author: CYNTHIA WESTCOTT RICE, J.

text:
    LAWNFIELD PROPERTIES, LLC, Plaintiff-Appellant, v. The CITY OF MENTOR, Defendant-Appellee.
    NO. 2017-L-130
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided June 25, 2018
    James V. Aveni and Joshua T. Morrow, Ranallo & Aveni, L.L.C., 6685 Beta Drive, Cleveland, OH 44143 (For Plaintiff-Appellant).
    Richard A. Hennig, Hennig, Szeman & Klammer Co., L.P.A., 10 West Erie Street, Suite 106, Painesville, OH 44077 (For Defendant-Appellee).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Lawnfield Properties, LLC, appeals the judgment of the Lake County Court of Common Pleas granting appellee, the city of Mentor's, Civ.R. 12(B)(6) motion to dismiss appellant's amended complaint for an injunction. This case involves the taking by Mentor of a strip of appellant's property for a road-widening project. The main issue is whether the trial court erred in finding that the Lake County Probate Court, rather than the trial court, has jurisdiction to adjudicate appellant's entitlement to residual damages. For the reasons that follow, we affirm.

{¶ 2} The statement of facts that follows is derived from appellant's amended complaint and its attachments. Appellant owns a hotel/restaurant on Mentor Ave. in Mentor, Ohio. In early 2016, Mentor advised appellant that it intended to appropriate a strip of frontage of its property along Mentor Ave. for the purpose of widening that road. Shortly thereafter, appellant attended an on-site meeting with Dennis Keeney, Mentor's appraiser, during which appellant advised him of specific items of residual damage that it expected as a result of the appropriation. These included the relocation of a sign, the loss of parking spaces in its parking lot, the loss of one of its multiple curb cuts, and the temporary loss of use of its outdoor patio and swimming pool during construction of the project.

{¶ 3} Mr. Keeney, in his April 13, 2016 appraisal report, concluded the fair market value of the property to be appropriated was $37,665. He further concluded that the instant appropriation would not result in residual damage.

{¶ 4} On June 20, 2016, Mentor provided appellant with a copy of Mr. Keeney's appraisal and a formal offer to purchase the property for the amount determined by Mr. Keeney to be the fair market value of the property.

{¶ 5} One month later, on July 22, 2016, appellant's counsel sent a letter to Mentor, rejecting its offer, citing Mr. Keeney's failure to appraise the value of appellant's anticipated residual damage. In that letter, appellant's counsel stated that appellant had retained another appraiser, Tom Horner, to evaluate Mr. Keeney's appraisal, and that appellant would provide a settlement demand to Mentor once Mr. Horner completed his review. However, appellant never provided Mentor with its own appraisal or with a settlement demand. On October 11, 2016, appellant's counsel sent Mentor a second letter supplementing his first. In this letter, appellant's counsel asserted that the city's reliance on Mr. Keeney's appraisal was "unwarranted" and "unlawful" and accused Mentor of not making a good faith offer. Contrary to appellant's argument on appeal, his counsel in these two letters never asked Mentor to obtain an amended appraisal to value its residual damage or to present a new offer in accord with same; appellant simply rejected Mentor's offer.

{¶ 6} On October 24, 2016, Mentor initiated appropriation proceedings by serving appellant with its Notice of Intent, which included Mr. Keeney's appraisal and Mentor's "good faith offer" to purchase the property based on Mr. Keeney's appraisal.

{¶ 7} Thereafter, on December 22, 2016, Mentor filed an appropriation action in the Lake County Probate Court, Mentor v. Lawnfield Properties, LLC , Case No. 16-CV-189, which remains pending. Appellant concedes that, because Mentor's appropriation action was a "quick take" for road construction purposes, appellant was statutorily barred from seeking to enjoin Mentor from the actual taking of the property.

{¶ 8} Instead, on April 13, 2017, appellant filed a complaint for an injunction in the trial court (general division), alleging that Mentor's appropriation action was procedurally defective because it failed to include a good faith offer that compensated appellant for the alleged residual damage to its property. In its amended complaint, appellant requested that the trial court enjoin Mentor from pursuing its appropriation action until such time as Mentor obtains an amended appraisal that values appellant's residual damage and makes an offer based on such amended appraisal.

{¶ 9} On June 1, 2017, Mentor filed a Civ.R. 12(B)(6) motion to dismiss appellant's complaint for failure to state a claim. After considering the parties' briefs, the trial court granted Mentor's motion to dismiss, finding that appellant's challenge "should be brought before the Lake County Probate Court in the pending appropriation case where the issue of just compensation can be determined." Appellant appeals the trial court's judgment, asserting two assignments of error. For its first, it alleges:

{¶ 10} "The trial court erred by holding that the Lake County Probate Court maintains competent jurisdiction to rule upon Lawnfield's request for injunctive relief."

{¶ 11} I. THE PROBATE COURT RETAINS JURISDICTION TO PROCEED TO JURY TRIAL ON THE ISSUE OF JUST COMPENSATION, INCLUDING APPELLANT'S ALLEGED ENTITLEMENT TO RESIDUAL DAMAGES.

{¶ 12} "Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo." Bank of N.Y. Mellon Trust Co. v. Shaffer , 11th Dist. Geauga No. 2011-G-3051, 2013-Ohio-3205, 2013 WL 3866947, ¶ 33. Two courts have potential subject-matter jurisdiction in appropriation matters: the common pleas court and the probate court of the county in which the property is located. R.C. 163.01(D). The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation. State ex rel. Duncan v. Mentor City Council , 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 11.

{¶ 13} Our decision in this matter requires a review of Ohio's Eminent Domain Act, at R.C. Chapter 163. Appellant does not argue that any section of the Act is ambiguous or unclear. " 'Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation. To interpret what is already plain is not interpretation, but legislation, which is not the function of the courts, but of the general assembly. * * * An unambiguous statute is to be applied, not interpreted.' " Sears v. Weimer , 143 Ohio St. 312, 316, 55 N.E.2d 413 (1944), quoting 37 Ohio Jurisprudence, 514, Section 278.

{¶ 14} R.C. 163.04(B) requires that an appropriating agency provide a "good faith offer" to purchase real property before filing its petition for appropriation. Further, an agency may appropriate the property only after the agency obtains an appraisal of the property and provides a copy of it to the owner. R.C. 163.04(C).

{¶ 15} R.C. 163.59(D) provides that the amount offered by the agency shall not "be less than the agency's approved appraisal of the fair market value of the property." An appraisal is defined as "a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of * * * property * * *, supported by the presentation and analysis of relevant market information." (Emphasis added.) OAC 5501:2-5-01(B)(3).

{¶ 16} R.C. 163.59(D) also requires the agency to state in its offer the just compensation for (1) the property acquired and for (2) any residual damage to the property after the taking. "Residual damage" is damage to the portion of property remaining after the other portion is taken. Such damage is measured by the difference between the pre- and post-appropriation fair market value of the residue. Hilliard v. First Industrial, L.P. , 158 Ohio App.3d 792, 2004-Ohio-5836, 822 N.E.2d 441, ¶ 5 (10th Dist.). Upon receipt of a good faith offer, the owner is permitted to present material that the owner believes is relevant to determining the fair market value of the property and to suggest modifications in the proposed terms of the acquisition. R.C. 163.59(D). However, the agency is merely required to "consider" the landowner's presentation. Id.

{¶ 17} Further, R.C. 163.08 establishes what issues the owner can contest in an appropriation action. That statute provides, in pertinent part:

{¶ 18} Any owner may file an answer to such petition. * * * The agency's right to make the appropriation, the inability of the parties to agree, and the necessity for the appropriation shall be resolved by the court in favor of the agency unless such matters are specifically denied in the answer * * *, provided, when taken * * * for the purpose of making or repairing roads, which shall be open to the public, * * * an answer may not deny the [agency's] right to make the appropriation, the inability of the parties to agree, or the necessity for the appropriation. * * * (Emphasis added.)

{¶ 19} Appellant argues that R.C. 163.08 divests the appropriating court, here, the probate court, of subject-matter jurisdiction to hear a landowner's challenge to the authority of the appropriating agency when the purpose of the take is to build a public road. Appellant further argues that R.C. 163.08 permits a landowner to proceed in a separate action in the general division to enjoin the appropriation proceedings and that the general division has exclusive jurisdiction to determine the agency's authority to appropriate. In support, appellant cites Cleveland v. Brook Park, 103 Ohio App.3d 275, 280-281, 659 N.E.2d 342 (8th Dist.1995).

{¶ 20} Specifically, appellant argues that, because Mentor's offer was based on an appraisal that did not include compensation for residual damage, the offer was not a good faith offer. As such, appellant argues that Mentor lacks authority to pursue its appropriation action and that the probate court lacks jurisdiction to adjudicate the action. Thus, appellant argues it is entitled to an injunction to prevent Mentor from pursuing its appropriation action in the probate court until Mentor: (1) obtains an amended appraisal (that includes an amount for residual damage) and then (2) amends its offer to reflect such amended appraisal.

{¶ 21} In contrast, Mentor argues that appellant is not challenging Mentor's authority to appropriate. Rather, Mentor argues that appellant's residual-damage argument is merely a challenge to the methodology employed by Mr. Keeney in preparing his appraisal and to the amount of the appraisal and that, unlike a challenge to the agency's authority, this does not provide grounds for a separate injunction action. Further, Mentor argues that, per R.C. 163.59, its offer was not required to include an amount for residual damage (since its appraiser determined there was no such damage), but that, even if it was, Mentor's failure to include such amount would not provide grounds to dismiss the appropriation case in probate court. In support, Mentor relies on Wadsworth v. Yannerilla , 170 Ohio App.3d 264, 2006-Ohio-6477, 866 N.E.2d 1113 (9th Dist.).

{¶ 22} In Wadsworth , the Ninth District stated that " R.C. 163.59(D) requires that an appropriating agency establish an amount it considers just compensation for the property and that that amount be no less than the approved and appraised fair-market value." Wadsworth at ¶ 19. Thus, "if an agency presents a landowner with a fair-market valuation, it has complied with R.C. 163.59." Wadsworth, supra . "Further, and more important, the requirement of R.C. 163.04 is satisfied by an appropriating agency's offer of a fair-market valuation on the property." Wadsworth, supra . The court held that "an offer of fair-market value constitutes a valid attempt to reach agreement with the landowners" and that because "Wadsworth made such an offer," it "negotiated in good faith." Id.

{¶ 23} Further, the Ninth District, in Wadsworth, considered an argument similar to the one made by appellant here. The appellants in Wadsworth argued that the city had failed to negotiate in good faith because it did not consider their concerns regarding the effect of the appropriation on their private wells and farming operation. The Ninth District rejected this argument, holding:

{¶ 24} Wadsworth was not required to provide the landowners with any guarantees, nor was it required to respond to [their] concerns . Wadsworth was required to tender an offer of fair-market value, to give the landowners reasonable time to contemplate the offer, and to consider the landowners' presentations and suggestions. R.C. 163.59(D). The record indicates that Wadsworth complied with the requirements of R.C. 163.59(D). (Emphasis added.) Wadsworth at ¶ 20.

{¶ 25} In any event, the Ninth District, in Wadsworth , supra , held that, even if the city failed to comply with any of the procedural requirements in R.C. 163.59, this would not justify dismissal of the appropriation. Wadsworth at ¶ 23. The Ninth District noted that R.C. 163.52(A) provides: "The failure of an acquiring agency to satisfy a requirement of section 163.59 of the Revised Code does not affect the validity of any property acquisition by * * * condemnation." The Ninth District explained:

{¶ 26} [E]ven were we to find that Wadsworth did not comply with R.C. 163.59, that failure to comply would "not affect the validity of any property acquisition by * * * condemnation." R.C. 163.52(A). Relying on R.C. 163.52(A), the [Eighth District, in Weir v. Kebe, 29 Ohio App.3d 53, 55, 503 N.E.2d 177 (8th Dist.1985),] held that a violation of R.C. 163.59 by an appropriating agency could not serve as a basis for dismissing the appropriation action. Therefore, based on Weir and R.C. 163.52(A), this court concludes that a potential violation of R.C. 163.59 would not serve as a basis for dismissing Wadsworth's appropriation petitions . Wadsworth at ¶ 23. (Emphasis added.)

{¶ 27} However, after holding that a potential violation of R.C. 163.59 would not affect the validity of the taking, the Ninth District in Wadsworth was quick to point out:

{¶ 28} [A]lthough we have found that Wadsworth negotiated in good faith, the landowners have not been foreclosed from raising concerns about their land and water supply. The landowners have the right to present their concerns and justifications for a greater valuation of the [appropriated] easements before a jury. Under the law, a jury will decide whether the easements will affect the landowners' water supply or, in [the case of one of the appellants], its ability to operate as a business, and, if so, how much such an effect is worth. See, gener ally, R.C. 163.09 and 163.14. Wadsworth, supra , at ¶ 24.

{¶ 29} Significantly, appellant does not attempt to distinguish or even mention Wadsworth, the logic of which we find persuasive. Applying the principles set forth in Wadsworth here, since Mentor offered appellant the fair market value of its property, as determined by its appraiser, the offer was made in compliance with R.C. 163.04 and 163.59 and thus was made in good faith. Further, Mentor gave appellant reasonable time, i.e., six months, to contemplate the offer, and Mr. Keeney considered appellant's presentation regarding residual damage, thus fully complying with R.C. 163.59(D). Mr. Keeney, as a certified appraiser, exercised his independent judgment in arriving at the fair market value of appellant's property and then provided this amount to Mentor, which the city then offered to appellant. While Mentor was required to "consider" appellant's information regarding residual damage, per R.C. 163.59(D), Mentor was not required to act on it. However, even if Mentor was required by R.C. 163.59(D) to offer an amount for appellant's residual damage, Mentor's failure to do so would not affect the validity of the appropriation or justify its dismissal. R.C. 163.52(A).

{¶ 30} Further, since appellant's argument concerns the amount of compensation to which it claims to be entitled (which is within the probate court's jurisdiction) rather than Mentor's authority to appropriate (which is not within that court's jurisdiction), the trial court did not err in concluding that the probate court has jurisdiction to proceed with the compensation trial at which appellant will be free to present to the jury whatever relevant evidence it wishes on the issue of just compensation, including its residual damage.

{¶ 31} For its second and last assigned error, appellant contends:

{¶ 32} "The trial court erred in granting Mentor's Motion to Dismiss Lawnfield's Complaint for its alleged failure to state a claim."

{¶ 33} II. APPELLANT'S COMPLAINT FAILED TO STATE A CLAIM FOR BAD FAITH AGAINST MENTOR.

{¶ 34} This court has held that " '[a] motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint.' " Manigault v. Chilson , 11th Dist. Trumbull, 2015-Ohio-5223, 43 N.E.3d 471, ¶ 9, quoting State ex rel. Hanson v. Guernsey Cty. Bd. Of Commrs ., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). In considering the propriety of the dismissal, "we accept all factual allegations in the complaint as true and draw all reasonable inferences in the non-moving party's favor." Transky v. Ohio Civil Rights Comm'n. , 193 Ohio App.3d 354, 2011-Ohio-1865, 951 N.E.2d 1106, ¶ 11 (11th Dist.). If, after considering the complaint accordingly, there is no set of facts consistent with appellant's allegations that would permit recovery, the judgment of dismissal will be affirmed. Id. A court of appeals reviews a trial court's judgment dismissing a complaint pursuant to Civ.R. 12(B)(6) using a de novo standard. Goss v. Kmart Corp. , 11th Dist. Trumbull No. 2006-T-0117, 2007-Ohio-3200, 2007 WL 1810523, ¶ 17.

{¶ 35} The sole ground offered by appellant in opposition to Mentor's motion to dismiss is that appellant's complaint stated a claim "for Mentor acting in bad faith" by not providing a good faith offer. However, because we hold Mentor's offer was made in good faith, it follows that the complaint failed to state a claim. Our holding renders moot appellant's arguments under this alleged error. "However, courts are vested with the jurisdiction to address moot issues when such issues are capable of repetition yet evade review. * * * Courts are also vested with jurisdiction to address moot issues when those issues concern an important public right or a matter of great public or general interest." Citizens Word v. Canfield Twp. , 152 Ohio App.3d 252, 2003-Ohio-1604, 787 N.E.2d 104, ¶ 18 (7th Dist.). While appellant's arguments are largely moot, a few points are worth mentioning.

{¶ 36} Appellant argues that Mr. Keeney failed to even consider the possibility of residual damages, as evidenced by the following language in his appraisal:

{¶ 37} The purpose of this appraisal report is to estimate the compensation for the land taken * * *. This report has been developed in compliance with [the Uniform Standards of Professional Appraisal Practice] and with Section 5501:2-5-06(C) of the Ohio Administrative Code. This report is used when the acquisition is a partial taking and it is apparent the taking creates a simplistic valuation problem with no loss in market value of the residue property (damages), and the estimated compensation is $65,000 or less.

{¶ 38} However, this language does not support appellant's bad-faith argument. Rather, it shows Mr. Keeney complied with professional standards for appraisers in concluding the taking would not result in residual damage.

{¶ 39} Contrary to appellant's argument, appellant's counsel never asked Mentor to obtain an amended appraisal to compensate for residual damage and thus Mentor never refused to comply with such request. While appellant argues that, per R.C. 163.59(D), Mentor was required to amend its appraisal to include compensation for residual damage, nothing in that statute suggests that an appraiser is required to amend his appraisal to include compensation for residual damage after previously concluding, based on the information provided to him by the owner, that the property will not sustain such damage.

{¶ 40} Further, in arguing that Mentor had the statutory obligation to obtain an amended appraisal to compensate appellant for its alleged residual damage, appellant misconstrues R.C. 163.59(E). That section provides, in pertinent part: "If information presented by the [land]owner * * * indicates the need for new appraisal information , * * * the head of the acquiring agency concerned shall have the appraisal updated or obtain a new appraisal." (Emphasis added.) However, since Mr. Keeney concluded appellant would not sustain residual damage, Mentor reasonably concluded that appellant's information did not indicate the need for an amendment.

{¶ 41} Finally, the facts contained in the complaint and its attachments support a finding that the complaint failed to state a claim for bad faith: (1) Mentor presented an offer to appellant of fair market value as determined by its appraiser; (2) Although appellant's counsel advised Mentor that appellant had retained its own appraiser by July 2016, appellant never submitted an appraisal challenging Mr. Keeney's appraisal; and (3) the complaint does not challenge Mr. Keeney's qualifications.

{¶ 42} Assuming the truth of the allegations in the amended complaint and drawing all inferences to be drawn therefrom in favor of appellant, as we are required to do, the trial court did not err in implicitly finding that appellant's complaint failed to state a claim against Mentor.

