[Cite as State v. Hanford, 2019-Ohio-2987.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29204
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT HANFORD COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2017-10-3621
DECISION AND JOURNAL ENTRY
Dated: July 24, 2019
CALLAHAN, Judge.
{¶1} Appellant, Robert Hanford, appeals his conviction by the Summit County Court
of Common Pleas. This Court affirms.
I.
{¶2} At approximately 10:00 a.m. on Sunday, October 1, 2017, the Twinsburg Police
Department received a 911 call reporting that an individual had been stabbed at a residence at the
intersection of Darrow Road and Sherwin Drive. When they arrived, Mr. Hanford ran from the
house, and officers noted that he appeared to be distraught. Mr. Hanford had bloodstains on his
clothing, including a large stain on his left knee.
{¶3} Inside the house, they found the body of M.B. lying face down between a couch
and a coffee table in the living room. M.B. did not bear any wounds that were visible in the
position in which he was found, but he was unresponsive. Upon closer examination, officers
noted that his skin was gray and “cold to [the] touch”; he had no pulse or signs of respiration. 2
Although the living room was cluttered and in disarray and there were droplets of blood in some
places, the room was notable as the scene of a stabbing because it was relatively free of
bloodstains. Underneath M.B.’s body, however, police found a pool of blood. During a
preliminary examination at the scene, the medical examiner noted a knife wound to the chest
near M.B.’s heart.
{¶4} Mr. Hanford was transported to the police station for questioning, where he
initially informed police that he woke up and found that M.B. had been stabbed, but did not
know what had happened. He acknowledged that he had been arguing with M.B. and ultimately
admitted that he stabbed M.B. once. Although Mr. Hanford did not disclose the location of the
knife that he had used immediately, he later informed police that it would be found in the area of
a small decorative pond in the front yard of the residence. Armed with this information, police
recovered a closed pocketknife at the bottom of the pond.
{¶5} Mr. Hanford was charged with two counts of murder in violation of R.C.
2903.02(A) and 2903.02(B), respectively, and one count of felonious assault in violation of R.C.
2903.11(A). A jury found him guilty of each charge. The trial court merged the counts and
sentenced Mr. Hanford to a term of life imprisonment with parole eligibility after fifteen years.
Mr. Hanford appealed. His four assignments of error are rearranged for purposes of disposition.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF MURDER TO WARRANT THE CASE BEING SUBMITTED TO THE JURY. 3
{¶6} Mr. Hanford’s first assignment of error argues that his convictions for murder are
not supported by sufficient evidence because the State did not produce any evidence
demonstrating that he acted with the intent required to commit murder. This Court disagrees.
{¶7} “Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-
6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is
whether the prosecution has met its burden of production by presenting sufficient evidence to
sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do
not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.
Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to
reasonably conclude that the essential elements of the crime were proven beyond a reasonable
doubt. Id.
{¶8} Murder is prohibited by R.C. 2903.02, which provides, in part:
(A) No person shall purposely cause the death of another or the unlawful termination of another’s pregnancy.
(B) No 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.
(Emphasis added.) R.C. 2903.02(A)/(B). As required by R.C. 2903.02(A), “[a] person acts
purposely when it is the person’s 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 the offender’s specific intention to engage in conduct of that
nature.” R.C. 2901.22(A). Intent must be demonstrated with reference to the surrounding facts
and circumstances. See In re Washington, 81 Ohio St.3d 337, 340 (1998). “‘The intent of an 4
accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the
senses, it can never be proved by the direct testimony of a third person, and it need not be. It
must be gathered from the surrounding facts and circumstances under proper instructions from
the court.’” Id., quoting State v. Huffman, 131 Ohio St. 27 (1936), paragraph four of the syllabus.
{¶9} Felonious assault, which is the offense upon which Mr. Hanford’s conviction for
murder under R.C. 2903.02(B) was predicated, provides that “[n]o person shall knowingly * * *
[c]ause serious physical harm to another[.]” (Emphasis added.) R.C. 2903.11(A)(1). As R.C.
