State v. Phillips , 2020 Ohio 4748 ( 2020 )

[Cite as State v. Phillips, 2020-Ohio-4748.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109077
v. :
ERNEST E. PHILLIPS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 1, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634818-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michael Barth and Brandon A. Piteo,
Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Ernest E. Phillips (“Phillips”) appeals the trial
court’s decision to not instruct the jury on the inferior offenses of manslaughter and
aggravated assault. We affirm.
Phillips was convicted of murder, an unclassified felony, in violation
of R.C. 2903.02(A); murder, an unclassified felony, in violation of R.C. 2903.02(B);
felonious assault, a second-degree felony, in violation of R.C. 2903.11(A)(2); two
counts of having weapons while under a disability, third-degree felonies, in violation
of R.C. 2923.13(A)(2) and 2923.13(A)(3); and carrying concealed weapons, a fourth-
degree felony, in violation of R.C. 2923.12(A)(2). Phillips was sentenced to 19 years
and six months’ imprisonment.
I. Facts and Procedural History
On November 19, 2018, Phillips entered a gas station convenience
store to order corned beef sandwiches from the deli. Upon entry, Phillips was
speaking to his girlfriend on his cell phone through FaceTime. Shortly after Phillips
entered the store, brothers Roger Ashley (“Roger”) and Francisco Ashley
(“Francisco”) entered the store. Francisco, who admitted to being under the
influence of alcohol at the time, interrupted Phillips’s conversation with his
girlfriend by speaking into the phone. When Phillips became agitated by Francisco’s
behavior, Francisco told Phillips that he would knock Phillips’s head off.
Roger, who was also under the influence of alcohol and marijuana
overheard the conversation between Francisco and Phillips, and told Phillips that he
would beat him. With no sound, just video, the surveillance video in the store
captured the altercation between the three men. The video showed the two brothers
approaching Phillips while he was on the phone. The video also shows that the
brothers physically threatened Phillips and blocked the aisles so that Phillips could
not leave the store. The store clerk testified that he heard Roger threaten to beat up
Phillips. (Tr. 433-434.) After Francisco approached Phillips a second time, the
video shows that Phillips pulled a gun out of his right pocket with his right hand.
Phillips did not point the gun at anyone, but kept it down at his side.
Upon observing the gun, Francisco ran from Phillips and stood
between two rows of food items. Roger ran off camera, but came back into view
shortly thereafter. While Francisco and Phillips were speaking back and forth to
each other, Roger, again confronted Phillips. Phillips was still holding the gun down
at his right side. Roger then lunged at Phillips as if he was going to attack Phillips.
Phillips raised the gun, Roger began running, and Phillips shot him in the back.
Phillips testified that when Roger approached him, Roger stated that Phillips would
“meet his maker, you dead b*tch.” (Tr. 584.)
At trial, the trial court instructed the jury on self-defense, but refused
to instruct the jury on the inferior offense of voluntary manslaughter. The jury found
Phillips guilty, and he was sentenced to prison. Phillips has now filed this timely
appeal assigning one error for our review:
I. The trial court erred when it refused to instruct the jury on the
inferior offenses of manslaughter and aggravated assault.
II. Standard of Review
“The giving of jury instructions is within the sound discretion of the
trial court, and we review it for an abuse of discretion.” State v. Jackson, 8th Dist.
Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 42, citing State v. Howard, 8th Dist.
Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35. “A trial court abuses its discretion
when its decision is unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
III. Law and Analysis
Phillips argues that the trial court erred when it did not instruct the
jury on voluntary manslaughter and aggravated assault.1
A trial court must charge on a lesser included or inferior offense
“where the evidence presented at trial would reasonably support both
an acquittal on the crime charged and a conviction upon the lesser
included or inferior offense.” State v. Carter, 8th Dist. Cuyahoga
No. 106462, 2018-Ohio-3671, ¶ 59, citing State v. Thomas, 40 Ohio
St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus. In
determining whether the instruction is warranted, the trial court
views the evidence in the light most favorable to the defendant.
State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d
285, ¶ 37. The lesser included or inferior offense instruction is not
warranted every time “some evidence” is presented to support the
lesser offense. State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d
272 (1992). Rather, a court must find sufficient evidence to allow a
jury to reasonably reject the greater offense and find the defendant
guilty on the lesser included or inferior offense. Carter, citing Shane
at 632-633.
State v. Burkes, 8th Dist. Cuyahoga No. 106412, 2018-Ohio-4854, ¶ 24.
Voluntary manslaughter is an inferior offense of aggravated murder,
because “‘its elements are contained within the indicted offense, except for one or
more additional mitigating elements.’” State v. Tyler, 50 Ohio St.3d 24, 36, 553
N.E.2d 576 (1990), quoting State v. Deem, 40 Ohio St.3d 205, 209, 533 N.E.2d 2941 In Phillips’s brief, he did not address the issues of involuntary manslaughter or
aggravated assault, but rather focused on voluntary manslaughter only. App.R. 16(A)(7).
(1988). “Whether the mitigating circumstances of provocation are shown in this
case, and therefore whether the evidence presented would reasonably support a
conviction for voluntary manslaughter, depend on whether the terms of the
voluntary manslaughter statute are met.” Shane at 633.
Ohio’s voluntary manslaughter statute, R.C. 2903.03, reads, in 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 or the unlawful termination of another’s pregnancy.
