State v. Marsh , 71 Ohio App. 3d 64 ( 1990 )

I concur generally with the majority's treatment of the first, second, and third assignments of error. However, for purposes of clarity as to the first assignment, I would add parenthetically at the end of the first assignment dealing with the lack of instruction on the issue of the defense of one's habitation and one's family, that this failure obviously has limited application to the adversarial evidence pertaining to activities allegedly occurring in and closely adjacent to appellant's tent in his campsite.

While I concur in the result achieved by the majority in reversing this matter, I do not share in its analysis of the fourth assignment or the appellant's arguments in support of this subject regarding the claim that the conviction was not supported by legally sufficient evidence. Appellant essentially argues that the jury finding of the elements of voluntary manslaughter were without the benefit of proper instructions on the subject of defense of habitation and family. This intertwining argument in my opinion does not denigrate the legal sufficiency of the evidence in the record of this case when measured against the prevailing standards of Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, or State v.Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, to sustain a conviction for voluntary manslaughter. The present record incorporates legally sufficient evidence to support that result, albeit amplified instructions on the defense issues may provide a basis for a different factual conclusion.

However, it is not appropriate for us to analyze this assignment on a subjective or hypothetical basis, or only on an abbreviated reference to the rationale expressed in this court's opinion dealing with the first two assignments.