State v. Sanders , 2019 Ohio 30 ( 2019 )

[Cite as State v. Sanders, 2019-Ohio-30.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2018 CA 00004
ISAIAH SANDERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2016 CR 02392
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 7, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BERNARD L. HUNT
PROSECUTING ATTORNEY 2395 McGinty Road, Nw
KATHLEEN O. TATARSKY North Canton, Ohio 44720
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2018 CA 00004 2
Wise, P. J.
{¶1} Appellant Isaiah Sanders appeals his convictions on two counts of murder,
two counts of felonious assault, one count of attempted kidnapping and one count of
tampering with evidence, following a jury trial in the Stark County Court of Common Pleas.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} On January 26, 2017, the Stark County Grand Jury indicted Appellant,
Isaiah Sanders, on two counts of murder, a violation of R.C. §2903.02(8), two counts of
felonious assault, a violation of R.C. §2903.11(A)(2), Attempted Kidnapping, a violation
of R.C. §2905.01(A)(2) and tampering with evidence, a violation of R.C. §2921.12(A)(1).
The counts contained five firearm specifications
{¶4} On November 28, 2017, a jury trial commenced in this matter. Six witnesses
testified on behalf of the state. The jury was presented with the following testimony and
evidence:
{¶5} Appellant Isaiah Sanders had moved to Akron, Ohio from Atlanta, Georgia
to live with his aunt, a school teacher. (T. Vol. 2 at 194). He made friends with Eryc
Higgins, whom he described as his only friend, his best friend, and his "brother." (T. Vol.
2 at 195). He ended up moving in with Higgins and his sister, Alysen McNabb. (T. Vol. 2
at 195-196).
{¶6} In May of 2016, while working for Next to New Appliances, Appellant Isaiah
Sanders delivered a used refrigerator to the home of Brooke Clemons' mother. There, he
met Clemons and struck up a relationship which would eventually become a romantic
relationship. (T. Vol. 2 at 197). Clemons complained to Appellant that the father of her
Stark County, Case No. 2018 CA 00004 3
three young children, Joshua Weatherspoon, was not taking care of her and her children.
According to her, he didn't show up when she asked to deliver diapers and cigarettes. (T.
Vol. 2 at 217). Clemons wanted Sanders to beat Weatherspoon up as retaliation for his
neglectful behavior, but she did not want to be involved. (T. Vol. 2 at 202).
{¶7} Sanders devised a scheme to teach Weatherspoon a lesson and proposed
it to Higgins. (T. Vol. 2 at 203). Clemons would lure Weatherspoon to the home she
shared with her three young children by telling him she needed diapers, Sanders and
Higgins would be there, kidnap Weatherspoon and take him to a place where they could
"whoop" him. (T. Vol. 1 at 213 - videotaped interview of Sanders was played for the jury;
T. Vol. 2 at 52-53).
{¶8} On August 29, 2016, Sanders and Higgins hitched a ride to Canton to the
home of Clemons. That night, they went to Walmart. (T. Vol. 2 at 210). They used
Clemons' food stamp card to buy Pop-tarts and Pepsi and stole zip-ties and gloves. (T.
Vol. 2 at 51, 210-211). The plan was to use the zip-ties to tie up Clemons so she could
pretend to be an innocent victim, kidnap Weatherspoon and take him away from the
Canton area, "beat him up, leave him there, let him go figure it out." (T. Vol. 1 at 213, T.
Vol. 2 at 210-211).
{¶9} Sanders admitted that he knew there were guns in the Clemons' home left
there by Weatherspoon. There was a loaded Beretta M9 on the table in the living room-
dining room and another in the closet.
{¶10} On the night of August 29, 2016, Sanders and Higgins waited for
Weatherspoon to arrive at Clemons’ house but fell asleep sometime after midnight when
he failed to show. (T. Vol. 2 at 210-213).
Stark County, Case No. 2018 CA 00004 4
{¶11} Around 5:00 a.m. on August 30, 2016, Sanders woke up to the sound of the
muffler from Weatherspoon's Lexus in the driveway of Clemons' home. (T. Vol. 2 at 213).