Whether the provocation was reasonably sufficient to prompt sudden
passion or a sudden fit of rage involves both an objective and a subjective analysis.
Shane, 63 Ohio St.3d at 634, 590 N.E.2d 272. For the objective standard, the
alleged provocation by the victim must be reasonably sufficient to incite deadly
force, meaning “it must be sufficient to arouse the passions of an ordinary person
beyond the power of his or her control.” Id. at 635. For the subjective standard, the
defendant in the particular case must have actually acted under the influence of
sudden passion or in a sudden fit of rage. Id. at 634-635. The subjective component,
the “emotional and mental state of the defendant and the conditions and
circumstances that surrounded him at the time,” will only be considered if the
defendant has satisfied the objective component. Id.
The determination of what is reasonable provocation is a question of
fact for the factfinder. State v. Roberts, 8th Dist. Cuyahoga No. 90998, 2009-Ohio-
1605, ¶ 22, citing Shane at 632. The standard of what constitutes adequate
provocation is “that provocation which would cause a reasonable person to act out
of passion rather than reason.” Shane at 634.
At trial, the trial court instructed the jury on the definition of self-
defense. (Tr. 673.) However, the trial court denied the appellant’s request for a jury
instruction on voluntary manslaughter. (Tr. 627-630; 650-656.) In its reasoning,
the trial court stated, “I can say as a matter of law, that the evidence here doesn’t
support the existence of, and I’m paraphrasing, the elements of the voluntary
manslaughter statute. Sudden passion or fit of rage sufficient to, essentially,
provoke the response that was given in this case.” (Tr. 654.)
Phillips contends that he was upset at Roger for threatening to kill
him. However, neither the facts of the case nor the surveillance video demonstrates
that Phillips was under the influence of sudden passion or in a sudden fit of rage.
The evidence reveals the Ashley brothers were both much larger than Phillips in
height and body weight. Both Roger and Francisco threatened Phillips and looked
as if they were going to physically attack Phillips. The gas station clerk stated that
he heard Roger threatening Phillips with physical violence. When Phillips displayed
his gun, he did not wave it around or point it at the two men. He held the gun down
by his side, and only when Roger lunged at him, did he raise the gun.
These facts and surveillance video support Phillips’s contentions that
he was fearful for his life and had no means of escaping the store. Although only the
Ashley brothers were involved in the altercation with Phillips, there was a third man
that entered the store with the brothers. Once Phillips displayed his gun, Francisco
and this third man blocked the food aisle that led to the exit, so that Phillips could
not leave the store. We find that these facts supported an instruction for self-
defense; however, they did not demonstrate the elements of a sudden passion or
rage, which would have supported an instruction for voluntary manslaughter.
Moreover, the fact that Roger threatened to kill Phillips is not enough
to support reasonable provocation. Ohio courts have held that for purposes of
voluntary manslaughter, words alone will not generally constitute reasonably
sufficient provocation. Shane, 63 Ohio St.3d at 637, 590 N.E.2d 272; State v. Carter,
8th Dist. Cuyahoga No. 106462, 2018-Ohio-3671, ¶ 63. Similarly, fear alone is
insufficient support for reasonable provocation. State v. Sinclair, 8th Dist.
Cuyahoga No. 105726, 2018-Ohio-3363, ¶ 45. If, as a matter of law, no reasonable
jury could find that the provocation was adequate, the judge may refuse to give a
voluntary manslaughter instruction. State v. Lee, 10th Dist. Franklin No. 17AP-908,
2018-Ohio-3957, ¶ 49.
We find that Phillips has not demonstrated that his actions were
caused by sudden passion or a fit of rage. “When reasonably sufficient evidence of
provocation has not been presented, no jury instruction on voluntary manslaughter
should be given.” Shane at 638. Therefore, we find that the trial court did not err
or abuse its discretion in refusing to instruct the jury on voluntary manslaughter.
Additionally, while Phillips’s assignment of error refers to the trial
court’s failure to instruct on manslaughter and aggravated assault, Phillips’s brief
only presented arguments related to voluntary manslaughter. In his statement of
the case and facts, Phillips asserts that the trial court should have instructed the jury
as to involuntary manslaughter as a lesser included offense to Count 2, murder, and
aggravated assault as a lesser included offense of felonious assault, Count 3.
However, Phillips did not offer any arguments directly related to these offenses and
instead only concentrated on voluntary manslaughter.
App.R. 16(A)(7) requires
an argument containing the contentions of the appellant with respect
to each assignment of error presented for review and the reasons in
support of the contentions, with citations to the authorities, statutes,
and parts of the record on which appellant relies.
We may disregard an assignment of error if an appellant fails to cite
to any legal authority in support of an argument as required by
App.R. 16(A)(7). See App.R. 12(A)(2). We may also disregard an
assignment of error if an appellant fails to set forth an argument in
support of that assignment of error. Roth v. Roth, 8th Dist. Cuyahoga
No. 89141, 2008-Ohio-927, ¶ 71 (“[I]f an argument exists that can
support [an] assignment of error, it is not this court’s duty to root it
out.”).
Taddeo v. Bodanza, 8th Dist. Cuyahoga No. 100704, 2014-Ohio-3719, ¶ 11.
Phillips’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MARY EILEEN KILBANE, J., CONCUR