[Cite as State v. Stanley, 2016-Ohio-7284.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                  )    CASE NO. 14 MA 0106
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )    OPINION
                                               )
LAVELLE A. STANLEY                             )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 13 CR 1229

JUDGMENT:                                           Affirmed in part. Sentence Vacated.
                                                    Remanded in part.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Atty. Louis M. DeFabio
                                                    4822 Market Street, Suite 220
                                                    Youngstown, Ohio 44512


JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                    Dated: October 5, 2016
[Cite as State v. Stanley, 2016-Ohio-7284.]
WAITE, J.


        {¶1}     Appellant Lavelle A. Stanley appeals his July 11, 2014 Mahoning

County Common Pleas Court convictions and sentencing for aggravated murder and

attempted murder with specifications.              Appellant argues that the trial court

erroneously refused to instruct the jury on voluntary manslaughter.           Additionally,

Appellant argues that his convictions are against the sufficiency and the manifest

weight of the evidence. Appellant also argues that the trial court failed to consider

mitigating evidence when determining his sentence.              For the reasons provided,

Appellant’s arguments are without merit and the judgment of the trial court is

affirmed.      However, we remand Appellant’s sentence to the trial court with

instructions to consider the consecutive sentencing factors.

                                   Factual and Procedural History

        {¶2}     There are two victims in this case. The two were brothers. Derek

Stewart (“Derek”) was the older brother who had been living out-of-state while

pursuing a semi-professional football career. The younger brother, Elliott Stewart

(“Elliott”) lived in Youngstown and operated with his mother the family business,

Breeze Car Wax (“car wash”), and acted as business manager. Elliott was killed in

the incident and Derek was shot. The incident occurred at the car wash, which is

located at the corner of Southern Boulevard and Judson Street in Youngstown, Ohio.

        {¶3}     On November 15, 2013, the victims were both working at the car wash

and were preparing to close for the night. The victims, along with several employees,

heard people fighting outside the business.              Both brothers went outside and
                                                                                       -2-

observed two girls arguing.     Elliott ordered the girls to stop fighting.     When the

arguing did not stop, Elliott ordered everyone around the building to leave.

        {¶4}   Appellant was standing outside the building by his truck. After Elliott

ordered everyone to leave, Appellant replied “who is you talking to? Don’t be talking

to me like that.” (sic) (Tr. Vol. II, p. 244.) Elliott responded by asking Appellant if he

wanted to fight. Appellant clutched his hip and replied “[n]ah. * * * I’m gonna heat

your ass.” (Tr. Vol. II, p. 247.) The expression is slang for “I’m going to shoot you.”

Elliott wrote down Appellant’s license plate number and then left in his car.

        {¶5}   Derek attempted to diffuse the situation by talking to Appellant. He told

Appellant that his brother’s comments were not personal and were not directed at

Appellant. Appellant got into his car and as he turned around in a driveway, shouted

“y’all don’t know who y’all messing with, man.”          (Tr. Vol. II, p. 251.)    Derek

approached Appellant’s truck when it stopped at the stop sign across the street.

Appellant rolled down his window and spoke with Derek. Appellant stated “I just got

out of jail, you can’t be talking to me like that, I’m not just anybody.” (Tr. Vol. II, p.

278.)   Derek again explained that his brother’s comments were not directed at

Appellant and that he was asking everyone to leave because of the argument

between the girls.     Appellant responded “my bad” and indicated that it was a

misunderstanding. (Tr. Vol. II, p. 251.) Derek and Appellant’s friends, who were

nearby, repeatedly asked Appellant to leave.

        {¶6}   While the witnesses agree to the facts up to this point, witneses stories

begin to diverge. According to several witnesses including Derek, Elliott returned in
                                                                                      -3-

his car and parked on the street. As Elliott got out of the car, he had a gun in his

right hand. Before Elliott could get completely out of the car, Appellant fired five to

nine shots. Three of the bullets struck Elliott, one bullet struck Derek, and at least

one bullet struck Elliott’s car. According to the witnesses, Appellant fired the shots as

he drove his car around the corner and kept firing until his car disappeared.

According to Appellant, Elliott got out of the car and pointed his gun at Appellant.

Appellant testified that he reached for his gun and fired, as he feared that Elliott

would shoot him. Appellant disputed witness testimony that he fired his gun as he

drove off. Appellant claimed that he jumped when he saw Elliott’s gun and his foot

came off of the brake pedal and caused the car to coast.

