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State of Ohio v Terrion

Case No. 25368 (OH Ct. App., Dist. 9, Aug. 3, 2011)

Appellant, Matthew R. Terrion, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.

I.



By April of 2009, the relationship between Terrion and his wife, Cherilyn Terrion, had become rocky. When Mr. and Mrs. Terrion moved back to Ohio from Las Vegas, they purchased a home in Lakewood. Mr. Terrion began a business designing parts for Jeep Wranglers. That business failed and, with the added debt from the Lakewood home, the Terrions were forced to file for bankruptcy in October 2008. Mrs. Terrion began working outside the home while Mr. Terrion served as a stay-at-home dad for their two children. Around the time of the bankruptcy, the couple was forced to move out of the Lakewood home and into Mr. Terrion’s parents’ house. This created a strain on the marriage. The two began seeing a marriage counselor. Around April of 2009, Mrs. Terrion began spending more time outside the home. Mr. Terrion became suspicious that she was having an affair. He installed a keylogger program on her computer and discovered her MySpace and Facebook accounts, as well as a Yahoo! personal ad. The personal ad included such statements as “I am attracted to men that can take care of themselves,” “a man’s-man type of guy, if that helps the description,” “I don’t want to hold your hand and let you cry. I want to be busy holding other things for you,” and “I just don’t want a crybaby that needs his momma every five minutes.” Her marital status was set as separated and living alone. Mr. Terrion confronted her about it and she said it was old and nothing for him to worry about. On April 1, 2009, he confronted her and asked if she was having an affair. In response, she told him she wanted out of the marriage.

Around April 8, 2009, Mrs. Terrion moved into her own apartment in Twinsburg. On April 10, 2009, the Terrions agreed to amicably divorce. However, Mr. Terrion read her lawyer’s resolution of the marriage and refused to sign the documents. On April, 13, 2009, she filed for divorce. Mr. Terrion began taking the prescription medication Zoloft. On April 19, 2009, he spoke with her on the phone and read to her a letter that he had typed. In response, she agreed to call off the divorce but wanted to remain in her apartment. Mr. Terrion was ecstatic. Things continued to go well and, on April 27, 2009, Mrs. Terrion dismissed the divorce action. On April 29, 2009, Mr. Terrion placed a pistol and silencer in a box with shoes and took it to her apartment. He testified that he was going to give her the gun and silencer as a gift because it was his favorite gun and the gesture would let her know that she was more important to him than his gun collection. After eating dinner with Mrs. Terrion he bought her a television at Walmart and installed it at her apartment. Afterwards, he used the bathroom, blew his nose and put the tissue in the trash, where he saw wadded up toilet paper and became furious. At trial on cross examination Mr. Terrion admitted that he was rooting around in her trash can because he still did not trust her. Inside the toilet paper he found a condom wrapper.

At trial, Mr. Terrion explained that when they had used condoms in the past, Mrs. Terrion would wad them up in toilet paper before discarding them. He immediately knew that the reconciliation was a lie and that she had been with someone else. He returned to his truck and retrieved the box with the gun and silencer and set it on the bed. He showed her the condom wrapper and asked her what it was. She told him it was none of his business. He was furious and she was acting defensive. Eventually she told him to leave.




 

 

Judge(s): Carla Moore
Jurisdiction: Ohio Court of Appeals, District 9
Related Categories: Constitutional Law
 
Court of Appeals Judge(s)
Donna Carr
Carla Moore
Beth Whitmore

 
Appellant Lawyer(s) Appellant Law Firm(s)
Jeffrey James Law Office

 
Appellee Lawyer(s) Appellee Law Firm(s)
Heaven DiMartino Office of the Summit County Prosecutor
Sherri Walsh Office of the Summit County Prosecutor

 

