{¶ 23} I believe the record contains sufficient evidence to support the elements of the crime of voluntary manslaughter. Furthermore, I do not believe that Appellant can challenge the jury's decision on grounds of insufficient evidence of "heat of passion" or mitigating circumstances when the jury's decision benefited him. The evidence showed that Appellant committed the elements of the crime of murder, but the jury decided to convict Appellant of the inferior degree crime of voluntary manslaughter. In this appeal, Appellant essentially argues that he is guilty of a worse crime than he was convicted of, and for that reason, should be acquitted and released. Based on our prior decision in State v. Layne (Mar. 1, 2000), 7th Dist. No. 97 CA 172, and the vast majority of other states that have decided this issue, Appellant is in no position to complain of a jury verdict on the lesser charge of voluntary manslaughter because he was charged with the more severe crime of murder. I find the majority's resolution of this case unsupported and troubling. I must, therefore, dissent from the majority viewpoint.
{¶ 24} The grand jury indicted Appellant on the offense of murder. As the majority correctly observes, voluntary manslaughter is an inferior degree offense to murder and operates to mitigate, rather than justify, a murder charge. State v. Tyler (1990), 50 Ohio St.3d 24, 36,553 N.E.2d 576. "An offense is an `inferior degree' of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements."State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph two of the syllabus. The additional mitigating element in voluntary manslaughter is that the defendant was, "under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force[.]" R.C. § 2903.03(A).
{¶ 25} The Ohio Supreme Court has held, in no uncertain terms, that the defendant and not the state has the burden of proving the mitigating factors of voluntary manslaughter: *Page 221
{¶ 26} "A defendant on trial for murder or aggravated murder bears the burden of persuading the fact finder, by a preponderance of the evidence, that he or she acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite the defendant into using deadly force, R.C. 2903.03(A), in order for the defendant to be convicted of voluntary manslaughter rather than murder or aggravated murder." State v. Rhodes (1992), 63 Ohio St.3d 613,617, 590 N.E.2d 261; and R.C. 2903.03(A).
{¶ 27} A jury charge on the crime of voluntary manslaughter should state that, "[t]he defendant has the burden of proving [the mitigating factors] by a preponderance of the evidence[.]" Id. at 615. The trial court is required to give a jury instruction on voluntary manslaughter if the defendant has met his or her burden of production of the mitigating factors. Rhodes at 620.
{¶ 28} "When a defendant is being tried for murder, it would be illogical to expect the state to attempt to prove that defendant acted `under the influence of sudden passion' or `in a sudden fit of rage'; instead, the state can be expected to try to disprove any such mitigating circumstances in order to prove the crime of murder." State v. Cuttiford (1994), 93 Ohio App.3d 546, 560, 639 N.E.2d 472.
{¶ 29} If the state has no burden to prove the mitigating factors of voluntary manslaughter when a defendant is charged with murder, it is axiomatic that the state cannot be accused of committing reversible error if the mitigating factors are not proven. It cannot be error for the state to fail to prove something that it never had a duty to prove in the first instance.
{¶ 30} The vast majority of states that have confronted this problem have concluded that a criminal defendant is in no position to complain of a jury verdict on the lesser charge of voluntary manslaughter when the evidence clearly shows or is undisputed that the defendant committed the elements of the crime of murder. People v. Lee (1999),20 Cal.4th 47, 971 P.2d 1001, 82 Cal.Rptr.2d 625; State v. Taylor (Iowa 1990), 452 N.W.2d 605; Burton v. State (1973), 254 Ark. 673,495 S.W.2d 841; State v. Bradford (1976), 219 Kan. 336, 548 P.2d 812;State v. Vestal (1973), 283 N.C. 249, 195 S.E.2d 297; State v. Trent (1927), 122 Or. 444, 252 P. 975; State v. Clay (1982) Ga. 250, 290 S.E.2d 84; State v. Ellis (1950), 70 Idaho 417, 219 P.2d 953;O'Connor v. State (1980), 272 Ind. 460, 399 N.E.2d 364; State v. Heald (Me. 1972), 201 A.2d 200; People v. Buck (1992), 197 Mich. App. 404,496 N.W.2d 321; Hubbard v. State (Miss. 1983), 437 So.2d 430; Abel v.State (Okla.Crim. 1973), 507 P.2d 569; Commonwealth v. Penn (1971),444 Pa. 526, 282 A.2d 233; State v. Perry (1907), 78 S.C. 184, 59 S.E. 851;Jeffcoat v. State (Tex.Crim.App. 1981), 644 S.W.2d 719; Murphy v. People (1887), 9 Colo. 435, 13 P. 528; Williams v. State (1917), 73 Fla. 1198,75 So. 785; State v. *Page 222 Nibarger (Mo. 1965), 391 S.W.2d 846; see other jurisdictions listed in Annotation (1983), Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter, 19 A.L.R.4th 861.
{¶ 31} This Court acknowledged and accepted this majority viewpoint in Layne, supra, 7th Dist. No. 97 CA 172: "[A] defendant cannot complain that the outcome of the case was more favorable to him than the evidence warranted; in other words, a defendant cannot avail himself of an error in his favor which acquit[s] him of any degree of homicide." Id. at 7.
{¶ 32} Appellant has not disputed the fact that he intentionally took the life of Raymond Ortiz. The jury apparently did not believe the self-defense theory that Appellant presented at trial. Therefore, we are left with a defendant who has undeniably committed murder but is upset with the jury for convicting him of a lesser crime. In addition, he now seeks to escape punishment for any crime because, following Appellant's argument, the jury was more lenient to him than the evidence supported. To underscore, Appellant is in no position to complain of a conviction on a lesser crime when the record fully supports that he committed the greater crime of murder.
{¶ 33} Furthermore, I believe the record contains enough of a basis to support a conclusion that Appellant acted in a heat of rage provoked by the victim. The evidence at trial demonstrated that Raymond Ortiz and Appellant, as well as several other young men, were playing dice just moments before the shooting. A confrontation developed when Ortiz claimed that Appellant owed him five dollars on a side bet. The argument became heated and Ortiz's behavior turned increasingly aggressive. Ortiz berated Appellant, spewed profanity at him, threatened him, and at one point, menaced Appellant with a gun he pulled from under an adjacent chair cushion. By all accounts, Mr. Ortiz's behavior before Appellant shot him was extremely provocative.
{¶ 34} Nevertheless, according to the prosecution and several eyewitnesses, Ortiz was unarmed when Appellant shot him, not because Appellant disarmed him, but because prior to the shooting Ortiz had returned the gun to its hiding place. Moreover, the prosecution maintained that the physical evidence, which indicated that the victim was shot at some distance, contradicted Appellant's claim that he took the gun from Ortiz in a struggle and shot him at close range in self-defense. (Trial Tr. Vol. III, pp. 527-528).
{¶ 35} Since the evidence at trial to some extent supported both the prosecution and defense theories of the occurrence, the trial court instructed the jury that it could find Appellant guilty of murder or it could acquit him in the event it found that he killed Ortiz in self defense. (Trial Tr. Vol. III, pp. 537-541). The record reflects that there was no objection voiced to this instruction, and Appellant never proposed any alternative jury instructions. On the contrary, when the trial court asked counsel whether *Page 223 he had, "any additions, corrections or deletions," to the instructions that were ultimately given the jury, counsel indicated that they, "sound[ed] good." (Trial Tr. Vol. III, p. 557).
{¶ 36} After deliberating for several hours, the jury indicated that it had reached an impasse on the murder charge. The court responded that it should determine if there was sufficient evidence to mitigate the offense to voluntary manslaughter. The jury ultimately deliberated for a full day and a half before finding Appellant guilty of voluntary manslaughter but not guilty of the attendant firearm specification.
