State v. Becker , 2023 Ohio 601 ( 2023 )

[Cite as State v. Becker, 2023-Ohio-601.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 2022 CA 0069
ZACHARY BECKER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2021
CR 11111
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 28, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE DONALD GALLICK
Prosecuting Attorney 190 North Union Street, #102
BY: TIMOTHY E. YAHER Akron, OH 44304
Assistant Prosecutor
110 Central Plaza South, Ste. 510
Canto, OH 44702-1413
Stark County, Case No. 2022 CA 0069 2
Gwin, P.J.
{¶1} Defendant-appellant Zachary Becker [“Becker”] appeals his conviction and
sentence after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} At about 8:00 p.m. on May 19, 2021, Becker visited the apartment of the
decedent Michael Gates for the purpose of discussing Becker’s sale of a handgun to
Gates. 2T. at 395-398. Upon his arrival, Becker was met by a neighbor of Gates, Joseph
Wakeley, who resided in the basement apartment of the building. 1T. at 207-208; 2T. at
297. Wakeley showed Becker to Gate’s apartment on the top floor of the building. 1T. at
214. Gates had two Ring cameras: one on top of his refrigerator in the kitchen, and
another outside the apartment facing the door. 1T. at 252-254; State’s Exhibit 6. The
cameras are motion activated.
{¶3} Becker, the neighbor, and Gates were drinking Hennessy. At some
point, the conversation turned to Becker's firearm, a .40 caliber Smith & Wesson
handgun which he was carrying in a hip holster. 1T. at 215. Gates was interested in
buying the handgun from Becker. Becker removed the clip, and handed Gates the
gun. Gates subsequently asked Becker if he could fire the gun to make sure it was
operable. 2T. at 398. Becker agreed and the trio proceeded to an area outside by a
stairwell. 1T. at 221. Gates fired the handgun 10-11 times. 2T. at 399. The gun
jammed two to three times during the demonstration. Id. Wakeley heard Gates ask
about buying the gun, but Becker declined to sell this particular gun; however,
Wakeley heard Becker say he would find another gun to sell to Gates. 1T. at 216-
218.
Stark County, Case No. 2022 CA 0069 3
{¶4} Wakeley testified that Becker asked Gates to sell him some
methamphetamine. 1T. at 218. Becker offered Gates three or four dollars; however,
Gates simply gave Becker some methamphetamine. 1T. at 218-219. Wakeley
testified that Becker put the drugs on the couch. 1T. at 219. Becker then asked Gates
to "front" him more methamphetamine, for which Becker would pay him at a later
date. 1T. at 220-221. Becker showed Gates his driver's license, so Gates would know
where Becker lived and could get his money back. 1T. at 220. A picture of Becker’s
driver’s license was found on Gate’s cell phone. 1T. at 271; State’s Exhibit 7.
{¶5} Fearing that the police may come in response to the sound of gunshots,
Wakeley returned to his apartment. 1T. at 222.
{¶6} Later that evening, Becker tells Gates that he will not sell the handgun
to him. 2T. at 402. Approximately five minutes later, Becker claimed that Gates
physically attacked him while Becker was sitting on the couch. 2T. at 403. Becker
testified that Gates struck him 3 to 4 times in the head. Id. In response, Becker drew
his handgun and shot Gates. 2T. at 404. The video from the motion activated Ring
camera shows what appears to be Gates swinging at Becker. A gunshot then can
be heard. Becker runs to lock the kitchen door, while telling Gates to "stay down" and
asking "Where's your shit at?" 1T. at 282; 2T. at 405; 407. Becker can then be seen
taking items off the living room table and tossing the couch cushions as if he were looking
for something. 1T. at 285-286; 2T. at 407. Becker can be seen jiggling the apartment door
handle and pouring liquor over the door handle. 2T. at 407; 416-417.
{¶7} Gates’s cousin found him dead on the floor later that morning. 1T. at 246-
247. She called 9-1-1, and the Canton Police Department responded to the scene. No
Stark County, Case No. 2022 CA 0069 4
weapon was found on the premises; however, marijuana and methamphetamines were
recovered from the premises. 1T. at 267- 269.
{¶8} Becker was arrested at a motel in Richland, Summit County, Ohio.
Among the items in his possession, the police found notes that Becker had written.
2T. at 322-323; State’s Exhibit 17. Among other things, the notes said,
He allegedly took your gun.
Harassed you about it all night.
Told you you couldn’t leave.
Out of nowhere he attacked you.
Didn’t know he was - - or has a felony.
The “Ring good.”
***
Told you he’d have his cousins come and take it already from you.
He almost had a chance at possibly taking your life.
Never hit or took anything.
And “I was/am terrified that I was goin” [sic.] …be murdered.
2T. at 325-326. Additionally, in a notebook recovered by the police, Becker had
written “I’m afraid the Ring may depict that dude punched me and I shot him.” “Drug
deal gone wrong.” 2T. at 328.
{¶9} Becker's girlfriend, who was with him at the Richfield motel, gave
officers consent to search their shared home in Doylestown, Ohio. 1T. at 291-293,
State's Exhibit 10. Officers found the loaded .40 caliber Smith & Wesson handgun in
Becker's oven, with another clip of ammunition. Id. at 294-295.
Stark County, Case No. 2022 CA 0069 5
{¶10} Doctor Andrea McCollom of the Cuyahoga County Medical Examiner's
Office performed the autopsy on Gates on May 21, 2021. 2T. at 375. She ruled his
death was a homicide, and the cause of death was the gunshot wound. Id. at 386-
388. She also performed a toxicology test on Gates and found that his blood alcohol
content was .324 grams per deciliter. 2T. at 384.
{¶11} On July 15, 2021, the Stark County Grand Jury indicted Becker with one
count of felony murder via felonious assault, in violation of R.C. 2903.02(B)(D);
2929.02(B); felonious assault in violation of R.C. 2903.11(A)(1)/(2)(D)(1); and
tampering with evidence in violation of R.C. 2921.12(A)(1)(B). The murder and
felonious assault charges each carried a three-year firearm specification pursuant to
R.C. 2941.145(A).
{¶12} Becker requested and received a jury instruction on self-defense. The
jury found Becker guilty of all charges. The trial judge sentenced Becker to a
mandatory prison term of 15 years to life on the charge of Murder, with a consecutive
mandatory three-year term on the firearm specification. The trial judge merged the
felonious assault with the attendant firearm specification into the murder count. The
trial court further sentenced Becker to a term of 36 months for the charge of
Tampering with Evidence to be served consecutively to Count One. Becker thus
received an aggregate prison term of 21 years to life.
Assignments of Error
{¶13} Becker raises two Assignments of Error,
{¶14} “I. THE CONVICTIONS FOR MURDER AND FELONIOUS ASSAULT
ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE
Stark County, Case No. 2022 CA 0069 6
TESTIMONY AND VIDEO EVIDENCE FAILS TO PROVE APPELLANT WAS NOT
ACTING IN SELF-DEFENSE.
{¶15} “II. THE MURDER CONVICTION IS THE RESULT OF INEFFECTIVE
ASSISTANCE OF COUNSEL, AS PROTECTED BY THE SIXTH AMENDMENT OF
THE CONSTITUTION OF THE UNITED STATES AND BY THE OHIO
CONSTITUTION, BECAUSE TRIAL COUNSEL FAILED TO REQUEST A JURY
INSTRUCTION FOR VOLUNTARY MANSLAUGHTER.”
I.
{¶16} In his First Assignment of Error, Becker contends that the jury’s
determination that he did not act in self-defense is against the manifest weight of the
evidence.
Standard of Appellate Review – Manifest Weight.
{¶17} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
{¶18} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
Stark County, Case No. 2022 CA 0069 7
the fact finder’s resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d 541,
citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation
marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244,
¶25, citing Thompkins.
