[Cite as State v. Hill, 2013-Ohio-578.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 98366




                                          STATE OF OHIO
                                                   PLAINTIFF-APPELLEE



                                      RONDELL L. HILL
                                                   DEFENDANT-APPELLANT




                           JUDGMENT:
              CONVICTION MODIFIED, SENTENCE VACATED,
                   REMANDED FOR RESENTENCING


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-551296

        BEFORE: Keough, P.J., E.A. Gallagher, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                  February 21, 2013
ATTORNEY FOR APPELLANT

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

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Nicole Ellis
Kevin R. Filiatraut
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Rondell L. Hill (“Hill”), challenges his conviction and

sentence for aggravated murder. Because we find there was insufficient evidence that

Hill acted with prior calculation and design, one of the elements of aggravated murder,

we modify Hill’s conviction from aggravated murder to murder, vacate his sentence, and

remand for resentencing.

                                    I. Background

       {¶2} Hill was indicted on one count of aggravated murder in violation of R.C.

2903.01(A), with one- and three-year firearm specifications. He pled not guilty and the

matter proceeded to a jury trial.

       {¶3} Damon Taylor testified that in the early evening of June 2, 2011, his friend,

Tyrone Spence, offered him $10 to drive him to Hill’s house on Cory Avenue in

Cleveland. Taylor said that Spence sometimes bought marijuana from Hill and wanted

to go to Hill’s house because Hill owed him money.

       {¶4} Taylor drove Spence to Cory Avenue and parked approximately three

houses down from Hill’s house. Spence got out of the car, walked down to Hill’s house,

and began talking with Hill, who was outside. Taylor testified that his car windows were

down and he sat in his car and watched Spence and Hill in his rearview mirror.

According to Taylor, the conversation between the two men was “normal” at first but then

became unpleasant. Taylor said Spence and Hill were arguing about money, and he
heard Hill tell Spence that he did not want him to come to his house and make a scene in

front of his family. Taylor then heard Spence tell Hill that he could keep the money, and

Spence walked back to the car and got in. It appeared to Taylor that Spence was ready to

leave. According to Taylor, Hill then walked up to the car and told Spence “[y]ou don’t

have to make a big deal out of it; I have that for you, man.” Spence then got out of the

car and calmly walked with Hill towards his house. According to Taylor, Spence and

Hill were “regularly talking” at first but their conversation escalated into another

argument. Taylor said he again heard Hill tell Spence that “he didn’t want [him] in front

of his house, and he didn’t want him coming around asking for his money in front of his

family and stuff like that.”

       {¶5} Taylor said that he then heard two gunshots, looked in his rearview mirror

and saw Spence on his knees on the ground and Hill standing over him, then heard

another gunshot and saw Hill tuck a gun in his pants and run away. Taylor got out of the

car and tried to help Spence back to the car but Spence collapsed, so Taylor eased him to

the ground and waited for an ambulance. Taylor subsequently gave a written statement

to the police and picked Hill out of a photo array as the shooter.

       {¶6} Gloria Scott testified that on the day of the shooting, she was in her house

on Cory Avenue and heard two men outside arguing. After she heard two gunshots, she

looked outside and saw the victim lying in the street.

       {¶7} Robert Ester, who lived on Cory Avenue several houses down from Hill,

said that on the night of the shooting, he and several friends were drinking beer on the
porch of an abandoned house across the street from Hill’s house. Ester said that Hill was

outside working on his car when a car pulled up. Ester saw a male get out of the car and

heard him ask Hill for money. Hill told the male that he would get the money for him

when he was done with the car and to come back in 20 minutes. Ester said he never saw

Hill threaten Spence during the argument and that the confrontation never escalated into a

physical fight, although he said the male grabbed at Hill’s arm as Hill walked back

toward his car. Ester denied seeing either Hill or Spence brandish a weapon.