2901.22(B) explains,
A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
If there is sufficient evidence that Mr. Hanford acted purposely, as required by R.C. 2903.02(A),
it follows that there is sufficient evidence demonstrating that he acted knowingly, as required by
R.C. 2903.02(B) and R.C. 2903.11(A)(1). See R.C. 2901.22(E) (“When knowledge suffices to
establish an element of an offense, then purpose is also sufficient culpability for such element.”).
See also State v. Coleman-Muse, 10th Dist. Franklin No. 15AP-566, 2016-Ohio-5636, ¶ 10, fn3.
{¶10} M.B. died as a result of a single stab wound to the chest that penetrated the left
ventricle of his heart. According to Dr. George Sterbenz, the Summit County Deputy Medical
Examiner, the left ventricle is “the muscular pump portion of the heart,” and a stab wound in that
area results in rapid blood loss. Dr. Sterbenz characterized M.B.’s stab wound as “rapidly fatal.”
The fatal wound was approximately four inches in length, passing between the fourth and fifth
ribs from front to back in a direction that was slightly left-to-right and downward. 5
{¶11} Dr. Sterbenz explained that M.B. experienced massive loss of blood into the
hemothorax, where 800 milliliters of blood collected. That volume of accumulated blood forced
the air out of M.B.’s left lung, and the lung collapsed. This mechanism alone, according to Dr.
Sterbenz, represented enough blood loss to result in hemorrhagic shock and death. At the same
time, however, Dr. Sterbenz noted that the heart continued to pump blood that accumulated in
the pleural space, which led to pericardial tamponade, in which the blood accumulating in the
pleural space exerts pressure on the heart that leads to loss of circulation:
It’s like putting a tourniquet on your arm to stop the blood from an injury to prevent bleeding out your arm.
In this case, the tamponade is the squeezing of the blood for the heart; and that’s going to make it hard, first, for the heart to pump.
It’s also going to cause the blood vessels that enter and exit the heart to collapse.
So, pericardial tamponade causes cessation of circulation. Even though the heart is still trying to pump, it’s mechanically being prevented from pushing blood [out] of the heart, and it’s mechanically being prevented from pulling blood back into the heart; so, circulation stops.
According to Dr. Sterbenz, critical pericardial tamponade, as was present in this case, results in
loss of consciousness with seconds and death in a matter of minutes. Dr. Sterbenz also described
what would be observed in the moments after such an injury is sustained:
People that are observed to have injuries that result in pericardial tamponade within seconds will be - - witnesses will say they just fell down, they just collapsed, within less than a minute; and they stopped breathing within, you know, a few minutes.
They will have agonal, terminal gasping breaths very, very quickly and then they will die. And they are dying so quickly because their brain isn’t getting any oxygen.
***
This alone, the pericardial tamponade, due to this penetrating injury to his heart, the bleeding, the collection of blood around his heart, is going to incapacitate him 6
extremely rapidly, less than a minute, and within a few minutes he will be completely dead.
Within seconds of sustaining the fatal injury, according to Dr. Sterbenz, M.B. would have been
unable to converse or to carry out any directed activity.
{¶12} Dr. Sterbenz also explained that two implications followed from the nature of
M.B.’s fatal wound. First, the fatal wound required “a forceful thrust” in order to push the entire
length of the knife between the intercostal space, through the chest wall, and into the heart.
“This injury,” according to Dr. Sterbenz, “represents a lot of force.” Along those lines, Dr.
Sterbenz also rejected the hypothetical explanation that the fatal wound could have been inflicted
by an assailant holding a knife in his right hand and stabbing over his left shoulder. Second, Dr.
