[Cite as State v. Jefferson, 2012-Ohio-2387.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                                No. 97331


                                       STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                   vs.

                                 DAVID L. JEFFERSON
                                                 DEFENDANT-APPELLANT


                                    JUDGMENT:
                              REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-526072

              BEFORE:           Blackmon, A.J., Boyle, J., and Celebrezze, J.

              RELEASED AND JOURNALIZED:                     May 31, 2012
                                  -i-




ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Erica Barnhill
Gregory Mussman
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Appellant David L. Jefferson appeals his convictions and assigns the

following errors for our review:

       I. The trial court erred in denying appellant’s motion for acquittal as to
       the charges when the state failed to present sufficient evidence against
       appellant.

       II. Appellant’s convictions are against the manifest weight of the
       evidence.

       III. The trial court erred in instructing the jury on the lesser included
       offense of voluntary manslaughter as this honorable court has
       previously held that an instruction on voluntary manslaughter and self
       defense is not possible because the two legal theories are incompatible.

       IV. The trial court erred in instructing the jury on the lesser included
       offense of voluntary manslaughter when there was no evidence of
       sudden passion or fit of rage on the part of the appellant.

       V. The trial court erred in sentencing appellant when it began the
       sentencing hearing without Appellant’s attorneys present in violation
       of appellant’s constitutional rights.

       {¶2} Having reviewed the record and pertinent law, we reverse Jefferson’s

convictions and remand for a new trial. The apposite facts follow.

       {¶3} On June 20, 2009, Jefferson shot and killed 21-year-old Trenton Austin in

an alley near East 33rd Street and Cedar Avenue in Cleveland, Ohio. At the time of the

fatality, Jefferson had approached the alley and discovered Austin engaged in a sexual

encounter with Carlyeliea Benson, a prostitute. Three days later, Jefferson turned himself

in to police, took responsibility for the killing, and claimed he acted in self-defense.
       {¶4} On June 26, 2009, the Cuyahoga County Grand Jury indicted Jefferson on

one count of aggravated murder with one - and three-year firearm specifications.

Jefferson pleaded not guilty at his arraignment, numerous pretrials followed, and the

matter proceeded to trial. However, the jury was unable to reach a verdict and the trial

court declared a mistrial. On July 25, 2011, a new trial commenced.

                                    Second Jury Trial

       {¶5} Most of the facts are not in dispute. As previously noted, Jefferson turned

himself in to police three days after the shooting, admitted that he shot and killed Austin,

but claimed he did so in self-defense. As such, we will limit our discussion of the facts

primarily to the respective versions of the shooting.

       {¶6} At the trial, the state presented the testimony of nine witnesses, including

21-year-old Benson, who testified that she has been a prostitute since she was 14.

According to Benson, a mutual friend referred Austin to her; that friend contacted her and

made arrangements for them to meet. In the early morning hours of June 20, 2009,

Austin arrived at her sister’s apartment, and Benson agreed to have sex with him for $30.

       {¶7} Austin drove Benson to an alley about 20 blocks away, and they began

having sex in the back passenger’s compartment of the car. Benson and Austin remained

quiet in order not to draw any attention to the vehicle. A short time later, Austin

whispered that someone was approaching the vehicle, pushed Benson down to hide her,

and reached under the driver’s seat for what Benson later learned was a stun gun.
       {¶8} The individual approached the driver’s door and Austin asked what he

wanted.     Jefferson indicated that he wanted to watch.        Laughingly, Austin asked

Jefferson whether he knew where to get some “blow.” Austin exited the vehicle, walked

around to the front of the car, and had a brief conversation with Jefferson.       Jefferson

then walked away across a field in the direction of the Shell gas station at East 30th Street

and Carnegie Avenue.

       {¶9} Austin and Benson watched as Jefferson disappeared across the field, and

then they resumed having sex. Moments later, Jefferson returned and stood in front of

the vehicle and sipped a soda. Austin again exited the vehicle, walked around to the

front, and the two engaged in a short conversation, after which Austin asked Benson to

hand him his cell phone. Austin entered some numbers and handed the phone back to

Benson and continued talking with Jefferson.

       {¶10}    Benson got dressed and decided it was time for Austin to take her back to

her sister’s apartment. As Austin and Jefferson continued to talk, Benson went to sit in

the front seat. At this time, Benson was able to get a good look at Jefferson, who she

described as disheveled, with bloodshot eyes, and who appeared to be under the influence

of drugs.