       {¶8} The police then came by and told Ester and his friends to move, so Ester

went home. While he was in his house, he heard two or three gunshots. Ester said he

went outside and saw the man who had been talking to Hill on the ground and another

man standing over him; Hill was no longer outside.

       {¶9} Dr. Erica Armstrong, a forensic pathologist and deputy medical examiner in

the Cuyahoga County medical examiner’s office, testified that Spence died as the result of

two gunshot wounds that entered the front of his body; the manner of death was

homicide. She testified further that Spence had fresh abrasions to his knees and a low

level of marijuana metabolite in his system.

       {¶10} Kathleen Carlin, a detective in the Cleveland Police Department Homicide

Unit, testified that Hill turned himself in several days after the murder. Hill’s girlfriend

subsequently gave the police a cell phone that purportedly belonged to Hill, but the police

determined that the phone was not the phone that Hill actually used. Carlin said that

through her investigation, she obtained Hill’s actual cell number and retrieved his phone
records, which demonstrated that Hill called Spence on June 1, 2011, the day before the

shooting, and that Spence then tried to call Hill nearly twenty times throughout the day.

The records also demonstrated that Spence texted Hill on June 1, 2011,1 and called him

five times on June 2, 2011; Carlin testified that the last call was made at 6:28 p.m., an

hour and a half before Spence was murdered. The length of the calls ranged from 5 to 38

seconds.

       {¶11} After the state rested, the trial court denied Hill’s Crim.R. 29(A) motion for

acquittal. Hill did not call any witnesses and did not testify in his own defense. The

state requested a jury instruction on the lesser included offense of murder, which the court

granted.    The jury subsequently found Hill guilty of aggravated murder and the firearm

specifications, and the trial court sentenced him to three years on the firearm

specification, consecutive to 30 years for aggravated murder, i.e., life without parole

eligibility until after 33 years in prison.

                                           II. Analysis

A.     Sufficiency of the Evidence

       {¶12} In his first assignment of error, Hill contends that the trial court erred in

denying his Crim.R. 29(A) motion for acquittal because there was insufficient evidence

that he committed aggravated murder.

       {¶13} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test

for sufficiency requires a determination of whether the prosecution met its burden of


        The text said “Baby boy, my ride can’t wait all day.”
       1
production at trial. State v. Bowden, 8th Dist. No. 92266, 2009-Ohio-3598, ¶ 12. An

appellate court’s function when reviewing the sufficiency of the evidence to support a

criminal conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶14} Hill contends that the evidence was insufficient to support his conviction

because there was no evidence of a motive and no physical evidence tying him to the

murder, and the only direct evidence linking him to the murder came from Damon Taylor,

who was not a credible witness. Hill’s arguments lack merit.

       {¶15} The state is not required to prove motive to support a murder conviction.

State v. Woodson, 8th Dist. No. 93476, 2010-Ohio-1671, ¶ 24, citing State v. Lancaster,

167 Ohio St. 391, 149 N.E.2d 157 (1958), paragraphs one and two of the syllabus

(“Motive is not an element of the offense of aggravated murder that the state must prove

beyond a reasonable doubt.”)

       {¶16} Moreover, the lack of physical evidence tying Hill to the murder is not

dispositive. Physical evidence is not required to sustain a conviction. State v. Lopez,

8th Dist. No. 94312, 2011-Ohio-182, ¶ 62, citing State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph one of the syllabus. “Proof of guilt may be made by
circumstantial evidence as well as by real evidence and direct or testimonial evidence, or

any combination of these three classes of evidence.” Jenks at 272. Damon Taylor

offered eye-witness testimony that, if believed, was sufficient to support Hill’s

conviction. Although Hill complains that Taylor was not a credible witness, the test for

sufficiency is not whether the state’s evidence is to be believed, but whether, if believed,

the evidence would support a conviction.          State v. Woods, 8th Dist. No. 82789,

2004-Ohio-2700, ¶ 63. The court does not weigh the credibility of the witnesses when

reviewing the sufficiency of the evidence. State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

       {¶17} Nevertheless, although Hill’s arguments about the lack of a motive and

physical evidence are without merit, we find that there was insufficient evidence to

support Hill’s conviction for aggravated murder because the state failed to produce

sufficient evidence that Hill acted with prior calculation and design.