       {¶7}   According to the coroner, Elliott suffered three gunshot wounds. The

first wound was on his right shoulder and was non-lethal. A second shot struck him

in the mouth. The third shot hit him in the left shoulder and traveled downward

through his body and struck several major organs. The coroner testified that this

injury was likely fatal. Derek was also shot, but he was released from the hospital

after two days.

       {¶8}   Almost immediately after the shooting, the police began circulating

wanted posters with Appellant’s picture. Appellant concedes that he knew the police

were searching for him, but explained that he planned to turn himself in after

collecting money from family members to pay for an attorney.           However, before

Appellant turned himself in, the police located him. The police surrounded the house
                                                                                     -4-

he had been staying at and, after an hour, were able to get Appellant out of the

house and arrest him.

       {¶9}   Appellant was charged with one count of aggravated murder, an

unclassified felony in violation of R.C. 2903.01; one count of attempted murder, a

felony of the first degree in violation of R.C. 2923.02; one count of felonious assault,

a felony of the second degree in violation of R.C. 2903.11; and one count of having a

weapon while under a disability, a felony of the third degree in violation of R.C.

2923.13. Both a three- and five-year firearm specification were attached to all counts

except for the charge regarding possession of a weapon under a disability. Appellant

waived his right to a jury trial on this charge.

       {¶10} A jury trial on the aggravated murder, attempted murder, and felonious

assault charges commenced on June 24, 2014. At trial, Appellant admitted he shot

both Elliott and Derek, but claimed that he did so in self-defense. Before the jury

instructions were read, both Appellant and the state discussed the instructions in

chambers. Appellant initially requested only a self-defense instruction, which the

state opposed, but later added a request for a voluntary manslaughter instruction.

While the state believed that a voluntary manslaughter charge was more appropriate

than a self-defense instruction, it argued that it would be inappropriate to give both

instructions as they regard conflicting theories. The trial court agreed to instruct the

jury on self-defense but declined to provide a voluntary manslaughter instruction,

deciding that the facts did not support a voluntary manslaughter instruction and
                                                                                   -5-

would only serve to confuse the jury. On June 24, 2014, the jury returned a verdict of

guilty on all counts and specifications.

       {¶11} On June 26, 2014, a sentencing hearing was held. The state noted that

Appellant could not be sentenced on both the firearm specifications and the charge

of possessing a weapon under a disability. Consequently, the disability charge was

dismissed and the bench trial scheduled for that matter was cancelled. The trial court

instructed the state, as required, to choose between the attempted murder and

felonious assault charges; the state elected to proceed on the former.

       {¶12} Appellant was sentenced to life imprisonment without the possibility of

parole on the murder conviction. On the attempted murder charge, Appellant was

sentenced to eleven years, to run consecutively with the sentence for aggravated

murder. Appellant was additionally sentenced on the firearm specifications. The

five-year specification for aggravated murder merged with the five-year specification

for attempted murder. The three-year specification for aggravated murder and the

three-year specification for the attempted murder also merged. However, the five-

and three-year specifications did not merge and were ordered to run consecutive to

one another and consecutively with the aggravated murder and attempted murder

sentences. This timely appeal followed.

                               First Assignment of Error

       The Appellant's trial counsel properly requested that the trial court

       instruct the jury on the lesser-degree-offense of Voluntary Manslaughter

       as there was evidence of reasonably sufficient provocation adduced at
                                                                                     -6-

      trial and, under any reasonable view of the evidence, it was possible for

      the jury to find the Appellant not guilty of Aggravated Murder or Murder

      but guilty of Voluntary Manslaughter. The trial court erred in refusing to

      charge the jury on the offense of Voluntary Manslaughter and,

      therefore, Appellant's convictions must be reversed.

      {¶13} A “criminal defendant is entitled to have the trial court give complete

and accurate jury instructions on all the issues raised by the evidence.” State v.

Sneed, 63 Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992), citing State v. Williford, 49 Ohio

St.3d 247, 251 N.E.2d 1279 (1990). Generally, “[w]hen reviewing a trial court's jury

instructions, the proper standard of review whether the trial court's refusal to give a

requested jury instruction constituted an abuse of discretion under the facts and

circumstances of the case.” State v. Everson, 7th Dist. No. 12 MA 128, 2016-Ohio-

87, ¶ 58, citing State v. DeMastry, 155 Ohio App.3d 110, 2003-Ohio-5588, 799

N.E.2d 229 ¶ 72 (7th Dist.). An abuse of discretion can only be found if the court's

attitude is unreasonable, arbitrary or unconscionable. Id., citing State v. Adams, 62

Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). However, “[o]n appeal, a party may not

assign as error the giving or the failure to give any instructions unless the party

objects before the jury retires to consider its verdict, stating specifically the matter

objected to and the grounds of the objection.” State v. Wamsley, 7th Dist. No. 05 CO

11, 2009-Ohio-1858, ¶ 26, citing Crim.R. 30.