       {¶11} As Benson sat in the front seat waiting for Austin, she saw blue lights

floating across the windshield.    Benson saw Jefferson with Austin in a choke hold, and

Austin was shouting: “get the f**k off me.” Both men fell to the ground out of her field

of vision, and then Benson heard gunshots.
       {¶12} Upon hearing the gunshots, Benson exited the car, fled up East 33rd Street,

and stopped in front of a house where a party was in progress. Benson waited for a short

period in the hopes that Austin’s car would emerge from the alley, but it never did.

Being too scared to return to the scene, Benson went around the block to a nearby school,

where she could peer into the alley from a distance.

       {¶13}    Upon looking in the alley, Benson discovered that Austin’s car doors and

trunk were now opened, and the headlights were now illuminated. Benson called out for

Austin, but received no response, and then saw Austin’s body partially hanging out of the

driver’s door. Benson later observed a male figure exiting the vehicle, but due to the

distance, could not ascertain if it was Jefferson.

       {¶14} Benson returned to the house where the party was still in progress and

pleaded with a man, who was sitting outside, to accompany her to the alley. The man,

Leon Johnson, returned with Benson to the alley. Johnson flipped Austin over, told

Benson to call 911, and attempted CPR, but to no avail.

       {¶15} Benson testified that when the police first arrived, she was not forthcoming

about her involvement for fear of being prosecuted for prostitution. Benson initially told

the police that she had exited the car and went over to an adjacent U-Haul lot, while

Austin and Jefferson were arguing, and before any shots were fired. Later, Benson

indicated that she never actually left the car until after the shooting occurred.

       {¶16}     Thirty-two-year-old Jefferson took the stand in his own defense.

According to Jefferson, he left his home 2:30 a.m. on June 20, 2009, intending to travel to
his real estate office at East 36th Street and Euclid Avenue. Jefferson intended to make

copies of a flier detailing the first-time home buyer’s program, then in effect, and pass

them out to patrons as they left the various after-hours clubs in the area.

       {¶17} Jefferson claims that as he was passing East 33rd Street, he heard the

scream of a woman coming from the alley. Jefferson exited his vehicle and approached a

car parked in the alley. Jefferson spoke with Austin, asked if everything was okay, and

Austin indicated everything was fine. Jefferson then walked to a nearby Shell gas station

to gather his thoughts.

       {¶18} Jefferson purchased a beverage, but felt something was not right, so he

returned to the alley. Jefferson approached the parked car a second time and began

speaking with Austin. Jefferson claims that he was having a cordial conversation with

Austin, who inquired about rental properties, and as he turned to walk away, Austin put

him in a choke hold. A struggle ensued and Austin tried to shock him with the stun gun.

 Jefferson then discharged his firearm hitting Austin three times.

       {¶19}     After shooting Austin, Jefferson ran to his car, but could not get in,

because he could not locate the key. Jefferson then ran to his office, washed the blood

off his face, and returned to the scene of the crime, where he found the key to his car.

Jefferson later traveled home, placed all his clothing along with the gun in a garbage bag,

and proceeded to call the non-emergency number for Cleveland’s police department.

Jefferson hung up the phone before speaking.
       {¶20}     During cross-examination, Jefferson was presented with his cellular

telephone log from the night in question, which revealed that he had made approximately

14 telephone calls to seedy motels on the east side of Cleveland between 1:30 a.m. and

2:30 a.m. When asked what were the purpose of these calls, Jefferson stated that he was

looking for someone named Anthony who was supposed to assist him with passing out

the fliers. Jefferson did not know Anthony’s last name.

       {¶21} Finally, Jefferson admitted on cross-examination that despite claiming to

have approached the alley after hearing a woman scream, he figured out why Austin and

Benson were in the alley. Jefferson also admitted that he never thought to ask Benson

if she was okay.

       {¶22}     The jury found Jefferson guilty of voluntary manslaughter and the firearm

specifications. On September 13, 2011, the trial court sentenced Jefferson to prison

terms of four years for voluntary manslaughter and three years for the firearm

specification.

                                     Jury Instructions

       {¶23}     We begin with the third assigned error, which disposes of the instant

appeal. Jefferson argues the trial court erred in instructing the jury on the lesser included

offense of voluntary manslaughter.