       {¶18} Hill was convicted of aggravated murder in violation of R.C. 2903.01(A),

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

cause the death of another * * *.” A person acts purposely when it is his specific intent

to cause a certain result. R.C. 2901.22(A).

       {¶19} Damon Taylor offered eye-witness testimony at trial that identified Hill as

the shooter. He testified that he heard two gunshots, saw Spence on the ground on his

knees with Hill standing over him, heard another shot, and then saw Hill tuck a gun in his
waistband and run away. This testimony, if believed, is sufficient to demonstrate that

Hill purposely caused Spence’s death.

       {¶20} The other element of aggravated murder is “prior calculation and design,”

which “indicate[s] studied care in planning or analyzing the means of the crime as well as

a scheme encompassing the death of the victim.” State v. Taylor, 78 Ohio St.3d 15, 19,

1997-Ohio-243, 676 N.E.2d 82. The Revised Code does not define “prior calculation

and design,” but the Ohio Supreme Court

       ha[s] interpreted the phrase to require evidence of “more than the few
       moments of deliberation permitted in common law interpretations of the
       former murder statute, and to require a scheme designed to implement the
       calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 11, 381
       N.E.2d 190. While “[n]either the degree of care nor the length of time the
       offender takes to ponder the crime beforehand are critical factors in
       themselves,” “momentary deliberation is insufficient.” State v. D’Ambrosio,
       67 Ohio St.3d 185, 196, 1993-Ohio-170, 616 N.E.2d 909, quoting the 1973
       Legislative Service Commission Comment to R.C. 2903.01.

State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38.

       {¶21} The existence of prior calculation and design is determined on a

case-by-case analysis of the facts and evidence. State v. Jones, 91 Ohio St.3d 335, 345,

2001-Ohio-57, 744 N.E.2d 1163. Although there is no bright-line rule for determining

prior calculation and design, the Ohio Supeme Court has found the following factors

pertinent to determining the existence of prior calculation and design:

       (1) Did the accused and victim know each other, and if so, was that
       relationship strained? (2) Did the accused give thought or preparation to
       choosing the murder weapon or murder site? and (3) Was the act drawn out
       or “an almost spontaneous” eruption of events?
State v. Reddy, 192 Ohio App.3d 108, 2010-Ohio-5759, 948 N.E.2d 454 (8th Dist.), ¶ 21,

quoting Taylor, 78 Ohio St.3d at 19, 1997-Ohio-243, 676 N.E.2d 82. These factors

should be weighed with the totality of the circumstances surrounding the murder. State

v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976). In this case,

considering these factors and the totality of the circumstances, we find that even

construing the evidence in a light most favorable to the prosecution, there was insufficient

evidence of prior calculation and design.

       {¶22} Spence and Hill obviously knew each other, and the relationship apparently

was strained because Hill owed Spence money, which Spence wanted to collect (the first

factor). There was insufficient evidence, however, to demonstrate that Hill gave thought

or preparation to choosing the murder weapon or the site of the murder (the second

factor).

       {¶23} The mere fact that Hill, a drug dealer, had a gun on his person when Spence

arrived does not indicate a calculated scheme to kill Spence. This court and others have

held that mere possession of a weapon is not, without more, evidence of prior calculation

and design. State v. Davis, 8 Ohio App.2d 205, 207, 456 N.E.2d 1256 (8th Dist.1982)

(“The mere fact that defendant was carrying a gun on this occasion but was not carrying a

gun on some earlier visit to a different bar is not sufficient to demonstrate a prior

caluclation and design to kill someone at this bar.”); State v. Johnson, 10th Dist. No.