He saw Clemons use the stolen zip-ties to tie her hands up. (T. Vol. 1 at 141, T. Vol. 2 at
214). Things started happening fast. He heard some scuffling and saw that Weatherspoon
had Higgins in a chokehold in the kitchen and Weatherspoon's right hand in his pocket.
(T. Vol. 2 at 216-218). Sanders went to the closet and grabbed the Beretta from the shelf,
pointed the gun at the struggling men and pulled the trigger five times. (T. Vol. 2 at 216,
219-221, 224). Sanders saw the two men fall to the kitchen floor together. (T. Vol. 2 at
221). Sanders went to the body of Higgins and turned him over, checked for a pulse and
finding none, knew he was dead. (T. Vol. 2 at 224). Sanders stated that he then took both
guns with him and an iPhone and fled the scene. (T. Vol. 2 at 224). He stated that he
initially fled to Alabama and then to Atlanta. (T. Vol. 2 at 225).
{¶12} Meanwhile, Clemons ran to the home of the neighbor crying hysterically,
with her hands still tied with the zip-ties. The neighbor cut off the zip-ties and accompanied
her back to the home while his mother-in-law called 911. (T. Vol. 1 at 141-144).
{¶13} Canton Police Officer David Samuels was working the day shift that day and
arrived at the Clemons' home on Midway Avenue around 8:57 a.m. Outside, he saw
Clemons and the neighbor talking and tried to find out if there was an active shooter
inside. (T. Vol. 1 at 127). Finding at least two small children inside, he chose to not wait
for backup. He looked in the front door, holstered his sidearm and removed the children;
one in an infant seat and one on the couch. When backup arrived, the officers entered
the home, guns drawn, searching for an active shooter. The officers found two bodies
next to each other in the kitchen area, dead from gunshot wounds. (T. Vol. 1 at 130).
Stark County, Case No. 2018 CA 00004 5
{¶14} Canton City Detective Terry Monter was dispatched to the scene. Joshua
Weatherspoon was quickly identified as one of the victims. His Lexus was parked in the
driveway. (T. Vol. 1 at 260. A firearm was found in the Lexus, but no firearm was found
on the body of Weatherspoon. (T. Vol. 1 at 160). The other deceased male was not known
and had no identification on him. A black and white driver's license was found at the scene
but the photo was blurry. It contained the name Isaiah Sanders and was issued from
Georgia. (T. Vol. 1 at 162).
{¶15} Det. Monter made contact with Atlanta police who sent a photo of Sanders.
The picture did not match the unidentified deceased male. (T. Vol. 1 at 162). Later,
however, Monter was able to learn the name of the unidentified decedent through phone
records of Sanders, Akron relatives, and an interview with Clemons, who told Monter she
heard the shooter yell, "Eryc, Eryc, No" after the murder. The second male was identified
as Eryc Higgins. (T. Vol. 1 at 164). Detectives ultimately learned that Sanders was friends
with Higgins.
{¶16} By tracing telephone calls, Det. Monter was able to locate Sanders in
Atlanta, Georgia. A warrant was issued for Sanders' arrest and in December, 2016,
Sanders was picked up in Atlanta and brought to Stark County.
{¶17} On December 20, 2016, after being given Miranda warnings, Appellant
Sanders gave an hour and fifteen minute interview to Det. Monter. The redacted
videotaped interview was played for the jury. (T. Vol. 1 at 213). During the interview,
Sanders admitted to the killings.
{¶18} The body camera of the first responding officer was also played for the jury.
Stark County, Case No. 2018 CA 00004 6
{¶19} At the close of the State’s case, Appellant made a motion for judgment of
acquittal, which was overruled. Appellant then testified on his own behalf.
{¶20} Appellant requested jury instructions on Accident, Self-Defense, Defense of
another, involuntary manslaughter and voluntary manslaughter. The trial court declined
to give any of those instructions finding that the evidence presented did not support them.
