State of Ohio v. David Zielinski
Court of Appeals No. L-14-1108
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: April 22, 2016
2016-Ohio-2668
Trial Court No. CR0201302235
Steven Casiere, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas that found appellant David Zielinski guilty of one count each of murder, aggravated burglary, kidnapping and felonious assault. Each conviction carried a firearm specification. For the reasons that follow, the judgment of the trial court is affirmed.
{¶ 3} The jury found appellant not guilty of aggravated murder but guilty of the lesser included offense of murder, guilty of aggravated burglary and kidnapping, and not guilty of attempted murder but guilty of felonious assault, with firearm specifications attached to each offense. The trial court sentenced appellant to 15 years to life for the murder conviction, 11 years for the aggravated burglary conviction, 11 years for the kidnapping conviction and 8 years for the felonious assault conviction. All sentences were ordered to be served consecutively. The trial court further found that the four three-year sentences for the firearm specifications were attached to separate transactions, and therefore ordered that they should be served consecutively to one another. This timely appeal followed.
{¶ 4} Appellant sets forth the following assignments of error:
I. Appellant was denied due process and a fair trial by the trial court‘s refusal to instruct the jury as to voluntary manslaughter.
II. Appellant was denied due process and a fair trial after the state provided legally insufficient evidence to sustain appellant‘s conviction for aggravated burglary.
III. The trial court erred when it refused to merge firearm specifications which arose out of a single transaction.
{¶ 5} In support of his first assignment of error, appellant asserts that the trial court should have instructed the jury on voluntary manslaughter because there was sufficient evidence upon which the jury could have acquitted him of murder while finding him guilty of voluntary manslaughter. Appellant argues that fatally shooting someone after having encountered that individual in the act of adultery with the shooter‘s spouse is a “classic example” which would support an instruction on voluntary manslaughter. A review of the testimony presented at trial is necessary here in order to determine this issue.
{¶ 6} It is undisputed that the victim, Michael Jackson, was shot, stabbed and pistol-whipped while in bed with appellant‘s estranged wife, Amber Hayes, in the home appellant and Hayes had shared after their marriage and before their separation. Appellant and Hayes had married on June 7, 2013. At that time, Hayes bought a house on Central Avenue in Toledo where the couple then lived. On June 25, 2013, the couple argued and appellant left to stay with his mother in Swanton, Ohio. Appellant did not stay at the house again. Shortly after appellant moved out, Hayes began a relationship with Jackson. Appellant was aware of the relationship.
{¶ 8} Appellant‘s friend Paul Cook testified that on the night of July 13, 2013, he and appellant were drinking together in Swanton when appellant said he was going to beat up the man his wife was sleeping with. Cook rode along, and when appellant stopped the truck he told Cook to wait there. Appellant got out, smoked a cigarette and
{¶ 9} Appellant testified that on the night of July 13, 2013, he was at his mother‘s home in Swanton talking to Paul Cook. Eventually, appellant decided to go to Toledo and confront Jackson, whom appellant knew was involved in a relationship with Hayes. Appellant testified that he took a gun and a knife in order to protect himself because he did not know “what might happen” when he went into the house. He denied intending to kill Jackson when he got there. He stated that he wanted to get Jackson out of the house and try to work something out with his wife. Appellant parked his truck around the corner from the house so that Hayes would not hear him pull up since she had said that if he came to the house she would call the police. He further testified that after he parked he smoked a cigarette and began to sober up. He testified that, out of concern for Cook‘s safety, he told Cook to call his mother for a ride because he did not know what might happen when he went into the house. Appellant walked to Hayes’ house alone. Contrary to Cook‘s testimony, appellant denied taking a rope with him.
{¶ 10} Appellant unsuccessfully tried to open two of the doors with his key. He claimed that he knocked on the front door but there was no answer. Appellant saw an open window on the first floor and removed a fan set in the window so that he could climb in. He testified that, once inside, he could hear Hayes and Jackson having intercourse. He waited until they were quiet, “trying to keep it together,” before going upstairs, where he found them in bed together. Appellant testified that Jackson called
{¶ 11} Voluntary manslaughter is defined in
{¶ 12} Appellant argues that there was sufficient evidence upon which a jury could have acquitted him of murder while finding him guilty of voluntary manslaughter. Appellant asserts that listening to Hayes and Jackson engaging in intercourse for five minutes after he climbed in the window, and then finding them in bed together, constituted provocation that was “reasonably sufficient” to incite him into using deadly force.