{¶ 43} For the reasons stated in this opinion, the assignments of error lack merit and are overruled. It is the order and judgment of this court that the judgment of the Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O'TOOLE, J., concurs in judgment only.


source: Caselaw Access Project

author: THOMAS R. WRIGHT, P.J.

license: Public Domain

text:
    In the MATTER OF: J.W., M.W., L.W., and K.W., Abused, Neglected and Dependent Children
    NO. 2017-G-0139
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided June 26, 2018
    James R. Flaiz, Geauga County Prosecutor, and Kelly M. Wallenfelsz, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Appellee, Geauga County Department of Job and Family Services).
    Gregory J. Wysin, 2037 Brady Lake Road, Kent, OH 44240 (For Appellant, Alison Ward).
   THOMAS R. WRIGHT, P.J.

{¶ 1} Appellant, Alison Ward, appeals the September 19, 2017 judgment terminating her parental rights and granting permanent custody of her four minor children to the Geauga County Department of Job and Family Services ("GCDJFS"). We affirm.

{¶ 2} On June 10, 2014, GCDJFS filed a complaint alleging that appellant's children, J.W., M.W., L.W., and K.W., were neglected and dependent children and that L.W. was also an abused child. The complaint alleged that in June of 2014, appellant was intoxicated and contacted the police seeking the removal of her children from the home. She had threatened the children causing them to be fearful for their safety. The police removed the children and placed them into temporary custody of GCDJFS. Appellant was arrested and charged with domestic violence.

{¶ 3} Dotty Ciciretto was appointed guardian ad litem ("GAL") for the children. On October 31, 2014, the children were adjudicated dependent and L.W. was also found to be abused. The children were placed together in a foster home in central Ohio, moved to a second in Geauga County, and finally a third in Bowling Green, Ohio.

{¶ 4} Appellant was convicted of attempted child endangering, and in October 2015, she violated the terms of her probation. Thereafter, she successfully completed treatment for alcohol addiction.

{¶ 5} In December of 2015, the children's father, James Ward, moved for legal custody of the children. He was represented by counsel at the time, but his attorney moved to withdraw in January of 2016 citing fundamental disagreements with her client's directives. The trial court granted counsel's motion to withdraw and noted in part, "the Court will not appoint a third free lawyer to father to pursue his private custody claim."

{¶ 6} On May 5, 2016, GCDJFS moved the court to grant legal custody of the children to their paternal aunt and uncle, Susan and Steven Manning ("the Mannings"). The children's father is listed on the certificate of service as residing in South Carolina. He did not file anything in opposition to this motion.

{¶ 7} Father also filed a motion for a Thanksgiving visit that states in part that he does not have a driver's license, but that he owns a four-bedroom home that he would like the children to visit and "see the home that they would be living in." The trial court noted that it would address his motion for a Thanksgiving visit at the upcoming motions hearing.

{¶ 8} Thereafter, father moved for an eight-week continuance of the hearing explaining that he was physically unable to attend due to his physical injuries. He states he is unable to work, travel, and is "medicated" due to tremendous pain. He also moved for copies of all court records and another motion for court-appointed counsel on November 28, 2016. His motion for counsel was denied because he failed to complete the necessary paperwork and provide copies of his 2015 tax returns and 2016 pay stubs. The trial court also overruled father's motion for a continuance because he failed to provide anything from a doctor validating his injuries. Notwithstanding, the trial court permitted father to participate in the upcoming proceedings via Skype or telephone and ordered him to provide his current contact information to the court to facilitate his participation in the proceedings.

{¶ 9} At the December 5, 2016 hearing the trial court noted that father failed to appear and that it attempted to contact him via phone without success. Notwithstanding his absence, the trial court again considered his motions and found that he had not produced the necessary documentation to establish indigency for court-appointed counsel and likewise failed to provide the court with documentation verifying his injuries and inability to attend the court proceedings. Thus, his motions to continue and appointed counsel were denied.

{¶ 10} The parties present at the hearing agreed for legal custody of the children to be placed with the Mannings, finding in part:

{¶ 11} "The Court hereby finds that in the best interests of the children, legal custody of J.W., M.W., L.W., & K.W. is granted to Susan and Steven Manning effective June 15, 2017. GCJFS shall continue to maintain temporary custody of J.W., M.W., L.W., & K.W. until June 15, 2017. GCJFS shall continue to maintain J.W., M.W., L.W., & K.W. in their current foster home placement with Mr. & Mrs. Brown through the end of the 2016-2017 schoolyear.

{¶ 12} "Marty Gelfand, counsel for [appellant], indicated that [she] wishes to withdraw her Motion for Dispositional Order Returning Children to mother at this time.

{¶ 13} "* * *

{¶ 14} "The Case Plan shall continue as previously Ordered.

{¶ 15} "[Appellant's] visitation with the children shall continue as previously Ordered.

{¶ 16} "The children shall continue to attend individual counseling services as recommended by their counselor(s).

{¶ 17} "GCJFS shall make a referral to initiate family counseling services for [appellant] and the children. GCJFS shall use its best efforts to facilitate ongoing family counseling for [appellant] and the children as recommended by the children's counselor(s) and the family counselor.

{¶ 18} "[Appellant] is permitted to exchange text messages with the children; said text messages are subject to monitoring by GCJFS and the foster parents."

{¶ 19} In this decision, the trial court likewise ordered all contact between the children and their father be suspended and ordered him to have no contact with appellant, the Mannings, or the foster parents. Father did not appeal this decision or file any other motions or pleadings after this December 2016 decision, and his last visitation with the children was approximately January of 2016.

{¶ 20} Pursuant to the foregoing, appellant communicated with the children via text messages. On January 31, 2017, appellant and J.W., the oldest child, engaged in a back and forth text communication during which appellant referred to continued phone calls she had been receiving from the GAL and complained of J.W.'s attitude. Appellant told J.W. she was glad she was not with her. The exchange ended after appellant stated: "you want to be an idiot I tried three and a half hours so you can be a b****," and appellant told J.W. that she would not be visiting the following weekend.

{¶ 21} Appellant contacted a GCDJFS case worker the following day indicating that she no longer wished to have visitation with the children because they had bad attitudes, were too critical of her, and showed her no respect. As a result, GCDJFS filed a motion to suspend contact. In March of 2017, the trial court suspended contact between appellant and her children, except in writing through greeting cards. Thereafter, appellant had a change of heart and filed three motions to restore supervised visitation.

{¶ 22} The two oldest children, J.W. and M.W., subsequently expressed concerns to the GAL that they do not want to live with the Mannings. However, the two youngest children, L.W. and K.W., still wanted to live with the Mannings. The GAL obtained letters from the children's case worker in which J.W. and M.W. expressed their wishes to remain in their Bowling Green foster home. The GAL attached the letters to her March 3, 2017 report. The GAL attempted to arrange a meeting with Mrs. Manning to discuss the fact that the two oldest children now wished to remain in foster care even though the trial court had already granted legal custody of all four to the Mannings.

{¶ 23} According to Mrs. Manning, beginning January 2017, she began feeling intimidated by the GAL and Attorney Jeffrey Orndorff, counsel for J.W., to step aside as legal custodians despite the fact that the trial court had already granted the Mannings custody. At an April 4, 2017 meeting, which included representatives from GCDJFS, the GAL and Attorney Orndorff informed Mrs. Manning that if she and her husband stepped aside and decided not to accept legal custody of the children, GCDJFS would be left with no kinship placement. Thus, GCDJFS would have no choice but to file for permanent custody of the children.

{¶ 24} On April 18, 2017, appellant filed a motion to remove the GAL based on her unwillingness to follow the trial court's December 16, 2016 order granting legal custody to the Mannings.

{¶ 25} At an April 19, 2017 meeting with GCDJFS representatives, the Mannings informed them that they no longer wanted to serve as the children's legal custodians, given the statements of the two oldest children. On April 27, 2017, Attorney Orndorff filed a motion to modify placement and requested the trial court vacate its December 16, 2016 order.

{¶ 26} Following a status hearing, the trial court granted appellant's motion to remove the GAL and appointed two new GALs, one for the two older children and another for the two younger ones. On May 24, 2017, appellant filed a motion requesting a dispositional order returning the children to her. The GCDJFS also filed a motion requesting permanent custody of all four children. On June 30, 2017, the court vacated its December 16, 2016 judgment granting legal custody to the Mannings.

{¶ 27} Following a permanent custody hearing in August of 2017, the trial court granted GCDJFS's motion for permanent custody on September 19, 2017. Neither father nor his representative appeared at the hearing. The trial court found he abandoned the children, and he is not a party to this appeal.

{¶ 28} Appellant raises four assignments of error:

{¶ 29} "[1.] The trial court committed reversible, plain error by acting outside the bounds of its jurisdiction when it extended temporary custody of the children to the Geauga County Department of Job and Family Services beyond the two-year limitation mandated by R.C. 2151.415(D)(4) in its judgment issued December 16, 2016.

{¶ 30} "[2.] The trial court committed plain, reversible error by acting outside the bounds of its jurisdiction when it proceeded to entertain custodial motions after it had ostensibly vacated its December 16, 2016 judgment entry granting legal custody to the Mannings, and failed to return the children into either their mother's custody, or into the legal custody of the Mannings.

{¶ 31} "[3.] The court committed reversible error when it found that the Geauga County Department of Job and Family Services had engaged in reasonable case planning and diligent efforts to assist Ms. Ward in repairing her relationships with her children and to finalize permanency for the children after those efforts were subverted by a rogue GAL, acting beyond the scope of her appointment, and assisted by the children's counsel.

{¶ 32} "[4.] The court committed reversible error when it permitted counsel for the Department of Job and Family Services to prosecute the permanent custody motion despite the fact that the same attorney had previously represented mother during the pendency of the proceedings pursuant to an indigent court appointment."

{¶ 33} "[I]t is well established that a parent's right to raise a child is an essential and basic civil right. In re Hayes (1997), 79 Ohio St.3d 46, 48 * * *, 679 N.E.2d 680. The permanent termination of parental rights has been described as the family law equivalent of the death penalty in a criminal case. In re Hoffman , 97 Ohio St.3d 92 * * *, 2002-Ohio-5368, 776 N.E.2d 485, at ¶ 14. See, also, In re Smith (1991), 77 Ohio App.3d 1, 16 * * *, 601 N.E.2d 45. Based upon these principles, the Ohio Supreme Court has determined that a parent 'must be afforded every procedural and substantive protection the law allows.' (Citation omitted.) Hayes at 49, 679 N.E.2d 680." (Parallel citations omitted.) In re Phillips , 11th Dist. Ashtabula No. 2005-A-0020, 2005-Ohio-3774, 2005 WL 1714181, ¶ 22.

{¶ 34} Appellant's first and second assigned errors assert plain error based on the trial court's issuance of a dispositional order beyond the court's authority to do so based on the "sunset provision" in R.C. 2151.353 and 2151.415.

{¶ 35} "[I]n order for a court to find plain error in a civil case, an appellant must establish (1) a deviation from a legal rule, (2) that the error was obvious, and (3) that the error affected the basic fairness, integrity, or public reputation of the judicial process, and therefore challenged the legitimacy of the underlying judicial process." State v. Morgan , 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 40, citing Goldfuss v. Davidson , 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). "As when they apply criminal plain-error review, reviewing courts applying civil plain-error review 'must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice.' " Id.

{¶ 36} R.C. 2151.353(G), "Disposition of abused, neglected, or dependent child," commonly referred to as the sunset provision, states in part:

{¶ 37} "Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion pursuant to section 2151.415 of the Revised Code, the temporary custody order shall continue and not terminate until the court issues a dispositional order under that section." (Emphasis added.)

{¶ 38} R.C. 2151.415(D)(1) permits a trial court to grant an extension of temporary custody of up to six months. However, R.C. 2151.415(D)(4) states:

{¶ 39} "No court shall grant an agency more than two extensions of temporary custody pursuant to division (D) of this section and the court shall not order an existing temporary custody order to continue beyond two years after the date on which the complaint was filed or the child was first placed into shelter care, whichever date is earlier, regardless of whether any extensions have been previously ordered pursuant to division (D) of this section." (Emphasis added.)

{¶ 40} As argued by appellant, a plain reading of the statutory language makes the timing of the dispositional order following a motion mandatory. R.C. 2151.353(G). Consistent with a plain reading of the statute, in 1995 this court held in part that a court that fails to issue a dispositional order within this mandatory timeframe lacks authority to do so absent the filing of a new complaint. In re Omosun Children, 106 Ohio App.3d 813, 820-21, 667 N.E.2d 431 (11th Dist.1995). And because there was also a due process violation because of the trial court's 28-month delay in issuing the dispositional order after the dispositional hearing concluded, reversal was warranted. Id. at 831-822, 667 N.E.2d 431. We held "[t]he combination of the trial court's failure to comply with the seven-day requirement of R.C. 2151.35(B)(3) and the failure of the court to render its decision with the two-year limit of temporary custody resulted in a clear denial of appellant's right to due process of law." Id.

{¶ 41} However, " Omosun has been overruled by * * * In re Davis (1999), 84 Ohio St.3d 520, 705 N.E.2d 1219, where the Court specifically addressed an appeal that had been certified as being in conflict with Omosun ." In re K.H., 5th Dist. Licking No. 13-CA-100, 2014-Ohio-1594, 2014 WL 1494006, ¶ 17. The Supreme Court in Davis found the seven-day requirement directory, not mandatory such that failure to comply does not affect a court's jurisdiction. Davis at 523, 705 N.E.2d 1219.

{¶ 42} Moreover, in 1996 the Ohio Supreme Court held that a trial court does not lose jurisdiction to enter custody orders after the expiration of the statutory time periods in R.C. 2151.415(D) and 2151.353. In re Young Children, 76 Ohio St.3d 632, 669 N.E.2d 1140 (1996) syllabus.

{¶ 43} In 2012, this court addressed this issue again and applied the Young Children holding, explaining:

{¶ 44} "In In re Young Children, * * * the Supreme Court of Ohio addressed the question of whether a juvenile court loses jurisdiction to enter dispositional orders upon expiration of the 'sunset' date pursuant to R.C. 2151.353(F) [now subsection (G) ]; the court answered it in the negative. Id. at 636-637 [669 N.E.2d 1140]. When the sunset date expires, the juvenile court retains jurisdiction over the child and may make further dispositional orders as it deems necessary to protect the child. In re R.A., 172 Ohio App.3d 53, 2007-Ohio-2997 [872 N.E.2d 1284] (3d Dist.), citing In re Young at 638 [669 N.E.2d 1140].

{¶ 45} "[S]uch a holding 'allows the juvenile court to assess each situation on its merits, and does not mandate the return of children to a situation from which they originally needed protection solely because the agency charged with their care missed a filing deadline.' In re Young at 638 [669 N.E.2d 1140]. The court therefore concluded that 'when the sunset date has passed without a filing pursuant to R.C. 2151.415 and the problems that led to the original grant of temporary custody have not been resolved or sufficiently mitigated, courts have the discretion to make a dispositional order in the best interests of the child.' Id. " (Emphasis added.) In re A.L.W., 11th Dist. Portage Nos. 2011-P-0050, 2011-P-0051, and 2011-P-0052, 2012-Ohio-1458, 2012 WL 1106758, ¶¶ 58-59 ; In re E.M. , 8th Dist. Cuyahoga No. 79249, 2001 WL 1400022, *7 (finding Omosun overruled by In re Young ); In Matter of Lewis, 4th Dist. Athens Nos. 96CA1760 and 96CA1763, 1997 WL 217573, *3 ; see also In re Hess, 7th Dist. Jefferson No. 02JE37, 2003-Ohio-1429, 2003 WL 1465190, ¶ 40 (finding parties may file a writ of procedendo to enforce the statutory time requirements, but cannot establish prejudice because the provisions do not afford a remedy).

{¶ 46} Thus, because appellant's problems that led to the original grant of custody of the children to GCDJFS have not been resolved, the trial court retained discretion and authority to render the September 19, 2017 decision permanently terminating her parental rights. While the trial court found that appellant is addressing her issues with alcoholism, it also found that her mental abuse of the children was ongoing. Appellant's February 2017 text messages to the children demonstrate that she continues to blame the children for her problems and continues her destructive verbal abuse toward them.

{¶ 47} Thus, appellant's first and second assigned errors lack merit since the trial court continued to have jurisdiction to issue a dispositional order in the best interest of the children.

{¶ 48} In her third assigned error, appellant asserts the trial court erred in finding that GCDJFS had engaged in reasonable case planning and diligent efforts to assist her in repairing her relationships with her children and to finalize permanency for the children after those efforts were subverted by a rogue GAL, acting beyond the scope of her appointment, and assisted by the children's counsel. We disagree.

{¶ 49} As alleged, the trial court found that the children's prior GAL acted inappropriately by conveying the two older children's wishes that they did not want to reside with the Mannings. Consequently, the Mannings eventually withdrew their request for custody even though custody had already been awarded to them, but had not yet become effective.

{¶ 50} The Manning's withdrawal of their custody request, however, does not establish that GCDJFS failed to make reasonable efforts to make it possible for the children to return home. As found by the trial court, GCDJFS was not complicit in this conduct, and instead attempted to maintain the grant of custody to the Mannings to no avail.

{¶ 51} R.C. 2151.419(A)(1) provides that when a child is removed from a home or continues to be removed, the children services agency must show it made "reasonable efforts to prevent the removal of the child from the child's home, to eliminate the continued removal of the child from the child's home, or to make it possible for the child to return safely home."

{¶ 52} However, " R.C. 2151.419(A)(1) does not apply in a hearing on a motion for permanent custody filed pursuant to R.C. 2151.413." In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 43.

{¶ 53} Here, GCDJFS moved for permanent custody pursuant to R.C. 2151.413(D)(1) because the children had been in its custody for 12 or more months of a consecutive 22-month period, and as such, the trial court did not have to assess the reasonable efforts put forth by GCDJFS at the permanent custody hearing. Id. Notwithstanding, the court found in its decision granting permanent custody that GCDJFS made reasonable efforts to reunify the family. It found GCDJFS provided mental health counseling, drug and alcohol assessments, and follow-up recommendations.

{¶ 54} "[T]he state must still make reasonable efforts to reunify the family during the child-custody proceedings prior to the termination of parental rights[,]" and, "[i]f the agency has not established that reasonable efforts have been made prior to the hearing on a motion for permanent custody, then it must demonstrate such efforts at that time." Id. ; In re Lambert , 11th Dist. Geauga No. 2007-G-2751, 2007-Ohio-2857, 2007 WL 1662247, ¶¶ 59-62.

{¶ 55} The trial court also issued several prior decisions in which it found the agency made reasonable efforts. In its entries dated February 11, 2016, May 5, 2016, and October 26, 2016, it finds GCDJFS's reasonable efforts included case supervision, supervised visitations, drug and alcohol assessments, and counseling.