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Click the maroon box above for a formatted PDF of the decision.
{¶7} on may 19, 2009, the summit county grand jury indicted terrion on one count was arbitrary, unreasonable, or unconscionable. blakemore v. blakemore (1983), 5 ohio st.3d did his testimony indicate that he had knowledge of actual infidelity. based on his understanding sexual infidelity. id. at 638. at the time of the crime, shane awakened his fiancée and included offense is sought." shane, 63 ohio st.3d at 632, citing state v. tyler (1990), 50 ohio {¶24} mr. terrion moved for a mistrial as a result of the trial court's exclusion of mr. attaches to the silencer and reattaching the factory barrel. he also hid the shell casing, keys that 11 judgment affirmed. we order that a special mandate issue out of this court, directing the court of common decision and journal entry denying his request for a jury instruction on voluntary manslaughter. we do not agree. there were reasonable grounds for this appeal. mutual combat, illegal arrest and discovering a spouse in the act of adultery[.]" id. at 635. the c.a. no. 25368 he further testified that she grabbed it and it fired. he admitted that he shot her pointblank in the {¶20} "due process requires only `that criminal defendants be afforded a meaningful at 632. voluntary manslaughter, as defined in r.c. 2903.03(a), "permits a defendant to mitigate 5 gunshot that could occur quickly and be immediately regretted. id. the court held that, under {¶25} mr. terrion's second assignment of error is overruled. preclude this witness from testifying." the trial court further pointed out that, "it is not relevant activity with the victim would not make mr. terrion's knowledge of actual infidelity more or hold your hand and let you cry. i want to be busy holding other things for you," and "i just don't {¶5} he grabbed the gun out of the box; he testified that he just wanted to scare her. prosecuting attorney, for appellee. defendant is charged with murder is the same test to be applied as when an instruction on a lesser the reconciliation was a lie and that she had been with someone else. he returned to his truck wife, and sought to confirm that she was cheating on him. before interrogating mrs. terrion, as taylor, 39 ohio st.3d at 164. wrapper and asked her what it was. she told him it was none of his business. he was furious durex condom, that he left the wrapper, he believes either on the floor or on the bedspread when the bankruptcy, the couple was forced to move out of the lakewood home and into mr. terrion's [cite as state v. terrion, 2011-ohio-3800.] things continued to go well and, on april 27, 2009, mrs. terrion dismissed the divorce action. {¶26} mr. terrion's assignments of error are overruled. the judgment of the summit reasonably support both an acquittal on the crime charged and a conviction on the lesser- and domestic violence be served concurrently with each other and concurrently with the murder and retrieved the box with the gun and silencer and set it on the bed. he showed her the condom want a crybaby that needs his momma every five minutes." her marital status was set as terrion would wad them up in toilet paper before discarding them. he immediately knew that husband that her activities were none of his business and that he should leave her apartment. 122 ohio st.3d 297, 2009-ohio-2961, at ¶173. having determined that the trial court did not err {¶10} in his first assignment of error, mr. terrion contends that the trial court erred in 400, 410. {¶3} around april 8, 2009, mrs. terrion moved into her own apartment in twinsburg. {¶21} "the issue of whether testimony is relevant or irrelevant, confusing or misleading, court must make a determination that "evidence of reasonably sufficient provocation occasioned filed for divorce. mr. terrion began taking the prescription medication zoloft. on april 19, right to present the testimony of andrew goselin, and in affair with a co-worker. id. at *2. the co-worker then bragged to nelson that he slept with his consequence to the determination of the action more probable or less probable than it would be murder he discovered the condom wrapper while rooting through her trash because he did not less probable at the time he committed the crime. accordingly, the trial court did not abuse its trust her. rather than admit infidelity, mrs. terrion told him that it was none of his business and event presented a `reasonably sufficient provocation,' to cause the death of another." id., citing of mrs. terrion's behavior related to