(T. 2, 18-36, 112).
{¶21} Following approximately three hours of deliberations, the jury returned with
a verdict of guilty to all of the charges in the indictment.
{¶22} At a sentencing hearing held on December 4, 2017, the trial court sentenced
Appellant to fifteen (15) years to life for each of the two counts of Murder, with a
consecutive three (3) years for each of the related Firearm Specifications. The counts of
Felonious Assault together with their related Firearm Specifications were merged with
Counts one and two. The trial court also sentenced Appellant to consecutive sentences
of seven (7) years for Attempted Kidnapping and an additional twenty-four (24) months
for Tampering with Evidence, for a total term of forty-five (45) years to life in prison
{¶23} Appellant now appeals, raising the following error for review:
ASSIGNMENTS OF ERROR
{¶24} “I. THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON
THE LESSER OFFENSE OF INVOLUNTARY MANSLAUGHTER AS REQUESTED BY
APPELLANT.
{¶25} “II. THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON
THE LESSER OFFENSE OF VOLUNTARY MANSLAUGHTER AS REQUESTED BY
APPELLANT.
Stark County, Case No. 2018 CA 00004 7
{¶26} “III. APPELLANT'S CONVICTION FOR TAMPERING WITH EVIDENCE AS
SET FORTH IN COUNT SIX OF THE INDICTMENT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶27} “IV. APPELLANT'S CONVICTIONS FOR ATTEMPTED KIDNAPING AS
SET FORTH IN COUNT FIVE OF THE INDICTMENT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
I., II.
{¶28} In his first and second assignments of error, Appellant argues the trial court
erred in denying his request for instructions on involuntary manslaughter and voluntary
manslaughter. We disagree.
{¶29} We review a trial court's refusal to provide a requested jury instruction for
an abuse of discretion. State v. Wolons, 44 Ohio St. 3d 64, 68, 541 N.E.2d 443 (1989).
Generally, “a trial court must fully and completely give the jury all instructions which are
relevant and necessary for the jury to weigh evidence and discharge its duty as the fact
finder.” State v. Comen, 50 Ohio St. 3d 206, 553 N.E.2d 640 (1990), paragraph two of the
syllabus.
{¶30} In State v. Deanda, the Ohio Supreme Court observed,
The question of whether a particular offense should be submitted to
the finder of fact as a lesser included offense involves a two-tiered analysis.
State v. Evans, 122 Ohio St. 3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶
13. The first tier, also called the “statutory-elements step,” is a purely legal
question, wherein we determine whether one offense is generally a lesser
included offense of the charged offense. State v. Kidder, 32 Ohio St. 3d 279,
Stark County, Case No. 2018 CA 00004 8
281, 513 N.E.2d 311 (1987). The second tier looks to the evidence in a
particular case and determines whether “ ‘a jury could reasonably find the
defendant not guilty of the charged offense, but could convict the defendant
of the lesser included offense.’ ” Evans at ¶ 13, quoting Shaker Hts. v.
Mosely, 113 Ohio St. 3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11. Only
in the second tier of the analysis do the facts of a particular case become
relevant.
{¶31} 136 Ohio St. 3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6.
{¶32} Appellant argues he was entitled to instructions of involuntary manslaughter
and voluntary manslaughter as lesser-included offenses of felony murder.
{¶33} R.C. §2903.02(B) sets forth the elements of the offense of felony murder
and states:
No person shall cause the death of another as a proximate result of
the offender’s committing or attempting to commit an offense of 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 Revised Code.
{¶34} The predicate offenses for the murders as charged are felonious assault,
to wit, causing physical harm to the victims by means of a firearm, and/or attempted
kidnapping.
Involuntary Manslaughter
{¶35} Involuntary manslaughter under R.C. 2903.04(A), is defined as “no person
shall cause the death of another * * * as a proximate result of the offender's committing
or attempting to commit a felony,” and is almost identically worded but expands the
Stark County, Case No. 2018 CA 00004 9
definition to include any felony offense instead of limiting the predicate crime to a first or
second-degree felony offense of violence. State v. Brodie, 165 Ohio App. 3d 668, 2006–
Ohio–982, 847 N.E.2d 1268, ¶ 26 (2d Dist.).