      {¶14} Appellant contends that the trial court erroneously refused to instruct

the jury on voluntary manslaughter despite a request from both Appellant and the
                                                                                       -7-

state.    Appellant asserts that a trial court must instruct the jury on voluntary

manslaughter if the evidence at trial reasonably supports acquittal on a murder

charge and conviction on a manslaughter charge.                 Appellant argues that the

evidence here supported a finding of provocation, which would support both acquittal

on the murder charge and conviction of a voluntary manslaughter charge.

         {¶15} In support of his argument, Appellant highlights testimony showing that

less than five minutes had elapsed from the start of the confrontation to the shooting.

Appellant also cites testimony demonstrating that Elliott initiated the violence by

suggesting that he wanted to fight Appellant.            In what he describes as an

“emotionally charged atmosphere,” Appellant argues that Elliott’s threats and the

short period of time involved are evidence of provocation, sudden fit of passion, and

lack of a cooling off period.      (Appellant’s Brf., p. 15.)    Based on this evidence,

Appellant explains that the jury could reasonably have rejected his self-defense

argument but found that the shooting was the result of sufficient provocation and

ensuing rage. Based on this argument, Appellant seeks a new trial.

         {¶16} Noting that the trial court has discretion as to whether a jury instruction

should be given, the state responds by arguing that a defendant is entitled to an

instruction of a lesser-included offense only when sufficient evidence would allow a

jury to reject the more serious offense and find the defendant guilty of the lesser-

included offense. This test, according to the state, requires more than just “some

evidence.” (Appellee’s Brf., p. 8.) The state argues that Appellant never testified that

he acted under sudden passion or rage. Rather, he testified that he feared for his
                                                                                    -8-

life. The state argues that this testimony supports self-defense but not voluntary

manslaughter. Regardless, the state argues that the theories of self-defense and

manslaughter are incompatible and would only serve to confuse the jury.

      {¶17} Although not raised by the parties, Appellant failed to object to the trial

court’s ruling regarding the voluntary manslaughter instruction. As such, Appellant is

limited to a plain error review. A three-part test is employed to determine whether

plain error exists. State v. Parker, 7th Dist. No. 13 MA 161, 2015-Ohio-4101, ¶ 25,

citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “First, there

must be an error, i.e. a deviation from a legal rule. Second, the error must be plain.

To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious'

defect in the trial proceedings.   Third, the error must have affected ‘substantial

rights.’ ” Parker at ¶ 12, citing State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5,

2013-Ohio-5774, ¶ 21.

      {¶18} The Ohio Supreme Court has stated that “the test for whether a judge

should give a jury an instruction on voluntary manslaughter when a defendant is

charged with murder is the same test to be applied as when an instruction on a lesser

included offense is sought.” State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272

(1992).   “Thus, a defendant charged with murder is entitled to an instruction on

voluntary manslaughter when the evidence presented at trial would reasonably

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

voluntary manslaughter.” Id. citing State v. Tyler, 50 Ohio St.3d 24, 37, 553 N.E.2d

576 (1990).
                                                                                    -9-

       {¶19} The Court noted that:

       Past decisions of this court have sometimes given the erroneous

       impression that, whenever there is “some evidence” that a defendant in

       a murder prosecution may have acted in such a way as to satisfy the

       requirements of the voluntary manslaughter statute, an instruction on

       the inferior-degree offense of voluntary manslaughter must be given.

Id. at 632.

       {¶20} The Court clarified that:

       The “some evidence” referred to in those cases is simply an

       abbreviated way of saying that a jury instruction must be given on a

       lesser included (or inferior-degree) offense when sufficient evidence is

       presented which would allow a jury to reasonably reject the greater

       offense and find the defendant guilty on a lesser included (or inferior-

       degree) offense. (Emphasis sic.)

Id. at 632-633.

       {¶21} The elements for voluntary manslaughter are found within R.C.

2903.03(A), which states 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.”

       {¶22} While the state correctly points out that an instruction on voluntary

manslaughter is generally incompatible with and contradictory to self-defense, there
                                                                                      -10-

is no blanket rule holding the two theories inconsistent or contradictory. State v.

