[Cite as State v. Hart, 2016-Ohio-8169.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                   Court of Appeals No. L-15-1067

        Appellee                                Trial Court No. CR0201302359

v.

Houston Hart                                    DECISION AND JUDGMENT

        Appellant                                Decided: December 16, 2016

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Brad F. Hubbell, for appellant.

                                           *****

        JENSEN, P.J.

        {¶ 1} Defendant-appellant, Houston Hart, appeals the judgment entered in the

Lucas County Court of Common Pleas after a jury found him guilty of murder in

violation of R.C. 2903.02(B). For the reasons that follow, we affirm the decision of the

trial court.
          {¶ 2} Houston Hart and Joseph Meyers were residents of the Toledo Gospel

Mission. On August 3, 2015, the men quarreled. Hart became enraged, punched Meyers

several times, threw him down a flight of stairs, and kicked his head. Meyers was

hospitalized and later died of his injuries.

          {¶ 3} Hart was charged by indictment with one count of murder in violation of

R.C. 2903.02(A) and one count of murder in violation of R.C. 2903.02(B). The matter

proceeded to trial by jury. Defense counsel requested a jury instruction on involuntary

manslaughter, which the trial court refused to give because, in the court’s judgment, no

evidence was presented “that would come to the level of serious provocation brought on

by the victim” that was “reasonably sufficient to insight [sic] the offender to use deadly

force.”

          {¶ 4} A jury found Hart not guilty of murder in violation of R.C. 2903.02(A), but

guilty of murder in violation of R.C. 2903.02(B). The trial court sentenced Hart to life in

prison with the eligibility of parole after 15 years. Hart appeals.

                                   First Assignment of Error

          {¶ 5} In his first assignment of error, Hart asserts that “[t]he trial court abused its

discretion by denying Appellant’s motion to include the lesser included offense of

voluntary manslaughter.”

          {¶ 6} When reviewing a trial court’s jury instructions, the standard of review for

an appellate court is 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.




2.
Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). “The term ‘abuse of discretion’

connotes more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Id. (Citations omitted.) “When, as in this

case, a defendant requests an instruction on an inferior offense, the burden is on the

defendant to persuade the fact-finder of the mitigating elements of the offense. State v.

Cobb, 5th Dist. Stark No. 2014CA00226, 2015-Ohio-2752, ¶ 11, citing State v. Rhodes,

63 Ohio St.3d 613, 590 N.E.2d 261 (1992).

       {¶ 7} If the defendant is charged with murder but wishes a jury instruction on

voluntary manslaughter, “the burden is on the defendant to prove the mitigating factors of

voluntary manslaughter.” State v. Kenner, 7th Dist. Monroe No. 04 MO 10, 2006-Ohio-

3485, ¶ 19.

       {¶ 8} Voluntary manslaughter is an inferior degree offense of murder, meaning

that the elements of the crime of voluntary manslaughter are contained within the offense

of murder, except for one or more additional mitigating elements. The additional

mitigating factors in voluntary manslaughter are that the killing was committed, “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).

       {¶ 9} Sudden rage or passion has been described as “anger, hatred, jealousy,

and/or furious resentment.” State v. Harris, 129 Ohio App.3d 527, 535, 718 N.E.2d 488

(10th Dist.1998).




3.
       {¶ 10} “To determine whether sufficient evidence of serious provocation exists, a

trial court must engage in a two-part inquiry.” State v. Smith, 5th Dist. Guernsey No.

2012-CA-17, 2013-Ohio-1226, ¶ 66. “First, the court must objectively determine

whether the alleged provocation is reasonably sufficient to bring on a sudden passion or

fit of rage.” Id. at ¶ 67, citing State v. Mack, 82 Ohio St.3d 198, 201, 694 N.E.2d 1328

(1998). If this is met, “the inquiry shifts to a subjective standard, to determine whether

the defendant in the particular case ‘actually was under the influence of sudden passion or

in a sudden fit of rage.’” Id., quoting State v. Shane, 63 Ohio St.3d 630, 634-35, 590

N.E.2d 272 (1992).

       {¶ 11} For provocation to be “reasonably sufficient,” it must “arouse the passions

of an ordinary person beyond the power of his or her control.” Shane at 635. In most

situations, “words alone will not constitute reasonably sufficient provocation to incite the

use of deadly force.” Id. “Provocation, to be reasonably sufficient, must be serious.”

(Emphasis sic.) Id. at 638.

       {¶ 12} At trial, counsel for the defense requested an instruction on involuntary

manslaughter as a lesser included offense of murder. He argued that Hart was provoked

by the victim’s words and gestures. Hart testified that Joe Meyers was a “provocative

person” who had a “way of * * * annoying you like a tick you just couldn’t get rid of.”

He explained:

              A. * * * So when I come to the door [of the store] the situation

       aroused again.




4.
            Q. What kind of situation arose?

            A. Don’t be asking for no money. You know the rules. I said man,

     just mind your own business. I said you don’t even know what happened.

     So I leave out the store. I didn’t even go buy nothing. * * * So I leave out

     and I go back down to the Mission.