{¶36} Appellant argues that the evidence demonstrated that he did not act
knowingly in the killings. He contends that he did not plan or intend to kill Weatherspoon
and that he did not knowingly harm Eryc Higgins. Appellant states that rather he “was
complicit in the death of another as a proximate result of his committing a felony, felonious
assault or an attempted kidnapping, both of which are second degree felonies.
{¶37} Here, Appellant has not demonstrated that the predicate offense for the
felony murder was anything but a first or second-degree offense of violence, and
therefore, Appellant was not entitled to the jury instruction on involuntary manslaughter in
this case.
Voluntary Manslaughter
{¶38} In order to warrant an instruction on voluntary manslaughter, a defendant
must present sufficient evidence of serious provocation such that a jury could reasonably
acquit the defendant of murder and convict the defendant of voluntary manslaughter.
State v. Newell, 5th Dist. Licking No. 2004CA00021, 2004–Ohio–6261, ¶ 14, citing State
v. Shane, 63 Ohio St. 3d 630, 637, 590 N.E.2d 212 (1992); State v. Wilkins, 64 Ohio St. 2d
382, 388, 415 N.E.2d 303 (1980). The defendant must show that he was under the
influence of sudden passion or in a sudden fit of rage which was brought about by
provocation that was “sufficient to arouse the passions of an ordinary person beyond the
power of his or her control.” Id., citing Shane, supra. “However, past incidents or verbal
threats do not satisfy the test for reasonably sufficient provocation when there is sufficient
Stark County, Case No. 2018 CA 00004 10
time for cooling off .” Id., citing State v. Mack, 82 Ohio St. 3d 198, 201, 1998–Ohio–375,
694 N.E.2d 1328 and State v. Huertas, 51 Ohio St. 3d 22, 31–32, 553 N.E.2d 1058 (1990);
State v. Pierce, 64 Ohio St. 2d 281, 414 N.E.2d 1038 (1980).
{¶39} Voluntary manslaughter requires an offender to knowingly cause the death
of another 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 * * *.” R.C. §2903.03(A). Because
“its elements are * * * contained within the indicted offense, except for one or more
additional mitigating elements [,]” voluntary manslaughter is not a lesser-included offense
of murder. State v. Shane, 63 Ohio St. 3d 630, 632, 590 N.E.2d 272 (1992). Instead,
voluntary manslaughter is an inferior degree of murder. Shane at 632.
{¶40} The analysis of voluntary manslaughter's mitigating element asks first an
objective question and second a subjective question. The objective question is whether
the victim's provocation was “ ‘sufficient to arouse the passion of an ordinary person
beyond the power of his or her control,’ ” Shane at 635. “or described differently, whether
the provocation was ‘reasonably sufficient to bring on extreme stress and * * * to incite or
arouse the defendant into using deadly force,’ ” State v. Deem, 40 Ohio St. 3d 205, 533
N.E.2d 294 (1988), at paragraph five of the syllabus. The subjective question is “whether
this particular defendant was in fact acting under a sudden passion or in a fit of rage.”
(Citation omitted.) Id. We have said that, “[w]hen analyzing the subjective prong of the
test, ‘evidence supporting the privilege of self-defense, i.e., that the defendant feared for
his own personal safety, does not constitute sudden passion or fit of rage.’ ” State v.
Harding, 2d Dist. Montgomery No. 24062, 2011-Ohio-2823, ¶ 43, quoting State v.
Stark County, Case No. 2018 CA 00004 11
Stewart, 10th Dist. Franklin No. 10AP-526, 201[1]-Ohio-466, ¶ 13; see also State v. Mack,
82 Ohio St. 3d 198, 201, 694 N.E.2d 1328 (1998) (“Fear alone is insufficient to
demonstrate the kind of emotional state necessary to constitute sudden passion or fit of
rage.”).