{¶ 56} Thus, appellant's third assigned error lacks merit and is overruled.

{¶ 57} In her fourth assignment of error, appellant claims reversible error based on a violation of her Sixth Amendment Right to conflict-free assistance of counsel. She contends the trial court erred in permitting Donovan DeLuca, counsel for GCDJFS, to prosecute the permanent custody motion even though he had previously represented appellant during the pendency of the proceedings pursuant to court appointment.

{¶ 58} Attorney DeLuca was appointed by the trial court on August 4, 2014 as appellant's co-counsel along with the Geauga County Assistant Public Defender, Colleen R. Del Balso, to represent her at an adjudicatory hearing set seven days later, August 11, 2014. The next day, August 5, 2014, the Geauga County Assistant Public Defender moved for leave to withdraw as counsel for appellant. For cause, Del Balso details her efforts to meet with appellant, and appellant's responses in which she cancels the prescheduled meetings. Del Balso also advises the court of appellant's repeated statements that she is hiring Attorney Paul Mooney to represent her. The trial court granted Del Balso's motion on the same day it was filed. Attorney Paul Mooney filed his notice of appearance for appellant, a motion for discovery, and a motion to continue the adjudicatory hearing on August 7, 2014. Attorney DeLuca is not listed as co-counsel and is likewise not listed in the certificate of service. The trial court granted appellant's motions on August 8, 2014 and does not list Attorney DeLuca as an attorney receiving a copy of the judgment via Civ.R. 58(B). On August 13, 2014, the trial court sua sponte "dismisses" Attorney DeLuca as appellant's attorney.

{¶ 59} There are no pleadings filed on appellant's behalf by Attorney DeLuca, and appellant does not direct our attention to any resulting prejudice from DeLuca's limited appearance. She did not object or argue that a conflict existed on this basis during the trial court proceedings.

{¶ 60} In State v. Gillard , 64 Ohio St.3d 304, 595 N.E.2d 878 (1992), the Supreme Court addressed a comparable issue in a criminal appeal during which defense counsel represented co-defendants at a preliminary hearing and then represented one of them in the trial, even though the other eventually testified on behalf of the defense. The Supreme Court held that there was a clear possibility of a conflict of interest and that the trial court knew or should have known that a possible conflict of interest existed that could have affected counsel's representation. In addressing the issue, Gillard differentiated between an actual and a possible conflict of interest:

{¶ 61} "[W]here a trial court knows or reasonably should know of an attorney's possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists. The duty to inquire arises not only from the general principles of fundamental fairness, but from the principle that where there is a right to counsel, there is a correlative right to representation free from conflicts of interest. * * * Where a trial court breaches its affirmative duty to inquire, a criminal defendant's rights to counsel and to a fair trial are impermissibly imperiled and prejudice or 'adverse effect' will be presumed. * * *

{¶ 62} "Although we cannot be sure that an actual conflict of interest existed, there is a clear possibility of conflict of interest on the facts of this case. We find that the trial court knew (or at least should have known) that a possible conflict of interest existed which could affect [counsel's] representation of appellant. * * * The trial court was constitutionally required to conduct an inquiry into the possible conflict of interest to determine whether appellant had received, and would receive, the right to conflict-free counsel guaranteed him by the Sixth Amendment to the United States Constitution.

{¶ 63} "* * *

{¶ 64} "[W]e remand the cause to the trial court with instructions to conduct a hearing to determine whether an actual conflict of interest existed in counsel's representation of appellant. If, upon remand, the trial court finds that an actual conflict of interest existed, the trial court is hereby ordered to conduct a new trial free from conflicts of interest." Id. at 311-312, 595 N.E.2d 878.

{¶ 65} As in Gillard , supra , we found that a possible conflict of interest is apparent because DeLuca "represented" both appellant and GCDJFS during the same proceedings. Thus, consistent with Gillard , we remanded for a hearing for the trial court to ensure that appellant received conflict-free representation. In re: J.W., M.W., L.W., and K.W., 11th Dist. Geauga No. 2017-G-0139, 2018-Ohio-2020, 2018 WL 2426141.

{¶ 66} On remand the trial court found no actual conflict of interest. Its finding is consistent with the testimony of Attorney DeLuca and appellant, who testified at the hearing on remand.

{¶ 67} During the hearing appellant confirmed that she had never met Attorney DeLuca and that she had no contact with him during the limited period he was appointed to represent her. In fact, she testified that she had not even received notice that he was appointed to represent her. Attorney DeLuca likewise confirmed that he never met with appellant, did not file a notice of appearance on her behalf, and did no work on her behalf.

{¶ 68} Because the evidence shows no actual conflict of interest, a new permanent custody hearing is not required. Thus, appellant's fourth assignment of error lacks merit.

{¶ 69} The trial court's decision is affirmed.

CYNTHIA WESTCOTT RICE, J., concurs, COLLEEN MARY O'TOOLE, J., dissents.


author: THOMAS R. WRIGHT, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jeffrey D. RYAN, Defendant-Appellant.
    NO. 2016-A-0036
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided June 29, 2018
   THOMAS R. WRIGHT, J.

{¶ 1} Appellant, Jeffrey D. Ryan, shot and killed his father on the day his father was moving out of the family home. Appellant, an adult, lived in the home with his mother at the time.

{¶ 2} Appellant was indicted on aggravated murder, murder, felony murder, and felonious assault charges. Each offense included a gun specification. A jury found him guilty of all charges. The trial court merged the offenses for sentencing. Appellant was sentenced to an indefinite term of thirty years to life consecutive to the mandatory three-year term on the firearm specification. We affirm.

{¶ 3} Appellant asserts three assigned errors on appeal. His first assigned error alleges:

{¶ 4} "The Appellant's conviction for aggravated murder is neither supported by the sufficiency of the evidence nor the manifest weight of the evidence, in violation of the Defendant's right to a fair trial guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution."

{¶ 5} Whether evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson , 162 Ohio St. 486, 124 N.E.2d 148 (1955). "While a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, it may nevertheless conclude that the judgment is against the weight of the evidence. Id. ; State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).

{¶ 6} "Raising the question of whether the evidence is legally sufficient to support the * * * verdict as a matter of law invokes a due process concern. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing such a challenge, '[t]he relevant inquiry is whether, after 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 doubt.' State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560." State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113.

{¶ 7} "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. ' (Emphasis added.) Black's, supra, at 1594.

{¶ 8} "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a " 'thirteenth * * * juror' " and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.] See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ('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.')" State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 9} If the trial court's judgment results from a jury trial, it can only be reversed on manifest weight grounds by a unanimous concurrence of all three judges on the appellate panel reviewing the case. Id. at 389, 678 N.E.2d 541. The fact that the evidence is susceptible to more than one interpretation does not render a conviction against the manifest weight of the evidence. State v. Ramey , 2d Dist. Clark, 2015-Ohio-5389, 55 N.E.3d 542, ¶ 50, appeal not allowed , 145 Ohio St.3d 1458, 2016-Ohio-2807, 49 N.E.3d 321. "Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses." Id. at ¶ 51.

{¶ 10} R.C. 2903.01(A) aggravated murder provides:

{¶ 11} "(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy."

{¶ 12} Appellant claims his convictions are not supported by sufficient evidence because the victim, Thomas, started the physical altercation and that Thomas attempted to obtain the gun from appellant. Appellant says he only shot him out of fear for his own safety and that he was acting in self-defense and in defense of his mother.

{¶ 13} Further, appellant wholly denies having any intent to kill his father and that he only had the gun for home protection. He argues that the state's case lacked evidence of any prior calculation and design, and as such, his aggravated murder conviction is not supported by sufficient evidence and is contrary to the manifest weight of the evidence. We disagree and find both sufficient evidence of prior calculation and design and that his convictions are not against the manifest weight of the evidence.

{¶ 14} Appellant's parents had recently dissolved their marriage and appellant and his mother, Sandy Ryan, were going to continue to live in the family home. Appellant's father, Thomas Ryan, had recently moved out, but still needed to move the last of his possessions.

{¶ 15} On May 6, 2015, Thomas, along with his brother, Tim Ryan, and two of his friends, Gary Anderson and John Damon, arrived at the Conneaut, Ohio residence to move out the rest of his possessions.

{¶ 16} Appellant and his mother were home and Sandra had a list of the items that Thomas planned to take. Sandra followed Thomas around the home to confirm that he only took his designated belongings. Appellant, who had a strained relationship with his father, remained seated in a chair in the living room while Thomas, Tim, Gary, and John loaded the trucks.

{¶ 17} Sandra and Thomas eventually began arguing about possession of a boat constructed from matchsticks that was hanging above the chair where appellant was sitting. Thomas made the boat when he was in the Air Force. It is encased in glass and has Sandra's name on the side.

{¶ 18} According to Gary, they took about 45 minutes to load Thomas' things. The boat was the last item to get. They were outside when Gary followed Thomas into the house to get the boat. Thomas reached up toward the boat and appellant stood up with a gun in his right hand. Gary explained:

{¶ 19} "[Thomas] leaned over * * * a little ways and reached up for the boat * * * to get the boat.

{¶ 20} "* * *

{¶ 21} "Jeffrey got up with a gun.

{¶ 22} "Q. Where was the gun?

{¶ 23} "A. It was on * * * his side, and the gun came up, the gun came up and he stood up from his side. Of his leg. His right leg.

