[Cite as State v. Ortiz, 2016-Ohio-354.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. Sheila G. Farmer, P.J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 2015CA00098
PETER ORTIZ                                     :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Stark County
                                                    Court of Common Pleas, Case No.
                                                    2014CR1640

JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             February 1, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     BERNARD HUNT
Stark County Prosecutor                             2395 McGinty Road N.W.
BY: RONALD MARK CALDWELL                            North Canton, OH 44720
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2015CA00098                                                        2

Gwin, J.

       {¶1}   Defendant-appellant Peter Ortiz [“Ortiz”] appeals his convictions and

sentences after a jury trial in the Stark County Court of Common Pleas on one count of

aggravated murder with a firearm specification, having weapons while under disability,

and possession of a firearm in liquor permit premises.

                                  Facts and Procedural History

       {¶2}   On October 1, 2014, Ortiz and Akira "A.K." Kirksey [“Kirksey”] were both

employed bussing tables and washing dishes at the Blue Fig Bar & Grill restaurant in

Alliance, Ohio. While in the kitchen area, the two began to argue around noon about who

was going to help the barmaid, Amber Fletcher, with bussing the bar. The one who would

help her bus her area would also share in the tips, and the person who would normally

perform this task was the usual busser, Kirksey. Ortiz, however, felt he should be the one

to help Fletcher. Their argument became heated, drawing the attention of the other co-

workers. Mary Beth Fails, a server at the restaurant, told the two men to stop arguing and

get back to work, as there were customers present. Fletcher walked into the kitchen area

as well, noticing that Ortiz had a knife, and Benjamin Carl, a cook working in the kitchen,

got between the two and asked them to stop arguing. Ortiz eventually left the restaurant.

Many of the co-workers thought he left in order to cool off, maybe even taking the rest of

the day off. Fletcher then heard Kirksey mutter to himself that Ortiz did not know with whom

he was messing.

       {¶3}   Ortiz, however, did not cool off, but instead drove home to his apartment,

located approximately ten minutes from the restaurant, and retrieved his fully loaded

handgun. Ortiz then drove back to the restaurant to immediately seek out Kirksey. Upon
Stark County, Case No. 2015CA00098                                                         3


entering the restaurant, Ortiz walked by Fails, who was outside the back door smoking a

cigarette. She asked Ortiz if he had cooled down, and he responded that everything was

fine. Fails did not see the handgun concealed in Ortiz's waistband. Ortiz then went inside

and found Kirksey loading dirty dishes into a bus tub. Michelle Grimes, a server at the

restaurant, heard Ortiz dare Kirksey to call him something again. Kirksey replied that they

were cool, that he knew where Ortiz lived and that they could settle this matter there after

work. Kirksey then turned to walk away, at which time Ortiz pulled his handgun and

immediately fired three shots at him. One shot entered Kirksey's arm in the back; the

other two shots, both independently fatal, entered Kirksey's back right shoulder and the

back of his head. Kirksey's immediately fell to the floor. Ortiz went into the bar area,

grabbed a bottle of tequila, and poured himself a drink. Fletcher, having heard the shots,

saw Ortiz come to her bar and pour himself a drink. Ortiz looked at her and advised her

that she had better call 9-1-1.

       {¶4}   Hearing the shots, Fails ran inside to see people running out of the

restaurant, saying that A.K. had been shot. Carl, the cook at the Blue Fig, immediately

ran outside upon hearing the shots and ran to the motel located next door, where he

called 9-1-1. Grimes ran for cover in the restaurant. Fletcher took her cell phone and went

to Kirksey to check on him. She found his lifeless body on the floor in a small hallway by

the kitchen, with blood covering the floor. She knelt down to check for a pulse on Kirksey's

neck while calling 9-1-1. While Fletcher was on the floor tending to Kirksey, she was

startled to see Ortiz return with his gun in hand. Fletcher begged Ortiz not to shoot Kirksey

again, and not to shoot her since she was pregnant. Ortiz walked up to them, put the gun
Stark County, Case No. 2015CA00098                                                           4


to Kirksey's chin, and fired one more shot. He then exited the restaurant and waited in

the adjacent parking lot for the police to arrive.

       {¶5}   Officers from the Alliance Police Department arrived shortly after Fletcher's

9-1-1 call. The first officer to respond, Officer Aaron Perkins, was met by restaurant

employees in the parking lot, who pointed out Ortiz to him as the shooter. Perkins

immediately confronted Ortiz, who threw down his gun and submitted to his arrest. As

Perkins started to advise Ortiz of his rights, Ortiz blurted out, "I shot him, I shot him." 1T.

at 149-150. Alliance Detective Donald Wensel arrived at the scene after Perkins, and after

checking on the victim and the restaurant employees, approached the handcuffed Ortiz

to speak with him. Officer Perkins told Detective Wensel that Ortiz had been notified of

his rights. Detective Wensel then obtained Ortiz's consent to search his car and

apartment, and then asked him what had happened. Ortiz admitted to shooting Kirksey

because he had had enough of him, so he went home, got his gun, and returned and shot

him to death. 1T. at 186.