{¶41} If insufficient evidence of provocation is presented such that no reasonable
jury would decide the actor was reasonably provoked by the victim, the trial judge must,
as a matter of law, refuse to give a voluntary manslaughter instruction. State v. Shane,
63 Ohio St. 3d 630, 634, 590 N.E.2d 272 (1992).
{¶42} Upon review, we find that Appellant did not present sufficient evidence of
serious provocation in the form of sudden passage or fit of rage for the killings of either
Weatherspoon or Higgins. Rather, Appellant testified that he and Higgins had a plan to
lure Weatherspoon to Clemons’ house to kidnap him and assault him. Appellant also
knew two loaded 9 millimeter Beretta handguns were present in the house. When
Appellant saw his friend in a physical altercation with Weatherspoon, Appellant went to
the closet where he knew the loaded gun was kept, retrieved it and fired it five times at
the two men. Appellant admitted that he knew the gun was loaded, and that firing bullets
at a person is likely to result in serious physical harm or death to that person. (T. Vol. 2
at 231). Appellant then testified that when the plan went awry and he ended up shooting
Weatherspoon and Higgins, those killing were the result of an accident. Appellant testified
that he was afraid for his friend and acting on that fear and panic, he retrieved the loaded
gun from a nearby closet and fired five times at the men. See State v. Stargell, 70 N.E.3d
1126, 2016-Ohio-5653, ¶ 43-44 (2d Dist.) (trial court rejected jury instruction for voluntary
manslaughter where the defendant testified that he shot the victim because he was afraid,
Stark County, Case No. 2018 CA 00004 12
not because he was under the influence of a sudden passion or fit of rage); See Beatty-
Jones, 2d Dist. Montgomery No. 24245, 2011-Ohio-3719, ¶ 23-30 (concluding the same
where the defendant's testimony showed that he shot the victims out of fear, not under a
sudden passion or in a fit of rage); See also State v. Mack, 82 Ohio St. 3d 198, 201, 694
N.E.2d 1328 (1998) (“Fear alone is insufficient to demonstrate the kind of emotional state
necessary to constitute sudden passion or fit of rage.”). Evidence showing a defendant
acted out of fear in a situation does not constitute serious provocation necessary for a
jury instruction on voluntary manslaughter. State v. Lindsey, 10th Dist. No. 14AP-751,
2015-Ohio-2169, ¶ 58 (finding defendant's statement to police that he was “afraid or that
he feared for his life” did not constitute evidence that the defendant acted under a sudden
passion or fit of rage to support a jury instruction on voluntary manslaughter); State v.
Collier, 10th Dist. No. 09AP-182, 2010-Ohio-1819, ¶ 17.
{¶43} We find that the evidence presented at trial, even viewed in the light most
favorable to appellant, would not reasonably support both an acquittal on murder and a
conviction for voluntary manslaughter. Considering all the above, under the facts and
circumstances of the case, the trial court did not abuse its discretion in declining to instruct
the jury on voluntary manslaughter.
{¶44} Appellant’s first and second assignments of error are overruled.
III., IV
{¶45} In his third and fourth assignments of error, Appellant argues that his
convictions for tampering with evidence and attempted kidnapping were against the
manifest weight and sufficiency of the evidence. We disagree.
Stark County, Case No. 2018 CA 00004 13
{¶46} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶47} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶48} We note 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). The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness's credibility. “While the trier of fact
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. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness'
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill, 176 Ohio St.
Stark County, Case No. 2018 CA 00004 14
61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-
Ohio-2889, 2003 WL 21291042, citing State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d
1096 (4th Dist. 1992).
{¶49} The trier of fact “has the best opportunity to view the demeanor, attitude,
and credibility of each witness, something that does not translate well on the written
page.” Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159 (1997).
Tampering with Evidence
{¶50} Appellant was convicted of tampering with evidence, in violation of R.C.
