COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71161 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION KAYLA D. ELLIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 336244 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Assistant 8th Floor - The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender KATHLEEN W. WOODS, Assistant 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 2 O'DONNELL, J.: Kayla Ellis appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding her guilty of murder in connection with the stabbing death of Sidney Walker, Jr. She raises three assignments of error for our consideration challenging the trial court's failure to charge the jury on the lesser included offense of manslaughter; attacking the validity of the warrantless searches of her property; and urging that her conviction is against the manifest weight of the evidence. For the reasons stated below, we reject these assignments and affirm her conviction. Ellis and Walker lived together with their three children in the upstairs suite of a two-family home located at 1341 East 142nd Street in East Cleveland, Ohio, owned by Walker's parents. In October, 1995, their relationship deteriorated when Walker began having an affair with a childhood friend, Tracy Murphy. In January, 1996, Ellis met Johnaya Davis through a cable dating network, and they began an affair. During the course of their relationship, she told Davis that Walker beat her and Davis occasionally saw bruises on her. The record reveals that on the afternoon of March 13, 1996, Ellis and Antoinette Peterson, a friend of Walker's sister, drove to the home of Ellis' friend, Renee Page. Once there, Ellis spoke with Renee's boyfriend, Oliver Kool-Aid Eaton, asking him to locate a gun for her, which she said she wanted to protect herself from Walker. Eaton tried unsuccessfully to obtain a gun for her. Conseqently, Ellis and Peterson left, at which point Peterson 3 noticed a knife wrapped in a paper bag in the back seat of Ellis' car. Later that day, the record reveals that Ellis met Davis at his home and asked him to beat up Walker because Walker had been hitting her. Davis agreed, grabbed a baseball bat, and the two drove to her home where he waited while she picked Walker up from a friend's home. When Ellis returned with Walker, Davis confronted Walker in the side yard of the house and asked him why he liked hitting women. Walker punched Davis, and then Ellis came upon the scene and began stabbing him repeatedly in the back. Davis then fled while Ellis continued to stab Walker. The record reflects that Walker sustained six stab wounds in the back, one in the head, and nine in his chest. Ellis called 911 and Walker's family, claiming that an unidentified black male had attacked him. East Cleveland Police Officer Gary Harper responded to the scene and observed Ellis and Saratha Walker, the victim's sister, standing near Walker who was lying in a large pool of blood. Shortly thereafter, Sergeant Paula Robinson arrived, spoke briefly with Ellis, and asked Ellis to give her the keys to both the house and car. Ellis complied. The police then searched her home and collected letters she had written expressing problems with her relationship with the victim and various blood samples. As a result of evidence presented to the grand jury both Ellis and Davis were indicted for aggravated murder. Prior to trial, the state permitted Davis to plead guilty to 4 involuntary manslaughter in exchange for his agreement to testify against Ellis. Following presentation of the evidence, the court instructed the jury on the crime of aggravated murder and the lesser included offense of murder, but denied a request for an instruction on involuntary manslaughter. The jury returned its verdict finding Ellis guilty of murder, the trial court imposed sentence, and Ellis now appeals and assigns three errors for our review. The first assignment of error states: I. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON INVOLUNTARY MANSLAUGHTER, WHICH IS A LESSER INCLUDED OFFENSE OF AGGRAVATED MURDER AND WHICH WAS SUPPORTED BY THE EVIDENCE. Ellis contends that the trial court should have instructed the jury on the crime of involuntary manslaughter because it is also a lesser included offense of aggravated murder warranted by the evidence. The state maintains the trial court instructed the jury in accordance with the evidence presented at trial and further asserts the evidence does not support a charge on involuntary manslaughter. The issue presented for review is whether the trial court erred by failing to instruct the jury on the lesser included offense of involuntary manslaughter in this case. R.C. 2903.01(A) defines aggravated murder and states: No person shall purposely, and with prior calculation and design, cause the death of another. R.C. 2903.02(A) defines murder and states: No person shall purposely cause the death of another. 5 R.C. 2903.04 defines involuntary manslaughter and states: (A) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony. (B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor***. The Ohio Supreme Court stated in State v. Thomas (1988), 40 Ohio St.3d 213, in its syllabus: 1. Involuntary manslaughter, R.C. 2903.04, is, as statutorily defined, a lesser included offense of aggravated murder, R.C. 2903.01(A). 2. Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser include offense. In this case, the evidence presented by the state establishes that Ellis had attempted to obtain a gun on the day Walker was killed, that she had a knife in her car that day, that she drove the decedent to their home, that she personally inflicted the fatal stab wounds, some of which perforated his vital organs, and that she had been having problems with Walker prior to the date he was killed. The state also established her clothing contained blood stains consistent with the decedent's blood. In accordance with the holding in State v. Thomas, supra, no charge on involuntary manslaughter is required because after considering the state's evidence, it does not reasonably support an acquittal on charges of murder or aggravated murder. Thus, the trial court did not err in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. Accordingly, 6 this assignment of error is overruled. The second error states: II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE I, OF THE OHIO CONSTITUTION IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM TWO WARRANTLESS SEARCHES WHEN THE STATE HAD NOT PROVED ITS CONTENTION THAT APPELLANT CONSENTED TO THOSE SEARCHES. Ellis contends that she did not consent to have her home searched on the night of the murder, and therefore the evidence obtained from those searches, which included blood samples and letters she had written expressing problems with her relationship with Walker, should have been suppressed by the trial court. The state argues that the trial court properly denied Ellis' motion to suppress because Ellis consented to the search by giving her keys to the police. The issue for our determination is whether the trial court properly denied Ellis' motion to suppress evidence in this case. The state bears the burden of proving that the consent was, in fact, freely and voluntarily given. ***Further, the degree of proof required to show that the consent was not contaminated by duress, coercion, or trickery is proof by `clear and positive evidence.' State v. Ingram (1992), 82 Ohio App.3d 341, 346. In Ohio v. Danby (1983), 11 Ohio App.3d 38, the court stated in its headnote: 2. Clear and positive evidence is that degree of proof which is more than a mere preponderance of such evidence but less than that required to establish guilt beyond a reasonable doubt. Proof by clear and positive evidence is equivalent to proof by clear and convincing evidence. 7 In this case, the trial court conducted two hearings on Ellis' motions to suppress evidence during which Ellis, her mother, and four East Cleveland Police Officers testified regarding the two searches of the home on the night of the murder. Ellis testified as follows: Q. What did you do with your keys to the house that evening? *** A. I gave them to the police officer that came to the car. (Tr. 35) Police Officer Gary Harper, who had arrived first on the scene, spoke with Ellis, advised Sergeant Paula Robinson about the situation when she arrived, placed Ellis in the back of his police car at the request of Sergeant Robinson, read Ellis her Miranda rights, and finally left Ellis in the car speaking to his Sergeant. Robinson described the conversation she and Ellis had as follows: A. Okay. I just had a small conversation with her. I told her that the detectives might want to check her home and I asked her if she had any keys to the home, would she mind giving us the keys, giving up the keys, so the detectives can go in and check her home. Q. Did you ask permission to go into her home? A. Yes.*** (Tr. 73) *** Q. Did she at any point express any objection to giving you the keys or allowing you to enter her house. A. No. *** Q. Did she do anything with respect to that key ring when she handed it to you? A. Yes. She pointed out the keys that I needed because I also told her because it was - - there was a maroon in 8 color Oldsmobile parked in the driveway which later I found out belonged to the decedent and I told her that, you know, that might want to check the car, too, and search the car for anything and check in the car for any evidence or anything and, you know, find, she didn't have any objections. She just handed over the keys. She showed me which keys I needed to get into her home and handed them over. (Tr. 74-75) Detective Michael Perry then spoke with Ellis while she was still in the rear of Harper's vehicle, and recalled that conversation, in part, at the suppression hearing as follows: Q. ***did she give permission to you to go back into the house? A. Yes, she did. (Tr. 119) Subsequently, Sergeant Robinson gave Perry the keys to the house and the police searched the residence and recovered blood samples and letters Ellis had written. Officer Calvin Love then removed Ellis from the back of Harper's cruiser, escorted her into his vehicle, again read the Miranda rights to her, placed her under arrest and transported her to the police station for processing. This record confirms that Ellis gave two different officers consent to search her home. Therefore, the trial court did not err in denying her motion to suppress evidence recovered from the searches of her home on the night of the murder. Accordingly, this assignment of error is overruled. The third assignment of error states: III. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN NO RELIABLE EVIDENCE SUGGESTED THAT KAYLA ELLIS WAS THE PERSON WHO STABBED BUTCH WALKER. Ellis contends that her murder conviction is against the manifest weight of the evidence because the state's case rested 9 primarily on Johnaya Davis' testimony which was self-serving and unreliable. The state urges that the verdict is supported by not only the testimony of Davis who witnessed the stabbing, but also the scientific blood trace evidence and other independent evidence. The test to be applied when reviewing a claim involving the manifest weight of the evidence is stated in State v. Martin (1983), 20 Ohio App.3d 172, 175, as recently cited by the Ohio Supreme Court in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Upon review of the transcript here, the state presented evidence from Davis that he witnessed Ellis come out of nowhere with a knife and stab Walker in the back and that he left while she continued to stab him. The state also presented scientific blood trace evidence which the presence of Walker's blood on Ellis' clothing, but not on Davis' clothing. In the defense case, Barbara Gamble, Chantalli Gamble, and Paulette Johnson all testified about admissions allegedly made by Davis that while he had been messing with a girl, her boyfriend walked in on them and he had killed the man. After reviewing these facts together with reasonable inferences which can be drawn from them and after carefully 10 considering the credibility of the witness, including Johnaya Davis, we conclude that the jury did not lose its way nor create a manifest miscarriage of justice in this case. Accordingly, this assignment of error is not well taken and the judgment of conviction is affirmed. Judgment affirmed. 11 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .