[Cite as State v. Sellers, 2012-Ohio-5546.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :       Hon. William B. Hoffman, J.
                                              :       Hon. Sheila G. Farmer, J.
-vs-                                          :
                                              :
JOEL E. SELLERS                               :       Case No. 12CAA020012
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 11CRI-10-0553



JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     November 26, 2012




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellee

CAROL HAMILTON O'BRIEN                                LOGAN PHILIPPS
KYLE ROHRER                                           125 North Sandusky Street
140 North Sandusky Street                             Delaware, OH 43015
Delaware, OH 43015
Delaware County, Case No. 12CAA020012                                                  2

Farmer, J.

      {¶1}   On March 23, 2011, the Delaware County Grand Jury indicted appellant,

Joel Sellers, on one count of murder in violation of R.C. 2903.02. Said charge arose

from the shooting death of appellant's friend, George McArthur, following a

confrontation.

      {¶2}   On October 21, 2011, appellant was re-indicted on the murder count with

an added firearm specification and one count of involuntary manslaughter with a firearm

specification in violation of R.C. 2903.04 and 2941.145, two counts of having a weapon

while under disability in violation of R.C. 2923.13, one count of illegal cultivation of

marijuana in violation of R.C. 2925.04, one count of possession of marijuana in violation

of R.C. 2925.11, and one count of illegal possession of drug paraphernalia in violation

of R.C. 2925.14.

      {¶3}   Prior to trial, the trial court dismissed one of the having a weapon while

under disability counts. A jury trial commenced on December 12, 2011. The jury found

appellant guilty of voluntary manslaughter as an inferior degree to the murder count,

and guilty of the remaining counts. By judgment entry filed January 24, 2012, the trial

court sentenced appellant to a total aggregate term of ten years in prison.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶5}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED THE DEFENDANT THE ABILITY TO TESTIFY AS TO SPECIFIC INSTANCES

OF VIOLENT CONDUCT BY THE DECEDENT."
Delaware County, Case No. 12CAA020012                              3


                                        II

     {¶6}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

PERMITTED THE STATE OF OHIO TO PRESENT PORTIONS OF A TRANSCRIPT

FROM A VIDEO RECORDED INTERVIEW WITHOUT REQUIRING, UPON REQUEST

BY THE DEFENDANT, THAT THE BALANCE OF THE VIDEO RECORDING BE

PLAYED."

                                    III

     {¶7}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

PERMITTED A STATE WITNESS TO TESTIFY AS EXPERTS AND OFFER

OPIONIONS (SIC) AS TO DISTANCE BETWEEN THE FIREARM AND THE

DECEDENT AND THE REACTION OF A HUMAN SOLELY UPON BEING HIT BY

BULLET."

                                    IV

     {¶8}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

RULED THAT DEFENDANT COULD NOT INTRODUCE EVIDENCE OF POST

TRAUMATIC STRESS DISORDER WITHOUT EXPERT TESTIMONY BUT ALLOWED

THE INTRODUCTION OF A POSITIVE DRUG SCREEN WITHOUT EXPERT

TESTIMONY."

                                    V

     {¶9}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED THE DEFENDANT'S MOTION TO DISMISS COUNTS 2, 3, 5, 6, 7 OF THE

INDICTMENT BASED ON SPEEDY TRIAL GROUNDS."
Delaware County, Case No. 12CAA020012                                                  4


                                           VI

       {¶10} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

PERMITTED THE INSTRUCTION OF VOLUNTARY MANSLAUGHTER."

                                           VII

       {¶11} "THE JURY'S GUILTY VERDICTS ON COUNTS ONE, TWO, THREE

AND FOUR WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

PRESENTED AT THE TRIAL OF THIS MATTER."

                                          VIII

       {¶12} "THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL."

                                            I

       {¶13} Appellant claims the trial court erred in denying him the ability to present

evidence on specific instances of the victim's violent conduct as such evidence was

necessary to prove he was in imminent danger of death or bodily harm and his state of

mind at the time of the incident. We disagree.

       {¶14} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage (1987), 31 Ohio St.3d 173. In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217.

       {¶15} In support of his position, appellant cites this court's opinion in State v.

Davis, 5th Dist. No. 2003 CA 429, 2004-Ohio-7056, wherein this court stated the

following at ¶ 19:
Delaware County, Case No. 12CAA020012                                                  5




              In meeting the burden to prove self-defense, the defendant must

       establish in part a bona fide belief that he was in imminent danger of death

       or great bodily injury. State v. Robbins (1979), 58 Ohio St.2d 74, 80, 388

       N.E.2d 755. In order to prove the defendant's state of mind, a court can

       allow the defendant to testify about the victim's reputation for violence and

       his knowledge of specific instances of the victim's prior violent conduct.