       {¶6}   This exchange was recorded, and played to the jury. 1T.at 193 (State's

Exhibit 8). Detective Wensel then searched Ortiz's car, finding nothing of evidentiary value,

after which he made the short drive to Ortiz's apartment. Inside the apartment, he found

a box of ammunition that matched the bullets he found in the magazine of Ortiz's

handgun. This magazine, if it had been fully loaded, was missing four bullets. Finally,

Detective Wensel discovered that Ortiz was legally prohibited from having a gun due to his

2011 felony conviction for cocaine possession out of Summit County.

       {¶7}   Wensel timed the route to Ortiz's apartment, noting that it took him almost

nine minutes to get there, and about eight minutes to return to the restaurant. Factoring
Stark County, Case No. 2015CA00098                                                         5


in the time it took to retrieve and load his gun, the detective estimated that the total time

from when Ortiz left the restaurant until his return could have been as little as 20 to 25

minutes. Benjamin Carl estimated that Ortiz was gone from the restaurant for 45 minutes.

       {¶8}   Ortiz testified in his defense at trial. He claimed that he had had prior

altercations with Kirksey, mainly as a result of being blamed for changing Kirksey's work

schedule to the worst shifts. Ortiz asserted that he had nothing to do with these shift

changes. He even heard from others that Kirksey was going to beat him up and rob him,

an accusation that Kirksey denied when Ortiz confronted him. Yet, Ortiz had found

Kirksey sitting on his porch a couple times upon coming home, although Kirksey told him

that he was simply waiting for a friend who lived upstairs. Ortiz was also told that Kirksey

had been told that Ortiz had ratted him out to police, telling the police about Kirksey's

alleged marijuana business. After the second time he found Kirksey sitting on his porch,

he decided to buy a gun since the police or the restaurant managers would do nothing

about the situation. Ortiz then took the gun to work and showed Kirksey, asking him where

he could buy some bullets. Ortiz’s purpose was to scare Kirksey.

       {¶9}   On the day of the shooting, Ortiz claimed that Kirksey confronted him about

the schedule changes. Ortiz admitted that he grabbed a knife, but asserted that he did so

for protection. Fails broke up the argument. Kirksey, instead of quitting, threatened Ortiz

that he knew where he lived, so Ortiz picked up a frying pan to defend himself. Ortiz then

decided to leave, so he drove away, stopping to get gas and cigarettes before reaching his

apartment. Once there, he retrieve his gun and returned to the restaurant.

       {¶10} Upon arriving back at the restaurant, Kirksey accused Ortiz of ratting on him,

pointing a finger at Ortiz’s eye and pushing him back. Ortiz, who claimed that he had picked
Stark County, Case No. 2015CA00098                                                        6


up some plates when he resumed working, threw these plates into a garbage can and

pulled out his gun. According to Ortiz, Grimes then got between the two men, telling them

that she did not have time for this. Kirksey then allegedly said to Ortiz, “Don’t cry, wait

until 3:00,” apparently, referring to when he would get off work. As Kirksey turned his back

to leave, Ortiz shot him three times. He then told Grimes that he had killed Kirksey, after

which he went to the bar and took some pills by drinking some tequila. Ortiz admitted that

he told Fletcher to call 9-1-1 as he sat at the bar.

       {¶11} Ortiz testified that he did not hate Kirksey, but that his hatred developed and

grew as he sat at the bar. As a result, he went back into the kitchen area and shot Kirksey

once more. He then went outside to the parking lot to wait for the police. When asked why

he had shot Kirksey, Ortiz blamed the shooting on the co-workers, who did not stop them

or cool them down. He admitted that he had shot Kirksey three times in the back, but only

began hating his victim after he had shot him, which prompted him to shoot him a fourth

time. Finally, Ortiz admitted that he had told the police that he had shot Kirksey because

he had called Ortiz a “bitch motherfucker” in front of everyone.

       {¶12} Thomas Reitz, a busboy and dishwasher at the Blue Fig, testified that

Kirksey once got so upset with Ortiz that he threatened to fight or rob him. This threat

apparently got back to Ortiz, who showed up to work the next day to fight Kirksey. No

fight or robbery, however, ever took place.

       {¶13} Patrol officer Michael Donley of the Alliance Police Department testified that

he had arrested Ortiz for a DUI in 2013, and had responded to a call at Ortiz’s apartment

a couple months before the shooting. Ortiz was intoxicated, and complained about a

neighbor making too much noise that night. The neighbor, however, had driven away
Stark County, Case No. 2015CA00098                                                         7


before the police arrived, and Ortiz did not provide a name. After the shooting and his

arrest, Ortiz asked to call Donley. In this phone call, Ortiz admitted to the officer that he

had shot and killed Kirksey because Kirksey had allegedly threatened him.

       {¶14} The jury returned with guilty verdicts on one count of aggravated murder

with a firearm specification, having weapons while under disability and possession of a

firearm in liquor permit premises, as charged in the indictment.

