94,

appeal not allowed, 110 Ohio St.3d 1439, 2006-Ohio-3862, reconsideration denied,

111 Ohio St.3d 1418, 2006- Ohio-5083; Porter v. Keefe, 6th Dist.No. E-02-018, 2003-

Ohio-7267, ¶ 109-113.

{¶98} In the case at bar, Linzy shot Hall twice at close range. He then fired a

third time as Hall was backing away attempting to get inside the bar. Linzy made the

unsolicited statement to Officer Soehnlen, "I did not want that man to die, but he

Richland County,,Case No. 2012-CA-33 32

shouldn't have put his fucking hands on me. You live by the sword, you die by it." By

his own admission, Linzy intended to shoot Hall.

{1199} Linzy was not entitled to a reckless homicide instruction because there is

no reasonable view of the evidence that would have allowed the jury to reject the

felony murder charge and find him guilty of reckless homicide.

{1100} Linzy's fifth assignment of error is overruled.

Conclusion

{1101} Linzy's first, second, third, fourth, fifth and sixth assignments of error are

overruled in their entirety and the judgment of the Court of Common Pleas, of Richland

County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Wise, J., concur

HON. W. SCOTT GWIN

HON. PATRICIA A. DELANEY

HON. JOHN W. WISE

WSG:cIw 0306

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