       See, e.g. State v. Baker (1993), 88 Ohio App.3d 204, 208, 623 N.E.2d

       672.



       {¶16} In response, the state argues the case of State v. Barnes, 94 Ohio St.3d

21, 2002-Ohio-68, syllabus, wherein the Supreme Court of Ohio held, "[a] defendant

asserting self-defense cannot introduce evidence of specific instances of a victim's

conduct to prove that the victim was the initial aggressor. (Evid.R. 404[A] and 405,

construed and applied.)"

       {¶17} No proffer of testimony was made on the record under Evid.R. 103(A)(2);

therefore, it is unclear what the specific instances were.



              A party may not predicate error on the exclusion of evidence during

       the examination in chief unless two conditions are met: (1) the exclusion of

       such evidence must affect a substantial right of the party and (2) the

       substance of the excluded evidence was made known to the court by
Delaware County, Case No. 12CAA020012                                                     6

       proffer or was apparent from the context within which questions were

       asked.



State v. Gilmore, 28 Ohio St.3d 190 (1986), syllabus.



       {¶18} The trial court permitted testimony as to prior incidents involving appellant

and the victim, but not to incidents between the victim and others that appellant was

aware of. T. at 655-656.

       {¶19} We are unable to address the correctness of the ruling in light of Davis or

Barnes as the testimony was not preserved for review and the colloguy between the trial

court and counsel is not of assistance.

       {¶20} Assignment of Error I is denied.

                                             II

       {¶21} Appellant claims the trial court erred in permitting the state to present

parts of his video recorded interview with police via a written transcript without requiring

the balance of the video recorded interview to be played in violation of Evid. R. 106 and

1002. We disagree.

       {¶22} Evid.R. 106 governs remainder of or related writings or recorded

statements and states, "[w]hen a writing or recorded statement or part thereof is

introduced by a party, an adverse party may require the introduction at that time of any

other part or any other writing or recorded statement which is otherwise admissible and

which ought in fairness to be considered contemporaneously with it."
Delaware County, Case No. 12CAA020012                                                  7


         {¶23} Evid.R. 1002 governs requirement of original and states, "[t]o prove the

content of a writing, recording, or photograph, the original writing, recording, or

photograph is required, except as otherwise provided in these rules or by statute

enacted by the General Assembly not in conflict with a rule of the Supreme Court of

Ohio."

         {¶24} The transcript was preserved for the record as State's Exhibit No. 82 and

was used at trial, but was not admitted and was kept by the Court Reporter. T. at 633-

634, 772-773.

         {¶25} Delaware City Police Detective Michael Bolen testified on direct

examination as to his interview with appellant at the police department following the

shooting.    T. at 609-613.    The transcript was not used during this testimony as it

appears Detective Bolen was testifying from his memory. Therefore, Evid.R. 106 is not

applicable to Detective Bolen's testimony.

         {¶26} On defense, appellant testified on his own behalf regarding the incident

and to what was recorded on the police cruiser audio after it arrived on the scene. T. at

672-685, 689-690.       On cross-examination, the prosecutor used the transcript to

question appellant about the differences between his testimony and what he had told

Detective Bolen during his interview.     T. at 714-716, 724-726, 734-736.     Appellant

claimed his statements to Detective Bolen were "[n]ot complete and full by any means."

T. at 743.

         {¶27} In rebuttal, defense counsel recalled Detective Bolen and refreshed his

memory of appellant's statements not from the transcript, but from his narrative in the

police report.    T. at 748.   The prosecutor asked Detective Bolen to read specific
Delaware County, Case No. 12CAA020012                                                      8


passages from the written transcript. T. at 757-767; State's Exhibit No. 82, pages 5, 8,

10, 11, 12, 19, 21, and 23. Defense counsel objected to the use of the transcript;

however, defense counsel also used the transcript on cross-examination of Detective

Bolen. T. at 758, 769-770. The prosecutor did not request the admission of State's

Exhibit No. 82. T. at 772-773.

       {¶28} No request pursuant to Evid.R. 106 was made by defense counsel. We

note harmless error is described as "[a]ny error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded." Crim.R. 52(A). Overcoming

harmless error requires a showing of undue prejudice or a violation of a substantial

right. We find no such showing sub judice.

       {¶29} In reviewing State's Exhibit No. 82, we find no showing that the admission

of the balance of the transcript would have affected the outcome of the trial. It would

have only added to the inconsistencies of appellant's own testimony.

       {¶30} Upon review, we find the trial court did not err in permitting the state to use

parts of the transcript without requiring the balance of the transcript to be presented.

       {¶31} Assignment of Error II is denied.