       {¶15} The trial court sentenced Ortiz to an aggregate prison term of life

imprisonment without the possibility of parole. The aggregate sentence was comprised of

the following individual sentences, life imprisonment without the possibility of parole

aggravated murder; mandatory consecutive three-year prison term for the firearm

specification; prison term of 36 months on the charge of having weapons while under

disability ; and a prison term of 12 months on the charge of possess of firearm in liquor

permit premises.

                                      Assignments of Error

       {¶16} Ortiz raises three assignments of error,

       {¶17} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S

MOTION TO ALLOW JURY INSTRUCTIONS ON THE LESSER INCLUDED OFFENSES

FOUND IN O.R.C. 2903.02 AND O.R.C.2903.03.

       {¶18} “II. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS

RIGHTS BASED UPON VIOLATIONS OF THE EQUAL PROTECTION AND DUE

PROCESS CLAUSE OF THE UNITED STATES AND OF THE OHIO CONSTITUTION.

       {¶19} “III. THE APPELLANT WAS DENIED HIS EFFECTIVE ASSISTANCE OF

COUNSEL, WHICH VIOLATED HIS RIGHTS UNDER THE 6TH AND 14TH
Stark County, Case No. 2015CA00098                                                         8


AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION

10 OF THE OHIO CONSTITUTION.”

                                                I.

      {¶20} In his first assignment of error, Ortiz's challenges the trial court's ruling to

deny his request to instruct the jury on the lesser-included offenses of murder and

voluntary manslaughter. Ortiz argues that he presented evidence that showed that he

acted spontaneously and not with prior calculation and design.

      {¶21} The giving of jury instructions is within the sound discretion of the trial court

and will not be disturbed on appeal absent an abuse of discretion. State v. Martens, 90

Ohio App.3d 338, 629 N.E.2d 462(3rd Dist. 1993). 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, 5

Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be reviewed as a whole.

State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).

      {¶22} Crim.R. 30(A) governs instructions and states as follows:

                At the close of the evidence or at such earlier time during the trial

      as the court reasonably directs, any party may file written requests that the

      court instruct the jury on the law as set forth in the requests. Copies shall

      be furnished to all other parties at the time of making the requests. The court

      shall inform counsel of its proposed action on the requests prior to counsel's

      arguments to the jury and shall give the jury complete instructions after the

      arguments are completed. The court also may give some or all of its
Stark County, Case No. 2015CA00098                                                        9


       instructions to the jury prior to counsel's arguments. The court need not

       reduce its instructions to writing.

              On appeal, a party may not assign as error the giving or the failure

       to give any instructions unless the party objects before the jury retires to

       consider its verdict, stating specifically the matter objected to and the

       grounds of the objection. Opportunity shall be given to make the objection

       out of the hearing of the jury.

       {¶23} Although Ortiz filed a request for jury instruction on voluntarily

manslaughter, counsel withdrew this request,

              [Defense Counsel]: Your Honor, I did file a request for jury

       instructions for both the lesser included of murder and voluntary

       manslaughter, based on the testimony I will limit my request to instruction

       on murder 2903.02 [sic.], subsection A.

2T. at 49.

       {¶24} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d

35(1999) the United State Supreme Court held that because the failure to properly instruct

the jury is not in most instances structural error, the harmless-error rule of Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies to a failure to properly

instruct the jury, for it does not necessarily render a trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.

       {¶25} Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” “Notice

of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
Stark County, Case No. 2015CA00098                                                         10

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus. In order to find

plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of

the trial clearly would have been otherwise. Id. at paragraph two of the syllabus.

       {¶26} The defendant bears the burden of demonstrating that a plain error affected

his substantial rights. United States v. Olano, 507 U.S. at 725, 734, 113 S.Ct. 1770, 123

L.Ed.2d 308(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d 643, 646(2004).

Even if the defendant satisfies this burden, an appellate court has discretion to disregard

the error and should correct it only to ‘prevent a manifest miscarriage of justice.'” State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002), quoting State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus. Perry, supra, at 118,

802 N.E.2d at 646.

       {¶27} “Even though an offense may be statutorily defined as a lesser included

offense of another, a charge on such lesser included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio

St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. In making this determination,

the court must view the evidence in a light most favorable to defendant. State v. Smith,

89 Ohio St.3d 323, 331, 731 N.E.2d 645(2000); State v. Wilkins, 64 Ohio St.2d 382, 388,

415 N.E.2d 303(1980).

       {¶28} Nevertheless, an instruction is not warranted every time any evidence is

presented on a lesser-included offense. There must be “sufficient evidence” to “allow a

jury to reasonably reject the greater offense and find the defendant guilty on a lesser
Stark County, Case No. 2015CA00098                                                     11

included (or inferior-degree) offense.” State v. Shane, 63 Ohio St.3d at 632-633, 590

N.E.2d 272; State v. Conway, 108 Ohio St.3d at 240,842 N.E.2d at 1027, 2006-Ohio-791

at ¶ 134.