Sterbenz testified that because the fatal wound expelled an extreme quantity of blood quickly,
the condition of the crime scene and the victim’s clothing provided significant clues about
M.B.’s physical position when the stabbing occurred. According to Dr. Sterbenz, bloodstains
that resulted from the injury would be determined by the position of the body and the force of
gravity:
People that have penetrating injuries such as [M.B.] * * * who are actively moving around their environment, the room that they’re in, the scene, will bleed all over that scene, and they will have blood all over their body.
They will have -- people that are standing up and bleeding will bleed downward across their body.
They will bleed -- injuries to the chest will bleed downward onto your legs, downward onto your feet.
And if they move to different parts of the room, there will be blood in all of those different parts of the room.
As Dr. Sterbenz noted, however, “[t]hat did not occur here” because “[t]he blood is
predominately located only where blood drained out of his body with gravity as he was lying
there in the room on that carpet.” 7
{¶13} Other witnesses also testified that the condition of the crime scene in this case was
notable. The officers who responded testified that the blood found in the living room consisted
of a large, wet pool of blood underneath M.B.’s body, a towel stained with blood on the couch
immediately next to where the body was found, smears of blood on the couch itself, and
“droplets” of blood on some boxes found nearby. The photographs admitted at trial confirm this
description: they depict a room that is cluttered, but largely free of bloodstains. Detective Brian
Donato explained that the scene of a stabbing is usually “very messy” with “blood spray all
over” because an individual who has sustained a stab wound will ordinarily leave a trail of blood
wherever he goes. In contrast, Detective Donato noted that this scene stood out for its relative
cleanliness, explaining that the large concentration of blood in the room was found directly under
M.B.’s body. He also testified that blood drops found on some boxes near the location of the
body, for example, were likely to have come from the motion of the knife being pulled from
M.B.’s body; otherwise, M.B. would have lost more blood in the area around the boxes.
Detective Donato also noted that the crime scene did not bear any indication of the large-scale
cleanup effort that would have been required had M.B. left a trail of blood throughout the room.
{¶14} Given the absence of blood throughout the living room and the fact that the
clothing on M.B.’s lower body was also relatively free of bloodstains, Dr. Sterbenz opined that
M.B. was stabbed in the location where the body was found. More specifically, Dr. Sterbenz
testified that M.B. could have been sitting on the couch or kneeling on the floor, but it is unlikely
that M.B. walked to the position near the couch where his body was found or was standing: “If
[M.B.] was upright, really for any significant amount of time after he was stabbed, he would
have blood dripping from this gaping stab wound to his chest and from his arms down onto the
legs of his pants, and there really isn’t any blood dripping down onto his pants.” He also noted 8
that M.B. had another, less significant stab wound that passed through his right arm from the
outside, out the arm on the inside, and into M.B.’s chest near the armpit. Dr. Sterbenz explained
that the track of that wound indicated that M.B.’s arm was pressed up against his body at the
time the wound was inflicted. Dr. Sterbenz also noted that there was “a notable absence of * * *
defensive injuries” to M.B.’s body, an indication that M.B. may have been “overpowered * * *
quickly.”
{¶15} Based on this evidence—and making all reasonable inferences in favor of the
State—the jury could reasonably conclude, beyond a reasonable doubt, that Mr. Hanford stabbed
M.B. while he was in a kneeling, sitting, or lying position in the immediate area where his body
fell with such concentrated force that the knife was buried to the hilt in M.B.’s chest,
compressing the chest cavity and penetrating the left ventricle of his heart and leading to his
death within minutes. In other words, the jury could have reasonably concluded beyond a
reasonable doubt that Mr. Hanford acted with the specific intention to cause M.B.’s death, as
required by R.C. 2903.02(A).
{¶16} Mr. Hanford’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE DEFENSE PROVED THE AFFIRMATIVE DEFENSE OF SELF[-]DEFENSE BY A P[RE]PONDERANCE OF THE EVIDENCE[.]
{¶17} In his second assignment of error, Mr. Hanford argues that his convictions are
against the manifest weight of the evidence because he proved that he acted in self-defense. This
Court does not agree.
{¶18} When considering whether a conviction is against the manifest weight of the
evidence, this Court must: 9
review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id. at 340,
citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶19} Self-defense is an affirmative defense that must be proven by the accused by a
preponderance of the evidence. See State v. Martin, 21 Ohio St.3d 91 (1986), syllabus; former
R.C. 2901.05(A)/(D)(1).1 In order to establish self-defense, the defense must prove “(1) that the
defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant
had a bona fide belief that he was in imminent danger of death or great bodily harm and that his
only means of escape from such danger was in the use of such force; and (3) that the defendant
did not violate any duty to retreat or avoid the danger.” State v. Barnes, 94 Ohio St.3d 21, 24
(2002), citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus.
{¶20} Mr. Hanford, who testified at trial, maintains that M.B. ingested drugs and alcohol
on the night of the incident and attacked him without provocation. Specifically, Mr. Hanford
testified that he and M.B. spent the afternoon and evening of September 30, 2017, which was
Mr. Hanford’s birthday, consuming beer and “hanging out” in their shared living room.
According to Mr. Hanford, the pair consumed a twelve-pack of beer and four to six twenty-four-
ounce cans of Steel Reserve between them. They ate no food other than candy bars. Mr.
Hanford acknowledged that he smoked some marijuana during the course of the evening, but
1 Significant substantive amendments to R.C. 2901.05 became effective on March 28, 2019. Those amendments are not at issue in this case. 10
denied that other drugs were involved. He testified that he was aware that their living
arrangements would be changing soon, but that they did not argue about that fact. He also
denied that he expressed anger toward anyone else that evening. According to Mr. Hanford, he
fell asleep in a seated position on a loveseat at some point during the course of the night.
{¶21} Mr. Hanford testified that at some point later, he awakened to find M.B.’s hand on
this throat. He explained that he pushed M.B. away, asked what he was doing, and started
walking down the hallway. According to Mr. Hanford, M.B. pursued him and grabbed him
around his neck. Mr. Hanford testified that he struggled to escape from M.B.’s grip, which
tightened around his throat, then reached for his pocket knife. He stated that he swiped behind
him, with the knife in his left hand, then transferred the knife to his right hand, swiped the knife
in M.B.’s direction over his left shoulder, then swiped again to the left under his arm. At that
point, according to Mr. Hanford, M.B. released him. Mr. Hanford testified that when he turned
to look at M.B., he noted that M.B. was holding his side. He testified that the following ensued:
After we had separated, I had - - regained my balance, looked at him, he was holding his side, and I asked him, I said, “Are you all right?” And he shook his head no.
I asked him, “Should I call 911?” He shook his head yes.
Mr. Hanford testified that he ran next door to a neighboring house to call 911, discarding the
pocketknife along the way. He explained that he remembered knocking on the neighbors’ front
door, but that he did not remember anything that happened after that point.
{¶22} Lieutenant Scarl noted that Mr. Hanford’s version of the events on the night in
question developed over the course of his interview and that Mr. Hanford initially denied any
recollection of stabbing M.B. Once he admitted that he remembered the incident, he consistently
maintained that he stabbed M.B. over his left shoulder. During his testimony, Mr. Hanford 11
acknowledged this discrepancy. He also admitted that he had never told police that he awakened
to find M.B.’s hand on his throat. Mr. Hanford’s testimony also contradicts other witnesses who
testified that on the evening of the stabbing, he was angry, aggressive, and upset that he and
M.B. were going to be evicted from their residence by M.B.’s family.
{¶23} In support of his version of events, Mr. Hanford notes that Dr. Sterbenz testified
that M.B.’s postmortem toxicology tests demonstrated that his blood contained alcohol,
amphetamine, and methamphetamine. In his defense, Mr. Hanford also introduced the expert
testimony of Robert Belloto, a Ph.D. with expertise in clinical pharmacology and toxicology.