97APA03-315, 1998 Ohio App. LEXIS 2069 (May 5, 1998) (“That defendant had a gun

with him * * * is not, by itself, evidence of a prior calculation and design, given the
testimony offered by defendant’s girlfriend that he ‘sort of’ frequently carried a

weapon”).

       {¶24} And despite the state’s argument otherwise, Hill’s presence outside when

Spence arrived does not indicate that he planned to kill Spence. Taylor testified that he

saw eight to ten people milling around outside while Spence and Hill were arguing, and

Ester testified that Hill’s young children were outside during the argument. Common

sense dictates that if Hill had actually given thought to choosing the murder site, he would

have determined to kill Spence when there were no witnesses around and his children

were not present, especially given Hill’s statements that he did not want Spence coming

over to collect money in front of his family.

       {¶25} With respect to the third factor, we find that Spence’s murder was the result

of an almost spontaneous eruption of events. The evidence demonstrated that Hill and

Spence argued about the money, but the argument never got physical and Hill never

brandished a weapon or threatened Spence.           Although the argument apparently got

heated, Spence eventually told Hill that he could keep the money and walked back to

Taylor’s car and got in; he was ready to leave the scene, and the argument was apparently

over. There was no evidence that Hill pursued Spence to the car or tried to stop him

from leaving. Rather, Taylor testified that Hill came to the car and had a “normal

conversation” with Spence, at which point Spence calmly got out of the car and walked

with Hill back to his house. The state’s assertion that Hill somehow “coaxed” Spence

out of the car in order to kill him is not consistent with this evidence.
       {¶26} The evidence demonstrated that both Hill and Spence were calm as they

walked toward Hill’s house but that their argument about the money quickly escalated

again. Taylor testified that only a few moments later, he heard three shots, and then saw

Hill put his gun in his pants and run away. We can reach no other conclusion from this

evidence but that Hill’s decision to kill Spence was not the result of a scheme to

implement a calculated decision to kill, but the result of the sudden eruption (again) of his

argument with Spence about the money.

       {¶27} The fact that Hill shot Spence three times does not indicate prior calculation

and design. Although there was evidence that Spence was down on his knees when Hill

fired the third shot, the evidence was that the shots were fired in succession, indicating

that the act was one continuous course of events. This case is distinguishable from cases

finding prior calculation and design where shots were fired initially and then again

several minutes later or where the defendant pursued and then shot an injured victim who

was trying to escape. State v. Simms, 8th Dist. No. 69314, 1996 Ohio App. LEXIS 4087

(Sept. 19, 1996).

       {¶28} The evidence in this case indicates a sudden eruption of events, not prior

calculation and design. Accordingly, there was insufficient evidence to support Hill’s

conviction for aggravated murder. There was, however, sufficient evidence that Hill

committed murder in violation of R.C. 2903.02, which provides that “[n]o person shall

purposefully cause the death of another.”
       {¶29} Accordingly, Hill’s conviction for aggravated murder is modified to the

lesser included offense of murder. See Reddy, 192 Ohio App.3d 108, 2010-Ohio-5759,

948 N.E.2d 454, at ¶ 35, citing State v. Davis, 8 Ohio App.3d 205, at 207, 456 N.E.2d

1256 (appellate court has authority to modify a conviction to a lesser included offense

supported by the record, rather than ordering an acquittal or a new trial).

       {¶30} The first assignment of error is sustained in part; Hill’s conviction is

modified accordingly.

B.     Manifest Weight of the Evidence

       {¶31} In his second assignment of error, Hill contends that his conviction for

aggravated murder was against the manifest weight of the evidence because there was no

physical evidence linking him to the murder, and Damon Taylor was not a credible

witness. In light of our resolution of the first assignment of error, we will consider Hill’s

arguments as they relate to his conviction for murder.

       {¶32} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Ponce, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12.      A reviewing court “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 conviction must be reversed and a new trial ordered.”

Thompkins, 78 Ohio St.3d at 388, 1997-Ohio-52, 678 N.E.2d 541. A conviction should
be reversed as against the manifest weight of the evidence only in the most “exceptional

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

       {¶33} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and

the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist.