      {¶29} The Ohio Supreme Court has cautioned,

             Past decisions of this court have sometimes given the erroneous

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

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

      requirements of the voluntary manslaughter statute, an instruction on the

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

      See, e.g., State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378

      N.E.2d 738, paragraph four of the syllabus. See, also, Tyler, supra, 50 Ohio

      St.3d at 37, 553 N.E.2d at 592. That clearly never has been the law in this

      state, nor is it the law today. The “some evidence” referred to in those cases

      is simply an abbreviated way of saying that a jury instruction must be given

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

      presented which would allow a jury to reasonably reject the greater offense

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

      offense.

             To require an instruction to be given to the jury every time “some

      evidence,” however minute, is presented going to a lesser included (or

      inferior-degree) offense would mean that no trial judge could ever refuse to

      give an instruction on a lesser included (or inferior-degree) offense. Trial

      judges are frequently required to decide what lesser-included (or inferior-
Stark County, Case No. 2015CA00098                                                      12


      degree) offenses must go to the jury and which must not. The jury would be

      unduly confused if it had to consider the option of guilty on a lesser included

      (or inferior-degree) offense when it could not reasonably return such a

      verdict.

State v. Shane, 63 Ohio St.3d at 632-633, 590 N.E.2d 272 (emphasis in original).

      Voluntary manslaughter.

      {¶30} Voluntary manslaughter is not a lesser-included offense of murder, but

rather is an inferior degree of murder. Nonetheless, when determining whether an

instruction on voluntary manslaughter should have been given, we apply the same test

utilized when determining whether an instruction on a lesser-included offense should

have been given. State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272(1992). An

instruction on voluntary manslaughter is appropriate when “the evidence presented at trial

would reasonably support both an acquittal on the charged crime of murder and a

conviction for voluntary manslaughter.” Id. R.C. 2901.22.

      {¶31} Voluntary manslaughter is defined in R.C. 2903.03(A):

             No 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.

      {¶32} “Before giving a jury instruction on voluntary manslaughter in a murder

case, the trial judge must determine whether evidence of reasonably sufficient

provocation occasioned by the victim has been presented to warrant such an instruction.”

Shane, at paragraph one of the syllabus. “The trial judge is required to decide this issue
Stark County, Case No. 2015CA00098                                                           13


as a matter of law, in view of the specific facts of the individual case. The trial judge should

evaluate the evidence in the light most favorable to the defendant, without weighing the

persuasiveness of the evidence.” Id. at 637, citing State v. Wilkins, 64 Ohio St.2d 382,

388, 415 N.E.2d 303(1980). “An inquiry into the mitigating circumstances of provocation

must be broken down into both objective and subjective components.” Shane, at 634.

       {¶33} When determining whether provocation was reasonably sufficient to induce

sudden passion or sudden fit of rage, an objective standard must be applied. Id. “For

provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an

ordinary person beyond the power of his or her control.” Shane 63 Ohio St.3d at 635, 415

N.E.2d 303. Thus, the court must furnish “the standard of what constitutes adequate

provocation, i.e., that provocation which would cause a reasonable person to act out of

passion rather than reason.” (Citations omitted.) Shane at 634, fn. 2. “If insufficient

evidence of provocation is presented, so that no reasonable jury would decide that an

actor was reasonably provoked by the victim, the trial judge must, as a matter of law,

refuse to give a voluntary manslaughter instruction.” Shane at 364. The subjective

component of the analysis requires an assessment of “whether this actor, in this particular

case, actually was under the influence of sudden passion or in a sudden fit of rage.” Id.

“Fear alone is insufficient to demonstrate the kind of emotional state necessary to

constitute sudden passion or fit of rage.” State v. Mack, 82 Ohio St.3d 198, 201, 694

N.E.2d 1328(1998).

       {¶34} Unlike self-defense, the issue of who was the aggressor is not the

determinative issue in a voluntary manslaughter defense; rather the appellant must show

that he acted under a sudden rage or passion. Further, past incidents or verbal threats
Stark County, Case No. 2015CA00098                                                        14


do not satisfy the test for reasonably sufficient provocation when there is sufficient time

for cooling off. State v. Huertas, 51 Ohio St.3d 22, 31–32, 553 N.E.2d 1058, 1068–1069

(1990). See, also, State v. Pierce, 64 Ohio St.2d 281, 18 O.O.3d 466, 414 N.E.2d 1038

(1980).

       {¶35} The trial court in the case at bar should have given an instruction on

voluntary manslaughter if the evidence presented at trial demonstrated that Ortiz had

killed Kirksey while under the influence of a sudden passion or fit of rage caused by

provocation from Kirksey that was serious enough to incite him into using deadly force.

       {¶36} Testimony that he did not intend to kill his victim does not entitle a defendant

to a lesser-included offense instruction. See State v. Campbell, 69 Ohio St.3d 38, 48, 630

N.E.2d 339, State v. Thomas, 40 Ohio St.3d 213, 217–218, 533 N.E.2d 286(1988). State

v. Wright, 4th Dist. No. 01CA2781, 2002–Ohio–1462, ¶ 26. Even though the defendant’s

own testimony may constitute some evidence supporting a lesser offense, if the evidence

on whole does not reasonably support an acquittal on the murder offense and a conviction

on a lesser offense, the court should not instruct on the lesser offense. Campbell, 69 Ohio

St .3d at 47, 630 N.E.2d 339; Shane, 63 Ohio St.3d 632–633. “To require an instruction

* * * every time “some evidence,” however minute, is presented going to a lesser included

(or inferior-degree) offense would mean that no trial judge could ever refuse to give an

instruction on a lesser included (or inferior-degree) offense.” Shane at 633, 590 N.E.2d

272. The same logic applies to a trial court’s decision to charge a jury concerning an

inferior degree of an offense.