Dr. Belloto testified regarding the levels of alcohol, amphetamine, and methamphetamine
reflected in the postmortem toxicology results and, by performing a statistical analysis,
determined that it was likely that M.B. exhibited adverse effects from those substances prior to
his death, which he characterized as “a bad combination” of hallucination and lowered
inhibitions.
{¶24} On cross-examination, however, Dr. Belloto acknowledged two things: first, that
his analysis did not factor in tolerance levels, which could make a significant difference in the
outcome; and second, that statistically speaking, it would be likely that any two men of similar
size (as were M.B. and Mr. Hanford) would exhibit similar behavior under the circumstances. In
this respect, it is significant that witnesses testified that Mr. Hanford had a marked history of
drug use and that police discovered burned aluminum foil on an accent table in the living room
that was shaped as though it had been formed into a homemade pipe for smoking drugs. Officer
James Swope also testified that six days after M.B.’s death, the individuals who were cleaning
out the residence found a box containing drug paraphernalia in the room that had been Mr.
Hanford’s bedroom. 12
{¶25} Mr. Hanford’s neighbors also described an encounter with him that happened at
approximately 2:00 a.m. on the date of M.B.’s death. At that time, the neighbor testified that she
heard a knock at the front door and opened it, believing that it might be a relative. She recalled
that Mr. Hanford wore a hoody over his head in a manner that concealed his features and
testified that he pulled open the screen door, pushed passed her, and entered the house. The
neighbor testified that Mr. Hanford “didn’t look like himself” and that “the whole situation was
very odd; and all I remember are his eyes, they were kind of, like, very open, very wide.” The
neighbor also noted Mr. Hanford’s strange behavior: he sat down on their living room floor and
removed his shoes; when she asked whether he knew that he was in their house, he apologized,
complimented their choice of furniture, and left. She recalled that Mr. Hanford was “very calm”
during most of the encounter and did not appear to be upset or frightened. He did not stumble or
slur his speech, and he spoke clearly. Her husband testified similarly, noting that Mr. Hanford’s
demeanor was unusual: “It was kind of like not there or not himself.” Mr. Hanford did not ask to
use their phone, nor did he accept the couple’s offer to call anyone on his behalf.
{¶26} The physical evidence also contradicts Mr. Hanford’s version of the events. Dr.
Sterbenz testified that within seconds of sustaining the fatal wound, M.B. would have been
incapable of speech or any other directed action. He noted that the injury sustained by M.B.
results in almost instant incapacity marked by immediate collapse and agonal breathing. Dr.
Sterbenz also opined that a wound of this nature could not have been inflicted in the manner
described by Mr. Hanford. Both Dr. Sterbenz and Detective Donato testified that if M.B. had
been upright and moving about the room in the seconds following the stabbing, the result would
have been blood strewn about the crime scene rather than concentrated in the area immediately
underneath M.B.’s body. Instead, Dr. Sterbenz noted, it is far more likely that M.B. was sitting 13
or lying—or, at most, kneeling—near the position where his body came to rest at the time of the
stabbing: “[M.B.] was stabbed right where we are seeing him. * * * He died right there. He
bled right there.”
{¶27} Having thoroughly reviewed the record, this Court cannot conclude that the jury
lost its way by determining that Mr. Hanford’s self-defense argument was without merit. His
second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERR[]ED BY FAILING TO INSTRUCT THE JURY ON THE CRIME OF VOLUNTARY MANSLAUGHTER.