No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967). The trier of fact is best able “to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.”       State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies

and resolve them accordingly, “believ[ing] all, part, or none of a witness’s testimony.”

State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176

Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶34} The jury in this case heard Taylor’s explanations about the minor

inconsistencies in his testimony. On cross-examination, defense counsel asked Taylor

why he initially told the police when they arrived on the scene that he did not know

Spence; Taylor explained that he was scared and did not want to get involved because he

had taken his girlfriend’s car without her knowledge and even though his license was

suspended. Taylor also acknowledged upon cross-examination that his written statement

did not include information that Spence came back to the car before he was shot, as he

testified in court. Taylor also acknowledged that he testified on direct examination that
Hill had a silver gun but, when giving his written statement, he told the police that he

could not describe the gun. He was also cross-examined about the number of times he

had met Hill prior to the shooting; on direct examination, he said that he had met Hill two

or three times, but in his written statement he said he had met Hill “[o]nce before last

Friday when I took Tyrone over there to meet up with him.”

       {¶35} Despite these inconsistencies, the jury chose to believe Taylor’s testimony

that Hill shot Spence. On this record, we do not find that Taylor’s testimony was so

incredible that the jury lost its way or created a manifest miscarriage of justice in

believing him. Although there were some minor inconsistencies in his story, Taylor

never wavered in his identification of Hill as the shooter, both to the police and at trial.

And other evidence supported his testimony: Taylor testified that he heard a third shot as

Spence was on the ground on his knees facing Hill, and the medical examiner testified

that Spence had fresh abrasions on his knees and the gunshot wounds entered from the

front; Scott testified that she heard two men outside arguing, which corroborated Taylor’s

testimony that Hill and Spence were arguing; and Ester corroborated Taylor’s testimony

that Hill and Spence were arguing about the money that Hill owed to Spence.

       {¶36} In light of this evidence, Hill’s conviction for murder is not against the

manifest weight of the evidence. His second assignment of error is therefore overruled.

C.     Confrontation of Witnesses

       {¶37} During cross-examination of Ester, defense counsel asked Ester if he was

aware that there had been a shooting on Cory Avenue three days prior to Spence’s
murder. Defense counsel then asked Ester if he was aware that someone had tried to

shoot Hill in that shooting. The trial court sustained the state’s objection to this line of

questioning, ruling that the prior shooting was irrelevant to this case.

       {¶38} In his third assignment of error, Hill contends that the trial court’s ruling

denied him his Sixth and Fourteenth Amendment rights to confront the witnesses against

him. We disagree.

       {¶39} Only relevant evidence is admissible under Evid.R. 402.            Evid.R. 401

defines relevant evidence as “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” A trial court has broad discretion in

determining whether to admit or exclude evidence. Kirschbaum v. Dillon, 58 Ohio St.3d

58, 65, 567 N.E.2d 1291 (1991). Absent an abuse of discretion that materially prejudices

a party, a trial court’s ruling regarding the admissibility of evidence will not be disturbed.

 Id.

       {¶40} The trial court did not abuse its discretion in excluding evidence of the prior

shooting because it was irrelevant to this case. As defense counsel conceded, the police

reports regarding the May 30th shooting contained no mention of Hill, either as a victim

or witness, and the only person who told the police that Hill was an intended victim of

that shooting was Hill, when he gave a statement to the police after Spence’s murder.

Furthermore, as defense counsel also conceded, there was no evidence that either Spence

or Taylor were involved in the earlier shooting, and counsel wanted the evidence to come
in only so counsel could insinuate that “the person [who] was responsible for the shooting

on the 30th may have been the person responsible for the shooting on the 2nd.”

       {¶41} Because the evidence of the earlier shooting was irrelevant, the trial court

did not abuse its discretion in excluding the evidence. The third assignment of error is

therefore overruled.