{¶ 37} Under Crim.R. 30(A) a party is barred from raising as error the decision to give or not give instructions unless that party objects to them before the jury retires to deliberate. Appellant would like us to find that the voluntary manslaughter instruction was plain error. Plain error is characterized as, "obvious error which is prejudicial to an accused, although neither objected to nor affirmatively waived, which, if allowed to stand, would have a substantial adverse impact on the integrity of and public confidence in judicial proceedings." State v.Craft (1977), 52 Ohio App.2d 1, 7, 367 N.E.2d 1221. A plain error must be not only obvious, but clearly outcome determinative. State v. Yarbrough (2002), 95 Ohio St.3d 227, 245, 767 N.E.2d 216. Plain error should be found only in exceptional circumstances to prevent a manifest miscarriage of justice.
{¶ 38} The instant matter does not present the potential miscarriage of justice that the plain error doctrine contemplates. As noted above, our review here is limited to an examination for plain error because trial counsel did not object to the instruction. The majority opinion does not address or otherwise confront the fact that trial counsel's purported "failure" to object to this instruction may well have been a decision predicated on sound trial strategy. Absent evidence to the contrary, the law mandates that we presume defense counsel's decisions concerning jury instructions are matters of trial strategy, which are not subject to plain error analysis on appeal. See, State v.Morrow, 2nd Dist. No. 2002-CA-37, 2002-Ohio-6527; citing, State v.Clayton (1980), 62 Ohio St.2d 45, 47, 402 N.E.2d 1189; and State v.Harris (1998), 129 Ohio App.3d 527, 533, 718 N.E.2d 488. The obvious trial strategy was to allow the jury to consider the lesser crime of voluntary manslaughter, whether or not the evidence supported that lesser crime.
{¶ 39} Appellant maintains that the instructions as given confused the jury, characterizing his conviction for voluntary manslaughter "nonsensical" in light of the fact that the jury refused to convict on the attendant firearm specification. Appellant also complains that the instructions unfairly forced Appellant to prove both self-defense and the mitigating elements of voluntary manslaughter. (Appellant's Brf. pp. 15-16). Appellant is mistaken on both counts. *Page 224
{¶ 40} The jury's verdict in this case is hardly nonsensical or indicative of confusion. It is well-settled that when a principal charge in an indictment is not dependent on the attendant specification, a conviction on the underlying charge along with an acquittal on the specification does not invalidate the conviction. State v. Davis, 6th Dist. No. L-00-1143, 2002-Ohio-3046; citing State v. Perryman (1976),49 Ohio St.2d 14, 358 N.E.2d 1040, paragraph three of the syllabus; andState v. Lovejoy (1997), 79 Ohio St.3d 440, 683 N.E.2d 1112, paragraph one of the syllabus. Accordingly, in Davis, where the jury similarly failed to convict the defendant on the firearm specifications even though it convicted him of murder in two fatal shootings, the reviewing court upheld the murder convictions. Davis, supra. Such a principle recognizes that when jury verdicts appear inconsistent there is no more reason to attribute such inconsistencies to confusion than to basic leniency. Given the mitigating factors present in the instant case, leniency may well have motivated the jury's decision to enter a partial acquittal.
{¶ 41} Further, despite Appellant's suggestion to the contrary, there is no blanket rule holding the defenses of voluntary manslaughter and self-defense to be inconsistent or contradictory. See, e.g., Statev. VanSickle (July 20, 1995), 10th Dist. No. 94APA12-1728 (no reversible error when jury found defendant guilty of voluntary manslaughter notwithstanding the defendant's account that she acted in self defense and the trial court's finding that she was a "battered woman"). Although it is certainly foreseeable that some factual scenarios will render the simultaneous presentations of such defenses incompatible, there was certainly no legal or factual inconsistency present, here.