{¶28} Mr. Hanford’s fourth assignment of error argues that the evidence at trial
supported a jury instruction regarding voluntary manslaughter. Mr. Hanford did not request a
voluntary manslaughter instruction at trial. For this reason, he has forfeited all but plain error in
this respect. See State v. Platt, 9th Dist. Wayne No. 18835, 1998 WL 887220, *2 (Dec. 16,
1998). Because “‘error * * * [is] the starting point for a plain-error inquiry,’” however, our
analysis is the same. State v. Doss, 9th Dist. Wayne No. 18AP0027, 2019-Ohio-436, ¶ 4,
quoting State v. Hill, 92 Ohio St.3d 191, 200 (2001); Crim.R. 52(B).
{¶29} A trial court must instruct the jury on lesser included offenses when “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 (1988),
paragraph two of the syllabus. Because the elements of voluntary manslaughter correspond to
the elements of murder with the exception of one or more mitigating elements, it is an inferior
degree of murder rather than a lesser included offense. State v. Shane, 63 Ohio St.3d 630, 632
(1992), quoting State v. Tyler, 50 Ohio St.3d 24, 36 (1990), quoting State v. Deem, 40 Ohio St.3d
205, 209 (1988) and. Nonetheless, the same test is applied, and a defendant is entitled to a jury 14
instruction on an offense of inferior degree when “the evidence presented at trial would
reasonably support both an acquittal on the charged crime of murder and a conviction for
voluntary manslaughter.” Shane at 632. The test is not merely whether a defendant produced
“some evidence” that the elements of voluntary manslaughter are present, but whether “sufficient
evidence is presented which would allow a jury to reasonably reject the greater offense and find
the defendant guilty” of an inferior-degree offense. (Emphasis in original.) Id. at 632-633. In
reaching this determination, this Court must consider the evidence in the light most favorable to
the defendant. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 192, citing State v.
Campbell, 69 Ohio St.3d 38, 47-48 (1994).
{¶30} R.C. 2903.03(A), which prohibits voluntary manslaughter, provides that “[n]o
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 * * * .” The
offense of voluntary manslaughter requires an objective consideration of whether the
provocation at issue is sufficient to arouse an ordinary person’s passions beyond the power of his
or her control. Shane at 634-635. If the provocation rises to that standard, a subjective inquiry
into “the ‘* * * emotional and mental state of the defendant and the conditions and circumstances
that surrounded him at the time’” is required. Id., quoting Deem at paragraph five of the
syllabus. To warrant a voluntary manslaughter instruction, the defendant must demonstrate that
there is sufficient evidence going to both the objective and subjective elements. See Shane at
634.
{¶31} In this case, Mr. Hanford cannot demonstrate that the trial court erred by failing to
give a voluntary manslaughter instruction because there is not sufficient evidence that the 15
subjective element of R.C. 2903.03(A) is present. “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 (1998). See also State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751,
¶ 157; State v. Ivery, 9th Dist. Summit No. 28551, 2018-Ohio-2177, ¶ 13-14; State v. Thomas,
9th Dist. Summit No. 27266, 2015-Ohio-2935, ¶ 29. When a defendant testifies that he caused
the death of another because he feared for his own safety, that testimony is relevant to a claim of
self-defense, but does not demonstrate the provocation necessary to establish the elements of
voluntary manslaughter. See Platt, 1998 WL 887220, at *2.
{¶32} Mr. Hanford testified that he stabbed M.B. because he was afraid:
Q: At that exact moment, how did you feel?
A: That he was trying to hurt me.
Q: Were you afraid?
A: Yes, I was.
Q: So, you retrieved the knife, and then you had indicated you made some stabbing motions?
A: Yes.
Q: And why did you do that?
A: I was trying to get [M.B.] off of me.
Q: Because?
A: Because he was choking me. I was in fear for my life.
