[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 215 OPINION {¶ 1} This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments before this court. Defendant-Appellant, John Perdue, appeals the decision of the Mahoning County Court of Common Pleas finding him guilty of voluntary manslaughter in violation of R.C. 2903.03(A). Although others were raised, the dispositive issue before this court is whether there was sufficient evidence to support Perdue's conviction. Although there is evidence of provocation by the victim, there is no evidence in the record which could support a finding that Perdue was acting under a sudden passion or fit of rage when he shot and killed Raymond Ortiz. Thus, we reverse the trial court's judgment and vacate Perdue's conviction for voluntary manslaughter.
{¶ 2} Perdue was friends with Dwayne and Edwin Thomas. The Thomas' lived next to F N Market on Shehy Street in Youngstown, Ohio. On May 26, 2000, Dwayne, Ortiz, and Ortiz's friend, Jose Castellon were in front of that store. Dwayne and Ortiz were shooting dice in front of the store, however, they soon moved the game to the back of that store because they knew it was illegal to shoot dice and police officers were patrolling the area. Ortiz had a previous confrontation with some people who lived behind the store, so he asked Dwayne to get his gun. Dwayne retrieved his gun from his house and placed it underneath a chair cushion behind the store. Dwayne's brother Edwin then showed up and played dice as well.
{¶ 3} Perdue was driving along Bruce Street toward Shehy that day when he saw the group playing dice behind the store. He knew and was friends with the Thomases. It appears he also may have known Ortiz. However, he and Castellon were not acquainted. When he saw the group, he parked his car and walked up to them. Although there is some dispute on exactly what happened next, Perdue and Ortiz disagreed over a certain five-dollar bet. Ortiz became enraged and demanded his money from Perdue. When Perdue said he did not owe Ortiz any money, Ortiz retrieved the gun from underneath the chair and again demanded his money. Eventually, Castellon and Dwayne calmed Ortiz and Ortiz agreed to leave with Castellon. Dwayne testified his gun was put back underneath the cushion. Perdue testified Ortiz left with the gun. In any event, after reaching the car, Ortiz decided to return and demand his money. It appears that *Page 216 when he got behind the store, it appears he began fighting with Perdue. While the two were fighting, Perdue shot Ortiz in the head. Ortiz died as a result of the gunshot wound. After the shot rang out, everyone present ran. Dwayne picked his gun off the ground before he ran home.
{¶ 4} Perdue was arrested that same day and the Mahoning County Grand Jury indicted him on one count of murder with a firearm specification. The case proceeded to jury trial. In its instructions to the jury, the trial court included an instruction on the unindicted offense of voluntary manslaughter. When the jury returned its verdict, it found Perdue guilty of voluntary manslaughter but not guilty of the firearm specification. After a sentencing hearing, the trial court sentenced Perdue to a term of eight years imprisonment.
{¶ 5} We reverse the trial court's judgment and vacate Perdue's conviction because the evidence did not support a conviction on voluntary manslaughter. In order to commit voluntary manslaughter, the defendant must have knowingly killed the victim while acting under a sudden passion or fit of rage. This is different than acting out of fear. In this case, each person present at the time of the shooting testified that Ortiz was enraged. However, no one said Perdue acted likewise. Instead, the witnesses testified that after Ortiz pulled the gun, Perdue did not do anything, the witness could not remember him doing anything, or simply failed to testify as to Perdue's subsequent actions or apparent attitude. Since no jury could have reasonably found, by a preponderance of the evidence, that Perdue acted under a sudden passion or fit of rage, Perdue's conviction for voluntary manslaughter was supported by insufficient evidence.
{¶ 6} Although Perdue raises four assignments of error, as the third is dispositive of this appeal we will address it first. In it Perdue asserts:
{¶ 7} "Appellant was denied due process and liberties secured by Ohio Const. art. I, secs. 1, 2, 10 and 16 when he was convicted of the offense of voluntary manslaughter and there was insufficient evidence to support the conviction."