                                             III

       {¶32} Appellant claims the trial court erred in permitting testimony by three

witnesses as to their opinions about the distance between the gun and the victim based

upon stippling and the pattern of unburned powder, and the reaction of a body upon

being shot. We disagree.
Delaware County, Case No. 12CAA020012                                                   9


      {¶33} Under Evid.R. 104(A), the trial court is the primary gatekeeper "concerning

the qualification of a person to be a witness." In consideration of this rule, Evid.R. 702

provides for the testimony by experts and states the following:



      A witness may testify as an expert if all of the following apply:

      (A) The witness' testimony either relates to matters beyond the knowledge

      or experience possessed by lay persons or dispels a misconception

      common among lay persons;

      (B) The witness is qualified as an expert by specialized knowledge, skill,

      experience, training, or education regarding the subject matter of the

      testimony;

      (C) The witness' testimony is based on reliable scientific, technical, or

      other specialized information. To the extent that the testimony reports the

      result of a procedure, test, or experiment, the testimony is reliable only if

      all of the following apply:

      (1) The theory upon which the procedure, test, or experiment is based is

      objectively verifiable or is validly derived from widely accepted knowledge,

      facts, or principles;

      (2) The design of the procedure, test, or experiment reliably implements

      the theory;

      (3) The particular procedure, test, or experiment was conducted in a way

      that will yield an accurate result.
Delaware County, Case No. 12CAA020012                                                    10


       {¶34} Special Agent Gary Wilgus testified as to his experience with forensic and

trace evidence over his sixteen years with the Ohio Bureau of Criminal Investigation. T.

at 264-268. Agent Wilgus specifically testified to the following at 305-306:



       Q.      When you - - based on the amount of stippling that is or is not

       present, did you come to a general conclusion about how far away the gun

       would have been from the wound?

       A.      Well, again, it's dependent on the type of firearm, the length of the

       muzzle, and the ammunition used. In this particular case, the testing was

       done. And, you know, we can say that it was likely greater than 24 inches

       away.



       {¶35} No objection was made to the testimony. However, it is clear from Agent

Wilgus's experience and knowledge, he was qualified to offer the opinion.

       {¶36} James Smith, employed with the Ohio Bureau of Criminal Investigation as

the current Crime Laboratory Director, has been a forensic examiner since 2002 and

testified to his training and background. T. at 382-386.        Director Smith testified to

performing firearm testing for over five years and receiving scientific training. T. at 400-

401, 421-422. Director Smith explained the following at 415-416:



       Q.      And how does stippling relate to, I guess, distance determination?

       A.      Well, when you're doing a distance determination, you can see

       particles that have hit whatever you're shooting at. In this case, I used
Delaware County, Case No. 12CAA020012                                                  11


      cardboard, I use white cardboard at different distances. So you could see

      where that burning and unburned gunpowder is striking the cardboard.

      And you can do it at different distances to create patterns.

      Q.     Does the pattern decrease the farther you get away?

      A.     Yes, the pattern is kind of - - can be tricky. If it's a contact shot,

      there may not be a pattern because all the gunpowder enters the wound.

      As soon as you start bringing the muzzle of the firearm away from the

      target, that pattern will go from very dense - - and starts off small, but as

      you come out, it's a little less dense and little wider, and as you keep going

      out, it gets a little less dense and narrower again because the cloud has

      dissipated.

             Now, the spray of the actual unburned will keep spreading, but the

      actual cloud and the smoke will dissipate too.

             So, the closer you are coming away - - a contact, you may not have

      a pattern, you'll have blast damage, but you may not have a pattern. As

      you start going away you're going to see a dense, heavy pattern, and as

      you go away, it will dissipate and you will get a less sparse pattern, to the

      point where you don't even have a pattern anymore and now you just have

      random particles hitting the farther you go out.



      {¶37} Director Smith then explained his testing procedures, by using the autopsy

photographs and a series of firings beginning at three inches and increasing to four feet.

T. at 418-420, 422-423. Director Smith opinioned the following at 429-430:
Delaware County, Case No. 12CAA020012                                                    12




       Q.      Did you compare your test patterns with the autopsy photos that

       you'd obtained previously?

       A.      I tried to.

       Q.      Were you able to make any range determinations when comparing

       them?

       A.      I was somewhat in conclusive and it had partly to do with the fact

       that I didn't see what I considered to be a pattern on the victim.

               Now, there's things that can effect whether or not there's a pattern,

       there could have been an intervening object. I don't know the details of it.

       However, from the patterns I produced and what I was looking at in the

       picture, I did not see a pattern on the victim, therefore, I determined that it

       was greater than 18 inches.

       Q.      Is that the best you can do with a reasonable degree of scientific

       certainty?

       A.      Yes, sir.



       {¶38} As we noted, the issue is not the admissibility of the evidence, but the

credibility of the expert witness's opinion which is subject to the requirements of Evid.R.

