[Cite as State v. Hanford, 2019-Ohio-2987.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.    29204

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ROBERT HANFORD                                         COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2017-10-3621

                                 DECISION AND JOURNAL ENTRY

Dated: July 24, 2019



        CALLAHAN, Judge.

        {¶1}     Appellant, Robert Hanford, appeals his conviction by the Summit County Court

of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     At approximately 10:00 a.m. on Sunday, October 1, 2017, the Twinsburg Police

Department received a 911 call reporting that an individual had been stabbed at a residence at the

intersection of Darrow Road and Sherwin Drive. When they arrived, Mr. Hanford ran from the

house, and officers noted that he appeared to be distraught. Mr. Hanford had bloodstains on his

clothing, including a large stain on his left knee.

        {¶3}     Inside the house, they found the body of M.B. lying face down between a couch

and a coffee table in the living room. M.B. did not bear any wounds that were visible in the

position in which he was found, but he was unresponsive. Upon closer examination, officers

noted that his skin was gray and “cold to [the] touch”; he had no pulse or signs of respiration.
                                                2


Although the living room was cluttered and in disarray and there were droplets of blood in some

places, the room was notable as the scene of a stabbing because it was relatively free of

bloodstains.   Underneath M.B.’s body, however, police found a pool of blood.           During a

preliminary examination at the scene, the medical examiner noted a knife wound to the chest

near M.B.’s heart.

       {¶4}    Mr. Hanford was transported to the police station for questioning, where he

initially informed police that he woke up and found that M.B. had been stabbed, but did not

know what had happened. He acknowledged that he had been arguing with M.B. and ultimately

admitted that he stabbed M.B. once. Although Mr. Hanford did not disclose the location of the

knife that he had used immediately, he later informed police that it would be found in the area of

a small decorative pond in the front yard of the residence. Armed with this information, police

recovered a closed pocketknife at the bottom of the pond.

       {¶5}    Mr. Hanford was charged with two counts of murder in violation of R.C.

2903.02(A) and 2903.02(B), respectively, and one count of felonious assault in violation of R.C.

2903.11(A). A jury found him guilty of each charge. The trial court merged the counts and

sentenced Mr. Hanford to a term of life imprisonment with parole eligibility after fifteen years.

Mr. Hanford appealed. His four assignments of error are rearranged for purposes of disposition.

                                               II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE
       MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS
       THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE
       OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF MURDER TO
       WARRANT THE CASE BEING SUBMITTED TO THE JURY.
                                                 3


       {¶6}    Mr. Hanford’s first assignment of error argues that his convictions for murder are

not supported by sufficient evidence because the State did not produce any evidence

demonstrating that he acted with the intent required to commit murder. This Court disagrees.

       {¶7}    “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do

not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.

Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to

reasonably conclude that the essential elements of the crime were proven beyond a reasonable

doubt. Id.

       {¶8}    Murder is prohibited by R.C. 2903.02, which provides, in part:

       (A) No person shall purposely cause the death of another or the unlawful
       termination of another’s pregnancy.

       (B) 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.

(Emphasis added.)     R.C. 2903.02(A)/(B). As required by R.C. 2903.02(A), “[a] person acts

purposely when it is the person’s 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

intends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that

nature.” R.C. 2901.22(A). Intent must be demonstrated with reference to the surrounding facts

and circumstances. See In re Washington, 81 Ohio St.3d 337, 340 (1998). “‘The intent of an
                                                 4


accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the

senses, it can never be proved by the direct testimony of a third person, and it need not be. It

must be gathered from the surrounding facts and circumstances under proper instructions from

the court.’” Id., quoting State v. Huffman, 131 Ohio St. 27 (1936), paragraph four of the syllabus.

       {¶9}    Felonious assault, which is the offense upon which Mr. Hanford’s conviction for

murder under R.C. 2903.02(B) was predicated, provides that “[n]o person shall knowingly * * *

[c]ause serious physical harm to another[.]” (Emphasis added.) R.C. 2903.11(A)(1).         As R.C.

