State Of Ohio v. Mcclendon
| Decision Date | 01 October 2010 |
| Docket Number | C.A. CASE NO. 23558,T.C. CASE NO. 09CR446 |
| Citation | 2010 Ohio 4757 |
| Parties | STATE OF OHIO Plaintiff-Appellee, v. KYLE MCCLENDON Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Mathias H. Heck, Jr., Pros. Attorney; Laura M. Woodruff, Asst. Pros. Attorney, Attorneys for Plaintiff-Appellee.
William O. Cass, Jr., Attorney for Defendant-Appellant.
(Criminal Appeal from Common Pleas Court).
{¶ 1} Defendant, Kyle McClendon, appeals from his conviction and sentence for murder, felonious assault, and improper handling of a firearm in a motor vehicle.
{¶ 2} David Driscoll, a student at Sinclair Community College, and two of his friends from school, Kelly Altic and George DeLavergne, attended a party at an apartment in Harrison Township during the early morning hours of February 7, 2009. At 3:30 a.m., Driscoll and his two friends walked to the Marathon gas station and convenience store at 4351 Riverside Drive to buy cigarettes. As Driscoll and his friends approached the store, Defendant sped into the lot and parked his car at one of the gas pumps. DeLavergne and Altic were startled by the way Defendant pulled into the station because Defendant acted as though he might run over them.
{¶ 3} What transpired thereafter was captured on the store's surveillance cameras. The evidence presented by the State, including the surveillance video, demonstrates that as Driscoll and his friends stood at the checkout counter, Defendant entered the store, stopped and stared at them, and then walked to the back of the store. Moments later, Defendant came back up to the front of the store where he bumped into DeLavergne, saying, "Out of my way, homeboy." DeLavergne did not respond, and he and Altic went outside to wait for Driscoll, who remained waiting in line at the checkout counter.
{¶ 4} Defendant walked up to the counter, cutting in front of Driscoll. Driscoll told Defendant that he was next in line, and asked Defendant if he had any manners. Driscollnevertheless allowed Defendant to go ahead of him. While paying for his gas, Defendant pointed outside and told Driscoll they should take it outside. Driscoll was not physically aggressive toward Defendant inside the store and never threatened Defendant.
{¶ 5} On the surveillance video, Defendant exits the store, walks over to his car, and then starts to pump gas. Driscoll pays for his cigarettes, exits the store, and takes off his jacket and lays it on the pavement as he approaches Defendant. Defendant leaves the gas pump and the two men stand face-to-face near Defendant's car. Driscoll has his hands up in a fighting posture. By this time Defendant has pulled a gun, which he holds in his right hand and shows to Driscoll. Seconds later the two men appear to relax, they shake hands and embrace briefly. Driscoll walks back to get his jacket and Defendant walks back to his car. Suddenly, Driscoll turns and walks toward Defendant's car. Without hesitating, Defendant shoots Driscoll five times, gets into his car, and speeds away. Driscoll died at the scene from multiple gunshot wounds. His friends, DeLavergne and Altic, ran into a nearby woods and called 911.
{¶ 6} The store's surveillance video was clear enough that police could see the shooter and his car, which had distinctive wheels. The car was soon located in the parking lot of a nearby apartment complex. The owner of the vehicle, a young woman wholived at the complex, gave police permission to enter her apartment. Police found Defendant inside the bedroom of the apartment. The murder weapon was partially concealed underneath a pillow next to Defendant.
{¶ 7} Montgomery County Sheriff's Detective John Clymer interviewed Defendant at the police station. Defendant admitted to Detective Clymer that he shot Driscoll, but stated that he didn't know why he shot him. Defendant said he did not see any weapon on Driscoll, and wasn't threatened by Driscoll or afraid of him.
{¶ 8} Defendant was indicted on one count of purposeful murder, R.C. 2 903.02(A), one count of felony murder, R.C. 2903.02(B), one count of felonious assault-deadly weapon, R.C. 2903.11(A)(2), one count of felonious assault-serious physical harm, R.C. 2903.11(A)(1), and one count of improper handling of a firearm in a motor vehicle, R.C. 2923.16 (B). Allofthecharges included a three year firearm specification, R.C. 2941.145.
{¶ 9} Defendant testified in his own defense at trial that he was drunk when he shot Driscoll. Defendant said that at no time did he see a weapon on Driscoll, but when Driscoll began walking back toward Defendant after the two men shook hands and embraced, appearing to end whatever conflict existed between them, Driscoll had his hand in his coat, and Defendant feared Driscoll might be reaching for a weapon. Defendant then began firing his gun at Driscoll. Defendant testified that he hid the gun under a dresser in the apartment where police found him, and could not explain why police found the gun under a pillow next to Defendant.
{¶ 10} Defendant was found guilty following a jury trial of all charges and specifications. The trial court merged the two murder offenses, the two felonious assault offenses, and all five firearm specifications. Defendant was sentenced according to law to a combination of consecutive and concurrent prison terms totaling twenty-six years to life.
{¶ 12} Defendant requested a jury instruction on the offenses of voluntary manslaughter and aggravated assault as lesser included offenses of the charged offenses of murder and felonious assault, respectively, arguing that the conduct of the victim, Driscoll, in repeatedly confronting Defendant, constituted serious provocation that was reasonably sufficient to arouse the passions of an ordinary person beyond the power of his controland incited Defendant into using deadly force. The trial court denied Defendant's request.
{¶ 13} The decision whether to give a requested jury instruction is a matter left to the sound discretion of the trial court, and its decision will not be disturbed on appeal absent an abuse of discretion. State v. Davis, Montgomery App. No. 21904, 2007-Ohio-6680, at ¶14.
{¶ 14} "'Abuse of discretion' has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 15} AAAA Enterprises, Inc. V. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 16} A trial court must fully and completely give all instructions relevant and necessary for the jury to weigh theevidence and discharge its duty as the fact-finder. State v. Comen (1990), 50 Ohio St.3d, 206. If under any reasonable view of the evidence it is possible to find the defendant not guilty of a greater offense with which he is charged and guilty of a lesser offense, the instruction on the lesser offense must be given. State v. Wengatz (1984), 14 Ohio App.3d 316. Where the evidence in a criminal case would support a finding by the jury of guilty of a lesser offense included in the greater offense for which the Defendant was tried, it is prejudicial error for the trial court to refuse a defense request to instruct on the lesser offense. State v. Parra (1980), 61 Ohio St.2d 236.
{¶ 17} Voluntary manslaughter, R.C. 2903.03, is an offense of inferior degree to murder, R.C. 2903.02. Aggravated assault, R.C. 2903.12, is an offense of inferior degree to felonious assault, R.C. 2903.11. All of the elements of those inferior degree offenses are identical to or contained within the greater offense, with the exception of the mitigating element of serious provocation by the victim that is reasonably sufficient to incite Defendant into using deadly force in both voluntary manslaughter and aggravated assault. State v. Shane (1992), 63 Ohio St.3d 630; State v. Henry, Montgomery App. No. 22510, 2009-Ohio-2068.
{¶ 18} The test for whether the trial court should instruct the jury on voluntary manslaughter when the defendant is chargedwith murder, and on aggravated assault when the Defendant is charged with felonious assault, is the same test applied when an instruction on a lesser included offense is sought. Shane. The instruction must be given when the evidence presented at trial would reasonably support both an acquittal on the charged crime of murder or felonious assault and a conviction for voluntary manslaughter or aggravated assault. State v. Young, Montgomery App. No. 19328, 2003-Ohio-1254.
{¶ 19} Defendant was charged with and found guilty of murder and felonious assault. He argues that the trial court should have granted his request to instruct the jury on the inferior offenses of voluntary manslaughter and aggravated assault. In analyzing whether instructions on voluntary manslaughter and aggravated assault were appropriate, the trial court must first determine whether, on an objective standard, the alleged provocation was reasonably sufficient to bring on a sudden fit of rage. State v. Shane (1992), 63 Ohio St.3d 630, 634. A voluntary manslaughter or aggravated assault instruction is appropriate only when the victim caused serious provocation. Id.
{¶ 20} Serious provocation is provocation that is "sufficient to arouse the passions of an ordinary person beyond the...
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