{¶ 24} "* * *

{¶ 25} "Q. And then what happened?

{¶ 26} "A. Tommy dropped his arms and gave - turned to his son and gave him a push.

{¶ 27} "Q. Okay. Did Jeff go anywhere when he pushed him?

{¶ 28} "A. Yes.

{¶ 29} "* * *

{¶ 30} "A. Came - came back towards me. I mean, fell back towards me, just a couple steps back towards me, backwards.

{¶ 31} "Q. Okay. Did he hit the floor?

{¶ 32} "A. No.

{¶ 33} "Q. What happened after Tom pushed him?

{¶ 34} "A. Jeffrey went back after him.

{¶ 35} "* * *

{¶ 36} "A. Went - - went towards his dad.

{¶ 37} "* * *

{¶ 38} "A. They had ahold of each other.

{¶ 39} "Q. Okay. You've kind of shown us something, but this lady is taking down your words, so I need you to describe it for me. Where were Jeff's hands?

{¶ 40} "A. * * * Jeff's hands were - one hand was on his - his dad's chest area or shoulder area.

{¶ 41} "* * *

{¶ 42} "A. And the gun was up in this area, and they turned * * * and then Tommy had ahold of his * * * son with his other arm, and then the gun come up and Tom - Tommy seen the gun and he looked - Tommy looked like he tried to turn it."

{¶ 43} Gary further stated that after Thomas first pushed his son, appellant was three to five feet away from his father before appellant raised the gun to about navel height before going "back after" his father.

{¶ 44} The two were then holding onto one another's shirts with one hand and their other hands were fighting over possession of the gun. Gary said appellant overpowered his father, and then appellant "stepped in pretty close to [Thomas], and the gun went off into his chest." Thomas then grabbed his chest and fell to the ground. Gary quickly got out of the house. He was afraid since appellant still had the gun in his hand. Gary recalls appellant having the gun in his hand during the entire altercation with his father.

{¶ 45} Appellant described his relationship with his father "at best nonexistent" and at worst abusive. Appellant described his father as quick to get angry and stated that he used his belt to hit appellant numerous times while growing up. Appellant said that he could tell when his father was very angry stating, "his face would get really dark red. His vein on his forehead would - - would pop out, and * * * his eyes would go really wild like, like a wild dog's." He recalls his father leaving marks and bruises on him many times. Appellant says he never told anyone about his father's abuse because he was afraid of further beatings and because he did not want to be taken away from his mom.

{¶ 46} Appellant describes his father as "coming after" him about three months before his parents filed their dissolution, but that Thomas did not harm him, and only scared him. He thought his father was going to kill him then. He testified that the boat made from matchsticks belonged to his mother and that his dad made it for her while he was in the Air Force.

{¶ 47} On the day of his father's death, appellant recalls sitting in his chair in the living room. His mother and father were arguing and yelling about the boat. Appellant was playing a game on his phone when he saw his father was red in the face, yelling, and his hands were waiving in the air in his mother's face. Appellant says he was afraid for his mother.

{¶ 48} Appellant says he was about to get out of his chair to get out of the way for his father to get the boat. He had two guns next to his chair for protection reasons due to recent break-ins and high drug use in the area. Appellant put the guns there, two days before the shooting.

{¶ 49} Appellant stood up. His father was in front of him within one foot away. His father looked very angry, was red in the face, and had the vein popping out on his forehead like he did when he beat appellant as a child. Appellant said he was afraid for his life, but that he put his hand on his father's chest and said "You need to leave." His father then swung at appellant with his right hand, but missed. Appellant denies having the gun in his hand at this point, but says he picked up the gun after his father swung at him.

{¶ 50} Thomas was holding appellant by the sweater with his left hand. Appellant had the gun in his right hand and was trying to push Thomas away with his left hand. He testified:

{¶ 51} "I originally grabbed the gun just to try to get him away from me, but at this point I - - I was trying to, you know, I was bent over, * * * looking at the floor, and I was trying to move myself away (indicating) from him toward - - toward the door.

{¶ 52} "* * *

{¶ 53} "* * * He grabbed at my hand that had the gun. At that point he had let go of my - my shirt * * * grabbing onto my wrist with the - - the hand that had the gun in it.

{¶ 54} "* * * [H]e started to pry * * * my fingers away from the gun, and I felt like if he had gotten his hands on the gun, he would have killed me. And probably killed my mother. And so, you know, at that point I took the safety off the gun, I flicked my wrist up, and I pulled the trigger."

{¶ 55} Appellant said he shot his father in order to protect himself since he believed that his father would kill him.

{¶ 56} After being handcuffed at the scene and while being escorted to the police cruiser, appellant stated, "Yeah, I shot him."

{¶ 57} Appellant says his police interview did not include all the details he remembered since he was still in shock at the time. He said he did not want to shoot his father that day. He recalls his father in January of 2015, after his parents filed their dissolution, grabbing his mom by the shirt and shoving her against the wall. According to appellant, his dad had the same characteristics the day of his death as he had in the past when he would become violent.

{¶ 58} Once when appellant was in seventh grade, he came home with his report card and his father beat him numerous times with his belt and even hit him with the buckle. His dad hit his mother this same day when she tried to stop the violence.

{¶ 59} Appellant was six feet and one inch tall and his father was five feet and five inches tall and 155 pounds. Appellant testified that he suffers from fibromyalgia, sleep apnea, chronic fatigue syndrome, spinal stenosis, and several bulging discs in his back. Appellant says his father lifted weights for 30 years and would have been able to kill him without a weapon since he was "trained by the government to be a weapon."

{¶ 60} Sandra said Thomas had a list of the things he was supposed to be taking that day, and appellant and his mother had moved everything out of the living room so Thomas would not have to enter that room.

{¶ 61} After the shooting, the gun was found in the dining room on an old record player. The gun had its hammer cocked and was ready to fire.

{¶ 62} Detective Sergeant Michael Colby testified that he interviewed appellant after the shooting, during which appellant confirmed that he knew his father was coming the day of the shooting. Appellant said he was relieved that his father was moving out and that his dad had been moving items out of the home that his mom did not agree with. Appellant told Colby that he had five guns in the house. He started keeping the Beretta in the living room two days before the shooting. Appellant said he put the loaded clip in the gun the day before the shooting, and he placed it on the table in the living room with the external safety on the day of the shooting.

{¶ 63} He told police that he got up from his chair that day to stop his dad from taking the ship, which was his mother's.

{¶ 64} Upon being asked if he had thought of shooting his dad that day appellant answered no. But upon being asked if he had prior thoughts of shooting his dad, appellant answered yes, but that he had not had any serious thoughts about that since high school. Appellant says he joked with people about it because he had a morbid sense of humor, but explained there was no longer a need to shoot his father since he was leaving.

{¶ 65} In his interview with the police, appellant was asked whether he anticipated a problem the day his father moved out, and he said, "I can't say it didn't go through my mind." He also told police that his father's yelling at his mom that day made him angry. Appellant told police that he knowingly pulled the trigger and shot him "[t]o keep him from hurting me."

{¶ 66} During cross-examination, the state pointed out that appellant did not tell the police that his father swung at him. Instead, appellant added this detail at trial and explained that he did not remember this fact immediately after the shooting and that the police failed to ask him if his father swung at him.

{¶ 67} Although appellant said he was afraid for his life on the day of the shooting, he testified that the last time his dad hit him he was 23 years old. He was 38 at the time of trial. Nevertheless, appellant explained that his father's abuse continued in a mental and emotional way.

{¶ 68} Sandra met with Robert Stroud, Jr., a financial advisor, two weeks before Thomas' death. Stroud was Thomas' friend and financial advisor to both Thomas and Sandra. Sandra and appellant were in Stroud's office to discuss plans for Sandra's assets after the dissolution. Stroud described hearing a lot of "Tom-bashing" from appellant during the meeting that Stroud tried to ignore. At one point, however, he heard appellant say something like he would "shoot him" referring to Thomas, and in response, Sandra slapped appellant on the arm. At about this same time appellant said, "God hates me and the devil's afraid of me." Stroud described appellant's demeanor at the time as unemotional. Upon learning about Thomas' death, Stroud called the police to convey what he heard.

{¶ 69} Appellant's cousin Grant Bennett, Jr. confirmed that appellant had him at the house the first week of May to change the locks because Thomas was moving out. Appellant asked Grant to show him and his mother how to take care of their guns, clean them, and shoot them. Grant was shown two guns that day, a Beretta semiautomatic and a Blackhawk .22. The guns were both in cases at the time. Sandra inherited the guns from her father. Grant took the clip out of the Beretta and turned the safety on. Grant then told appellant that he would have to figure out this particular gun and help him clean it another day. Grant explained to appellant how the safety works and he put the clip back in the gun without bullets in it.

{¶ 70} Appellant told Grant that he wanted to know how to use the guns because of increased crime in the area.

{¶ 71} In an effort to depict Thomas as only provoking appellant at the time the altercation began, defense counsel argued that it would have been physically impossible for Thomas to reach the ship saying that it was too high up and that he would have needed a ladder or step stool. However, appellant described getting up from his chair in order to stop his father from taking the ship.

{¶ 72} Sandra testified that she and Thomas filed their dissolution in April of 2015. She said that Thomas had pushed her against the wall on one occasion in January or February that same year. She was an elementary school teacher for 35 years. She never reported Thomas' abusive behavior because she was afraid. Sandra said her nephew was changing the locks on her home because she was fearful that Thomas would come back.