2901.22(B) explains,

       A person acts knowingly, regardless of purpose, when the person is aware that the
       person’s conduct will probably cause a certain result or will probably be of a
       certain nature. A person has knowledge of circumstances when the person is
       aware that such circumstances probably exist. When knowledge of the existence
       of a particular fact is an element of an offense, such knowledge is established if a
       person subjectively believes that there is a high probability of its existence and
       fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

If there is sufficient evidence that Mr. Hanford acted purposely, as required by R.C. 2903.02(A),

it follows that there is sufficient evidence demonstrating that he acted knowingly, as required by

R.C. 2903.02(B) and R.C. 2903.11(A)(1). See R.C. 2901.22(E) (“When knowledge suffices to

establish an element of an offense, then purpose is also sufficient culpability for such element.”).

See also State v. Coleman-Muse, 10th Dist. Franklin No. 15AP-566, 2016-Ohio-5636, ¶ 10, fn3.

       {¶10} M.B. died as a result of a single stab wound to the chest that penetrated the left

ventricle of his heart. According to Dr. George Sterbenz, the Summit County Deputy Medical

Examiner, the left ventricle is “the muscular pump portion of the heart,” and a stab wound in that

area results in rapid blood loss. Dr. Sterbenz characterized M.B.’s stab wound as “rapidly fatal.”

The fatal wound was approximately four inches in length, passing between the fourth and fifth

ribs from front to back in a direction that was slightly left-to-right and downward.
                                                  5


       {¶11} Dr. Sterbenz explained that M.B. experienced massive loss of blood into the

hemothorax, where 800 milliliters of blood collected. That volume of accumulated blood forced

the air out of M.B.’s left lung, and the lung collapsed. This mechanism alone, according to Dr.

Sterbenz, represented enough blood loss to result in hemorrhagic shock and death. At the same

time, however, Dr. Sterbenz noted that the heart continued to pump blood that accumulated in

the pleural space, which led to pericardial tamponade, in which the blood accumulating in the

pleural space exerts pressure on the heart that leads to loss of circulation:

       It’s like putting a tourniquet on your arm to stop the blood from an injury to
       prevent bleeding out your arm.

       In this case, the tamponade is the squeezing of the blood for the heart; and that’s
       going to make it hard, first, for the heart to pump.

       It’s also going to cause the blood vessels that enter and exit the heart to collapse.

       So, pericardial tamponade causes cessation of circulation. Even though the heart
       is still trying to pump, it’s mechanically being prevented from pushing blood [out]
       of the heart, and it’s mechanically being prevented from pulling blood back into
       the heart; so, circulation stops.

According to Dr. Sterbenz, critical pericardial tamponade, as was present in this case, results in

loss of consciousness with seconds and death in a matter of minutes. Dr. Sterbenz also described

what would be observed in the moments after such an injury is sustained:

       People that are observed to have injuries that result in pericardial tamponade
       within seconds will be - - witnesses will say they just fell down, they just
       collapsed, within less than a minute; and they stopped breathing within, you
       know, a few minutes.

       They will have agonal, terminal gasping breaths very, very quickly and then they
       will die. And they are dying so quickly because their brain isn’t getting any
       oxygen.

       ***

       This alone, the pericardial tamponade, due to this penetrating injury to his heart,
       the bleeding, the collection of blood around his heart, is going to incapacitate him
                                                 6


       extremely rapidly, less than a minute, and within a few minutes he will be
       completely dead.

Within seconds of sustaining the fatal injury, according to Dr. Sterbenz, M.B. would have been

unable to converse or to carry out any directed activity.

       {¶12} Dr. Sterbenz also explained that two implications followed from the nature of

M.B.’s fatal wound. First, the fatal wound required “a forceful thrust” in order to push the entire

length of the knife between the intercostal space, through the chest wall, and into the heart.

“This injury,” according to Dr. Sterbenz, “represents a lot of force.” Along those lines, Dr.

