[Cite as State v. Hodges, 2019-Ohio-5043.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                       KIMANI O. HODGES,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 MA 0091


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 16-CR-169

                                         BEFORE:
                David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.


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

 Atty. Joseph Gardner, 19 East Front Street, Youngstown, Ohio 44503, for Defendant-
 Appellant.
                                                                                       –2–


                                Dated: December 6, 2019


 D’Apolito, J.

       {¶1}   Appellant Kimani Hodges appeals his conviction by the Mahoning County
Court of Common Pleas following a jury trial for one count of aggravated murder, in
violation of R.C. 2903.01(A), an unclassified felony, with a firearm specification, in
violation of R.C. 2941.145(A). The trial court also found Appellant guilty of having a
weapon while under disability, a violation of R.C. 2323.13(A)(2)(B), a felony of the third
degree.
       {¶2}   In his sole assignment of error, Appellant argues that the trial court erred
when it refused to provide a jury instruction on voluntary manslaughter.          Voluntary
manslaughter is defined as knowingly causing the death of another “while under the
influence of sudden passion or in a sudden fit of rage, either of which is brought on by
serious provocation occasioned by the victim that is reasonably sufficient to incite the
person into using deadly force.” R.C. 2903.03(A).
       {¶3}   Because there is no evidence in the record that a reasonable person would
have been seriously provoked by the victim’s words or actions, or that Appellant acted
under the influence of sudden passion or in sudden fit of rage, we find that the trial court
did not abuse its discretion in declining to provide the requested instruction.       As a
consequence, we affirm Appellant’s aggravated murder conviction.

                        FACTS AND PROCEDURAL HISTORY

       {¶4}   On February 17, 2016, the body of Jason Fonseca, age nineteen, was found
at the bottom of the driveway of his mother’s residence at 176 Ayers Street on the east
side of Youngstown. Fonseca had been shot nine times.
       {¶5}   Later that day, Appellant was arrested and charged with aggravated murder
in Youngstown Municipal Court. A video initial appearance was held on February 19,
2016. The matter was set for a preliminary hearing on February 26, 2016.
       {¶6}   On February 25, 2016, Appellant was indicted by the Mahoning County
Grand Jury for aggravated murder, and the state dismissed the charge pending in the
municipal court. That same day, Angel Bell, who was involved in amorous relationships


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with both men prior to Fonseca’s death, was also indicted for aggravated murder, as well
as one count of obstructing justice.
       {¶7}   The first trial began on January 3, 2017. Fonseca’s lifelong friend, Noel
Rios, was the only eyewitness to the crime offered by the state. After Appellant’s counsel
underscored a series of inconsistencies between Rios’ direct testimony and his initial
police interview, Rios, who was in federal custody at the time, abruptly refused to continue
answering questions on cross-examination.
       {¶8}   After the trial court granted Appellant’s motion to strike Rios’ testimony in
its entirety, the state informed the trial court that it had reached an agreement with Bell.
Although Bell had previously maintained that she was not present when the fatal shooting
occurred, Bell agreed to provide a proffer to the state that day and to testify against
Appellant, in exchange for the dismissal of the charges against her with prejudice.
       {¶9}   Appellant’s counsel moved for a mistrial based on his lack of awareness of
the content of Bell’s proffer and the potential testimony she would provide at trial. Without
objection from the state, the trial court granted the mistrial on January 9, 2017.
       {¶10} On January 23, 2017, with leave of court, Appellant filed a motion to dismiss
the charges against him on double jeopardy grounds. He argued that the mistrial was the
result of prosecutorial misconduct. The trial court overruled the motion on February 3,
2017. On January 30, 2018, we agreed that the prohibition against double jeopardy did
not bar Appellant’s retrial. State v. Hodges, 7th Dist. Mahoning No. 17 MA 0025, 2018-
Ohio-447, 105 N.E.3d 543.
       {¶11} The second trial began on June 4, 2018. Both Bell and Rios testified on
behalf of the state, however Bell’s testimony was riddled with “I don’t know”s and “I don’t
remember”s. Bell testified that she and Fonseca had been romantically involved since
2014. Although problems had developed with their relationship in 2015, Bell declined to
characterize the relationship as “on again/off again,” but, rather “[always on] for the most
part.” (Trial Tr., p. 247-248.) At some point, Bell began a romantic relationship with
Appellant.
       {¶12} Fonseca and Bell purchased a used automobile in January of 2016.
According to Fonseca’s mother, Fonseca paid for the automobile but did not have a
driver’s license. Because Bell was involved in an accident two days after Fonseca