702(A). From our review of Director Smith's testimony and his qualifications as an

expert, we find the firearm simulation test established and fulfilled the requirements of

the rule. We note defense counsel strenuously cross-examined Director Smith on the

testing procedures to challenge the credibility of his opinion. T. at 434-441.
Delaware County, Case No. 12CAA020012                                                   13


      {¶39} As for the position of the body, the victim was found on his back. State's

Exhibit No. 15A. Appellant testified the victim was bent over him punching him. T. at

678-679. After shooting the victim in the neck, appellant observed the victim "leaning

against some plastic storage receptacles that I had." T. at 685. He then helped the

victim "down to the ground." T. at 686.

      {¶40} Director Smith testified the victim's body, upon being shot while leaning

forward, would likely fall forward not backwards. T. at 433. From his experience of

seeing videos of actual shootings, Director Smith testified at length about the velocity of

a bullet and the effect of a bullet hitting a body, specifically a bullet from the same gun

used sub judice. T. at 431-433. Given that Director Smith's qualifications were clearly

established in the field of forensic science, we find no error in admitting the testimony

relative to reaction of a body upon being shot.

      {¶41} Coroner Obinna Ugwu also testified to the reaction of a body upon being

shot. T. at 364. He stated, "I really would like to say, I don't think there's any definite

scientific way of predicting this, people tend to react differently. The exact motion he

was in when the projectile penetrated his body, would determine how he would fall

eventually." T. at 364-365. Defense counsel cross-examined him on this issue. T. at

370-371. Coroner Ugwa testified to his qualifications as a pathologist and his education

and training in medicine, forensic pathology, and determining the cause and manner of

death. T. at 346-347. We find no error in admitting this complained of testimony.

      {¶42} Upon review, we find the trial court did not abuse its discretion in admitting

the complained of testimony of Agent Wilgus, Director Smith, and Coroner Ugwu.

      {¶43} Assignment of Error III is denied.
Delaware County, Case No. 12CAA020012                                                      14


                                              IV

       {¶44} Appellant claims the trial court erred in denying testimony about post

traumatic stress disorder without an expert witness, but permitted the state to introduce

evidence of a positive drug screen without expert testimony. We disagree.

       {¶45} Prior to trial, defense counsel stated he had documentation from the U.S.

Army indicating appellant was discharged for having post traumatic stress disorder. T.

at 10. He explained he wanted to present this document as an exhibit during his case

and have appellant testify as to whether he received any counseling or advice. T. at 10-

11. State's Exhibit No. 49 which was a Memorandum from the Department of the Army,

clearly stated appellant's discharge was the result of a positive drug test for marijuana.

The parties stipulated to the authenticity of this exhibit. T. at 13.

       {¶46} Upon further discussion, the trial court limited appellant's testimony about

post traumatic stress disorder without expert testimony. T. at 16-17. Defense counsel

clarified, "So I understand the limits of this, Your Honor. If I were to ask Mr. Sellers if he

was being medically disqualified from the Army, without going into a diagnosis or

anything, that would be permissible, he received notice from them." T. at 17. The trial

court stated, "I don't have any problem with that." Id.

       {¶47} Appellant's argument appears to be that the discharge memorandum for a

positive drug screen should not have been admitted if the issue of post traumatic stress

disorder was not also included.

       {¶48} Appellant testified about his discharge as follows at 668:



       Q.     What was the reason you began using marijuana again?
Delaware County, Case No. 12CAA020012                                                   15


        A.      It's been a pretty good easer of anxiety. It [marijuana] does kind of

        calm the nerves. And it is - - many doctor's opinions, is a respectable

        treatment for anxiety issues.

        Q.      Now, when the Army sent you on the medical discharge, had they

        sent you to get any sort of treatment?

        A.      They had.      I was currently making visits to the Veteran's

        Association down in Columbus and I was - - I had seen, for the last six

        months in Iraq, I was seeing a psychologist. And upon returning, I saw a

        psychologist and was put on medication.



        {¶49} Although we do not have a proposed exhibit relative to post traumatic

stress disorder, there is evidence in the record of appellant suffering from anxiety and

depression after returning from active duty.

        {¶50} State's Exhibit No. 49 was admitted and included a positive drug test

result. T. at 627. Appellant freely admitted he was a cultivator of marijuana for his own

use. T. at 699, 706-708. In addition, State's Exhibit No. 51 is a positive drug test for

marijuana of the items seized from appellant's bedroom, along with an accompanying

affidavit.

        {¶51} Upon review, we find the trial court did not abuse its discretion as argued

by appellant.

        {¶52} Assignment of Error IV is denied.
Delaware County, Case No. 12CAA020012                                                     16


                                             V

       {¶53} Appellant claims the trial court erred in not dismissing Counts 2, 3, 5, 6,

and 7 of the indictment on speedy trial grounds. We disagree.