Williams, 7th Dist. No. 11 JE 7, 2012-Ohio-5256, ¶ 24. See also State v. Perdue,

153 Ohio App.3d 213, 2003-Ohio-3481, 792 N.E.2d 747 (7th Dist.) (Waite, J.,

dissenting) (disagreeing with the majority’s reversal of the judgment of the trial court

based on the belief that the record contained sufficient evidence to support the

elements of voluntary manslaughter). Thus, the issue here is whether Appellant

presented sufficient evidence at trial to support the elements of voluntary

manslaughter.

         {¶23} As earlier discussed, in order to be entitled to a voluntary manslaughter

instruction, Appellant was required to establish that sufficient evidence was

presented to show that he acted under the influence of sudden passion or a fit of

rage and that passion or rage was brought on by sufficient provocation. This record

is devoid of any evidence which would show that Appellant acted pursuant to a

sudden passion and sufficient provocation. At trial, Appellant testified that after Elliott

left in his car, he and Derek explained their point of view and then “everything was

cool.”

         {¶24} “A lapse of time, i.e., a cooling off period, between the circumstances

causing the defendant to be enraged and the commission of the crime renders the

‘sudden passion’ element of voluntary manslaughter insufficient as a matter of law.”

State v. Shakoor, 7th Dist. No. 01 CA 121, 2003-Ohio-5140, ¶103. In Ohio, caselaw

has held that a cooling off period can occur within a short period of time. See State

v. Townsend, 7th Dist. No. 04 MA 110, 2005-Ohio-6945 (the time it takes for a
                                                                                  -11-

person to drive home and retrieve a weapon constitutes a sufficient cooling off

period); State v. Byerly, 5th Dist. No. 02-C81, 2003-Ohio-7911 (the time it takes for a

person to walk one-half mile home is enough for a cooling off period); Shakoor, supra

(the time it takes a person to reload or readjust a weapon is a sufficient cooling off

period).

       {¶25} Here, in addition to Appellant’s admission that “everything was cool”

after Elliott drove off, there is evidence that sufficient time passed to constitute a

cooling off period.   According to the record, Elliott left in his car and returned

approximately 3-5 minutes later. According to Ohio law, the time it took for Elliott to

leave in his car, apparently obtain his gun, and then return to the business was a

sufficient cooling off period.   Consequently, in order to find provocation, here,

Appellant would have to show that some further exchange occurred after Elliott

returned. Although Appellant argues that Elliott’s return with a gun qualifies as such

an exchange, it does not. At best, it may provide evidence of self-defense.

       {¶26} A sudden passion or fit of rage that rises to the requisite level of

voluntary manslaughter is “akin to anger, hatred, jealousy, and/or furious

resentment.”   State v. Harris, 129 Ohio App.3d 527, 535, 718 N.E.2d 488 (10th

Dist.1998), citing Black’s Law Dictionary (6th Ed.1990). Appellant argues that the

evidence shows that he acted pursuant to a sudden fit of rage due to the emotions

caused by the incident.

       {¶27} However, Appellant’s testimony was that he shot the victims out of fear,

not anger. At trial, Appellant claimed that he drew his weapon because he feared for
                                                                                    -12-

his life. He testified that he fired his weapon based on that same fear. “Q [The State]

You intentionally did this, right? A [Appellant] Because I feared for my life.” (Tr. Vol.

III, p. 580.) When asked what went through his head as Elliott allegedly raised the

gun, Appellant said “[t]hat he was going to try to kill me and that was my only way

out. I fired.” (Tr. Vol. III., p. 549.)

       {¶28} Several Ohio Courts have addressed similar arguments. In one case,

the defendant approached the victim, who was selling drugs in front of the

defendant’s grandmother’s house, and asked him to move down the street. State v.

Thomas, 9th Dist. No. 27266, 2015-Ohio-2935, ¶ 2.            The victim responded by

threatening to fight the defendant. The defendant accepted the fight and, at one

point, the defendant attempted to punch the victim but missed. The victim then

pulled out a gun which the defendant knocked to the ground. The defendant gained

control over the gun and shot the victim. At trial, the defendant explained that he

fired the gun out of fear that the victim would take the gun from him and kill him. Id.

at ¶ 25. He requested both a self-defense and voluntary manslaughter instruction.

The court agreed to provide a self-defense instruction but declined to provide a

voluntary manslaughter instruction based on the defendant’s testimony that he shot

out of fear, not because of provocation from the fight. Id. at ¶ 25. Thus, the Court

held that the evidence supported a self-defense instruction but not voluntary

manslaughter.