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purchased the automobile, Fonseca hid the car in order to prevent Bell from driving it.
Fonseca was not aware at that time that he possessed the only set of keys.
       {¶13} Bell and Fonseca broke up at some point thereafter and Fonseca refused
to give the keys to the automobile to Bell. In the week leading up to Fonseca’s fatal
shooting, Bell made a number of failed attempts to retrieve the keys. Fonseca’s mother
testified that Bell and Appellant stopped at her home on Ayers Street, where Fonseca
was residing after the break-up, two days before Fonseca’s death, but, per her son’s
instructions, she did not answer the door.
       {¶14} The prior calculation and design element of the aggravated murder charge
was established at trial through a series of messages posted to various social media
accounts in the five days leading up to Fonseca’s death. Copies of the social media
messages were not admitted at trial, however, they were made a part of the record
through Bell’s testimony. Bell, who did not have a phone, communicated with both
Fonseca and Appellant via Twitter on a Kindle.
       {¶15} Bell testified that, at 9:10 a.m. on the day before Fonseca was murdered,
he posted the message “I love you so much” in the Twitter chain with Bell that began on
February 13, 2016. (Id. at 278.) At 9:16 a.m., Appellant posted, “Love yoself bitch ass
nigga she mine now quick in box in n kikn her.” (Id. at 278, 282.) Bell explained that
Appellant appeared to mean “quit” not “quick” and that “in box in nkikn her” was a
reference to Bell’s Kik Messenger app.
       {¶16} In a 3-second video posted on Bell’s Kik Messenger video account, which
was admitted into evidence, a man whose face is not visible wields a handgun and states,
“We got them dicks [30 bullet clips]. I’ll come to yo mama house, fuck boy, (unintelligible).”
The man is wearing a large round-faced watch. Bell conceded that Appellant had used
her Kik account around the time when the video was posted.
       {¶17} Bell testified that she did not recognize the man in the Kik video. The state
offered a photograph of Appellant taken on February 18, 2016 at 1:12 a.m. into evidence
at the trial. Appellant was wearing a large round-faced watch in the photograph. Bell
claimed that she could not determine from the picture whether the man in the video was
wearing the same watch. However, Detective Sergeant Rick Spottleson later testified
that the watch in the photograph was the same watch worn by the man in the video.



Case No. 18 MA 0091
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       {¶18} Finally, Bell testified that, at 10:51 a.m. on the day that Fonseca was fatally
shot, Appellant posted to his own Facebook account, “Niggas want to fight? I’m like naww
we toot pipes [shoot guns] you a be fightin for your life.” (Id. at 274.)
       {¶19} According to Bell’s testimony, she was in the front passenger seat of
Appellant’s automobile on February 17, 2016. Appellant, Bell, and another man, who she
could not identify, were returning home from visiting friends when Appellant drove down
Ayers Street. Appellant recognized the occupant of a vehicle parked near the residence.
He stopped his automobile and exited to talk to the occupant. Appellant also conversed
with another man who was standing on the street. The man on the street gave Appellant
a cigarette.
       {¶20} Bell testified that the confrontation between Appellant and Fonseca took
place behind the automobile in which she was seated. According to her testimony,
“[Fonseca] ran outside and, kind of, I don’t know, I guess charged [Appellant].” (Id. at
262.) Then Bell heard gunshots and she saw Fonseca fall to the curb. (Id. at 263, 269.)
Appellant returned to his automobile and then drove to a residence on the south side of
Youngstown. Bell testified that she could not recall whether Appellant said anything to
her or the other passenger about the shooting while driving across town. (Id. at 265.)
       {¶21} After he was arrested, Appellant conversed with Bell on the telephone. Bell
testified that Appellant “wanted to delete his Facebook.” (Id. at 272.) Although Bell
claimed that she could not recall whether Appellant also asked her to delete his messages
on her Twitter account, Bell deleted both the Facebook and Twitter messages.
       {¶22} Bell authenticated a letter she received from Appellant while he was
incarcerated pending trial, which she read aloud at the trial:

       I’m so so so so sorry. I didn’t listen to you when you said – I don’t know what
       that says – forward. I’m sorry. Again, I didn’t think shit through and I put
       your life, as well as my nephew and my brother, in jeopardy. I was just so
       thirsty to get some money, didn’t care where I was or what might or could
       have happened. Or maybe it wasn’t – something – much as to me not caring
       but just being arrogant and not thinking about what if.”

