State v. Flowers, Unpublished Decision (3-8-2000)
State v. Flowers, Unpublished Decision (3-8-2000)
Opinion of the Court
On the evening of April 24, 1998, Mr. Flowers and his wife, Kathy Jo Johnson, a.k.a. Kathy Flowers, were engaged in a verbal argument in the bedroom of their residence at 1014 Springdale, Akron. At around 10:45 p.m. that evening, the altercation turned violent. Mr. Flowers stabbed Kathy approximately seventeen times with a knife, which she kept in her room for protection. Kathy, after being stabbed, was able to leave the residence and passed away in a neighbor's yard due to blood loss from her injuries.
Kathy's son, Johnnie Johnson, witnessed a portion of Mr. Flowers' attack upon his mother and went to a neighbor to summon help. Detective Donnie Williams and Detective Bell, both of the Akron Police Department and who were also employed as security personnel by the Akron Metropolitan Housing Authority ("AMHA"), responded to the report of a stabbing. The Officers, who were functioning as AMHA security at that time, arrived to find Kathy lying in a pool of blood outside of her neighbor's home. Mr. Flowers had left the area immediately after stabbing his wife.
The officers found a trail of blood from the bedroom of Kathy's residence to the point at which she collapsed. Johnnie Johnson, who had witnessed a portion of the stabbing in his mother's bedroom, was despondent. The Officers found him at a neighbor's residence. Johnnie had been on the porch of the neighbor's residence when Mr. Flowers had fled the scene. After seeing Johnnie, Mr. Flowers had thrown the knife, which he had used to stab Kathy, at Johnnie. The knife missed Johnnie, impacting the neighbor's door.
On April 30, 1998, Mr. Flowers was indicted by the Summit County Grand Jury for aggravated murder with a repeat violent offender specification, in violation of R.C.
Mr. Flowers asserts two assignments of error. We will address each in turn.
First Assignment of Error
THE TRIAL COURT ERRED IN EFFECTIVELY INSTRUCTING THE JURY THAT THE USE OF A DEADLY WEAPON ESTABLISHES THE ESSENTIAL ELEMENT OF PURPOSE.
Mr. Flowers avers that the trial court erred by omitting the word "inferred" from the jury instructions that it gave.
He asserts that, without the term "inferred" in the jury instructions, the jury could have concluded that purpose to kill is present due to the use of a deadly weapon. As he failed to object at trial, Mr. Flowers argues that this omission rises to the level of plain error. We disagree.
If a defendant did not object to the instructions, as required by Crim.R. 30(A), we can only take notice of the error if it rises to the level of plain error. Furthermore, "[a] single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge." Statev. Price (1979),
Therefore, we can only take notice of the error if it rises to the level of plain error. Crim.R. 52(B). "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978),
Mr. Flowers failed to object to the jury instruction, of which he now complains, at trial. Hence, we must determine whether the jury instruction rises to the level of plain error.
Mr. Flowers avers that the trial court erred when it omitted "inferred" from the sentence stating: "If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, the purpose to cause the death may be inferred from the use of the weapon." (Emphasis added.) 4 Ohio Jury Instructions (1997), Section 409.01(6), at 58. We conclude that, considering the jury instructions as a whole, the trial court's omission does not rise to the level of plain error. The trial court's instructions made it clear that "[a] person acts purposely when it is his specific intention to cause a certain result." Further the trial court instructed that the weapon used was just one factor which the jury should use to determine whether Mr. Flowers had acted purposefully. We deduce that the jury was not misled by the missing word due to the contents of the jury instructions as a whole. Hence, we cannot conclude that the outcome of the trial would clearly be different if it were not for the alleged error. Mr. Flowers' first assignment of error is overruled.
Second Assignment of Error
APPELLANT'S CONVICTION FOR MURDER WAS AGAINST THAT MANIFEST WEIGHT OF THE EVIDENCE.
Mr. Flowers asserts that his conviction for murder was against the manifest weight of the evidence because the evidence adduced at trial weighed strongly toward a conviction of voluntary manslaughter rather than murder. Moreover, he avers that the evidence at trial showed that he was acting in the heat of passion, in a state of extreme emotional disturbance, rather then with the specific intent that is required to support a conviction for murder. We disagree.
When a defendant asserts that his conviction is against the manifest weight of the evidence,
State v. Otten (1986),an appellate court must 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.
To support a conviction of murder the state must show that one "purposely cause[d] the death of another[.]" R.C.
One is guilty of voluntary manslaughter when one, "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, * * * knowingly cause[s] the death of another[.]" R.C.
Mr. Flowers argues that the weight of the evidence supports a conviction for voluntary manslaughter rather than murder. Mr. Flowers concedes that he stabbed his wife, causing her death. The evidence showed that a heated argument erupted into violence, ending with Mr. Flowers repeatedly stabbing his wife. As provocation, Mr. Flowers asserts that his wife was high and belligerent; however, assuming arguendo that such allegations are true, the jury's conclusion that such provocation did not rise to a level that would reasonably incite one to use deadly force was not against the manifest weight of the evidence. See State v.Smith (1991),
Mr. Flowers' two assignments of error are overruled. The verdict of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, 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(E).
Costs taxed to Appellant.
Exceptions.
WILLIAM G. BATCHELDER FOR THE COURT BAIRD, P.J., WHITMORE, J.concur.
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