       {¶29} In another case, the victim allegedly threatened the defendant with a

baseball bat. State v. Platt, 9th Dist. No. 18835, 1998 WL 887220, *1 (Dec. 16,
                                                                                   -13-

1998). At trial, the defendant testified that he shot the victim because he feared for

his life. Id. at 2. The trial court rejected the defendant’s request for a voluntary

manslaughter instruction based on his testimony that he shot the victim out of fear

rather than anger or passion. The Ninth District affirmed the trial court’s ruling and

held that the testimony produced at trial was only relevant to self-defense.

      {¶30} In a third case, the defendant testified that he and the victim argued and

the victim reached for his gun. State v. Perry, 11th Dist. No. 94-T-5165, 1997 WL

590789, *2 (Aug 19, 1998). The defendant testified that he attacked and beat the

victim to death because he was afraid that she would shoot him. The defendant

requested a voluntary manslaughter instruction, which the trial court denied. The

Eleventh District upheld the trial court’s decision after finding that the defendant’s

testimony suggested self-defense, not voluntary manslaughter.

      {¶31} This Court has previously acknowledged that “[f]ear is insufficient to

demonstrate the emotional states of sudden passion or a fit of rage, and these latter

emotional states are essential elements of the definition of voluntary manslaughter.”

State v. Williams, 7th Dist. No. 11 JE 7, 2012-Ohio-5256, ¶ 24.

      {¶32} Appellant testified that he shot the victim because he feared that the

victim would shoot and kill him. Consistent with the above-cited caselaw and based

on Appellant’s testimony, he failed to establish that the evidence showed he acted

pursuant to an emotional state of sudden passion or fit of rage.           Instead, his

testimony reflects self-defense. As such, the trial court correctly determined that
                                                                                 -14-

Appellant was not entitled to a voluntary manslaughter instruction. Appellant’s first

assignment of error is without merit and is overruled.

                             Second Assignment of Error

       The jury's verdict of Guilty as to the Aggravated Murder charge was not

       supported by sufficient evidence and was against the manifest weight of

       the evidence.

       {¶33} Appellant raises both manifest weight and sufficiency of the evidence

arguments within his second assignment. Specifically, Appellant contests the jury’s

finding that he acted with “prior calculation and design.”     Appellant argues that

instantaneous deliberation, alone, is insufficient to support a finding of prior

calculation and design. As such, Appellant reasserts his previous argument that the

evidence supports a finding of voluntary manslaughter, not murder. Appellant further

contends that the jury’s decision was based on emotions rather than the facts,

because of the state’s portrayal of Appellant as a violent thug and the victim as a

good and decent person.

       {¶34} In response, the state points to Appellant’s admission that he clutched

his hip to indicate that he had a gun during the incident, which escalated the

situation.   The state also cites to testimony that Appellant made several threats

during the encounter.     In addition to the threats, the state urges that Appellant

continued to fire his gun as he drove away. According to witness testimony, the

victim never pointed his gun at Appellant. In fact, the state argues that the evidence

shows that Elliott was shot before he was able to fully exit his car. Based on this
                                                                                     -15-

evidence, the state contends that there was sufficient evidence to support a finding of

prior calculation and design.

       {¶35} In relevant part, Crim.R. 29(A) states that “[t]he court on motion of a

defendant or on its own motion, after the evidence on either side is closed, shall

order the entry of a judgment of acquittal of one or more offenses charged in the

indictment, information, or complaint, if the evidence is insufficient to sustain a

conviction of such offense or offenses.”

       {¶36} “Sufficiency is a term of art meaning that legal standard which is applied

to determine whether a case may go to the jury or whether evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Draper, 7th Dist. No.

07 JE 45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124

N.E.2d 148 (1955).      A reviewing court does not determine “whether the state's

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Rucci, 7th Dist. No. 13 MA 34, 2015-Ohio-1882,

¶ 14, citing State v. Merritt, 7th Dist. No. 09-JE-26, 2011-Ohio-1468, ¶ 34.

       {¶37} In contrast, Article IV, Section 3(B)(3) of the Ohio Constitution

authorizes appellate courts to assess the weight of the evidence. Draper, supra, at ¶

25. When a manifest weight argument has been presented, “[t]he court, reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the
                                                                                  -16-

conviction must be reversed and a new trial ordered.” Id. at ¶ 26, citing State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶38} Unlike sufficiency, where we determine on review whether some

evidence was presented on all elements of the crime, a manifest weight of the

evidence review determines whether the evidence is persuasive or believable. State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “Weight is not a

question of mathematics, but depends on its effect in inducing belief.” (Emphasis

deleted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517,

¶ 12, citing Thompkins, supra, at 387, 678 N.E.2d 541.

       {¶39} If a court of appeals disagrees with a jury’s decision and reverses a

verdict, the court acts as a thirteenth juror. Id. at 387, citing Tibbs v. Florida, 457

U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).         Accordingly, an appellate

court's “discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.”

Draper, supra, at ¶ 29. In order to reverse a jury verdict under manifest weight of the

evidence, three appellate judges must concur. Id., citing Thompkins at 389.

       {¶40} The elements for aggravated murder are found within R.C. 2903.01(A),

which states that “[n]o person shall purposely, and with prior calculation and design,

cause the death of another.” Here, Appellant disputes the jury’s finding that he acted

with prior calculation and design.

       {¶41} Several witnesses testified about the events that led up to the shooting.

The first witness to testify was Derek.     Derek testified that his brother ordered
                                                                                      -17-

bystanders outside the building to leave after the girls began to argue. He testified

that Appellant responded by yelling “[w]ho is you talking to? Don’t be talking to me

like that.” (Tr. Vol. II, p. 246.) His brother then asked Appellant if he wanted to fight

and began to take off his jacket. Appellant responded by stating “[n]ah. * * * I’m

gonna heat your ass” as he reached for his hip. (Tr. Vol. II, p. 247.) According to

Derek, the expression is slang for “I’m going to shoot you.” Shortly thereafter, Elliott

typed Appellant’s license plate number into his phone, took his car keys, and left.

       {¶42} Derek explained that he attempted to diffuse the situation by talking to

Appellant. Despite his efforts, Derek testified that Appellant got into his car and

stated “[y]’all don’t know who y’all messing with, man.” (Tr. Vol. II, p. 251.) Appellant

then turned around in a driveway and stopped at a stop sign just across the street.

Derek approached Appellant’s truck and explained that his brother’s comments were

directed at the girls who were arguing, not him. Appellant indicated that it was a

misunderstanding and responded “my bad.” Derek testified that he and several of

Appellant’s friends repeatedly urged Appellant to leave. According to Derek, Elliott

then drove up. A gun was visible in his right hand as he attempted to exit his car.

Appellant fired his gun in Elliott’s direction before he could completely exit the car.

       {¶43} Two employees of the car wash and a third witness, who was the

teenage son of one of the witnesses, confirmed Derek’s testimony. One witness

additionally testified that when Appellant “was shooting, he started driving away and

turned the corner and was still shooting.” (Tr. Vol. III, p. 308.)
                                                                                     -18-

       {¶44} Officer Mark Gillette of the Youngstown Police Department FBI Violent

Crimes Task Force testified about Appellant’s arrest. According to Officer Gillette,

the police posted wanted posters around the area seeking Appellant. He first made

contact with Appellant on December 2, 2013, and Appellant told him that he would

turn himself in once he obtained money to hire an attorney. On December 16, 2013,

Officer Gillette and several other officers located Appellant at a house and

surrounded the building. After one hour, the officers were able to coax Appellant out

of the house and arrest him.

       {¶45} Dr. Joseph Ohr, the coroner, testified that the fatal bullet entered

through Elliott’s shoulder and traveled downward through his body. Although Dr. Ohr

could not testify with certainty that the downward path of the bullet confirmed witness

testimony that Elliott was still in the process of getting out of his car when he was

shot, Dr. Ohr stated that it was a possibility.

       {¶46} The final relevant witness was Appellant. Appellant agreed with the

witnesses’ testimony up to the point that Elliott left in his car. According to Appellant,

after Elliott left, Appellant saw his uncle pull up in his new car. A person unrelated to

the incident took the car for a drive and Appellant testified that he waited with his

uncle until the car was returned. Once the car was returned, Appellant said that he

got into his truck, turned around in a driveway and pulled behind his uncle’s car at the

stop sign. According to Appellant, Derek approached his car and after the two men

spoke, “everything was cool.” Shortly thereafter, he saw Elliott’s car speeding around

the corner.
                                                                                     -19-

       {¶47} Appellant testified that Elliott drove past him and parked on the other

side of the street. He noticed that Derek looked over his shoulder in the direction of

Elliott’s parked car. This prompted Appellant to lean out of the window and look at

Elliott’s car. Appellant saw Elliott point a gun at him. Fearing that Elliott was going to

shoot and kill him, Appellant testified that he reached for his gun, which was at his

hip, and fired approximately five times in the general direction of Elliott. He explained

that right before he fired his foot came off of the brake pedal and the car coasted a bit

until he was able to get his gun and gain control over the car, then he fired his

weapon, ducked, and drove off.

       {¶48} During his testimony, Appellant agreed that the outcome of the case

turned on whether the jury accepted his version of the facts or the witnesses’ version.