Bell testified that she did not know to what he was referring in the letter. (Id. at 292.)


Case No. 18 MA 0091
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      {¶23} Raymond Ortiz, Fonseca’s cousin, did not witness the shooting, but was in
the residence on Ayers with Fonseca that day. Minutes before the shooting Fonseca
tossed his “hoodie” to Ortiz and told him to get dressed and follow Fonseca outside
because Appellant was en route to the residence. Fonseca exited the residence, but
Ortiz stopped to put on his shoes. As Ortiz approached the door, he heard gunshots.
Ortiz testified that his friend, Javaughn used Ortiz’s mobile telephone to log into the Kik
Messenger app and found the video.
      {¶24} Rios testified that he was standing on the sidewalk smoking a cigarette
when an automobile stopped in the street. Appellant, who acted as if he knew Rios,
stepped out of the automobile and began conversing with him. Rios gave Appellant a
cigarette, even though, at the time, he did not recognize him. Rios initially thought that
there was another man in the car, because the other occupant was wearing a “hoodie.”
He explained that only men wear “hoodies,” and, although he had previously seen Bell
with Fonseca, she typically wore a large wig, so he did not immediately recognize her.
      {¶25} Rios provided the following testimony regarding the interaction between
Appellant and Fonseca prior to the fatal shooting:

      All I know is [Fonseca] came outside and it was a big argument that started
      off. And from there, it just led on to “get from in front of my property.” And
      the guy said he wouldn’t get from in front of the property like a couple times.
      And [Fonseca] said, I’m gonna beat you up, and they was supposed to fight.
      And the guy went to reach for a gun and they just started struggling. Like
      [Fonseca] rushed him and they started tussling * * * * And he shot several
      times. And I had took off and ran by the other car. And he looked at me
      before he got in, but I was ducked by the back of the trunk. I had lifted my
      head up, but I ducked down at the same time.

(Id. at 481.) Rios conceded that he fled after he saw the gun, but before he saw Appellant
shoot Fonseca.

      {¶26} Rios added, “[Fonseca] came out, he was out on the porch, they had their
words, and he was just – come to find out, it was about a female. He told him, well, you



Case No. 18 MA 0091
                                                                                          –7–


can have her, I don’t care about her.” (Id. at 483.) Appellant’s counsel objected to Rios’
second statement as hearsay, and the objection was sustained by the trial court.
However, Rios later testified that he recognized Bell when he realized the argument was
about a woman, specifically, “when [Rios] came to think about when they was arguing
and he told her, you could have the girl, the female, that how [Rios knew], okay, that had
to be [Bell.]” (Id. at 503.)
       {¶27} Rios testified that Fonseca did not have a gun, but that he was “trying to
fight [Appellant] bare hands [sic].” (Id. at 485.) He further testified that Appellant refused
to leave from the street several times, and “that’s when [Fonseca] went to go fight, post
up and box with him, and [Appellant] reached for a gun. And that’s when [Fonseca]
rushed him, like to grab him, and [Appellant] shot him, boom, boom, several times.” (Id.
at 489.)
       {¶28} At the conclusion of the evidence, Appellant’s counsel requested a jury
instruction on voluntary manslaughter, based on the testimony that Fonseca engaged in
a verbal argument and instigated a fist fight with Appellant. Appellant’s counsel argued
that the evidence established that “[Appellant] like squares off and [Fonseca] charges him
and then that’s when [Rios] sees him pull the gun.” (Id. at 784.)              Trial counsel
mischaracterized Rios’ testimony, as Rios testified that Appellant drew the weapon as
Fonseca approached him and Fonseca lurched at Appellant to prevent him from
discharging the weapon. The state countered that the social media messages offered at
the trial established provocation on the part of Appellant, not Fonseca. (Id. at 787-788.)
       {¶29} Based on the high-crime area in which the shooting occurred, the trial court
confessed its initial inclination to provide the instruction. Nonetheless, the trial court
refused to instruct the jury on voluntary manslaughter, stating:

       Here’s my problem. That’s an instruction I am required to give only if I am
       satisfied that there is evidence in the record that supports the elements of
       that offense, in particular [Appellant] being under the influence of sudden
       passion or in a fit of rage, either of which is brought on by serious
       provocation occasioned by the victim. So for discussion purposes, even if I
       assume that [Fonseca] * * * charged him, and I assume that constitutes a
       serious provocation, I still have no evidence in this record that [Appellant] is


Case No. 18 MA 0091
                                                                                          –8–


       under the influence of sudden passion or in a sudden fit of rage. And I don’t
       believe I can allow the jury simply to speculate on that portion of the offense.

(Id. at 786-787.)

       {¶30} The trial court ultimately recognized its “inability to bootstrap the evidence
in this case in any fashion that would justify an instruction that’s based upon [Appellant]
being in a sudden fit of rage or passion under the circumstances. There’s just no evidence
on that subject.” (Id. at 788.) The trial court did, however, instruct the jury on the lesser-
included offense of murder.
       {¶31} On June 8, 2018, the jury returned a guilty verdict on the charge of
aggravated murder with the firearm specification. At a sentencing hearing held on August
10, 2018, the trial court found Appellant guilty of having a weapon while under disability.
The trial court sentenced Appellant to life without the possibility of parole for the
aggravated murder conviction, plus three years for the firearm specification to be served
consecutively to the life sentence. The trial court further imposed a sentence of thirty
months to be served concurrently for the weapon while under disability conviction. This
timely appeal followed.

                                ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT REFUSED TO INSTRUCT THE
       JURY ON VOLUNTARY MANSLAUGHTER WHEN THERE EXISTED
       SUFFICIENT EVIDENCE TO INSTRUCT THE JURY FOR INVOLUNTARY
       MANSLAUGHTER.

       {¶32} Aggravated murder is defined as “purposely, and with prior calculation and
design, caus[ing] the death of another.” R.C. 2903.01(A). Murder is defined as “purposely
caus[ing] the death of another.” R.C. 2903.02(A). In contrast, voluntary manslaughter is
defined as knowingly causing the death of another “while under the influence of sudden
passion or in a sudden fit of rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to incite the person into using deadly
force.” R.C. 2903.03(A).



Case No. 18 MA 0091
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       {¶33} Voluntary manslaughter is an inferior degree offense of murder, rather than
a lesser included offense. State v. Kanner, 7th Dist. Monroe No. 04 MO 10, 2006-Ohio-
3485, ¶ 17. This is true because the elements of the crime of voluntary manslaughter are
contained within the offense of murder, except for one or more additional mitigating
elements. Id.
       {¶34} In order to find a defendant guilty of voluntary manslaughter when the
defendant is charged with murder, the jury must find by a preponderance of the evidence
that the provocation was sufficient to arouse the passions of an ordinary person and that
the particular defendant’s passions were aroused. State v. Shane, 63 Ohio St.3d 630,
634, 590 N.E.2d 272 (1992). Thus, the test has both an objective and a subjective
component. Id. When determining whether the subjective portion of this test has been
satisfied, “the emotional and mental state of the defendant, as well as the conditions and
circumstances that surrounded the incident in question, must be considered.” State v.
Perdue, 7th Dist. Mahoning No. 00 CA 244, 153 Ohio App.3d 213, 2003-Ohio-3481, 792
N.E.2d 747, ¶ 11. Where insufficient evidence of provocation is presented and no
reasonable jury could decide that the defendant was reasonably provoked by the victim,
then no instruction on voluntary manslaughter can be given. Shane, supra, at 638.
       {¶35} An appellate court reviews a trial court’s decision whether to give a
particular jury instruction under an abuse of discretion standard. State v. Kaufman, 187
Ohio App.3d 50, 2010-Ohio-1536, 931 N.E.2d 143, ¶ 103. An abuse of discretion
connotes more than an error of judgment; it implies an attitude on the part of the court
that is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151,
157, 404 N.E .2d 144 (1980).
       {¶36} Appellant writes, “[Appellant] was under the influence of sudden passion or
in a sudden fit or rage. [Fonseca’s] words and actions provoked [Appellant] to protect
himself.” (Emphasis added)(Reply Brf., p. 7.) However, we have recognized that an
instruction on voluntary manslaughter is generally incompatible with and contradictory to
a defense of self-defense. State v. Marcum, 7th Dist. Columbiana No. 04 CO 66, 2006-
Ohio-7068, ¶ 46 (“a self-defense theory is usually contradictory to proof of sudden passion
or rage.”)