       {¶24}     The decision to give or refuse to give jury instructions is within the sound

discretion of the trial court and will not be disturbed on appeal unless the record

affirmatively demonstrates an abuse of discretion on the facts and circumstances of the
particular case. State v. Bennett, 7th Dist. No. 04-MA-184, 2006-Ohio-3566, at ¶ 23,

citing State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). The term “abuse of

discretion” implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶25} As previously noted, Jefferson admitted to killing Austin, but claimed he

acted in self-defense. Throughout the trial, the defense was steadfast in this theory. The

state requested an instruction on the lesser included offense of voluntary manslaughter,

Jefferson’s defense counsel objected, and the trial court proceeded to give instructions on

both voluntary manslaughter and self-defense.         The trial court denied Jefferson’s

objection to the voluntary manslaughter instruction; he has always maintained that the

shooting was in self-defense.

       {¶26} We have previously held that an instruction on voluntary manslaughter and

self-defense is erroneous because the two legal theories are incompatible. State v.

Williamson, 8th Dist. No. 95732, 2011-Ohio-4095, citing State v. Loyed, 8th Dist. No.

83075, 2004-Ohio-3961. See also State v. Brown, 8th Dist. No. 93007, 2010-Ohio-2460.

  Voluntary manslaughter requires that the defendant be under the influence of sudden

passion or a fit of rage, while self-defense requires the defendant to be in fear for his own

personal safety. State v. Harris, 129 Ohio App.3d 527, 534-535, 718 N.E.2d 488 (10th

Dist.1998).

       {¶27} Here, the record is devoid of any evidence that Jefferson acted out of

sudden passion or rage. Quite the contrary, Jefferson maintained that he feared for his
life because Austin shocked him with the stun gun. To underscore that he feared for his

safety, Jefferson offered the testimony of retired police officer Jim Simone, who testified

that an officer’s biggest fear when confronted with a stun gun is that the assailant will use

the officer’s service revolver against him or her. Because the trial court instructed the

jury on voluntary manslaughter, which required a showing that Jefferson acted out of

sudden passion or rage, and also instructed them on self-defense, we cannot say that the

instruction was harmless or non-prejudicial.

       {¶28} However, the state counters that the dual instruction is improper only when

requested by the defense. In support of this notion, the state cites State v. Hill, 108 Ohio

App.3d 279, 670 N.E.2d 555 (8th Dist.1996), a case similar to the instant case in that both

defendants were charged with murder, both asserted self-defense, both prosecutors

requested an instruction on voluntary manslaughter, and both defense counsel objected.

       {¶29} In Hill, we stated that if the evidence is present, the trial court must charge

on both murder and voluntary manslaughter where the circumstances require, even if the

defendant objects to the charge. Unlike Hill, in the instant case, there is not a scintilla of

evidence to support an instruction on voluntary manslaughter.        As such, an instruction

on voluntary manslaughter would be inappropriate. As previously noted, Jefferson’s

theory of the case was that he feared imminent danger or harm at the hands of Austin. In

addition, in Hill the trial court erroneously stated that it was the defendant who requested

the instruction on voluntary manslaughter.

       {¶30} In Hill we stated:
       As we view the case, the court’s instruction that defendant was
       asserting the voluntary manslaughter defense may have confused the
       jury into thinking that the defendant would be content with a
       conviction for that offense. This could well have detracted from the
       defendant’s self-defense argument and tainted the verdict. We cannot
       say that the improper instruction was harmless or non-prejudicial.

       {¶31} Finally, as we feared in Hill, the dual instruction herein appeared to have

confused the jury.    During jury deliberation, the trial court stated: “The question from

the jury says ‘If we find the defendant guilty of voluntary manslaughter, do we need to

consider self-defense?’ We are going to answer that question ‘Yes.’” Tr. 1423.

       {¶32} The above-quoted excerpt clearly indicates that the jury was confused about

the trial court’s instructions.    Accordingly, under the peculiar circumstances of the

instant case, we sustain the third assigned error, reverse Jefferson’s convictions, and

remand for a new trial.

       {¶33} Our disposition of the third assigned error, renders the remaining errors

moot. App.R. 12(A)(1)(c).

       {¶34}   Judgment reversed and remanded for proceedings consistent with this

opinion.

       It is ordered that appellant recover of appellee his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