{¶ 73} Thomas had prepared a list that Sandra saw well in advance. Thomas had included the boat on the list, but she had written "no" next to it because he had given her the boat as a gift.

{¶ 74} On the day of the shooting, Sandra recalls appellant was in his recliner, but she does not recall the gun sitting on the table before the altercation. She was in the kitchen when Thomas told her he was taking the ship. He was yelling at Sandra when he walked toward appellant. She recalls him then walking back toward her and appellant standing up and picking up the gun. She said she was in fear for her life at that point.

{¶ 75} Sandra recalls Thomas walking over and hitting appellant, and appellant told him to get out and leave his mother alone. Thomas pushed appellant and the two then fought for the gun. She recalls, "they were fighting, and both of them were bent over. The gun was almost at the floor. * * * And Tom was still grappling with him for the gun, and the gun went off."

{¶ 76} During her interview with police, Sandra did not tell the police that she felt like she was in danger. She told police that Thomas did not come within three feet of her that day.

{¶ 77} Appellant's older brother Ryan testified that their father used to discipline appellant with his hand and his belt on his backside or bottom but only rarely and "only when we deserved it." Ryan moved out of the home in 1993 and he denied that their father ever bruised appellant. Ryan recalls tension in the house because he said appellant chose not to have a relationship with their dad.

{¶ 78} No bright-line test exists as to whether prior calculation and design is present in a case. State v. Coley, 93 Ohio St.3d 253, 263, 754 N.E.2d 1129 (2001) citing State v. Taylor, 78 Ohio St.3d 15, 20, 676 N.E.2d 82, 89 (1997). However, the Supreme Court has explained that " ' "prior calculation and design" is a more stringent element than the "deliberate and premeditated malice" * * * required under prior law.' State v. Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190, paragraph one of the syllabus. 'Instantaneous deliberation is not sufficient * * *.' Id. , paragraph two of the syllabus.

{¶ 79} " ' "[P]rior calculation and design" requires "a scheme designed to implement the calculated decision to kill." ' State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 196, 616 N.E.2d 909, 918, quoting State v. Cotton, 56 Ohio St.2d at 11, 10 O.O.3d at 6, 381 N.E.2d at 193." Coley, supra.

{¶ 80} Here, the evidence is sufficient to establish prior calculation and design.

{¶ 81} Two weeks before the shooting, appellant stated that he would shoot his father in front of his mother's financial advisor. Two days before the incident, appellant asked his cousin Grant to show him how to use and clean the handguns. Further, Sandra had advance notice that Thomas wanted to take the ship made from matchsticks, and appellant knew his father was coming that day to take the last of his possessions. The day before his father was moving out, appellant loaded the handgun and placed it next to his chair that sat under the ship.

{¶ 82} On the day of the shooting, appellant remained seated in his chair under the ship for almost the entirety of the 45 minutes it took his father and friends to load his belongings. Upon his father's approach toward the chair and the ship, appellant stood up and told his father to leave. His father pushed him and appellant stepped back. The two were at least three feet apart. Appellant then charged back at his father and the struggle ensued during which appellant had the loaded gun in his hand. The two continued to struggle, and appellant deliberately turned the safety off, pointed the gun toward his father, and shot him at close range in the chest.

{¶ 83} We likewise find appellant's conviction supported by the manifest weight of the evidence. While the facts and arguments presented by the defense, if believed, undermined to some degree prior calculation and design, the jury was in the best position to judge the credibility of the witnesses, observe their demeanor, voice inflections, and gestures, and use these observations to weigh the credibility of all the evidence. Dover v. R.J. Corman RR. Co. Cleveland Line , 181 Ohio App.3d 31, 2009-Ohio-562, 907 N.E.2d 1198, ¶ 27 (5th Dist.)

{¶ 84} Appellant's first assigned error lacks merit.

{¶ 85} Appellant's second assigned error alleges:

{¶ 86} "The trial court erred to the prejudice of the Appellant by excluding evidence related to the physical abuse of Mrs. Ryan and the victim's history of violence, in violation of the Defendant's right to a fair trial guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution."

{¶ 87} Appellant claims he and Sandra should have been permitted to testify about his father's long history of abusing him and his mother. He asserts that the evidence was improperly excluded and that had this evidence not been excluded, the jury would have found he was acting in self-defense or in defense of Sandra at the time.

{¶ 88} Trial courts have broad discretion in admitting evidence, and an appellate court should not disturb a trial court's decision unless there was an abuse of its discretion and the defendant was materially prejudiced. State v. Issa , 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001).

{¶ 89} " '* * * [T]he term "abuse of discretion" is one of art, connoting judgment exercised by a court, which does not comport with reason or the record.' State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶ 30, citing State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). * * * [A]n abuse of discretion is the trial court's 'failure to exercise sound, reasonable, and legal decision-making.'

State v. Beechler, 2d Dist., 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black's Law Dictionary (8 Ed.Rev.2004) 11. When an appellate court is reviewing a pure issue of law, 'the mere fact that the reviewing court would decide the issue differently is enough to find error (of course, not all errors are reversible. Some are harmless; others are not preserved for appellate review). By contrast, where the issue on review has been confined to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error.' Id. at ¶ 67." Ivancic v. Enos , 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70 (11th Dist.).

{¶ 90} "To establish self-defense, a defendant must prove the following elements: (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. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two of the syllabus." State v. Barnes , 94 Ohio St.3d 21, 24, 2002-Ohio-68, 759 N.E.2d 1240.

{¶ 91} Appellant claims that additional testimony detailing Thomas' prior acts of violence should have been admitted to show that appellant had a bona fide belief that he was in imminent danger of death or great bodily harm at the time of the shooting.

{¶ 92} In State v. Vinson , 11th Dist. Lake No. 2006-L-238, 2007-Ohio-5199, 2007 WL 2821963, ¶ 63-64, we considered this issue in a comparable case and held,

{¶ 93} "There is no question that '[a] defendant, when arguing self-defense, may testify about specific instances of the victim's prior conduct known by the defendant, in order to establish the defendant's state of mind.' State v. Marsh (Oct. 20, 1995), 11th Dist. No. 93-T-4855, 1995 Ohio App. LEXIS 4625, 10, citing McGaw v. State (1931), 123 Ohio St. 196, 174 N.E. 741. 'These events are admissible in evidence, not because they establish something about the victim's character, but because they tend to show why the defendant believed the victim would kill or severely injure him.' Id. citing State v. Carlson (1986), 31 Ohio App.3d 72, 73, 508 N.E.2d 999, citing State v. Randle (1980), 69 Ohio App.2d 71, 73, 430 N.E.2d 951. Thus, evidence of the victim's character offered to show the defendant's state of mind falls outside the boundaries of character evidence, Evid.R. 404 and 405, and instead is governed by the general evidentiary rules of admissibility, Evid.R. 401 and 403."

{¶ 94} Before a trial court can admit these types of statements offered to show the defendant's state of mind, the court must balance the probative versus prejudicial effects the evidence will have on the jury via Evid.R. 403. Id.

{¶ 95} " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401.

{¶ 96} Evid.R. 403 provides:

{¶ 97} "(A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

{¶ 98} "(B) Exclusion Discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence ." (Emphasis added.)

{¶ 99} In State v. Cooperider , 2003-Ohio-5133, 2003 WL 22229420, ¶ 11 (3rd.Dist. Marion No. 9-03-11), the Third District Court of Appeals agreed with our holding in Vinson and concluded:

{¶ 100} "[A] defendant arguing self-defense may testify about specific instances of prior violent conduct by the victim to establish the defendant's state of mind at the time of the incident. State v. Carlson (1986), 31 Ohio App.3d 72, 508 N.E.2d 999 (emphasis added). Use of character evidence in this manner is not objectionable as it is offered for the purpose of proving 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 the danger was the use of force. State v. Brown, Marion App. No. 9-02-02, 2002-Ohio-6765, 2002 WL 31758593 (citation omitted)."

{¶ 101} However, the Cooperider court limited the relevant evidence as including only those instances of conduct relevant to proving the defendant was in imminent danger at the time of the offense . It stated, "[e]vidence of other acts must be temporally and circumstantially connected to the facts of the offense alleged. State v. Burson (1974), 38 Ohio St.2d 157, 311 N.E.2d 526." Id. at ¶ 16. It found that the victim's past violent acts occurring four years before the incident in issue there were too distant in time and unrelated, and as such, they were properly excluded. Id.

{¶ 102} Unlike the court in Cooperider and contrary to appellant's argument, the trial court permitted testimony from appellant and his mother about Thomas' past acts of violence against both. The trial court, however, limited the testimony regarding Thomas' specific prior acts to the most recent two against appellant. One involved a beating that appellant endured at the hands of his father fifteen years before the shooting. The other admitted prior act involved Thomas "coming after" appellant causing appellant to fear for his life, but during which Thomas did not physically harm appellant.

{¶ 103} The trial court also allowed Sandra to testify about Thomas' most recent act of violence toward her that occurred in January or February of 2015, only a few months prior to the shooting during which he pinned her against a wall and grabbed her by the shirt. Appellant and Sandra confirmed that these incidents were the last time that appellant had laid hands on them in a violent manner.

{¶ 104} Moreover, both appellant and Sandra testified about Thomas' general violent nature and confirmed that he beat appellant and was violent toward Sandra for the duration of appellant's childhood. The defense likewise emphasizes this fact in its closing argument upon urging the jury to find that appellant was acting in self-defense or in defense of his mother at the time he shot his father.