{¶ 13} A trial court‘s denial of a requested jury instruction may not be reversed unless it was an abuse of discretion under the facts and circumstances of the case. See State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). An abuse of discretion is more than an error of law or judgment; it implies that the trial court‘s judgment was
{¶ 14} 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.” State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992).
{¶ 15} “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, paragraph one of the syllabus. “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).
{¶ 16} Any provocation by the victim must be sufficient to arouse the passions of an ordinary person beyond his or her control. Shane at 634-35. The provocation must be reasonably sufficient to incite the defendant to use deadly force. Id. at 635.
{¶ 17} The trial court would have been required to give an instruction on voluntary manslaughter if the evidence presented at trial demonstrated that appellant killed Jackson while under the influence of a sudden passion or fit of rage caused by provocation from Jackson that was serious enough to incite him into using deadly force.
{¶ 18} The facts deduced at trial, however, negate the idea that appellant acted with sudden passion or in a sudden fit of rage provoked by Jackson. Instead, according to appellant‘s own testimony, while drinking with a friend in Swanton, he mulled over driving to Toledo, got up and made the 45-minute drive to Hayes’ neighborhood, parked his truck around the corner from the house, smoked a cigarette, walked to the house with a gun and knife, and climbed through a window after trying his key in several locks. Appellant, believing Hayes was having sexual intercourse with Jackson, sat downstairs for at least five minutes until he thought they were quiet before going upstairs to the bedroom. Appellant then exchanged verbal insults with Hayes and Jackson before the deadly assault began.
{¶ 19} Based on the foregoing, we conclude that the trial court did not abuse its discretion in not instructing the jury on voluntary manslaughter. Accordingly, appellant‘s first assignment of error is not well-taken.
{¶ 20} In his second assignment of error, appellant asserts that the state did not present sufficient evidence to support his conviction for aggravated burglary.
{¶ 21} On appeal, the test regarding sufficiency of the evidence is whether, when “viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable
{¶ 22}
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.
{¶ 23} Appellant argues that because neither he nor Hayes had filed for divorce and there was no court order prohibiting him from entering the residence, the trespass requirement of the statute could not be satisfied. Appellant does not contest any of the other elements of the statute.
{¶ 24} The house in which the burglary and murder occurred was owned by Hayes. Hayes testified that after appellant failed to come home for two days between June 23 and 25, 2013, she packed his belongings and arranged for them to be delivered to his mother‘s home in Swanton. Appellant left the house, leaving his keys behind, and
{¶ 25} Based on the foregoing, we find, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of aggravated burglary proven beyond a reasonable doubt. Accordingly, appellant‘s second assignment of error is not well-taken.
{¶ 26} In his third assignment of error, appellant asserts that the firearm specifications should have merged because the four felonies were committed as part of a single act or transaction.
{¶ 27} In support, appellant cites
{¶ 28} In making his argument, appellant ignores the above reference to division (B)(1)(g), which applies in this case and disproves his argument. Division (B)(1)(g)
{¶ 29} Appellant was convicted of two offenses listed in
{¶ 30} As to appellant‘s argument that the acts committed in this case were part of the same act or transaction, the record reflects that the trial court deliberately and clearly articulated its reasons for imposing the consecutive firearm specifications. As the court noted, appellant entered the house with a gun, thereby completing the act of aggravated burglary. He then went upstairs and fatally shot Jackson, thereby committing the separate act of murder. Appellant then committed the separate act of kidnapping when he brandished his gun and forced Hayes to leave the house with him and drive him to his truck. Lastly, appellant committed the final separate offense of felonious assault when he fired shots at Hayes as she escaped by driving away. These offenses were not part of “the same act or transaction” for purposes of
{¶ 32} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Arlene Singer, J.
Thomas J. Osowik, J.
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.