condom use he could reasonably conclude that she engaged installed it at her apartment. afterwards, he used the bathroom, blew his nose and put the tissue in violation of r.c. 2919.25(a), a misdemeanor of the first degree. county of summit ) time" to determine if he was in fact provoked. (internal citation omitted.) id. at 634. if the specifications. the court sentenced mr. terrion to six years of incarceration on the silencer evidence is "evidence having any tendency to make the existence of any fact that is of asked him to leave. like shane, mr. terrion created much of his own anger by spying on mrs. pleas, county of summit, state of ohio, to carry this judgment into execution. a certified copy {¶12} "even though voluntary manslaughter is not a lesser included offense of murder, material, and the court, if that's the proffered basis, the court will, in the interests of justice, specification to the murder count under r.c. 2903.02(a), as well as 15 years to life on the {¶13} additionally, before providing a voluntary manslaughter instruction, the trial iii. appellant 12 "the trial court erred to the substantial prejudice of returning to his parents' home, cleaning himself and the weapon, removing the barrel that control. id. he murdered her via strangulation, a process that expert testimony described as {¶23} the trial court was correct in its assessment. under evid.r. 401, relevant that count, one count of murder in violation of r.c. 2903.02(b), a special felony, also with otherwise inadmissible under the rules of evidence. id., citing taylor v. illinois (1988), 484 u.s. sufficient provocation but wrote that they would not reasonably provoke deadly force in most court of common pleas. this court affirms. {¶15} the shane court further examined the effect of shane's fiancée telling him of her of the trial court. however, a trial court need not declare a mistrial unless the ends of justice so schmo's condom. it doesn't matter who the owner was. it was what matthew terrion knew carr, p. j. 2009, he spoke with her on the phone and read to her a letter that he had typed. in response, she evidence. hale at ¶46, citing taylor, 484 u.s. at 410. entered in the on march 12, 2010, the jury returned a verdict of guilty on each count, including the attendant 8 included offense." state v. carter (2000), 89 ohio st.3d 593, 600. process rights because he had no right to present testimony otherwise barred by the rules of {¶16} this court has previously addressed the appropriateness of a voluntary appearances: 3426, at ¶46, quoting california v. trombetta (1984), 467 u.s. 479, 485. the right to due fact that the condom wrapper was hidden in toilet paper in a trash can cannot reasonably be 217, 219. when applying the abuse of discretion standard, this court may not substitute its on april 29, 2009, mr. terrion placed a pistol and silencer in a box with shoes and took it to her {¶1} appellant, matthew r. terrion, appeals from the judgment of the summit county in the trash, where he saw wadded up toilet paper and became furious. at trial on cross- b. denial of mistrial top of the head and killed her. they purchased a home in lakewood. mr. terrion began a business designing parts for jeep assignment of error ii not trust her. inside the toilet paper he found a condom wrapper. ii. agreed to call off the divorce but wanted to remain in her apartment. mr. terrion was ecstatic. on her computer and discovered her myspace and facebook accounts, as well as a yahoo! {¶8} the charges were tried to a jury from march 9, 2010, through march 12, 2010. immediately upon the filing hereof, this document shall constitute the journal entry of objective component is not met then the trial court need not conduct a subjective inquiry and a {¶9} mr. terrion timely filed a notice of appeal. he raises two assignments of error for by the victim has been presented to warrant such an instruction." shane, 63 ohio st.3d at himself, his state of mind, what he knew, not what subsequently was developed in evidence." )ss: ninth judicial district {¶14} in shane, supra, the supreme court of ohio identified several situations that are he took from mrs. terrion's apartment, some ammunition, and the condom wrapper in plastic court held that nelson was not entitled to a voluntary manslaughter instruction because the {¶18} mr. terrion's first assignment of error is overruled. murder count under r.c. 2903.02(a). the court merged the additional firearm specification to paragraph one of the syllabus. the inquiry into the mitigating circumstances consists of both of this journal entry shall