Based on the cumulative evidence presented by the witnesses, there is ample

evidence to support the jury’s finding that Appellant acted with prior calculation and

design. Importantly, each of the witnesses, except for Appellant, testified that Elliott

had not fully exited his car and had not raised his weapon when Appellant fired his

gun.   Additionally, although the coroner could not testify with certainty that the

downward direction the bullet traveled conclusively meant that Elliott was in the

process of exiting the car when he was shot, it was possible. This suggests that

Elliott was shot before he posed a threat. Thus, a jury could reasonably conclude

that Appellant did not fire his gun out of self-defense but shot the victim purposefully.

       {¶49} Appellant also conceded that he made several threats to the victim,

including reaching for the gun at his hip while the two men argued. There was
                                                                                       -20-

testimony that Appellant waited at the business for Elliott to return despite being

urged to leave several times by both his friends and Derek. Although Appellant

claims that he was waiting for his uncle’s car to return, his uncle did not testify and no

other witness corroborated this testimony.

       {¶50} Appellant testified that he saw Elliott raise his gun and that Appellant

then reached for his gun, which was at his hip. Appellant explained that Elliott was

behind him, so he had to reach and lean out of his window to fire at him. As the state

pointed out, Appellant was in his car. Instead of simply speeding away from the

scene, Appellant took the time to reach for his gun and lean out of his car window

and fire his gun. It is important to note that Elliott did not at any time fire a gun during

the incident and each witness testified that Elliott never raised his gun. Finally, there

is witness testimony that Appellant fired his gun as he drove around the corner and

continued to fire until he disappeared.

       {¶51} As Appellant’s version of the events leading up to the shooting

admittedly conflicted with the testimony of all four witnesses, the issue is one of

credibility. It is apparent from the jury’s verdict that it found the witnesses to be more

credible than Appellant.      The witnesses’ facts were consistent and tended to

corroborate each other’s testimony. There is nothing within the record to discredit

any of the witnesses. As such, the jury’s finding is not against either the sufficiency

or the weight of the evidence. Accordingly, Appellant’s second assignment of error is

without merit and is overruled.

                                Third Assignment of Error
                                                                                 -21-

       The trial court erred and abused its discretion in failing to consider

       statutory sentencing criteria and by sentencing Appellant to a term of

       imprisonment of life without parole eligibility.

       {¶52} Appellant contends that the trial court failed to consider mitigating

evidence that he acted under strong provocation when determining his sentence.

Appellant notes that while life imprisonment was mandatory, the trial court had

discretion as to whether he would be eligible for parole. Despite the trial court’s

acknowledgment that “there was testimony that justified [a self-defense] instruction,”

he was sentenced to life imprisonment without the possibility of parole simply

because a death occurred. (Appellee’s Brf., p. 33.) Appellant urges that death is an

element of aggravated murder and cannot be used as a basis for sentencing to the

maximum penalty.

       {¶53} In response, the state argues that the record demonstrates the trial

court considered the appropriate sentencing statutes in determining Appellant’s

sentence.    The state notes that Appellant’s sentence is within the permissible

statutory range.   As such, the state argues that a sentence of life imprisonment

without the possibility of parole was proper.

       {¶54} An appellate court is permitted to review a felony sentence to determine

if it is contrary to law. State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 23.

Further, “an appellate court may vacate or modify any sentence that is not clearly and

convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” Id. at ¶ 23. Here, Appellant
                                                                                  -22-

does not argue that his sentence, which is within the sentencing guidelines, is

contrary to the law. Thus, in order to sustain his argument, this Court must clearly

and convincingly find that the record does not support the sentence.

        {¶55} Appellant contends that the trial court failed to consider evidence that

Elliott provoked him into the shooting. However, as discussed earlier, this record

does not support a finding of provocation. Even so, the Ohio Supreme Court has

held that “provocation deserves very little weight as a mitigating factor.” State v.

Hutton, 100 Ohio St.3d 176, 189, 2003-Ohio-5607, 797 N.E.2d 948, ¶ 82. In Hutton,

which is factually similar to the matter before us, the Court reasoned that the

defendant had committed murder with prior calculation and design and the defendant

had sufficient time to cool off before committing the murder. Id. This record supports

a similar conclusion.   Appellant has failed to present clear and convincing evidence

to demonstrate that the record does not support his sentence.            Accordingly,

Appellant’s argument is without merit and is overruled.