       {¶37} The evidence shows that when Ortiz killed Kirksey he was not under the

influence of sudden passion or in a sudden fit of rage. Ortiz drove home and retrieved his
Stark County, Case No. 2015CA00098                                                       15


gun. In the case at bar, Ortiz admitted that he shot an unarmed Kirksey three times in the

back at close range with a .45 caliber semiautomatic Hi-Point JHP handgun. Ortiz admits

he then retreated to the bar where he consumed alcohol and pills. Ortiz then testified,

“After I shot him I hated [Kirksey].” Ortiz proceeds to return to where Kirksey is now being

attend to by Fletcher. Fletcher begs him not to shoot; however, Ortiz put the gun to

Kirksey’s chin and fired.

       {¶38} Past incidents or verbal threats do not satisfy the test for reasonably

sufficient provocation when there is sufficient time for cooling off. State v. Huertas, 51

Ohio St.3d 22, 31–32, 553 N.E.2d 1058, 1068–1069(1990). See, also, State v. Pierce, 64

Ohio St.2d 281, 414 N.E.2d 1038(1980). In this case, there is no evidence that any past

incidents provoked Ortiz into a sudden passion or fit of rage.

       {¶39} Accordingly, Ortiz was not entitled to have the jury instructed on voluntary

manslaughter.

       Murder.

       {¶40} Murder in violation of R.C. 2903.02(A), states: “No person shall purposely

cause the death of another * * *”

       {¶41}     R.C. 2901.22 Culpable mental states, provides:

               (A) A person acts purposely when it is his specific intention to cause

       a certain result, or, when the gist of the offense is a prohibition against

       conduct of a certain nature, regardless of what the offender intends to

       accomplish thereby, it is his specific intention to engage in conduct of that

       nature.
Stark County, Case No. 2015CA00098                                                          16


       {¶42} The sole difference between aggravated murder in violation of R.C.

2903.01(A) is that prior calculation and design is absent from the offense of murder. State

v. Goodwin, 84 Ohio St.3d 331, 345, 703 N.E.2d 1251, 1264 (1999), cert. denied, 528 U.S.

846,120 S.Ct. 118, 145 L.Ed.2d 100 (1999).

       {¶43} Thus, Ortiz was entitled to a murder instruction only if the state’s evidence

was ambiguous on the element of prior calculation and design, such that a trier of fact could

reasonably have found that Ortiz killed Kirksey purposefully but without prior calculation and

design. State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 138; 143.

       Prior calculation and design.

       {¶44} There is no bright-line test to determine whether prior calculation and design

are present. Rather, each case must be decided on a case-by-case basis. State v. Taylor,

78 Ohio St.3d 15, 18–20, 676 N.E.2d 82(1997). The Ohio Supreme Court has held,

“Where evidence adduced at trial reveals the presence of sufficient time and opportunity

for the planning of an act of homicide to constitute prior calculation, and the circumstances

surrounding the homicide show a scheme designed to implement the calculated decision

to kill, a finding by the trier of fact of prior calculation and design is justified.” State v.

Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190(1978), paragraph three of the syllabus. Accord,

State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d 439, 2003–Ohio–325 at ¶ 61.

       {¶45} Accordingly, to sustain Ortiz’s aggravated murder conviction, the state had

the burden of proving beyond a reasonable doubt that, under the facts and circumstances

of this case, Ortiz had sufficient time and opportunity to plan Kirksey’s death, and that,

under the surrounding circumstances, Ortiz had a scheme designed to implement a

calculated decision to kill Kirksey.
Stark County, Case No. 2015CA00098                                                        17


      {¶46} “[P]rior calculation and design can be found even when the killer quickly

conceived and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio

St.3d 253, 264, 2001–Ohio–1340, 754 N.E.2d 1129. In State v. Conway, 108 Ohio St.3d

214, 2006–Ohio–791, 842 N.E.2d 996, the Ohio Supreme Court held that one’s actions

could display a plan to kill. In Conway, upon hearing that his brother had been stabbed,

Conway retrieved a gun from his car and began shooting at the alleged perpetrator. The

Court held that “[a]lthough they took only a few minutes, Conway’s actions went beyond

a momentary impulse and show that he was determined to complete a specific course of

action. Such facts show that he had adopted a plan to kill.” Id. at ¶ 46, 842 N.E.2d 996.

      {¶47} In the instant case, the evidence established that Ortiz conceived a plan to

kill and acted on that plan with brutal composure. Ortiz had purchased the gun prior to

the date of the incident. Ortiz drove home and retrieved his gun. In the case at bar, Ortiz

admitted that he shot an unarmed Kirksey three times in the back at close range with a

.45 caliber semiautomatic Hi-Point JHP handgun. Ortiz admits he then retreated to the

bar where he consumed alcohol and pills. Ortiz then testified, “After I shot him I hated

[Kirksey].” Ortiz proceeds to return to where Kirksey is now being attend to by Fletcher.