Sterbenz also rejected the hypothetical explanation that the fatal wound could have been inflicted

by an assailant holding a knife in his right hand and stabbing over his left shoulder. Second, Dr.

Sterbenz testified that because the fatal wound expelled an extreme quantity of blood quickly,

the condition of the crime scene and the victim’s clothing provided significant clues about

M.B.’s physical position when the stabbing occurred. According to Dr. Sterbenz, bloodstains

that resulted from the injury would be determined by the position of the body and the force of

gravity:

       People that have penetrating injuries such as [M.B.] * * * who are actively
       moving around their environment, the room that they’re in, the scene, will bleed
       all over that scene, and they will have blood all over their body.

       They will have -- people that are standing up and bleeding will bleed downward
       across their body.

       They will bleed -- injuries to the chest will bleed downward onto your legs,
       downward onto your feet.

       And if they move to different parts of the room, there will be blood in all of those
       different parts of the room.

As Dr. Sterbenz noted, however, “[t]hat did not occur here” because “[t]he blood is

predominately located only where blood drained out of his body with gravity as he was lying

there in the room on that carpet.”
                                                 7


       {¶13} Other witnesses also testified that the condition of the crime scene in this case was

notable. The officers who responded testified that the blood found in the living room consisted

of a large, wet pool of blood underneath M.B.’s body, a towel stained with blood on the couch

immediately next to where the body was found, smears of blood on the couch itself, and

“droplets” of blood on some boxes found nearby. The photographs admitted at trial confirm this

description: they depict a room that is cluttered, but largely free of bloodstains. Detective Brian

Donato explained that the scene of a stabbing is usually “very messy” with “blood spray all

over” because an individual who has sustained a stab wound will ordinarily leave a trail of blood

wherever he goes. In contrast, Detective Donato noted that this scene stood out for its relative

cleanliness, explaining that the large concentration of blood in the room was found directly under

M.B.’s body. He also testified that blood drops found on some boxes near the location of the

body, for example, were likely to have come from the motion of the knife being pulled from

M.B.’s body; otherwise, M.B. would have lost more blood in the area around the boxes.

Detective Donato also noted that the crime scene did not bear any indication of the large-scale

cleanup effort that would have been required had M.B. left a trail of blood throughout the room.

       {¶14} Given the absence of blood throughout the living room and the fact that the

clothing on M.B.’s lower body was also relatively free of bloodstains, Dr. Sterbenz opined that

M.B. was stabbed in the location where the body was found. More specifically, Dr. Sterbenz

testified that M.B. could have been sitting on the couch or kneeling on the floor, but it is unlikely

that M.B. walked to the position near the couch where his body was found or was standing: “If

[M.B.] was upright, really for any significant amount of time after he was stabbed, he would

have blood dripping from this gaping stab wound to his chest and from his arms down onto the

legs of his pants, and there really isn’t any blood dripping down onto his pants.” He also noted
                                               8


that M.B. had another, less significant stab wound that passed through his right arm from the

outside, out the arm on the inside, and into M.B.’s chest near the armpit. Dr. Sterbenz explained

that the track of that wound indicated that M.B.’s arm was pressed up against his body at the

time the wound was inflicted. Dr. Sterbenz also noted that there was “a notable absence of * * *

defensive injuries” to M.B.’s body, an indication that M.B. may have been “overpowered * * *

quickly.”

       {¶15} Based on this evidence—and making all reasonable inferences in favor of the

State—the jury could reasonably conclude, beyond a reasonable doubt, that Mr. Hanford stabbed

M.B. while he was in a kneeling, sitting, or lying position in the immediate area where his body

fell with such concentrated force that the knife was buried to the hilt in M.B.’s chest,

compressing the chest cavity and penetrating the left ventricle of his heart and leading to his

death within minutes. In other words, the jury could have reasonably concluded beyond a

reasonable doubt that Mr. Hanford acted with the specific intention to cause M.B.’s death, as

required by R.C. 2903.02(A).