{¶19} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘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. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.Self-defense
{¶20} R.C. 2901.05(A) provides,
(A) Every person accused of an offense is presumed innocent until
proven guilty beyond a reasonable doubt, and the burden of proof for all
elements of the offense is upon the prosecution. The burden of going
forward with the evidence of an affirmative defense, and the burden of proof,
by a preponderance of the evidence, for an affirmative defense other than
self-defense, defense of another, or defense of the accused’s residence
presented as described in division (B)(1) of this section, is upon the
accused.
Emphasis added.
Stark County, Case No. 2022 CA 0069 8
{¶21} “The state’s new burden of disproving the defendant’s self-defense claim
beyond a reasonable doubt is subject to a manifest-weight review on appeal, and the
Tenth District correctly declined to review the state’s rebuttal of self-defense for
sufficiency of the evidence.” State v. Messenger, __Ohio St.3d__, 2022-Ohio-4562, ¶ 27.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered.
{¶22} R.C. 2903.02(B) states “[n]o person shall cause the death of another as a
proximate result of the offender’s committing or attempting to commit an offense of
violence that is a felony of the first or second degree and that is not a violation of section
2903.03 or 2903.04 of the Revised Code.” In Count One, the state alleged that Becker
caused the death of Gates as a proximate result of committing or attempting to commit
felonious assault, an offense of violence, in violation of R.C. 2903.11. Becker does not
challenge the sufficiency of the evidence supporting the jury’s finding of guilt on the felony
murder charge.
{¶23} At the close of Becker’s jury trial, the trial court provided the jury with an
instruction regarding self-defense, which means that the trial court concluded that the
record contained evidence that tends to support that Becker used the force in self-
defense when he shot and killed Gates. R.C. 2901.05(B)(1); State v. Messenger,
__Ohio St.3d__, 2022-Ohio-4562, ¶ 26. The guilty verdict means that the state met its
burden of persuading the jury beyond a reasonable doubt that Becker was not acting
in self-defense when he killed Gates. Id.Stark County, Case No. 2022 CA 0069 9
{¶24} The state is required “‘to disprove self-defense by proving beyond a
reasonable doubt that [the defendant] (1) was at fault in creating the situation giving
rise to the affray, OR (2) did not have a bona fide belief that he was in imminent
danger of death or great bodily harm for which the use of deadly force was his only
means of escape, OR (3) did violate a duty to retreat or avoid the danger.’” State v.
Messenger, 10th Dist. No. 19AP-879, 2021-Ohio-2044, ¶ 36, quoting State v. Carney,
10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, ¶ 31; State v. Robbins, 58 Ohio
St.2d 74, 79, 388 N.E.2d 755(1979) (citations omitted); See also, State v. Barker, 2nd Dist.
Montgomery No. 29227, 2022-Ohio-3756, ¶27; State v. Evans, 8th Dist. Cuyahoga No.
79895, 2002-Ohio-2610, ¶ 53; State v. Hamilton, 12th Dist. Butler No CA2001-04-098,
2002-Ohio-3862, ¶17..
{¶25} The second element of self-defense requires that the evidence tends to
show that the accused had reasonable grounds to believe or an honest belief, even if
mistaken, that he was in imminent or immediate danger of death or great bodily harm. In
State v. Thomas, the Ohio Supreme Court explained,
[T]he second element of self-defense is a combined subjective and
objective test. As this court established in State v. Sheets (1926), 115 Ohio
St. 308, 310, 152 N.E. 664, self-defense “is placed on the grounds of the
bona fides of defendant’s belief, and reasonableness therefor, and whether,
under the circumstances, he exercised a careful and proper use of his own
faculties.” (Emphasis sic.) See, also, McGaw v. State (1931), 123 Ohio St.