constitute the mandate, pursuant to app.r. 27. a charge of * * * murder to manslaughter if the defendant establishes the mitigating state of ohio ) in the court of appeals without the evidence." under evid.r. 402, evidence that is not relevant is inadmissible. the in ruling that mr. goselin's testimony was inadmissible, the motion for mistrial predicated on gun collection. after eating dinner with mrs. terrion he bought her a television at walmart and determination regarding admissibility of evidence is within the sound discretion of the trial court. violation of r.c. 2921.12(a)(1), a felony of the third degree, and one count of domestic violence irrelevant to the issue of sufficient provocation, the panel assessed only "whether the upsetting period for review shall begin to run. app.r. 22(e). the clerk of the court of appeals is dated: august 3, 2011 program on her computer, discovered her personal ad, and admitted that on the night of her lawyer's resolution of the marriage and refused to sign the documents. on april, 13, 2009, she shane did with his fiancée, shane, 63 ohio st.3d at 637, mr. terrion installed a keylogger 2 {¶2} by april of 2009, the relationship between terrion and his wife, cherilyn the objective standard, no reasonable person would have been sufficiently provoked by the were forced to file for bankruptcy in october 2008. mrs. terrion began working outside the 6 assignment of error i his favorite gun and the gesture would let her know that she was more important to him than his st.3d 24, 37. that is, the instruction is warranted if "the evidence presented at trial would (1988), 40 ohio st.3d 205, 209. instead, it is an inferior degree of murder. shane, 63 ohio st.3d manslaughter instruction. nelson, 9th dist. no. 20365, at *2. separated and living alone. mr. terrion confronted her about it and she said it was old and appellee passions of an ordinary person beyond the power of his or her control." id. at 635. if the victim sufficient to incite the defendant to use deadly force." state v. benge (1996), 75 ohio an affair. in response, she told him she wanted out of the marriage. not indicate that he had any knowledge regarding the identity of mrs. terrion's paramour, nor 10 activity were each irrelevant to mr. terrion's state of mind at the time because he did not have v. our review. carla moore care of themselves," "a man's-man type of guy, if that helps the description," "i don't want to 9 victim's actions. id. firearm, criminal forfeiture, and silencer specifications, one count of tampering with evidence in firearms throughout the house in preparation for a standoff. he then ingested any pills that he require and a fair trial is no longer possible." (quotation and citation omitted.) state v. trimble, voluntary manslaughter instruction is inappropriate. id. in evaluating these components, "`[t]he considered a confession. on the facts of this case, mrs. terrion's conduct was to tell her process does not, however, provide defendants with the right to present evidence that is conviction and 6 months of incarceration on the domestic violence conviction. the court judgment for that of the trial court. pons v. ohio state med. bd. (1993), 66 ohio st.3d 619, 621. opportunity to present a complete defense.'" state v. hale, 119 ohio st.3d 118, 2008-ohio- county of summit, ohio in sexual activity with another man. the identity of the man or confirmation of actual sexual case no. cr 09 05 1488 in violation of his right to due process in denying him the right to present the testimony of parents' house. this created a strain on the marriage. the two began seeing a marriage [terrion] in denying his requests for specific jury objective and subjective components. id. at 634. the objective component determines whether {¶19} in his second assignment of error, mr. terrion contends that the trial court erred ordered that the sentence on the silencer specification be served first and consecutively to the 63 ohio st.3d at 637. matthew r. terrion whether or not, in fact, she had sex with someone and that was, as i said, his condom or joe {¶11} voluntary manslaughter is not a lesser-included offense of murder. state v. shane situations. id. at 637. knowledge of anything beyond the existence of the condom wrapper. because mr. terrion only weighing the persuasiveness of the evidence[,]' although the trial court still decides the issue as a costs taxed to appellant. shane court then declined to state a bright-line rule under which words alone could never cause victim. shane, 63 ohio st.3d at 637; nelson, 9th dist. no. 20365, at *2. knew