Fletcher begs him not to shoot; however, Ortiz put the gun to Kirksey’s chin and fired.

      {¶48} If the victim is killed in a cold-blooded, execution-style manner, the killing

bespeaks aforethought, and a jury may infer prior calculation and design. See State v.

Campbell, 90 Ohio St.3d 320, 330, 738 N.E.2d 1178(2000); State v. Palmer, 80 Ohio

St.3d 543, 570, 687 N.E.2d 685(1997); State v. Taylor, 78 Ohio St.3d 15, 21, 676 N.E.2d

82(1997)
Stark County, Case No. 2015CA00098                                                        18


         {¶49} We conclude that under all the evidence presented, no reasonable trier of

fact could have found that Ortiz killed Kirksey purposefully but without prior calculation

and design. Hence, Ortiz was not entitled to a lesser-included-offense instruction on

murder.

         Conclusion.

         {¶50} The evidence shows that when Ortiz killed Kirksey he was not under the

influence of sudden passion or in a sudden fit of rage. The evidence further shows that

Ortiz acted purposefully with prior calculation and design. Ortiz’s first assignment of error

is overruled.

         {¶51} Ortiz’s first assignment of error is overruled.

                                                  II.

         {¶52} In his second assignment of error, Ortiz argues that he was denied due

process and equal protection because the trial court did not provide him an interpreter at

trial.

         {¶53} Ortiz never, either himself or through his attorney, requested the court

provide him an interpreter. Under the doctrine of “invited error,” it is well settled that “a

party will not be permitted to take advantage of an error which he himself invited or

induced the trial court to make.” State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663,

1995-Ohio-40, 646 N.E.2d 1115(1995) citing State ex rel. Fowler v. Smith, 68 Ohio St.3d

357, 359,1994-Ohio-302, 626 N.E.2d 950(1994). See, also, Lester v. Leuck, 142 Ohio St.

91, 50 N.E.2d 145(1943) paragraph one of the syllabus. As the Ohio Supreme Court has

stated,
Stark County, Case No. 2015CA00098                                                          19


                 [t]he law imposes upon every litigant the duty of vigilance in the trial

          of a case, and even where the trial court commits an error to his prejudice,

          he is required then and there to challenge the attention of the court to that

          error, by excepting thereto, and upon failure of the court to correct the same

          to cause his exceptions to be noted. It follows, therefore, that, for much

          graver reasons, a litigant cannot be permitted, either intentionally or

          unintentionally, to induce or mislead a court into the commission of an error

          and then procure a reversal of the judgment for an error for which he was

          actively responsible.

Lester at 92-93, quoting State v. Kollar (1915), 93 Ohio St. 89, 91, 112 N.E. 196.

          {¶54} At both the hearing held December 1, 2014 concerning his time waiver and

the hearing held February 9, 2015 at which Ortiz rejected the state’s plea offer, Ortiz

demonstrated no difficulty in answering the court’s questions and in raising his own

questions and concerns. Ortiz demonstrated no difficulty understanding the trial judge,

the purpose of each hearing and what he wanted to express to the judge. Ortiz could

have, but did not ask for an interpreter at any of the hearings held before trial in the case

at bar.

          {¶55} R.C. 2311.14(A) requires that a trial court appoint an interpreter where a

party “cannot readily understand or communicate” as a result of some impairment.

Generally, a trial court has broad discretion in determining whether a criminal defendant

requires the assistance of an interpreter. See State v. Quinones, 8th Dist. Cuyahoga. No.

44463, 1982 WL 5957(Oct. 14, 1982). Accordingly, this court shall not reverse a trial

court's ruling in this regard absent a showing that the trial court acted unreasonably,
Stark County, Case No. 2015CA00098                                                          20

unconscionably, or arbitrarily. State v. Apanovitch, 33 Ohio St.3d 19, 22, 514 N.E.2d 394,

398(1987) (“abuse of discretion” defined).

       {¶56} Moreover, Ortiz’s testimony at trial established that he could effectively

understand English and communicate in English. The record indicates that he responded

to all questions directed to him. We also note that at no time did his counsel represent to

the court that as a result of any alleged language barrier, Ortiz could not communicate

with his counsel or that he could not comprehend the proceedings. See, State v. Saah,

67 Ohio App.3d 86, 95, 585 N.E.2d 999 (8th Dist. 1990); Luna-Corna v. Esquivel-

Parrales, 12th Dist. Butler No. CA2008-07-175, 2009-Ohio-2628, ¶34; State v. Marques,

11th Dist. Ashtabula No. 2007-A-0085, 2008-Ohio-5324, ¶38.

       {¶57} As a result, we cannot conclude that the trial court’s failure to appoint an

interpreter was arbitrary, unreasonable or unconscionable. Ortiz was not denied equal

protection or due process by the trial court’s failure to sua sponte appoint an interpreter.