196, 174 N.E. 741, paragraph two of the syllabus. In Koss, we once again
Stark County, Case No. 2022 CA 0069 10
stated this test by approving similar jury instructions to those given in the
case sub judice:
“In determining whether the Defendant had reasonable grounds for
an honest belief that she was in imminent danger, you must put yourself in
the position of the Defendant * * *. You must consider the conduct of [the
assailant] and determine if such acts and words caused the Defendant to
reasonably and honestly believe that she was about to be killed or to receive
great bodily harm.’” (Emphasis added.) Koss, 49 Ohio St.3d at 216, 551
N.E.2d at 973. Thus, the jury first must consider the defendant’s situation
objectively, that is, whether, considering all of the defendant’s particular
characteristics, knowledge, or lack of knowledge, circumstances, history,
and conditions at the time of the attack, she reasonably believed she was
in imminent danger. See 1 LaFave & Scott, Substantive Criminal Law
(1986, Supp.1996) 654, Supp. 71, Section 5.7. See, also, generally, State
v. Shane (1992), 63 Ohio St.3d 630, 634, 590 N.E.2d 272, 276…Then, if
the objective standard is met, the jury must determine if, subjectively, this
particular defendant had an honest belief that she was in imminent danger.
See 1 LaFave & Scott, Substantive Criminal Law (1986, Supp.1996) 654,
Supp. 71, Section 5.7. See, also, generally, Shane, supra, 63 Ohio St.3d at
634, 590 N.E.2d at 276….
77 Ohio St.3d 323, 330-331, 673 N.E.2d 1339(1997).
{¶26} Here, the evidence does not support that Becker possessed the necessary
objective and subjective beliefs he was in imminent or immediate danger of death or great
Stark County, Case No. 2022 CA 0069 11
bodily harm. Generally, neither words alone nor fear itself will constitute evidence of
serious provocation. "[W]ords alone will not constitute reasonably sufficient provocation
to incite the use of deadly force in most situations." State v. Shane, 63 Ohio St.3d 630,
634-45, 590 N.E.2d 272 (1992).” 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. Cases have held that a victim's simple pushing
or punching does not constitute sufficient provocation to incite the use of deadly force in
most situations. See, State v. Koballa, 8th Dist. Cuyahoga No. 82013, 2003-Ohio-3535(concluding that sufficient provocation did not exist when the victim grabbed the
defendant by the testicles and the arm); State v. Poe 4th Dist. Jackson No. 00CA9, 2000-
Ohio-1966 (concluding that the victim's conduct in approaching the defendant with a
hammer and stating "come on" did not constitute sufficient provocation). State v. Pack,
4th Dist. Pike No. 93CA525, 1994 WL 274429(June 20, 1994) ("We find that a mere shove
and a swing (which appellant by his own testimony ducked) are insufficient as a matter of
law to constitute serious provocation reasonably sufficient to incite or arouse appellant
into using deadly force.").
{¶27} Although stated in terms of provocation, we find the same analysis would
apply to whether a defendant, by reason of the actions of the victim, possessed the
necessary objective and subjective beliefs he was in imminent or immediate danger of
death or great bodily harm. Even setting aside the question of who the aggressor was,
Becker testified that Gates did not have any sort of weapon in his hands at any time during
the altercation. No evidence was presented that Becker himself was aware of any violent
propensity of Gates. Gates struck Becker with his fist. Becker can be seen pouring
Stark County, Case No. 2022 CA 0069 12
alcohol on the apartment’s door handle. No evidence was presented that Becker had
suffered any bruises or other injuries as a result of his claim that Gates had punched him.
If Becker’s fear was only of physical harm, he was allowed by law only to use an amount
of force that was not likely to cause death or great bodily harm. Becker’s decision to shoot
Gates was deadly force and was disproportionate to the threat he faced under these
circumstances.
{¶28} Becker made no attempt to retreat before using deadly force against Gates.
The evidence presented demonstrated that Gates’s blood alcohol content was .324
grams per deciliter. No one other than Becker and Gates were present in the
apartment at the time of the shooting.
{¶29} While Becker was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have chosen to discredit
his testimony. The evidence indicated that Gates was injured but alive when Becker
exited the apartment. Becker can be seen pouring alcohol on the apartment’s door
handle. Becker made no attempt to summon assistance for Gates. Becker was found
with notes that he had made to himself concerning the incident. The jury saw Becker and
all the witnesses subjected to cross-examination. The jury also reviewed the Ring camera
video.