Case No. 18 MA 0091
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       {¶37} To establish self-defense through the use of deadly force, Appellant would
have been required to prove: (1) that he “was not at fault in creating the situation giving
rise to the affray”; (2) that he 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 he “did not violate any duty to retreat or avoid the
danger.” State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002), citing State v.
Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.
Furthermore, a person is privileged only to “use as much force as is reasonably necessary
to repel [an] attack.” State v. Jackson, 22 Ohio St.3d 281, 490 N.E.2d 893 (1986).
       {¶38} While self-defense requires a showing of fear, voluntary manslaughter
requires a showing of rage, with emotions of “anger, hatred, jealousy, and/or furious
resentment.” Perdue, supra, ¶ 12, quoting State v. Harris, 129 Ohio App.3d 527, 535, 718
N.E.2d 488 (10th Dist. 1998); see, also, State v. Tantarelli, 10th Dist. Franklin No.
94APA11-618, 1995 WL 318730. The Ohio Supreme Court has specifically held that
“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
Ohio 375, 694 N.E.2d 1328, see also Kanner, supra, ¶ 51-53; State v. Williams, 7th Dist.
Jefferson No. 11 JE 7, 2012-Ohio-5256, ¶ 20-24; State v. Stevenson, 10th Dist. Franklin
No. 17AP-512, 2018-Ohio-5140, ¶ 29 (shooting someone out of fear rather than rage or
passion does not support a jury instruction for voluntary manslaughter). The Ohio
Supreme Court has likewise held that “words alone will not constitute reasonably
sufficient provocation to incite the use of deadly force in most situations.” State v.
Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 158.
       {¶39} Earlier this year, the Tenth District distinguished their 1981 decision based
on the previous version of R.C. 2901.03 in State v. Hodge, 10th Dist. Franklin No. 18AP-
95, 2019-Ohio-4012.      Relevant to the above-captioned appeal, the Tenth District
explained:

       Mr. Hodge “relies extensively on this court’s decision in State v. Roddy,
       1981 Ohio App. Lexis 10292 (Nov. 17, 1981), Franklin App. No. 81AP-499,
       unreported (1981 Opinions 3706), for the proposition that fear for one’s own
       safety is sufficient to warrant a voluntary manslaughter instruction.” See


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       [State v.] Harris, 129 Ohio App.3d [527,] 535, [718 N.E.2d 488]; Appellant’s
       Brief at 25-26. As there, “such reliance is misplaced.” Harris at 535. We
       have explained before, and reiterate here, that this aspect of Roddy did not
       survive amendment to the voluntary manslaughter statute. “[G]iven that
       voluntary manslaughter now requires that the defendant be under the
       influence of ‘sudden passion or fit of rage,’ the position advanced by
       appellant and supported by Roddy cannot be * * * maintained.” Id. (citations
       omitted); see also, e.g., [State v.] Stevenson, [10th Dist. Franklin No. 17AP-
       512,] 2018-Ohio-5140 at ¶ 27-28 (“This court has previously explained * * *
       why reliance on Roddy is misplaced [citing Harris and State v. Caldwell,
       10th Dist. No. 98AP-165, 1998 Ohio App. Lexis 6220]. * * * * At the time that
       Roddy was decided, voluntary manslaughter was defined as knowingly
       causing the death of another while under extreme emotional stress brought
       on by serious provocation reasonably sufficient to incite the use of deadly
       force. * * * * R.C. 2901.03(A), however, was amended in 1982 to limit the
       application of the voluntary manslaughter statute * * * * [and] require[ ] that
       the defendant be under the influence of sudden passion or in a sudden fit
       of rage”).

Id. at ¶ 40.

