[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.