{¶30} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Becker was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that Becker was not acting in self-defense when
he killed Gates. Therefore, in light of the evidence discussed above, as well as the record
Stark County, Case No. 2022 CA 0069 13
in its entirety, we do not find the jury clearly lost its way concluding that Becker murdered
Gates and that he was not acting in self-defense.
{¶31} Becker’s First Assignment of Error is overruled.
II.
{¶32} In his Second Assignment of Error, Becker maintains that his trial counsel
was ineffective by not requesting the jury be instructed on the inferior degree offense of
voluntary manslaughter.
Standard of Appellate Review
{¶33} “To prevail on a Sixth Amendment claim alleging ineffective assistance of
counsel, a defendant must show that his counsel’s performance was deficient and that
his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must
show that ‘counsel’s representation fell below an objective standard of reasonableness.’
Id., at 688, 104 S.Ct. 2052. In addition, to establish prejudice, a defendant must show
‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ Id. at 694, 104 S.Ct. 2052.” Andtus
v. Texas, 590 U.S. __, 140 S.Ct. 1875, 1881, 207 L.Ed.2d 335 (June 15, 2020).
Issue for Appellate Review: Whether there is a reasonable probability that, but
for counsel’s failure to request a jury instruction on voluntary manslaughter, the result of
the proceeding would have been different.
{¶34} 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
Stark County, Case No. 2022 CA 0069 14
occasioned by the victim that is reasonably sufficient to incite the person
into using deadly force, shall knowingly cause the death of another.
{¶35} Voluntary manslaughter is not a lesser-included offense of murder, but
rather is an inferior degree of murder. State v. Tyler, 50 Ohio St.3d 24, 36, 553 N.E.2d
576(1990), superseded by constitutional amendment in part on other grounds State v.
Smith (1997), 80 Ohio St.3d 89, 103 at n. 4, 684 N.E.2d 668, 684. 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.{¶36} “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, 63 Ohio St.3d at 632, 590 N.E.2d 272. “The trial judge is required to decide this
issue 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.
Stark County, Case No. 2022 CA 0069 15
{¶37} When determining whether provocation was reasonably sufficient to induce
sudden passion or sudden fit of rage, an objective standard must be applied. Shane at
634. “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).
{¶38} 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. The trial court should have given an
instruction on voluntary manslaughter if the evidence presented at trial demonstrated that
Becker had killed Gates while under the influence of a sudden passion or fit of rage
caused by provocation from Gates that was serious enough to incite him into using deadly
force.
Stark County, Case No. 2022 CA 0069 16
{¶39} 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.
{¶40} As we discussed in our disposition of Becker’s First Assignment of Error,
supra, Becker was not justified in using deadly force. Becker testified that Gates did not
have any sort of weapon in his hands at any time during the altercation. No evidence was
presented that Becker himself was aware of any violent propensity of Gates. Gates struck
Becker with his fist. Gates’s blood alcohol content was .324 grams per deciliter. No
one other than Becker and Gates were present in the apartment at the time of the
shooting. No evidence was presented that Becker suffered any injury as a result of
Gates punching him. The only act that could arguably provoke a rage is when Gates
punched Becker in his face. However, a punch in the face is far from sufficient to
cause the ordinary person to become angry beyond his or her control. State v. Linzy,
5th Dist. Richland No. 2021-CA-33, 2013-Ohio-1129, ¶82.
Stark County, Case No. 2022 CA 0069 17
{¶41} In concluding that trial counsel was not ineffective for not requesting an
instruction on voluntary manslaughter, we find that the evidence presented at trial did not
reasonably support both an acquittal on the murder charge and a conviction for voluntary
manslaughter. Where the evidence does not support the instruction, the failure of trial
counsel to request an instruction on a lesser-included offense does not fall below the
objective standard of reasonableness. State v. Daviduk, 5th Dist. Stark No. 2001 CA
00340, 2002–Ohio–773, *2. Therefore, Becker is unable to satisfy the first prong of
Strickland.
{¶42} Becker’s Second Assignment of Error is overruled.
{¶43} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin P.J.,
Delaney, J., and
King, J., concur