       {¶58} Ortiz’s second assignment of error is overruled.

                                                 III.

       {¶59} In his third assignment of error, Ortiz contends that he was denied the

effective assistance of counsel. Specifically, he argues that counsel was ineffective for

failing to file a suppression motion relative to his statements to police, for failing to move

for a new trial (or more properly, a mistrial) when the victim's father made some gestures

during trial, and for calling a police officer as a defense witness who testified about Ortiz's

other crimes.

       {¶60} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of
Stark County, Case No. 2015CA00098                                                         21


reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

       {¶61} Counsel is unconstitutionally ineffective if his performance is both deficient,

meaning his errors are “so serious” that he no longer functions as “counsel,” and

prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v. Kulbicki,

577 U.S. __, 2015 WL 5774453(Oct. 5, 2015) (citing Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

       Failure to file motion to suppress.

       {¶62} Trial counsel's failure to file a suppression motion does not per se constitute

ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–

0448. Counsel can only be found ineffective for failing to file a motion to suppress if, based

on the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA

130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–

3009, at ¶ 86. The defendant must further show that there is a reasonable probability that

the outcome would have been different if the motion had been granted or the defense

pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91

L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798

(2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

       {¶63} In order for an accused's statement to be admissible at trial, police must

have given the accused a Miranda warning if there was a custodial interrogation. Miranda
Stark County, Case No. 2015CA00098                                                        22

v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966). If that condition is

established, the court can proceed to consider whether there has been an express or

implied waiver of Miranda rights. Id., at 476, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

       {¶64} A custodial interrogation occurs when a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way and a law

enforcement officer questions that person. Id. “Prior to any questioning, the person must

be warned that he has a right to remain silent, that any statement he does make may be

used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” Id.

       {¶65} In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995), the Court offered the following description of the Miranda custody test:

                 Two discrete inquiries are essential to the determination: first, what

       were the circumstances surrounding the interrogation; and second, given

       those circumstances, would a reasonable person have felt he or she was

       not at liberty to terminate the interrogation and leave. Once the scene is set

       and the players' lines and actions are reconstructed, the court must apply

       an objective test to resolve the ultimate inquiry: was there a formal arrest

       or restraint on freedom of movement of the degree associated with a formal

       arrest.

516 U.S., at 112, 116 S.Ct. 457 (internal quotation marks omitted). Accord, Yarborough

v. Alvarado, 541U.S. 652, 653, 124 S.Ct. 2140, 158 L.Ed.2d 938(2004). The police and

courts must “examine all of the circumstances surrounding the interrogation,” Stansbury

v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293(1994), including those
Stark County, Case No. 2015CA00098                                                         23


that “would have affected how a reasonable person” in the suspect's position “would

perceive his or her freedom to leave,” Id., at 325, 114 S.Ct. 1526. However, the test

involves   no    consideration     of   the    particular   suspect's    “actual    mindset.”

Yarborough, 541 U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938. Accord, State v.

Mason, 82 Ohio St.3d 144, 153, 1998-Ohio-370, 694 N.E.2d 932(1998); State v. Gumm ,

73 Ohio St.3d 413, 429, 1995 Ohio 24, 653 N.E.2d 253(1995).

       {¶66} When Officer Perkins first encountered Ortiz, he asked what Ortiz was

doing. 1T. at 149. Ortiz responded, “that he was reloading, smoking a cigarette and

waiting for [the police]. Id. Ortiz then threw his handgun near a bush. At that point, Officer

Perkins handcuffed Ortiz and checked him for weapons. Officer Perkins began to read

Ortiz his Miranda rights, when Ortiz blurted out to the officer, “I shot him, I shot him.” 1T.

at 150.

       {¶67} In the case at bar, Officer Perkins was attempting to inform Ortiz of his

Miranda rights when Ortiz volunteered that he had shot Kirksey. It is evident from the

record that the statements Ortiz made to the officer about the shooting were not made in

response to any interrogation, but were entirely unsolicited. A suspect who voluntarily

gives information without being asked questions is not subject to a custodial interrogation

and is not entitled to Miranda warnings. State v. McGuire, 80 Ohio St.3d 390, 401, 686

N.E.2d 1112 (1997), citing State v. Roe, 41 Ohio St.3d 18, 22, 535 N.E.2d 1351 (1989).

In other words, “Miranda does not affect the admissibility of ‘[v]olunteered statements of

any kind.’” State v. McGuire, 80 Ohio St.3d 390, 401, 686 N.E.2d 1112 (1997), citing

Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Stark County, Case No. 2015CA00098                                                     24


      {¶68} Accordingly, Ortiz has failed in his burden to establish a reasonably

possibility that a motion to suppress had one been filed would have been granted.

      Failure to move for a mistrial.

      {¶69} During the trial, Kirksey’s father, who was watching the proceedings made

angry gestures toward the jury,

              [Defense Counsel]: During opening there was I believe it was the

      victim’s father, the larger man back here sitting behind me, at one point

      when [the prosecutor] was I think describing what happened said

      something like damn or, you know, kind of an expression and it was loud

      enough for me to hear but I don’t think anybody else in the courtroom. And

      there’s an attorney from my office that’s been sitting in the back and he

      kind of huffed or whatever, made some gesture, not loud enough for me to

      hear but they could hear.