D.     Ineffective Assistance of Counsel

       {¶42} In his fourth assignment of error, Hill contends that he was denied his

constitutional right to effective assistance of counsel because his lawyer did not request a

jury instruction regarding self-defense.

       {¶43} To establish ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonable performance

and that he was prejudiced by that deficient performance, such that, but for counsel’s

error, the result of the proceedings would have been different. Strickland v. Washington,

466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Sanders, 94 Ohio

St.3d 150, 151, 2002-Ohio-350, 761 N.E.2d 18. In short, counsel’s errors must be so

serious as to render the result of the trial unreliable. A reviewing court will strongly

presume that counsel rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment. State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989).

       {¶44} Under Ohio law, self-defense is an affirmative defense. State v. Martin, 21

Ohio St.3d 91, 488 N.E.2d 166 (1986). To establish self-defense, the defendant must
show that he (1) was not at fault in creating the situation giving rise to the fight; (2) had a

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

only means of escape was through the use of force; and (3) did not violate any duty to

retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979),

paragraph two of the syllabus.

       {¶45} Hill’s counsel did not err in not requesting an instruction regarding

self-defense because there was no evidence to support the instruction. There was no

evidence that Hill had a bona fide belief that he was in imminent danger and his only

means of escape was to use force; rather, the testimony was that Spence did not have a

gun and the argument never escalated into a physical fight. Furthermore, self-defense

was inconsistent with Hill’s theory of the case that he was not the shooter. Accordingly,

Hill has failed to demonstrate that counsel’s performance fell below an objective standard

or that he was prejudiced by such performance.

       {¶46} The fourth assignment of error is therefore overruled.

E.     Jury Instruction Regarding Flight

       {¶47} In his fifth assignment of error, Hill contends that the trial court deprived

him of a fair trial by erroneously giving a jury instruction regarding flight. Hill contends

that the court erred in giving the instruction because there was no evidence that he

attempted to flee or avoid apprehension.

       {¶48} A court’s instructions to the jury should be addressed to actual issues in the

case as posited by the evidence and the pleadings. State v. Guster, 66 Ohio St.2d 266,
271, 421 N.E.2d 157 (1981). We review a trial court’s issuance of a jury instruction for

an abuse of discretion. State v. Williams, 8th Dist. No. 90845, 2009-Ohio-2026, ¶ 50.

An abuse of discretion in this context occurs when the instruction is not supported by the

evidence. State v. Ponce, 8th Dist. No. 91329, 2010-Ohio-1741, ¶ 45.

       {¶49} This court has previously defined flight as “some escape or affirmative

attempt to avoid apprehension.” State v. Wesley, 8th Dist. No. 80684, 2002-Ohio-4429,

¶ 19. It is not an abuse of discretion for a trial court to give a jury instruction on flight

and consciousness of guilt if there is sufficient evidence presented at trial that the

defendant attempted to avoid apprehension. State v. Kilpatrick, 8th Dist. No. 92137,

2009-Ohio-5555, ¶ 16; State v. Benjamin, 8th Dist. No. 80654, 2003-Ohio-281, ¶ 31.

       {¶50} In this case, Taylor testified that he saw Hill run between his house and

another after he shot Spence. Ester testified that he saw Hill outside arguing with Spence

before he heard the gunshots and that when he came out of his house immediately after

hearing the shots, Hill was gone. Accordingly, the evidence presented at trial provided a

sufficient basis for a flight instruction.

       {¶51} The fifth assignment of error is therefore overruled.

F.     Sentencing Issues

       {¶52} In his sixth assignment of error, Hill argues that his sentence is contrary to

law. In his seventh assignment of error, Hill contends that the trial court improperly

gave him a longer sentence because he did not testify at trial or express remorse at
sentencing. Because we are remanding for resentencing, these assignment of errors are

overruled as moot.

      {¶53} Hill’s aggravated murder conviction is vacated, the conviction is modified to

murder, and the matter is remanded for resentencing.

      It is ordered that the parties share costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed as modified, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