       {¶54} Appellant had signed a time waiver on the original murder count of the

March 23, 2011 indictment. He argues the time waiver did not apply to the additional

counts as the state knew of the underlying facts of the counts at the time of the March

23, 2011 indictment; therefore, his speedy trial rights were violated.

       {¶55} In support of his argument, appellant cites the case of State v. Adams, 43

Ohio St.3d 67 (1989), 68, wherein the Supreme Court of Ohio quoted the following from

State v. Clay, 9 Ohio App.3d 216 (1983), 218: "***[W]hen new and additional charges

arise from the same facts as did the original charge and the state knew of such facts at

the time of the initial indictment, the time within which trial is to begin on the additional

charge is subject to the same statutory limitations period that is applied to the original

charge." The Adams court reasoned at 70, "a knowing and intelligent waiver cannot be

made until all the facts are known by the accused, which includes knowing the exact

nature of the crime he is charged with."

       {¶56} In the cited counts, appellant was indicted for involuntary manslaughter,

having a weapon while under disability (drug dependency), and three drug related

offenses. Appellant argues at the time of the March indictment, the state knew of Mr.

McArthur's death, the presence of marijuana plants, seeds, residue, and paraphernalia

in his bedroom, and his previous drug conviction in municipal court. T. at 154, 189, 213,

223, 237.
Delaware County, Case No. 12CAA020012                                                  17


      {¶57} Although the state was aware of the positive test results for drugs on April

1, 2011, it was not until an August 7, 2011 defense expert report by Dr. John Fabian

that appellant's drug dependency was known and then reconfirmed by the state on

September 26, 2011.

      {¶58} After an analysis of the facts, the trial court dismissed a second count of

having a weapon while under disability, Count 4. In doing so, the trial court meticulously

addressed the requirements of State v. Davis, 2nd Dist. No. 2002-CA-43, 2003-Ohio-

4839, and State v. Baker, 78 Ohio St.3d 108, 1997-Ohio-229.

      {¶59} In Davis, our brethren from the Second District discussed the Adams

decision and noted the signing of a time waiver in a previous indictment did not carry

over to a subsequent indictment. However, this black letter law is tempered by an

examination of the subsequent offenses:



      ***the concerns expressed in Adams are absent when the subsequent

      charge is a lesser-included offense of an initial charge. Specifically, in

      such cases, waiving defendants are aware of the exact nature of the

      crimes with which they are charged, since "the greater offense cannot, as

      statutorily defined, ever be committed without the lesser offense, as

      statutorily defined, also being committed." State v. Deem (1988), 40 Ohio

      St.3d 205, 206, 533 N.E.2d 294, paragraph three of the syllabus.

      Because the greater offense requires proof of one or more additional

      elements, it may involve considerations of defense that would not be
Delaware County, Case No. 12CAA020012                                                  18


       contemplated in defending against the lesser-included offense, but not

       vice versa.

       ***We have likewise said that "[i]nvoluntary manslaughter is always and

       necessarily a lesser included offense of murder because murder cannot

       ever be committed without also committing or attempting to commit a

       felony or misdemeanor." State v. Lawrence (Dec. 19, 1997), Montgomery

       App. No. 16317, 1997 WL 822719. Thus, because Davis was charged

       with murder under R.C. 2903.02, his speedy trial waiver for that charge

       applied to the lesser-included offense of involuntary manslaughter under

       R.C. 2903.04.



Davis, at ¶ 32-33.



       {¶60} This coincides with the trial court's decision in not dismissing Count 2, the

involuntary manslaughter count, because it was a lesser-included offense of the original

murder charge.       Appellant's time waiver from the original indictment applied to the

subsequent indictment for involuntary manslaughter.

       {¶61} In the Baker case, the Supreme Court of Ohio stated the following at 111-

112:



       To require the state to bring additional charges within the time period of

       the original indictment, when the state could not have had any knowledge

       of the additional charges until investigating later-seized evidence, would
Delaware County, Case No. 12CAA020012                                                 19


      undermine the state's ability to prosecute elaborate or complex crimes. In

      so holding, we recognize that in construing the speedy-trial statutes, we

      must balance the rights of an accused with the public's interest in

      "obtaining convictions of persons who have committed criminal offenses

      against the state." State v. Bonarrigo (1980), 62 Ohio St.2d 7, 11, 16

      O.O.3d 4, 6-7, 402 N.E.2d 530, 534.

      ***When additional criminal charges arise from facts distinct from those

      supporting an original charge, or the state was unaware of such facts at

      that time, the state is not required to bring the accused to trial within the

      same statutory period as the original charge under R.C. 2945.71 et seq.



See also, State v. Brown, 5th Dist. No. 2007CA00129, 2008-Ohio-4087, and State v.

Nichols, 5th Dist. No. 2009-CA-0032, 2009-Ohio-3160.