{¶ 8} Perdue argues there was no evidence he acted in a fit of rage or sudden passion when he killed Ortiz and, therefore, his conviction for voluntary manslaughter is not supported by sufficient evidence. The State argues the evidence was sufficient to prove its case beyond a reasonable doubt. Perdue made a timely Crim.R. 29 motion for acquittal and, therefore, has preserved this argument for appeal.
{¶ 9} When reviewing a claim of insufficient evidence, the relevant inquiry is whether any rational person, viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v.Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.E.2d 560; Statev. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. This is a question of law. State v. Thompkins (1997), *Page 217 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Thus, an appellate court should not disturb the conviction unless it concludes reasonable minds could not reach the conclusion reached by the trier of fact. Jenks at 273.
{¶ 10} Perdue was charged with murder, but was convicted for voluntary manslaughter. Murder is defined as purposefully causing the death of another. R.C. 2903.02(A). In contrast, a person commits voluntary manslaughter when, while either under the influence of sudden passion or in a sudden fit of rage brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, knowingly causes the death of another. R.C. 2903.03(A). As the "sudden passion or sudden fit of rage" elements of voluntary manslaughter are mitigating circumstances to a charge of murder, the defendant bears the burden of proving this element by a preponderance of the evidence when charged with murder. State v. Rhodes (1992), 63 Ohio St.3d 613, 617-618, 590 N.E.2d 261. In this regard, a defendant's argument that he committed voluntary manslaughter rather than murder is similar to an affirmative defense. Id.
{¶ 11} In order to find a defendant guilty of voluntary manslaughter when the defendant is charged with murder, the jury must be able to find by a preponderance of the evidence that the provocation was sufficient to arouse the passions of an ordinary person and it so provoked this particular defendant. State v. Mack (1998), 82 Ohio St.3d 198,201, 694 N.E.2d 1328; State v. Shane (1992), 63 Ohio St.3d 630, 634,590 N.E.2d 272. This test has both an objective and a subjective component. Shane at 634. When determining whether the subjective portion of this test has been satisfied, "the emotional and mental state of the defendant, as well as the conditions and circumstances that surrounded the incident in question, must be considered." State v. Prim (1999),134 Ohio App.3d 142, 152, 730 N.E.2d 455. Therefore, a defendant must be able to show both the following factors: "(1) the defendant must have been in fact provoked, and (2) the defendant must not in fact have cooled off during the interval of time between the provocation and the delivery of the fatal blow." State v. Cornett (1992), 82 Ohio App.3d 624,633-634, 612 N.E.2d 1275.
{¶ 12} In his brief, Perdue argues "there were no facts, no evidence to warrant" a voluntary manslaughter charge. The State argues the facts of this case are "particularly appropriate" for a voluntary manslaughter charge since mutual combat is one of the "classic voluntary manslaughter situations." The crux of Perdue's case was that he was acting in self-defense. "[E]vidence supporting the privilege of self-defense, i.e., that the defendant feared for his own and other's personal safety, does not constitute sudden passion *Page 218 or a fit of rage as contemplated by the voluntary manslaughter statute."State v. Harris (1998), 129 Ohio App.3d 527, 535,718 N.E.2d 488. To prove self-defense, a defendant must demonstrate "a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was by the use of force, and that he did not violate any duty to retreat or avoid the danger." State v. Robinson (1999), 132 Ohio App.3d 830,836, 726 N.E.2d 581. In contrast, to prove voluntary manslaughter the defendant must show a state of mind "akin to anger, hatred, jealousy, and/or furious resentment." Harris at 535, citing Black's Law Dictionary (6 Ed. 1990) 1124, definition of passion. Thus, self-defense requires a showing of fear while voluntary manslaughter requires a showing of rage. Id. "Fear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage." Mack at 201.