Mr. Hanford’s only explanation for his actions was that he was motivated by fear. He did not
offer any evidence suggesting that his mental state demonstrated the provocation required under
R.C. 2903.03(A). Even when his testimony is viewed in the light most favorable to him, his fear
alone is insufficient to establish the provocation element of voluntary manslaughter. See 16
Thompson at ¶ 157; Mack at 201; Ivery at ¶ 13-14; Thomas at ¶ 29. Without demonstrating that
the elements of voluntary manslaughter were met, Mr. Hanford cannot, in turn, demonstrate that
the trial court erred by failing to instruct the jury on voluntary manslaughter as a lesser-degree
offense. See Shane, 63 Ohio St.3d at 632. In the absence of error, there can be no plain error.
See Hill, 92 Ohio St.3d at 200.
{¶33} Mr. Hanford’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL[.]
{¶34} In his third assignment of error, Mr. Hanford has argued that his conviction
should be reversed because trial counsel rendered ineffective assistance. Specifically, he has
argued that trial counsel failed to request a jury instruction for voluntary manslaughter, failed to
retain the services of an expert regarding Mr. Hanford’s mental state during and after the murder,
and failed to introduce Mr. Hanford’s interview with Lieutenant Scarl to rehabilitate him
following cross-examination. This Court disagrees.
{¶35} In order to demonstrate ineffective assistance of counsel, a defendant most show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for
counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been
different. Id. at 694. “A defendant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing
Strickland at 697. In applying this test, “a court must indulge a strong presumption that 17
counsel’s conduct falls within the wide range of reasonable professional assistance[.]”
Strickland at 689.
{¶36} With respect to Mr. Hanford’s argument that trial counsel should have requested a
jury instruction on the lesser-degree offense of voluntary manslaughter, that instruction was not
warranted in this case, as discussed above. In other words, counsel’s performance was not
deficient, and it follows that it was not ineffective. See State v. McDowell, 9th Dist. Summit No.
26697, 2014-Ohio-3900, ¶ 18, citing State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-
6604, ¶ 14.
{¶37} Mr. Hanford also cannot establish ineffective assistance of counsel based on trial
counsel’s decisions not to retain the services of an expert witness or to introduce the video
recording of Mr. Hanford’s interview with Lieutenant Scarl. Trial counsel’s decision not to call
an expert witness will not, as a general rule, establish ineffective assistance. State v. Conway,
109 Ohio St.3d 412, 2006-Ohio-2815, ¶118. In addition, when the trial record is silent regarding
the substance of a potential expert’s testimony, establishing prejudice under Strickland requires
proof outside of the record, and “[the] claim is not appropriately considered on direct appeal.”
Madrigal at 390-391. See also State v. Moffett, 9th Dist. Summit No. 28001, 2016-Ohio-5314, ¶
10. In this case, the record is silent regarding what testimony an expert may have offered about
Mr. Hanford’s mental state before and after the murder, so any arguments related to prejudice
that could have resulted from counsel’s decision are purely speculative. See Conway at ¶ 118.
Mr. Hanford’s third argument fails for a similar reason. Trial counsel attempted to introduce the
video recording of the interview during cross-examination of Lieutenant Scarl, but counsel did
not proffer the video at any time. Because the video is not in the record, this claim of ineffective
assistance is not properly considered on direct appeal. See Madrigal at 390-391. 18
{¶38} Mr. Hanford has also argued that even if this Court finds that his three alleged
instances of ineffective assistance do not warrant reversal on their own, their cumulative effect
requires it. As explained above, there was no deficiency in counsel’s performance with respect
to Mr. Hanford’s first argument, and his second and third arguments rely on evidence not
contained within the record. Under these circumstances, we cannot find that cumulative error
exists. See State v. Jones, 10th Dist. Franklin Nos. 18AP-33, 18AP-34, 2019-Ohio-2134, ¶ 76.
{¶39} Mr. Hanford’s third assignment of error is overruled.
III.
{¶40} Mr. Hanford’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 19
Costs taxed to Appellant.
LYNNE S. CALLAHAN FOR THE COURT
TEODOSIO, P. J. SCHAFER, J. CONCUR.
APPEARANCES:
ANGELA M. KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.