      {¶62} The issue is whether the state had new and additional facts that were not

known at the time of the original indictment. The lab results were not available until

April 1, 2011, after the first indictment of March 23, 2011.      Also, appellant's drug

dependency was not known until September 26, 2011.

      {¶63} Upon review, we find the trial court did not err in not dismissing the cited

counts.

      {¶64} Assignment of Error V is denied.
Delaware County, Case No. 12CAA020012                                                  20


                                           VI

      {¶65} Appellant claims the trial court erred in instructing the jury on voluntary

manslaughter as it was not requested and is not a lesser included offense of murder.

We disagree.

      {¶66} Voluntary manslaughter is defined in R.C. 2903.03(A) as, "[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

or the unlawful termination of another's pregnancy."

      {¶67} In its brief at 26, the state concedes voluntary manslaughter is not a lesser

included offense of murder, but argues it is a crime of inferior degree. R.C. 2945.74;

Crim.R. 31(C). As such, voluntary manslaughter is a mitigating factor to the purposeful

killing of another (murder). In State v. Rhodes, 63 Ohio St.3d 613 (1992), 617-618,

footnote omitted, the Supreme Court of Ohio stated the following:



               R.C. 2903.03 defines voluntary manslaughter as a single offense

      that, under certain circumstances, permits a defendant to mitigate a

      charge of murder to manslaughter. The crime comprises elements that

      must be proven by the prosecution and mitigating circumstances that must

      be established by the defendant.***Under the statute, the jury must find a

      defendant guilty of voluntary manslaughter rather than murder if the

      prosecution has proven, beyond a reasonable doubt, that the defendant

      knowingly caused the victim's death, and if the defendant has established
Delaware County, Case No. 12CAA020012                                                21


      by a preponderance of the evidence the existence of one or both of the

      mitigating circumstances.

            Voluntary manslaughter is, by our prior definition, an inferior degree

      of murder. State v. Tyler (1990), 50 Ohio St.3d 24, 36, 553 N.E.2d 576,

      592. Accord State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294,

      paragraph two of the syllabus. Thus, if a defendant on trial for murder or

      aggravated murder (or the prosecution in such trial) produces evidence of

      one or both of the mitigating circumstances set forth in R.C. 2903.03, that

      evidence will be sufficient to entitle a defendant to an instruction on

      voluntary manslaughter as an inferior degree of murder if under any

      reasonable view of the evidence, and when all of the evidence is

      construed in a light most favorable to the defendant, a reasonable jury

      could find that the defendant had established by a preponderance of the

      evidence the existence of one or both of the mitigating circumstances.

      State v. Wilkins (1980), 64 Ohio St.2d 382, 388, 18 O.O.3d 528, 532, 415

      N.E.2d 303, 308.



      {¶68} Upon review, we find the trial court did not err in instructing the jury on

voluntary manslaughter.

      {¶69} Assignment of Error VI is denied.
Delaware County, Case No. 12CAA020012                                                 22


                                            VII

       {¶70} Appellant claims his convictions for voluntary manslaughter, involuntary

manslaughter, and having a weapon while under disability were against the manifest

weight of the evidence. We disagree.

       {¶71} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new

trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175.

                            VOLUNTARY MANSLAUGHTER

       {¶72} As stated supra, voluntary manslaughter is defined in R.C. 2903.03(A) as,

"[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 or the unlawful termination of another's pregnancy."

       {¶73} Appellant argues the evidence does not support this conviction because

there was no evidence to establish he knew where the victim was when he fired the gun

and his sole intention was to scare the victim.

       {¶74} The requisite culpable mental state for voluntary manslaughter is

"knowingly" which is defined as, "[a] person acts knowingly, regardless of his purpose,
Delaware County, Case No. 12CAA020012                                                    23


when he is aware that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he is aware that

such circumstances probably exist." R.C. 2901.22(B). It is well established that one

may be presumed to intend results which are the natural, reasonable, and probable

consequences of his voluntary acts. State v. Farmer, 156 Ohio St. 214 (1951).

       {¶75} The evidence at trial by the experts established the natural fall of the

victim's body if he was bending over would be to fall forward. T. at 364-365, 433. As

noted in Assignment of Error III, the victim was found on his back. State's Exhibit No

15A. The gun was fired at least 18 to 24 inches from the victim because of the lack of

stippling. T. at 305-306, 429-430. If believed, this places the victim at least 18 to 24

inches from appellant and in an upright position.

       {¶76} Appellant testified the victim was bent over him punching him. T. at 678-

679. Appellant noticed his gun "had fallen out of the nightstand" and was on the floor.

T. at 679. He grabbed the gun and held it underneath him as the victim continued to

beat him. T. at 680-681. He then grabbed the muzzle and began swinging the gun

over his shoulder in an attempt to strike the victim, but he was unsuccessful. T. at 681.