{¶ 13} In this case, there was ample evidence to conclude that Perdue was fearful of Ortiz, but no evidence that he was acting under a sudden passion or fit of rage when he shot Ortiz. At the time of the shooting, five people were present: Perdue, Ortiz, the Thomases, and Castellon. Edwin Thomas testified the argument between Perdue and Ortiz was loud enough to hear in the front of the store, but that was before Ortiz first pulled the gun out. Edwin did not say that Perdue was upset like Ortiz or that Perdue continued acting upset after Ortiz pulled the gun. Dwayne testified that Ortiz was "real mad" and that he was shocked and scared of Ortiz when Ortiz got the gun. Although he also testified that Ortiz and Perdue were arguing about the bet, he did not say that Perdue was upset like Ortiz or that Perdue continued acting upset after Ortiz pulled the gun. Ortiz's friend, Castellon, testified Ortiz was screaming mad, but did not say that Perdue was similarly angry. He also said he couldn't remember Perdue saying anything after Ortiz pulled the gun. Neither the State nor the defense elicited any testimony from these witnesses regarding Perdue's demeanor at all.
{¶ 14} Perdue consistently testified he was scared. At no time did he testify he was angry. For instance, when asked how he felt when Ortiz first pulled the gun from under the chair, Perdue answered "I'm scared because he got a gun." When asked how he felt when Ortiz and Castellon left the back of the store, Perdue said, "I am scared that I going to get shot. I don't know what to do. I stood there." When he saw Ortiz returning, his "heart started beating real fast." Finally, Perdue testified that at the moment of the shooting he felt "shocked. I was scared that he was going to kill me or hurt me. * * * I was scared if I wouldn't have pulled the trigger he probably would have took [the gun] off me and shot me." At his police interview *Page 219 following the shooting, Perdue told them that he shot Ortiz because he believed that if he didn't Ortiz would shoot him.
{¶ 15} In short, there is ample evidence demonstrating that Ortiz was enraged, but none which would demonstrate that at the time of the shooting Perdue was similarly enraged. There is no evidence in the record that would support a conclusion that Perdue was actually provoked into a sudden fit of rage or passion by Ortiz's actions.
{¶ 16} The Ohio Supreme Court has stated that when a defendant is charged with murder, the trial court may only instruct the jury on the offense of voluntary manslaughter when the defendant has proved by a preponderance of the evidence that the provocation was sufficient to arouse the passions of an ordinary person and it so provoked this particular defendant. See Shane ; Mack; Rhodes. These are two distinct elements and both must be shown. Shane. There is more than enough evidence in the record to support a finding that the provocation by the victim was sufficient to arouse the passions of an ordinary person. However, there is no evidence in the record that Perdue was so provoked. Without some evidence supporting that element of voluntary manslaughter, Perdue's conviction for voluntary manslaughter was not supported by sufficient evidence. Perdue's third assignment of error is meritorious.
{¶ 17} For his first, second, and fourth assignments of error, Perdue asserts:
{¶ 18} "Appellant was denied a fair trial when the trial court charged the jury on the offense of voluntary manslaughter."
{¶ 19} "Appellant was denied the effective assistance of counsel when counsel failed to object to the giving of the instruction on the inferior degree offense of voluntary manslaughter."
{¶ 20} "Appellant was denied due process and the liberties secured by Ohio Const. art. I, secs. 1, 2, 10 and 16 because his conviction for voluntary manslaughter is against the manifest weight of the evidence."
{¶ 21} Our resolution of assignment of error three renders these remaining assignments of error moot.
{¶ 22} In conclusion, there is no evidence in the record which could support a finding that Perdue shot Ortiz while under the influence of sudden passion or in a fit of rage. Rather, the evidence on the record relating to Perdue's state of mind shows he was scared. Fear alone is insufficient to demonstrate the defendant was acting under the influence of sudden passion or in a fit of rage. *Page 220 Thus, the trial court's judgment is reversed, Perdue's conviction for voluntary manslaughter is vacated and Perdue is discharged.
Donofrio, J., concurs.
Waite, P.J., dissents.