       {¶16} Mr. Hanford’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 2

       THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE AS THE DEFENSE PROVED THE
       AFFIRMATIVE DEFENSE OF SELF[-]DEFENSE BY A P[RE]PONDERANCE
       OF THE EVIDENCE[.]

       {¶17} In his second assignment of error, Mr. Hanford argues that his convictions are

against the manifest weight of the evidence because he proved that he acted in self-defense. This

Court does not agree.

       {¶18} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:
                                                  9


       review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id. at 340,

citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

       {¶19} Self-defense is an affirmative defense that must be proven by the accused by a

preponderance of the evidence. See State v. Martin, 21 Ohio St.3d 91 (1986), syllabus; former

R.C. 2901.05(A)/(D)(1).1 In order to establish self-defense, the defense must prove “(1) that the

defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant

had a bona fide belief that he was in imminent danger of death or great bodily harm and that his

only means of escape from such danger was in the use of such force; and (3) that the defendant

did not violate any duty to retreat or avoid the danger.” State v. Barnes, 94 Ohio St.3d 21, 24

(2002), citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus.

       {¶20} Mr. Hanford, who testified at trial, maintains that M.B. ingested drugs and alcohol

on the night of the incident and attacked him without provocation. Specifically, Mr. Hanford

testified that he and M.B. spent the afternoon and evening of September 30, 2017, which was

Mr. Hanford’s birthday, consuming beer and “hanging out” in their shared living room.

According to Mr. Hanford, the pair consumed a twelve-pack of beer and four to six twenty-four-

ounce cans of Steel Reserve between them. They ate no food other than candy bars. Mr.

Hanford acknowledged that he smoked some marijuana during the course of the evening, but




       1
        Significant substantive amendments to R.C. 2901.05 became effective on March 28,
2019. Those amendments are not at issue in this case.
                                                 10


denied that other drugs were involved.        He testified that he was aware that their living

arrangements would be changing soon, but that they did not argue about that fact. He also

denied that he expressed anger toward anyone else that evening. According to Mr. Hanford, he

fell asleep in a seated position on a loveseat at some point during the course of the night.

       {¶21} Mr. Hanford testified that at some point later, he awakened to find M.B.’s hand on

this throat. He explained that he pushed M.B. away, asked what he was doing, and started

walking down the hallway. According to Mr. Hanford, M.B. pursued him and grabbed him

around his neck. Mr. Hanford testified that he struggled to escape from M.B.’s grip, which

tightened around his throat, then reached for his pocket knife. He stated that he swiped behind

him, with the knife in his left hand, then transferred the knife to his right hand, swiped the knife

in M.B.’s direction over his left shoulder, then swiped again to the left under his arm. At that

point, according to Mr. Hanford, M.B. released him. Mr. Hanford testified that when he turned

to look at M.B., he noted that M.B. was holding his side. He testified that the following ensued:

       After we had separated, I had - - regained my balance, looked at him, he was
       holding his side, and I asked him, I said, “Are you all right?” And he shook his
       head no.

       I asked him, “Should I call 911?” He shook his head yes.

Mr. Hanford testified that he ran next door to a neighboring house to call 911, discarding the

pocketknife along the way. He explained that he remembered knocking on the neighbors’ front

door, but that he did not remember anything that happened after that point.

       {¶22} Lieutenant Scarl noted that Mr. Hanford’s version of the events on the night in

question developed over the course of his interview and that Mr. Hanford initially denied any

recollection of stabbing M.B. Once he admitted that he remembered the incident, he consistently

maintained that he stabbed M.B. over his left shoulder. During his testimony, Mr. Hanford
                                               11


acknowledged this discrepancy. He also admitted that he had never told police that he awakened

to find M.B.’s hand on his throat. Mr. Hanford’s testimony also contradicts other witnesses who

testified that on the evening of the stabbing, he was angry, aggressive, and upset that he and

M.B. were going to be evicted from their residence by M.B.’s family.