{¶ 42} Appellant also argues that, notwithstanding trial counsel's failure to object to the instructions given, "no reasonable jury could find that the provocation was adequate." (Appellant's Brf. p. 16). This statement is completely belied by the facts of the record. The one thing on which the witnesses in this case did agree was the provocative nature of the victim's behavior. Ultimately, everyone associated with this case, except Appellant's counsel, agreed that the victim provoked this shooting. At sentencing, the prosecution acknowledged that, "the victim did provoke the offense * * * the victim came back. He was leaving, but he did come back and did want to fight Mr. Perdue." (Sentencing Tr., p. 4). The trial court noted as well that such evidence of provocation was "clear," and that had Ortiz not returned to the dice game, "he would in all likelihood still be alive, but for whatever reason he came back around that corner again to confront [Appellant]." (Sentencing Tr., p. 14). The record demonstrates that the victim yelled at Appellant, physically and verbally threatened Appellant, struck Appellant, and at one point he waved a gun at Appellant. By giving the voluntary manslaughter instruction, the trial court allowed the jury to determine whether the victim's behavior caused Appellant to shoot him in a sudden fit of passion or rage, or *Page 225 whether the victim made Appellant so fearful of an attack that he was justified in using deadly force.
{¶ 43} A review of the trial record further suggests that the majority here has adopted Appellant's account of the incident over contradictory versions offered by eyewitnesses. In so doing, the majority substitutes its view of the evidence for the trial court's. The trial court, which must initially decide whether the evidence warrants a particular jury instruction, plainly concluded that the jury should receive a voluntary manslaughter instruction. Given Ortiz's provocative behavior and the contradictory evidence surrounding the shooting, such a decision was not clearly erroneous. Confrontations, such as the one before us, which involve assault and battery or mutual combat, are quintessentially appropriate for voluntary manslaughter instructions. See, e.g., State v. Thomas (Mar. 26, 1996), 10th Dist. No. 95APA08-984;State v. Torres, 3rd Dist. No. 4-01-06, 2002-Ohio-1203.
{¶ 44} It appears that the jury, whose exclusive role it is to hear and weigh the evidence, agreed with the trial court's assessment of Ortiz's behavior, and also found parts of Appellant's account of the incident to be incredible. Possibly the jury decided that despite Appellant's contention that he was afraid of Ortiz, it was more reasonable to believe that he was extremely angry with Ortiz. Possibly the jury chose to disbelieve Appellant's testimony that Ortiz was armed or that Appellant managed to quickly disarm him. Possibly the jury reasoned that if Appellant managed to disarm Ortiz as quickly and easily as he claimed then there was no self-defense justification for shooting Ortiz, but decided that the crime was still mitigated by the provocative and mutually combative circumstances. Perhaps the jury was just being lenient. While this is pure speculation, the majority speculates that quite a different thought process occurred in the jury room. Our system of justice prohibits us from finding reversible error through a reviewing court's speculative inquiry into the jury's deliberative process. SeeTanner v. United States (1987), 483 U.S. 107, 117, 107 S.Ct. 2739,97 L.Ed.2d 90.
{¶ 45} Our role in reviewing for plain error does not allow us to indulge in an in-depth analysis of a jury's deliberations. Whatever the basis or reasoning behind the jury's verdict, there was certainly enough evidence of record to justify the trial court's decision to give the voluntary manslaughter instruction.
{¶ 46} Appellant clearly benefited by failing to object to the trial court's instruction on voluntary manslaughter and by the jury verdict on that lesser crime rather than the crime of murder. Appellant is in no position to complain of the error in his favor, and I would overrule Appellant's assignments of error on that basis, in keeping with the vast majority of other jurisdictions in this country. In addition, the record is not so devoid of evidence of serious provocation as to *Page 226 undermine the jury instruction on voluntary manslaughter. Accordingly, I dissent and would affirm this matter in all respects.