              So I’m a little worried about once we start bringing in, you know, the

      detective who’s going to have pictures of him at the scene laying in blood

      and then we have autopsy I don’t know if we need to instruct the family

      more.

1T. at 159.

      {¶70} A trial court is afforded broad discretion in determining whether the conduct

of a spectator was prejudicial to a criminal defendant as to constitute grounds for a

mistrial. As the Ohio Supreme Court has stated,

              As a reviewing court, we show deference to the trial judge, who sees

      and hears the events and thus is in a better position to accurately evaluate
Stark County, Case No. 2015CA00098                                                       25

       the situation and determine the appropriate scope of inquiry. State v.

       Huertas (1990), 51 Ohio St.3d 22, 29, 553 N.E.2d 1058, 1067; United States

       v. Ramos (C.A.5, 1995), 71 F.3d 1150, 1153-1154. Therefore, we employ

       an abuse-of-discretion standard and will not reverse the trial court unless it

       has handled the alleged juror misconduct or ruled upon the post-trial motion

       in an "unreasonable, arbitrary, or unconscionable" manner. State v. Adams

       (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149.

State v. Hessler, 90 Ohio St.3d 108, 115-116, 2000-Ohio-30, 734 N.E.2d 1237.

       {¶71} When a defendant moves for mistrial based on a bystander’s conduct

against him or her, the defendant has the burden to show that the jury was prejudiced by

the bystander’s conduct. In cases involving outside influences on jurors, “The complaining

party must show actual prejudice, see, generally, Crim.R. 33(A), i.e., he must show that

the communication biased one or more jurors.” State v. Herring, 94 Ohio St.3d 246, 259,

762 N.E.2d 940 (2002) (citations omitted). The trial court is not required to conduct a

hearing to determine the effect of the outside influences or conduct unless the

complaining party shows actual prejudice. Hessler, 90 Ohio St.3d at 212-122, 2000-Ohio-

30, 734 N.E.2d 1237.

       {¶72} As these facts aptly demonstrate, there is nothing in the record, which

indicates that any member of the jury saw or heard the spectator’s gestures or remarks.

Ortiz does not point to anything in the record to establish that any juror observed or heard

the spectators conduct. Ortiz’s trial counsel indicted that she did not believe anyone else

heard the remarks. Her concern was directed toward preventing disruptions during the

graphic portions of the trial that were yet to come. 1T. at 159.
Stark County, Case No. 2015CA00098                                                       26


   {¶73}      Accordingly, we find counsel was not ineffective in failing to move for a

       mistrial or a new trial based upon spectator misconduct.

       {¶74} Ortiz next argues that he was denied effective assistance of counsel when

his trial counsel called Officer Donnelly to testify and during the course of his testimony,

the officer told the jury Ortiz had been arrest for driving under the influence in 2013.

Counsel mentioned during closing argument that she called Donley to the stand to solidify

his "rapport" with the officer. 2T. at 82.

       {¶75} A defendant has no constitutional right to determine trial tactics and strategy

of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298(1999); State v.

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150; State v. Donkers,

170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶ 183(11th Dist.). Rather,

decisions about viable defenses are the exclusive domain of defense counsel after

consulting with the defendant. Id. When there is no demonstration that counsel failed to

research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing

court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d 45, 49,

402 N.E.2d 1189(1980), citing People v. Miller, 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841,

498 P.2d 1089(1972); State v. Wiley, 10th Dist. No. 03AP-340, 2004- Ohio-1008 at ¶ 21.

       {¶76} Debatable strategic and tactical decisions may not form the basis of a claim

for ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 1995–Ohio–

171. Even if the wisdom of an approach is questionable, “debatable trial tactics” do not

constitute ineffective assistance of counsel. Id. “(p)oor tactics of experienced counsel,

however, even with disastrous result, may hardly be considered lack of due process * *

*.” State v. Clayton, 62 Ohio St.2d 45, 48, 402 N.E.2d 1189 (1980)(quoting United States
Stark County, Case No. 2015CA00098                                                        27

v. Denno, 313 F.2d 364 (2nd Cir.1963), certiorari denied 372 U.S. 978, 83 S.Ct. 1112, 10

L.Ed.2d 143.

       {¶77} As previously set forth, there was no evidence presented at trial that Ortiz

was provoked into a sudden passion or fit of rage. Further, the evidence showed that

Ortiz acted purposefully with prior calculation and design. We find beyond a reasonable

doubt that any testimony concerning Ortiz’s prior conviction for operating a motor vehicle

while under the influence did not contribute to Ortiz’s convictions.

       {¶78} Upon review, we are unpersuaded that Ortiz suffered demonstrable

prejudice via defense counsel’s eliciting testimony from a police officer during Ortiz’s case

in chief.

       {¶79} Ortiz’s third assignment of error is overruled.

       {¶80} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas of Stark County, Ohio, is hereby affirmed.

By Gwin, J.,

Farmer, P.J., and

Wise, J., concur