{¶ 105} In support of this argument, appellant's counsel proffered the following at trial: "Sandra Ryan, was not allowed to go into all the instances where her husband had committed domestic violence against her. We were limited to two by the court and one close to the incident * * *. The other one, we didn't have an exact date * * * but we were precluded from going into any other incidents."

{¶ 106} This proffer, however, lacks specificity and fails to detail the dates of the alleged prior violent acts, the number of prior violent acts excluded, and does not establish whether appellant was present during the victim's alleged prior acts of violence that were excluded. Absent a more detailed proffer, we are unable to determine whether these additional prior acts of violence by Thomas were relevant in assessing appellant's state of mind and whether they were sufficient to support a finding that he had a bona fide belief that he was in imminent danger of death or serious bodily harm at the time of the shooting. We are also unable to assess whether the excluded testimony's probative value would have been substantially outweighed by its prejudicial effect if these prior violent acts by Thomas constituted the "needless presentation of cumulative evidence." Evid.R. 403(B). Accordingly, we find no abuse of discretion, and appellant's second assigned error lacks merit.

{¶ 107} His third assignment of error asserts:

{¶ 108} "The trial court erred to the prejudice of the Appellant by failing to give the jury a voluntary manslaughter instruction when the instruction was properly supported by the Record, in violation of the Defendant's right to a fair trial guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution."

{¶ 109} As we discuss below and consistent with appellant's argument, the evidence presented at trial warrants a voluntary manslaughter instruction. However, it is plausible that appellant's counsel chose not to seek a voluntary manslaughter instruction as part of a reasonable tactical decision. He also did not object to the trial court's failure to instruct on this inferior offense. Thus, appellant waives all but plain error. And because appellant fails to show that the outcome of the trial would have been different absent this inferior offense instruction, this assigned error lacks merit. State v. Kiehl , 11th Dist. Portage, 2016-Ohio-8543, 78 N.E.3d 1226, ¶ 27-28, citing State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 110} Appellant claims the trial court committed reversible error in failing to provide a jury instruction on voluntary manslaughter. He asserts that his suffering physical abuse at the hands of his father, his witnessing his father abuse his mother, and the fact that a physical altercation preceded the shooting all show sufficient evidence of serious provocation warranting a voluntary manslaughter charge. He claims that because his father initiated the physical contact that day, a jury instruction on voluntary manslaughter was warranted.

{¶ 111} "Voluntary manslaughter is an inferior degree of murder, for ' "its elements are * * * contained within the indicted offense, except for one or more additional mitigating elements * * *." ' * * * Even though voluntary manslaughter is not a lesser included offense of murder, the test for whether a judge should give a jury an instruction on voluntary manslaughter when a defendant is charged with murder is the same test to be applied as when an instruction on a lesser included offense is sought. * * *

{¶ 112} "Thus, a defendant charged with murder is entitled to an instruction on voluntary manslaughter when the evidence presented at trial would reasonably support both an acquittal on the charged crime of murder and a conviction for voluntary manslaughter. * * *

{¶ 113} "When the evidence presented at trial going to a lesser included offense (or inferior-degree offense) meets this test, the trial judge must instruct the jury on the lesser (or inferior-degree) offense. State v. Loudermill (1965), 2 Ohio St.2d 79, 31 O.O.2d 60, 206 N.E.2d 198, syllabus. On the other hand, when the evidence presented at trial does not meet this test, a charge on the lesser included (or inferior-degree) offense is not required.

State v. Kidder (1987), 32 Ohio St.3d 279, 282-283, 513 N.E.2d 311, 315-316." (Emphasis added.) (Citations omitted.) State v. Shane , 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992).

{¶ 114} "In making this determination, the trial court must view the evidence in the light most favorable to the defendant." State v. Monroe , 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 37, citing State v. Campbell , 69 Ohio St.3d 38, 47-48, 630 N.E.2d 339 (1994).

{¶ 115} R.C. 2903.01(A) aggravated murder provides:

{¶ 116} "(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy."

{¶ 117} Whereas, voluntary manslaughter, as set forth in R.C. 2903.03(A), prohibits:

{¶ 118} "No 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 or the unlawful termination of another's pregnancy." (Emphasis added.)

{¶ 119} "Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time." State v. Deem , 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph five of the syllabus (1988),holding modified by State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, 884 N.E.2d 595.

{¶ 120} Here, an instruction on the inferior offense of voluntary manslaughter was supported by the evidence. Thomas entered the room in which appellant was seated and initiated the physical altercation. Appellant either had a gun in his hand prior to the altercation or picked it up during the fight. The two fought over possession of the gun, and appellant feared that Thomas was going to kill him if he gained control of the gun. A rational jury could have reasonably inferred that appellant shot his father under a sudden fit of passion or rage brought on by his father's initiation of the physical altercation.

{¶ 121} Notwithstanding this conclusion, we do not find plain error because appellant has not shown that the outcome would have been different absent the error.

{¶ 122} Crim.R. 30(A) states "a party may not assign as error [on appeal] the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict * * *." However, appellate courts may notice "[p]lain errors or defects affecting substantial rights * * * although they were not brought to the attention of the [trial] court." Crim. R. 52(B).

{¶ 123} Appellant did not oppose the state's motion to exclude a voluntary manslaughter instruction and did not object to the trial court's jury instructions or the verdict forms provided at trial. He likewise did not request a jury instruction on voluntary manslaughter. Instead, appellant argued that he was acting in self-defense upon shooting his father or in defense of his mother. His attorney argued to the jury that it should find appellant not guilty because he was acting in self-defense. Accordingly, appellant waived all but plain error.

{¶ 124} Appellate courts should notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Plain error is an obvious deviation from a legal rule that affects the outcome of the trial. State v. Kiehl , 11th Dist. Portage, 2016-Ohio-8543, 78 N.E.3d 1226, ¶ 27-28, citing State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The appellant must show that the outcome would have been different absent the plain error. Id.

{¶ 125} Moreover, appellant's theory of the case was that he only shot his father in self-defense and in defense of his mother. It is reasonable to conclude that his counsel chose this all or nothing defense in an effort to avoid conviction, and counsel chose not to present the inconsistent argument that appellant acted in a sudden fit of rage. The jury nevertheless found appellant guilty of aggravated murder. " '[W]here the failure to request a jury instruction is the result of a deliberate, tactical decision on part of trial counsel, it is not plain error." Kiehl at ¶ 30, quoting State v. Hubbard , 10th Dist. Franklin No. 11AP- 945, 2013-Ohio-2735, 2013 WL 3341171, ¶ 35.

{¶ 126} Ordinarily, it is the quality of the evidence offered that is determinative, not the defendant's trial strategy, as to whether a trial court must give a lesser-included offense instruction. State v. Wine , 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 26. However, once a defendant makes a tactical decision in not seeking a lesser-included offense instruction, he cannot "successfully claim plain error on appeal" based on the trial court's decision not to include the instruction. Id. at ¶ 29-30, citing State v. Clayton , 62 Ohio St.2d 45, 47-48, 402 N.E.2d 1189 (1980) (finding no manifest injustice and no plain error since counsel did not seek a jury instruction on the lesser-included offense.) Accordingly, this is not the exceptional case where reversal is warranted to prevent a manifest miscarriage of justice.

{¶ 127} Appellant's third assigned error lacks merit and is overruled.

{¶ 128} The trial court's decision is affirmed in full.

CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O'TOOLE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.

COLLEEN MARY O'TOOLE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.

{¶ 129} I concur with the majority's well-reasoned disposition of appellant's first and second assignments of error. However, I must dissent regarding the third assignment of error: the trial court should have instructed on the inferior offense of voluntary manslaughter. Consequently, I would reverse and remand for new trial.

{¶ 130} As the majority acknowledges, the evidence in this case supports giving an instruction on voluntary manslaughter. However, the majority concludes this was a reasonable strategic or tactical decision by counsel - that counsel wished to go for the "all or nothing" defense of self-defense. I have reviewed the entire file and transcript in this case. Again, as the majority acknowledges, the state moved in limine to exclude any instruction on voluntary manslaughter, and appellant failed to oppose the motion. And appellant's counsel did not request the instruction.

{¶ 131} There is a presumption that when counsel fails to request an instruction justified by the evidence, that this is a strategic or tactical decision. State v. Willis , 8th Dist. Cuyahoga No. 99735, 2014-Ohio-114, 2014 WL 197876, ¶ 57, quoting State v. Riley , 10th Dist. Franklin No. 06AP-P1091, 2007-Ohio-4409, 2007 WL 2421816, ¶ 5, citing State v. Griffie , 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996). From the record, I cannot agree that is true in this case. There is absolutely no discussion of the issue in the transcript. The trial court never inquired of counsel whether he desired that the jury be instructed on voluntary manslaughter. The issue was one of profound importance in this case: I would expect counsel and the trial court to put it on the record.

{¶ 132} A trial court always has the discretion to give an instruction on a lesser included offense or an offense of an inferior degree if the evidence warrants it. In Wine , supra , that was the law pronounced by the Supreme Court of Ohio - that a defendant could not prevent a trial court from giving such an instruction. Id. at ¶ 34. Indeed, the court held: "The trial court must give an instruction on a lesser included offense if under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense." (Emphasis added.) Id. Trial courts have an independent duty to insure that defendants receive a fair trial. In this case, that means the trial court had a duty to give an instruction on voluntary manslaughter, since the evidence warranted it, or to put on the record that trial counsel did not want the instruction, and his reasons for that decision.

{¶ 133} Again, on this basis I would reverse and remand for new trial.