Appellant then took the safety off the gun, yelled "I'm going to shoot, I'm going to shoot,"

held the gun next to his own head, and shot straight up in the air as a warning shot to

scare off the victim. T. at 683. The bullet struck the victim in the throat. T. at 686.

Appellant admitted that he "knew that there was a possibility" that the bullet could go in

the victim's direction given the fact that the victim was over top him punching him. T. at

738.
Delaware County, Case No. 12CAA020012                                                 24


       {¶77} All of the actions occurred very quickly and appellant's friend, Douglas

Adams, who was a guest in the apartment on the morning in question, testified there

was a thud and a shot immediately after the victim entered appellant's bedroom. T. at

519-520.

       {¶78} Whether or not appellant intended to injure the victim, it is clear from his

testimony that he knowingly unlocked the safety to the gun and fired it in the air with

appellant apparently bent over him punching him.       Because a knowingly done act

includes the fact that appellant was responsible for the natural, reasonable, and

probable consequences of his act, we find sufficient evidence to rebut the self-defense

or accidental act that caused the victim's death.

       {¶79} Upon review, we find the testimony is sufficient to establish that appellant

knowingly caused the victim's death.

                               INVOLUNTARY MANSLAUGHTER

       {¶80} Appellant argues a predicate offense was not proven therefore, a felony

was not involved as is required for involuntary manslaughter.

       {¶81} Involuntary manslaughter as defined in R.C. 2903.04(A) states, "[n]o

person shall cause the death of another or the unlawful termination of another's

pregnancy as a proximate result of the offender's committing or attempting to commit a

felony."

       {¶82} Neither the indictment nor the verdict forms specified the underlying

felony. The trial court charged the jury with felonious assault, aggravated assault, and

having a weapon while under disability.      T. at 884-887. There was also a firearm

specification to this count.
Delaware County, Case No. 12CAA020012                                                 25


       {¶83} Appellant's own testimony established he fired the gun in order to stop the

confrontation with the victim. T. at 678-683. Given the evidence cited supra, we find

sufficient credible evidence of attempted felonious assault or attempted aggravated

assault as a predicate offense. Appellant's arguments that having a weapon while

under disability cannot be the predicate offense are moot.

                    HAVING A WEAPON WHILE UNDER DISABILITY

       {¶84} Having a weapon while under disability is defined in R.C. 2923.13 as

follows in pertinent part:



       (A) Unless relieved from disability as provided in section 2923.14 of the

       Revised Code, no person shall knowingly acquire, have, carry, or use any

       firearm or dangerous ordnance, if any of the following apply:

       (4) The person is drug dependent, in danger of drug dependence, or a

       chronic alcoholic.



       {¶85} Appellant argues there was insufficient evidence of his drug dependency

to create a disability. R.C. 3719.011(B) defines a "drug dependent person" as "any

person who, by reason of the use of any drug of abuse, is physically, psychologically, or

physically and psychologically dependent upon the use of such drug, to the detriment of

the person's health or welfare."

       {¶86} Appellant was discharged from the U.S. Army for drug dependency (failing

a drug test). State's Exhibit No. 49. Appellant freely admitted to smoking marijuana

after his discharge as it helped his anxiety and depression and to cultivating marijuana
Delaware County, Case No. 12CAA020012                                                26


for his personal use. T. at 699-700, 705, 709. We find this evidence to be sufficient to

establish the disability of drug dependency.

       {¶87} Upon review, we find the jury did not lose its way and find no manifest

miscarriage of justice.

       {¶88} Assignment of Error VII is denied.

                                            VIII

       {¶89} Appellant claims he was denied effective assistance of trial counsel. We

disagree.

       {¶90} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



       2. Counsel's performance will not be deemed ineffective unless and until

       counsel's performance is proved to have fallen below an objective standard of

       reasonable representation and, in addition, prejudice arises from counsel's

       performance.       (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358

       N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80

       L.Ed.2d 674, followed.)

       3. To show that a defendant has been prejudiced by counsel's deficient

       performance, the defendant must prove that there exists a reasonable probability

       that, were it not for counsel's errors, the result of the trial would have been

       different."
Delaware County, Case No. 12CAA020012                                                  27


      {¶91} This court must accord deference to defense counsel's strategic choices

made during trial and "requires us to eliminate the distorting effect of hindsight." State

v. Post, 32 Ohio St.3d 380 (1987), 388.

      {¶92} Appellant claims his counsel was ineffective for failing to object to the

voluntary manslaughter charge to the jury. This issue was addressed in Assignment of

Error VI and denied.