       {¶40} Rios’ uncontested account of the shooting established that Fonseca
ordered Appellant to leave the street and he was no longer interested in a romantic
relationship with Bell. After repeated refusals by Appellant to leave the scene, Fonseca
went to “go fight, post up and box” with Appellant, and Appellant reached for a gun. When
Appellant drew the gun, Fonseca “rushed him, like to grab him” and Appellant shot
Fonseca nine times. Bell testified that “[Fonseca] ran outside and, kind of, I don’t know,
I guess charged [Appellant].” (Id. at 262.) Although the Ohio Supreme Court qualified its
conclusion that words alone will not constitute reasonably sufficient provocation to incite
the use of deadly force in most situations, we find that the words exchanged by Appellant
and Fonseca were insufficient to provoke deadly force based on the facts in this case.




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      {¶41} At most, the record establishes that Fonseca left the porch with the intent
to engage in a fist fight with Appellant. While Fonseca’s intent to engage in a fist fight
might have caused fear in the average person, it would not evoke passion or a fit of rage.
      {¶42} Furthermore, Ohio intermediate courts have consistently rejected the
argument that a physical altercation constitutes serious provocation inspiring sudden
passion or a fit of rage. For instance, in State v. Thomas, 9th Dist. Summit No. 27266,
2015-Ohio-2935, the defendant approached the victim, who was selling drugs in front of
the residence of the defendant’s grandmother. Thomas asked the victim to move down
the street. The victim responded by threatening to physically assault Thomas. Thomas
swung his fist at the victim, but did not connect. The victim then pulled out a gun, which
Thomas knocked to the ground. Thomas gained control over the gun and shot the victim.
      {¶43} At trial, Thomas 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 Thomas'
testimony that he shot out of fear, not because of provocation from the fight. Id. at ¶ 25.
Thus, the Ninth District held that the evidence supported an instruction on self-defense,
not voluntary manslaughter.
      {¶44} In State v. Perry, 11th Dist. Trumbull No. 94-T-5165, 1997 WL 590789, (Aug
19, 1998), the defendant testified that he and the victim argued and the victim reached
for his gun. 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 found no
abuse of discretion, because the defendant's testimony suggested self-defense, not
voluntary manslaughter.
      {¶45} Finally, we find that there is no subjective evidence of passion or rage on
the part of Appellant in the record. Bell was the only witness who was present at the
scene and accompanied Appellant after the fatal shooting. However, Bell testified that
she could not recall anything that Appellant said during the car ride across town after the
fatal shooting.   In Thompson, supra, Thompson’s only witness was present when
Thompson shot the victim. She testified that Thompson got back in the car after the



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shooting as they drove to his sister’s house. The Ohio Supreme Court opined that “[h]er
testimony provides no insight into Thompson’s actual state of mind or level of agitation at
the time of the shooting.” Thompson, supra, ¶ 159. The same is true here.
       {¶46} Based upon the foregoing case law, we find that a reasonable person would
conclude that the verbal altercation and the threat of a physical assault in this case were
objectively insufficient to inspire sudden passion or a fit of rage, and, further, that there is
no evidence of actual passion or rage on the part of Appellant in the record. In fact, the
record, which includes Appellant’s violent threats via social media and his letter of apology
to Bell, directly contradicts any argument that Appellant acted with sudden passion or in
a fit of rage. Therefore, we find that the trial court did not abuse its discretion when it
declined Appellant’s request for a jury instruction on voluntary manslaughter, and
Appellant’s sole assignment of error has no merit.

                                       CONCLUSION

       {¶47} In summary, we find that the words exchanged between Fonseca and
Appellant and the threat of a physical altercation were insufficient from an objective
standpoint to constitute serious provocation or to incite the use of deadly force by
Appellant. We further find that there is no evidence in the record that Appellant was acting
under the influence of sudden passion or in a sudden fit of rage when he shot Fonseca.
Accordingly, Appellant’s conviction for aggravated murder is affirmed.




Waite, P.J., concurs.

Robb, J., concurs.




Case No. 18 MA 0091
[Cite as State v. Hodges, 2019-Ohio-5043.]




         For the reasons stated in the Opinion rendered herein, the assignment of error
 is overruled and it is the final judgment and order of this Court that the judgment of the
 Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