            Q. Then what happened?

            A. I’m sweating now. So I am standing in the doorway and here he

     comes. I told him, Joe, from this point on we don’t have to talk. We don’t

     have to say nothing else to each other.

            Q. Then what happened?

            A. So we argue again, and * * * I am just trying to tell him best as I

     could, Joe, just leave me alone. So next thing I know is he grabs his crotch

     and he put his hand to my mouth. I am standing on the – Joe was standing

     on the podium like I’m standing on the podium now. So Joe grabbed his

     crotch and put it to my mouth.

            Q. How close were you * * *?

            ***

            A. He was right up on me and he said, pop.

            Q. And he went to his mid-section?

            A. Yeah




5.
            Q. To your mouth. Then what happened, sir?

            A. I hit him.

            Q. Okay. Then what happened?

            A. To be truthful, seriously, I really couldn’t tell you from point to

     point. All I know is that I just blanked.

            Q. So you just blanked after that?

            A. Yeah, I mean – I mean I couldn’t see nothing. I couldn’t hear

     nothing. I was just – I don’t know, I was just – I was just gone. And I was

     so much of in a fit of rage that I just lost control of myself, and I hate to say

     it is that I did assault the man badly. I just couldn’t stop myself. I wasn’t

     trying to, as they put it, take his life. I just wanted to beat him up to just

     leave me alone to say man, just look here, this should be enough just to

     leave me alone. And I picked him up, and I tried to just throw him against

     the wall, and I missed the wall, and he winded up in the basement. And I

     went down there, and I hit him a couple more times and I stepped on his

     face * * *.

            Q. What did you do after that, sir?

            A. I had a cut on my hand, and I went in the bathroom and washed

     my hand off. * * * I went upstairs, and I sat down.




6.
              Q. Then what happened after you sat down?

              A. I was still comatose, and the police come, viewed the situation,

       and they said I was sitting up there in the living area, and it was bad. When

       they come I just stood up. That was all. Man. * * * I told them I did it. I

       assaulted Joe. And they arrested me.

       {¶ 13} Several men were in the Mission when the events occurred and testified

that they witnessed Hart punch, throw, and kick Meyers. A few of the men heard Hart

and Meyers quarrel. None, however, saw Meyers make the obscene gesture that

triggered Hart’s first punch.

       {¶ 14} Under the circumstances of this case, we find that the victim’s nagging

about Mission rules coupled with the obscene gesture was not sufficient to “arouse the

passion of an ordinary person beyond the power of his or her control.” See Shane, 63

Ohio St.3d 635, 590 N.E.2d 272. Thus, we agree with the lower court’s determination

there was not sufficient evidence of serious provocation. Accordingly, the trial court did

not abuse its discretion denying defense counsel’s request for the involuntary

manslaughter instruction. Hart’s first assignment of error is not well-taken.

                                Second Assignment of Error

       {¶ 15} In his second assignment of error, Hart asserts that “[t]he trial court abused

its discretion and erred to the prejudice of Appellant by imposing financial sanctions

without consideration of Appellant’s ability to pay.” Hart argues that at the time of




7.
sentencing, he was “49 years old, * * * receiving Social Security and had been living in a

mission.”

       {¶ 16} Pursuant to R.C. 2947.23, costs of prosecution are to be imposed in “all

criminal cases.” Such costs may be assessed against an indigent prisoner because they

are not based upon the offender’s ability to pay. State v. Jobe, 6th Dist. Lucas No.

L-07-1413, 2009-Ohio-4066, ¶ 75. “Costs of prosecution” includes fines and costs

imposed under R.C. 2929.18(A)(4).

       {¶ 17} In State v. Graves, 6th Dist. Lucas No. L-14-1171, 2015-Ohio-3696, ¶ 12,

we indicated that “defendants are required to submit any motions to the trial court

seeking consideration of waiver regarding fines and costs at the time of sentencing. If

this is not done, the issue is * * * waived and rendered res judicata.” Id. at ¶ 12, citing

State v. Winfield, 6th Dist. Lucas No. L-13-1251, 2014-Ohio-3968, ¶ 6.

       {¶ 18} Costs of appointed counsel may be assessed pursuant to R.C. 2941.51(D)

where the offender reasonably may be expected to have the means to pay some part of the

costs of his counsel. Jobe at ¶ 80. In its sentencing entry, the trial court found that Hart

had or may reasonably be expected to have “the means to pay all or part” of the costs of

assigned counsel.

       {¶ 19} During trial, Hart testified that he worked at the Mission Mall for several

years. Nothing in the record evidences an inability to work upon release from prison. A

trial court looks to the totality of the record to determine if a defendant has the ability to

pay the costs imposed. See State v. Flowers, 6th Dist. Lucas No. L-14-1141, 2015-Ohio-




8.
908, ¶ 11. We find the record possessed sufficient evidence in support of the disputed

trial court finding. Wherefore, Hart’s second assignment of error is not well-taken.

                                       Conclusion

       {¶ 20} We find that substantial justice has been done in this matter. The judgment

of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the

costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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