      {¶93} Appellant also argues his trial counsel should have requested that the jury

be charged on the "castle doctrine" in R.C. 2901.05:



      (B)(1) Subject to division (B)(2) of this section, a person is presumed to

      have acted in self defense or defense of another when using defensive

      force that is intended or likely to cause death or great bodily harm to

      another if the person against whom the defensive force is used is in the

      process of unlawfully and without privilege to do so entering, or has

      unlawfully and without privilege to do so entered, the residence or vehicle

      occupied by the person using the defensive force.

      (2)(a) The presumption set forth in division (B)(1) of this section does not

      apply if the person against whom the defensive force is used has a right to

      be in, or is a lawful resident of, the residence or vehicle.



      {¶94} Both appellant and the victim lived together in the same house. T. at 669-

670. The victim was a renter although he had not paid his rent for some months. T. at

671. The "castle doctrine" did not apply in this case.
Delaware County, Case No. 12CAA020012                                                  28


       {¶95} Appellant argues his counsel failed to present an expert to testify as to his

post traumatic stress disorder. The trial court permitted funds for the expert (John

Fabian, PSY.D, J.D., ABPP), but defense counsel chose not to have him testify. Order

filed June 30, 2011. While Dr. Fabian could have testified to post traumatic stress

disorder, he would have also testified to appellant's drug dependency which would have

established the having a weapon while under disability count. We conclude the choice

not to present the expert was within the range of trial strategy.

       {¶96} Appellant also argues his counsel was ineffective for not objecting to the

Wilgus, Smith, and Ugwu testimonies as they were not qualified as experts. This issue

was addressed in Assignment of Error III and denied.

       {¶97} Appellant also challenges his counsel's effectiveness in examining his

friend, Douglas Adams. We find Mr. Adam's testimony, in most regards, substantiated

appellant's case. The testimony established the victim confronted appellant, the reason

for the confrontation, and the victim's attitude and combativeness. We fail to find any

error or ineffectiveness in counsel's performance on this issue.

       {¶98} Upon review, we find no ineffective assistance of counsel.

       {¶99} Assignment of Error VIII is denied.
Delaware County, Case No. 12CAA020012                                          29


      {¶100} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. concur and

Hoffman, J. concurs separately.




                                        s/ Sheila G. Farmer________________



                                        s/ W. Scott Gwin__________________



                                        _______________________________

                                                     JUDGES

SGF/sg 1015
Delaware County, Case No. 12CAA020012                                                     30

Hoffman, J., concurring

     {¶101} I concur in the majority’s analysis and disposition of all of Appellant’s

assignments of error except Appellant’s sixth and eighth assignments of error. While I

agree with the majority’s decision to overrule them, I do so for a different reason.

     {¶102} While voluntary manslaughter is an inferior degree of murder and the

evidence at trial was sufficient to entitle Appellant to an instruction thereon, it was the

state of Ohio, not Appellant, who requested the instruction.

     {¶103} I interpret the majority’s citation to Rhodes to suggest it finds the trial court

did not error in giving the instruction. To that extent, I respectfully disagree.

     {¶104} Appellant was not indicted for voluntary manslaughter.              To allow the

instruction other than upon Appellant’s request, I find constitutes error.

     {¶105} Having so found, I, nevertheless, concur in the majority’s decision to

overrule the assigned error because I find it was waived by Appellant because he failed

to object to the instruction.

     {¶106} Because the majority overrules Appellant’s eighth assignment of error

claiming ineffective assistance of counsel for failing to object to the instruction based

upon its apparent conclusion giving the instruction was not error, I find it necessary to

state my reason for concurring in the majority’s disposition regarding it.

     {¶107} While I find the trial court’s decision to give the instruction constituted

error, I find the decision not to object within the parameters of counsel’s trial strategy.

While it has been held the failure to request an instruction on an inferior degree offense

may be the result of trial strategy, and, accordingly, not a result of ineffective counsel.

See, State v. Cottrell, Fourth Dist. 11CA3241, 11CA3242, 2012-Ohio-4583, I find the
Delaware County, Case No. 12CAA020012                                                        31


corollary failure to object to the instruction, likewise, might be trial strategy as it allows a

jury to find a defendant not guilty of the greater indicted offense thereby allowing for the

possibility of a lesser punishment on the inferior offense. While admittedly speculation,

had the state not moved for the instruction, Appellant may well have done so himself

under the facts of this case.



                                                   ________________________________
                                                   HON. WILLIAM B. HOFFMAN
[Cite as State v. Sellers, 2012-Ohio-5546.]


                  IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
-vs-                                            :        JUDGMENT ENTRY
                                                :
JOEL E. SELLERS                                 :
                                                :
        Defendant-Appellant                     :        CASE NO. 12CAA020012




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.




                                                s/ Sheila G. Farmer________________



                                                s/ W. Scott Gwin__________________



                                                s/ William B. Hoffman______________

                                                     JUDGES