       {¶23} In support of his version of events, Mr. Hanford notes that Dr. Sterbenz testified

that M.B.’s postmortem toxicology tests demonstrated that his blood contained alcohol,

amphetamine, and methamphetamine. In his defense, Mr. Hanford also introduced the expert

testimony of Robert Belloto, a Ph.D. with expertise in clinical pharmacology and toxicology.

Dr. Belloto testified regarding the levels of alcohol, amphetamine, and methamphetamine

reflected in the postmortem toxicology results and, by performing a statistical analysis,

determined that it was likely that M.B. exhibited adverse effects from those substances prior to

his death, which he characterized as “a bad combination” of hallucination and lowered

inhibitions.

       {¶24} On cross-examination, however, Dr. Belloto acknowledged two things: first, that

his analysis did not factor in tolerance levels, which could make a significant difference in the

outcome; and second, that statistically speaking, it would be likely that any two men of similar

size (as were M.B. and Mr. Hanford) would exhibit similar behavior under the circumstances. In

this respect, it is significant that witnesses testified that Mr. Hanford had a marked history of

drug use and that police discovered burned aluminum foil on an accent table in the living room

that was shaped as though it had been formed into a homemade pipe for smoking drugs. Officer

James Swope also testified that six days after M.B.’s death, the individuals who were cleaning

out the residence found a box containing drug paraphernalia in the room that had been Mr.

Hanford’s bedroom.
                                                12


       {¶25} Mr. Hanford’s neighbors also described an encounter with him that happened at

approximately 2:00 a.m. on the date of M.B.’s death. At that time, the neighbor testified that she

heard a knock at the front door and opened it, believing that it might be a relative. She recalled

that Mr. Hanford wore a hoody over his head in a manner that concealed his features and

testified that he pulled open the screen door, pushed passed her, and entered the house. The

neighbor testified that Mr. Hanford “didn’t look like himself” and that “the whole situation was

very odd; and all I remember are his eyes, they were kind of, like, very open, very wide.” The

neighbor also noted Mr. Hanford’s strange behavior: he sat down on their living room floor and

removed his shoes; when she asked whether he knew that he was in their house, he apologized,

complimented their choice of furniture, and left. She recalled that Mr. Hanford was “very calm”

during most of the encounter and did not appear to be upset or frightened. He did not stumble or

slur his speech, and he spoke clearly. Her husband testified similarly, noting that Mr. Hanford’s

demeanor was unusual: “It was kind of like not there or not himself.” Mr. Hanford did not ask to

use their phone, nor did he accept the couple’s offer to call anyone on his behalf.

       {¶26} The physical evidence also contradicts Mr. Hanford’s version of the events. Dr.

Sterbenz testified that within seconds of sustaining the fatal wound, M.B. would have been

incapable of speech or any other directed action. He noted that the injury sustained by M.B.

results in almost instant incapacity marked by immediate collapse and agonal breathing. Dr.

Sterbenz also opined that a wound of this nature could not have been inflicted in the manner

described by Mr. Hanford. Both Dr. Sterbenz and Detective Donato testified that if M.B. had

been upright and moving about the room in the seconds following the stabbing, the result would

have been blood strewn about the crime scene rather than concentrated in the area immediately

underneath M.B.’s body. Instead, Dr. Sterbenz noted, it is far more likely that M.B. was sitting
                                                 13


or lying—or, at most, kneeling—near the position where his body came to rest at the time of the

stabbing: “[M.B.] was stabbed right where we are seeing him. * * * He died right there. He

bled right there.”

       {¶27} Having thoroughly reviewed the record, this Court cannot conclude that the jury

lost its way by determining that Mr. Hanford’s self-defense argument was without merit. His

second assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERR[]ED BY FAILING TO INSTRUCT THE JURY ON
       THE CRIME OF VOLUNTARY MANSLAUGHTER.