§2921.12(A)(1), which states:
(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;
{¶51} Here, evidence was presented that Appellant shot and killed two persons
and then fled the scene, taking with him the murder weapon and another firearm. Based
on the foregoing facts and evidence, the jury could reasonably find that Appellant took
the weapons with him because he knew that an investigation into the killings would be
instituted.
Attempted Kidnapping
{¶52} Appellant was convicted of attempted kidnapping, in violation of R.C.
§2905.01(A)(2) , which provides:
Stark County, Case No. 2018 CA 00004 15
(A) No person, by force, threat, or deception, or, in the case of a
victim under the age of thirteen or mentally incompetent, by any means,
shall remove another from the place where the other person is found or
restrain the liberty of the other person, for any of the following purposes:
***
(2) To facilitate the commission of any felony or flight thereafter;
{¶53} Appellant herein raises a corpus delecti challenge and argues that the only
evidence presented at trial that he attempted to kidnap Weatherspoon was his own
testimony at trial and his admissions to Detective Monter prior to trial where he admitting
that he had a plan to kidnap Weatherspoon, beat him, and leave him to figure things out
because he failed to buy diapers and cigarettes for Clemons.
{¶54} The corpus delecti rule was explained by the Ohio Supreme Court in State
v. Maranda, 94 Ohio St. 364, 114 N.E. 1038 (1916). In Maranda, the court stated:
By the ‘corpus delicti’ of a crime is meant the body or substance of
the crime, included in which are usually two elements: (1) the act; (2) the
criminal agency of the act.
It has long been established as a general rule in Ohio that there must
be some evidence of a confession, tending to establish the corpus delicti,
before such confession is admissible. The quantum or weight of such
outside or extraneous evidence is not of itself to be equal to proof beyond
a reasonable doubt, nor even enough to make it a prima facie case. Id. at
paragraphs one and two of the syllabus.
Stark County, Case No. 2018 CA 00004 16
{¶55} In order to satisfy the corpus delecti rule, the prosecution must introduce
evidence tending to prove the fact that a crime was committed, but that evidence need
not be direct; instead, circumstantial evidence may be relied upon to show corpus delicti.
Id. at 371, 114 N.E. 1038. Indeed, the burden upon the state to provide evidence of the
corpus delecti is minimal. State v. Edwards, 49 Ohio St. 2d 31, 36, 358 N.E.2d 1051
(1976).
{¶56} Here, the record contains evidence to satisfy the corpus delecti rule.
Specifically, in addition to Appellant’s testimony at trial and his statements to Det. Monter,
the State also presented the jury with the Wal-Mart videotape which shows Appellant and
Higgins stealing zip-ties and gloves less than 24 hours prior to the killings and failed
kidnapping. Unused, partially-closed, zip-ties were also found on the bedroom floor in
Clemons’ home. Additionally, text message evidence was presented to the jury which
supported the plan to lure Weatherspoon to Clemons’ house while Appellant was there.
(T. Vol. 1 at 188).
{¶57} Based on the foregoing, we find appellant's conviction for attempted
kidnapping was not against the manifest weight of the evidence. Any rational trier of fact
could have found all of the essential elements proven beyond a reasonable doubt. Nor is
this the exceptional case in which the evidence weighs heavily against a conviction.
Stark County, Case No. 2018 CA 00004 17
{¶58} Appellant’s third and fourth assignments of error are overruled.
{¶59} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., concurs
Hoffman, J., concurs separately.
JWW/d 1210
Stark County, Case No. 2018 CA 00004 18
Hoffman, J., concurring
{¶60} I concur in the majority’s analysis and disposition of Appellant’s four
assignments of error. I write separately with respect to Appellant’s first and second
assignment of error relating to requesting instructions on lesser included offenses.
{¶61} In addition to the reasons set forth by the majority for overruling said
assignments, I note Appellant offered complete defenses to the murder charges; i.e.,
accident and self-defense, both of which are inconsistent with the requested instructions.
Such constitutes an additional reason to overrule Appellant’s first and second
assignments of error.