        {¶56} Although not raised by the parties, this record is devoid, however, of

evidence that the trial court considered R.C. 2929.14(C) (4) factors when it

sentenced Appellant to consecutive prison terms. Pursuant to R.C. 2929.14(C)(4),

before a trial court can impose consecutive sentences on a defendant, the court must

find:

        [T]hat the consecutive service is necessary to protect the public from

        future crime or to punish the offender and that consecutive sentences

        are not disproportionate to the seriousness of the offender's conduct
                                                                                   -23-

      and to the danger the offender poses to the public, and if the court also

      finds any of the following:


      (a) The offender committed one or more of the multiple offenses while

      the offender was awaiting trial or sentencing, was under a sanction

      imposed pursuant to section       2929.16, 2929.17, or 2929.18 of the

      Revised Code, or was under post-release control for a prior offense.


      (b) At least two of the multiple offenses were committed as part of one

      or more courses of conduct, and the harm caused by two or more of the

      multiple offenses so committed was so great or unusual that no single

      prison term for any of the offenses committed as part of any of the

      courses of conduct adequately reflects the seriousness of the offender's

      conduct.


      (c)   The offender's history of criminal conduct demonstrates that

      consecutive sentences are necessary to protect the public from future

      crime by the offender.

      {¶57} A trial court judge must make the consecutive sentence findings at the

sentencing hearing and must additionally incorporate the findings into the sentencing

entry. State v. Williams, 7th Dist. No. 13 MA 125, 2015-Ohio-4100, 43 N.E.3d 797,

806, ¶ 33-34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 37. The court need not state reasons to support its finding nor is it required to

use any “magic” or “talismanic” words, so long as it is apparent that the court
                                                                                     -24-

conducted the proper analysis. Id. citing State v. Jones, 7th Dist. No. 13 MA 101,

2014-Ohio-2248, ¶ 6; State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, ¶ 28-

29.

       {¶58} At Appellant’s sentencing hearing, the trial court judge stated:

       So I have to recite that consecutive terms are imposed because the

       harm is so great and so unusual that a single term does not adequately

       reflect the seriousness of the offender’s conduct and that the offender’s

       criminal history shows that consecutive terms are necessary to protect

       the public.


       ***


       I also believe from the pronouncements of our Court of Appeals and the

       legislature that I have to advise you that if you’re ever released from the

       penitentiary, you’re required to serve a mandatory term of five years of

       post-release control, subject to the rules of the Adult Parole Authority

       and all laws.


       Please understand that I’m only doing this advice because I think I have

       to, but my intention is that you never get out of the penitentiary.

(Sentencing Hrg., pp. 24-25.)

       {¶59} This statement represents the sole analysis conducted by the trial court.

It is clear from this statement that the trial court not only failed to conduct the proper

R.C. 2929.14(C) analysis but blatantly stated its goal was to insure that Appellant
                                                                                 -25-

remain incarcerated for life, without regard to the requirements of the law. Such a

pronouncement was improper and cannot serve as a substitute for the strictures of

R.C. 2929.14(C).

      {¶60} The Ohio Supreme Court has held that “[a]ny attempt by a court to

disregard statutory requirements when imposing a sentence renders the attempted

sentence a nullity or void”. State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774,

775 (1984). If a court disregards such requirements, “the trial court will re-sentence

appellant ‘as if no prior attempt to sentence had been made.’ ” State v. Smith, 10th

Dist. No. 04AP-859, 2005-Ohio-2560, ¶ 60, citing State v. Washington, 10th Dist. No.

00AP–1077, 2001 WL 818137 (July 17, 2001); State v. Thomas, 80 Ohio App.3d

452, 458, 609 N.E.2d 601 (3d Dist.1992).

      {¶61} Accordingly, we remand with instructions to resentence Appellant

based on a proper consideration of the law.

                                     Conclusion

      {¶62} Appellant argues that the trial court improperly refused to instruct the

jury on voluntary manslaughter. This record supports the trial court’s decision as

there is no evidence to support the elements of voluntary manslaughter. Appellant

also argues that his convictions are not supported by sufficient evidence and are

against the manifest weight of the evidence. However, the record appears replete

with competent, credible witness testimony to support the jury’s verdict.     Finally,

Appellant argues that the trial court failed to consider mitigating evidence when

determining his sentence. As the record is devoid of any evidence that the victim
                                                                                 -26-

provoked Appellant, the trial court did not err in sentencing Appellant to life

imprisonment and his convictions are affirmed. However, because the record shows

that the trial court failed to consider the R.C. 2929.14(C) factors when it sentenced

Appellant to consecutive prison terms, his sentence is hereby vacated in part and this

matter is hereby remanded to the trial court for limited resentencing according to law

and consistent with this Court’s Opinion.


DeGenaro, J., concurs.

Robb, J., concurs.