       {¶28} Mr. Hanford’s fourth assignment of error argues that the evidence at trial

supported a jury instruction regarding voluntary manslaughter. Mr. Hanford did not request a

voluntary manslaughter instruction at trial. For this reason, he has forfeited all but plain error in

this respect. See State v. Platt, 9th Dist. Wayne No. 18835, 1998 WL 887220, *2 (Dec. 16,

1998). Because “‘error * * * [is] the starting point for a plain-error inquiry,’” however, our

analysis is the same. State v. Doss, 9th Dist. Wayne No. 18AP0027, 2019-Ohio-436, ¶ 4,

quoting State v. Hill, 92 Ohio St.3d 191, 200 (2001); Crim.R. 52(B).

       {¶29} A trial court must instruct the jury on lesser included offenses when “the evidence

presented at trial would reasonably support both an acquittal on the crime charged and a

conviction upon the lesser included offense.” State v. Thomas, 40 Ohio St.3d 213 (1988),

paragraph two of the syllabus. Because the elements of voluntary manslaughter correspond to

the elements of murder with the exception of one or more mitigating elements, it is an inferior

degree of murder rather than a lesser included offense. State v. Shane, 63 Ohio St.3d 630, 632

(1992), quoting State v. Tyler, 50 Ohio St.3d 24, 36 (1990), quoting State v. Deem, 40 Ohio St.3d

205, 209 (1988) and. Nonetheless, the same test is applied, and a defendant is entitled to a jury
                                               14


instruction on an offense of inferior degree when “the evidence presented at trial would

reasonably support both an acquittal on the charged crime of murder and a conviction for

voluntary manslaughter.” Shane at 632. The test is not merely whether a defendant produced

“some evidence” that the elements of voluntary manslaughter are present, but whether “sufficient

evidence is presented which would allow a jury to reasonably reject the greater offense and find

the defendant guilty” of an inferior-degree offense. (Emphasis in original.) Id. at 632-633. In

reaching this determination, this Court must consider the evidence in the light most favorable to

the defendant. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 192, citing State v.

Campbell, 69 Ohio St.3d 38, 47-48 (1994).

       {¶30} R.C. 2903.03(A), which prohibits voluntary manslaughter, provides that “[n]o

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 * * * .”       The

offense of voluntary manslaughter requires an objective consideration of whether the

provocation at issue is sufficient to arouse an ordinary person’s passions beyond the power of his

or her control. Shane at 634-635. If the provocation rises to that standard, a subjective inquiry

into “the ‘* * * emotional and mental state of the defendant and the conditions and circumstances

that surrounded him at the time’” is required. Id., quoting Deem at paragraph five of the

syllabus. To warrant a voluntary manslaughter instruction, the defendant must demonstrate that

there is sufficient evidence going to both the objective and subjective elements. See Shane at

634.

       {¶31} In this case, Mr. Hanford cannot demonstrate that the trial court erred by failing to

give a voluntary manslaughter instruction because there is not sufficient evidence that the
                                                15


subjective element of R.C. 2903.03(A) is present. “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 (1998). See also State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751,

¶ 157; State v. Ivery, 9th Dist. Summit No. 28551, 2018-Ohio-2177, ¶ 13-14; State v. Thomas,

9th Dist. Summit No. 27266, 2015-Ohio-2935, ¶ 29. When a defendant testifies that he caused

the death of another because he feared for his own safety, that testimony is relevant to a claim of

self-defense, but does not demonstrate the provocation necessary to establish the elements of

voluntary manslaughter. See Platt, 1998 WL 887220, at *2.

       {¶32} Mr. Hanford testified that he stabbed M.B. because he was afraid:

       Q:      At that exact moment, how did you feel?

       A:      That he was trying to hurt me.

       Q:      Were you afraid?

       A:      Yes, I was.

       ***

       Q:     So, you retrieved the knife, and then you had indicated you made some
       stabbing motions?

       A:      Yes.

       Q:      And why did you do that?

       A:      I was trying to get [M.B.] off of me.

       Q:      Because?

       A:      Because he was choking me. I was in fear for my life.

Mr. Hanford’s only explanation for his actions was that he was motivated by fear. He did not

offer any evidence suggesting that his mental state demonstrated the provocation required under

R.C. 2903.03(A). Even when his testimony is viewed in the light most favorable to him, his fear

alone is insufficient to establish the provocation element of voluntary manslaughter.          See
                                                16


Thompson at ¶ 157; Mack at 201; Ivery at ¶ 13-14; Thomas at ¶ 29. Without demonstrating that

the elements of voluntary manslaughter were met, Mr. Hanford cannot, in turn, demonstrate that

the trial court erred by failing to instruct the jury on voluntary manslaughter as a lesser-degree

offense. See Shane, 63 Ohio St.3d at 632. In the absence of error, there can be no plain error.

See Hill, 92 Ohio St.3d at 200.

       {¶33} Mr. Hanford’s fourth assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 3

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL[.]

       {¶34} In his third assignment of error, Mr. Hanford has argued that his conviction

should be reversed because trial counsel rendered ineffective assistance. Specifically, he has

argued that trial counsel failed to request a jury instruction for voluntary manslaughter, failed to

retain the services of an expert regarding Mr. Hanford’s mental state during and after the murder,

and failed to introduce Mr. Hanford’s interview with Lieutenant Scarl to rehabilitate him

following cross-examination. This Court disagrees.

       {¶35} In order to demonstrate ineffective assistance of counsel, a defendant most show

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,

466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for

counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been

different. Id. at 694. “A defendant’s failure to satisfy one prong of the Strickland test negates a

court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing

Strickland at 697.    In applying this test, “a court must indulge a strong presumption that
                                                17


counsel’s conduct falls within the wide range of reasonable professional assistance[.]”

Strickland at 689.

       {¶36} With respect to Mr. Hanford’s argument that trial counsel should have requested a

jury instruction on the lesser-degree offense of voluntary manslaughter, that instruction was not

warranted in this case, as discussed above. In other words, counsel’s performance was not

deficient, and it follows that it was not ineffective. See State v. McDowell, 9th Dist. Summit No.

26697, 2014-Ohio-3900, ¶ 18, citing State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-

6604, ¶ 14.

       {¶37} Mr. Hanford also cannot establish ineffective assistance of counsel based on trial

counsel’s decisions not to retain the services of an expert witness or to introduce the video

recording of Mr. Hanford’s interview with Lieutenant Scarl. Trial counsel’s decision not to call

an expert witness will not, as a general rule, establish ineffective assistance. State v. Conway,

109 Ohio St.3d 412, 2006-Ohio-2815, ¶118. In addition, when the trial record is silent regarding

the substance of a potential expert’s testimony, establishing prejudice under Strickland requires

proof outside of the record, and “[the] claim is not appropriately considered on direct appeal.”

Madrigal at 390-391. See also State v. Moffett, 9th Dist. Summit No. 28001, 2016-Ohio-5314, ¶

10. In this case, the record is silent regarding what testimony an expert may have offered about

Mr. Hanford’s mental state before and after the murder, so any arguments related to prejudice

that could have resulted from counsel’s decision are purely speculative. See Conway at ¶ 118.

Mr. Hanford’s third argument fails for a similar reason. Trial counsel attempted to introduce the

video recording of the interview during cross-examination of Lieutenant Scarl, but counsel did

not proffer the video at any time. Because the video is not in the record, this claim of ineffective

assistance is not properly considered on direct appeal. See Madrigal at 390-391.
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       {¶38} Mr. Hanford has also argued that even if this Court finds that his three alleged

instances of ineffective assistance do not warrant reversal on their own, their cumulative effect

requires it. As explained above, there was no deficiency in counsel’s performance with respect

to Mr. Hanford’s first argument, and his second and third arguments rely on evidence not

contained within the record. Under these circumstances, we cannot find that cumulative error

exists. See State v. Jones, 10th Dist. Franklin Nos. 18AP-33, 18AP-34, 2019-Ohio-2134, ¶ 76.

       {¶39} Mr. Hanford’s third assignment of error is overruled.

                                                III.

       {¶40} Mr. Hanford’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.




                                              LYNNE S. CALLAHAN
                                              FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