of the condom wrapper, mr. goselin's proffered testimony that he engaged in sexual a criminal forfeiture specification to that count, and a firearm muffler or silencer specification to to a jury instruction on voluntary manslaughter due to insufficient provocation on the part of the jeffrey n. james, attorney at law, for appellant. circumstances of sudden passion or a sudden fit of rage in response to serious provocation by the worker's workplace, killed him with a shotgun, and scalped him. id. noting that timing is examination mr. terrion admitted that he was rooting around in her trash can because he still did shane, 63 ohio st.3d at 634. concluding that mere disclosure of adultery did not "partially goselin's proffered testimony. "the grant or denial of a mistrial lies within the sound discretion sentence for murder. the court further ordered that the sentences for tampering with evidence id. under the abuse of discretion standard, we must determine whether the trial court's decision county court of common pleas is affirmed. home while mr. terrion served as a stay-at-home dad for their two children. around the time of been allowed to testify, would have stated that, "he was at the [wife's] house, that he had a sherri bevan walsh, prosecuting attorney, and heaven dimartino, assistant judgment, and it shall be file stamped by the clerk of the court of appeals at which time the more egregious action on the part of the victim. nelson, 9th dist. no. 20365, at *2. in that case, court of common pleas denying [his] motion for mistrial as a result." {¶4} at trial, mr. terrion explained that when they had used condoms in the past, mrs. nelson (june 13, 2001), 9th dist. no. 20365, nelson's wife informed him that she was having an on april 10, 2009, the terrions agreed to amicably divorce. however, mr. terrion read her 3 the trial court ruled that "this would be duplicative, prejudicial, it is not relevant, it is not we accept mr. terrion's argument that finding a condom wrapper is closer to witnessing one's trial judge should evaluate the evidence in the light most favorable to the defendant, without wife "`and you won't forget it and neither will she.'" id. the next day, nelson went to the co- i. 4 discretion in ruling that mr. goselin's testimony was irrelevant and inadmissible. evid.r. 401; for the court this conduct was insufficient to justify a voluntary manslaughter jury instruction. accordingly, personal ad. the personal ad included such statements as "i am attracted to men that can take further sentenced terrion to five years of incarceration on the tampering with evidence {¶17} this case is analogous to shane in that mr. terrion did not trust, in this case, his a. relevancy the trial court did not err when it determined as a matter of law that mr. terrion was not entitled particularly appropriate for voluntary manslaughter instructions, including "assault and battery, terrion and then rooting through her trash. id. additionally, the nelson case involved much of murder in violation of r.c. 2903.02(a), a special felony, a firearm specification to that count, the provocation in a given case "is reasonably sufficient to bring on sudden passion or a sudden accusations and he accused her of lying. id. eventually she admitted her infidelity and he lost the evidence on the jury." city of columbus v. taylor (1988), 39 ohio st.3d 162, 164. a "the trial court erred in violation of [terrion's] indicted offense, except for one or more additional mitigating elements * * *." state v. deem officer, put on a bullet-proof vest, barricaded the doors and windows, and positioned numerous matter of law." state v. williams, 9th dist. no. 24169, 2009-ohio-3162, at ¶14, quoting shane, could find. eventually, he was arrested without further violence. whitmore, j. state of ohio sentence, yielding an aggregate sentence of 21 years to life imprisonment. this count. the court also merged the second murder charge and its specifications. the court concur spouse in the act of adultery than it is to mere words, it is only incrementally so. moreover, the wranglers. that business failed and, with the added debt from the lakewood home, the terrions {¶22} mr. terrion attempted to present the testimony of andrew goselin, who, had he {¶6} mr. terrion then attempted to delay the investigation by taking the shell casing, alleged remarks, even if true, did not constitute reasonably sufficient provocation. id. even if appeal from judgment mental state of the defendant and the conditions and circumstances that surrounded him at the he left. that he took the actual condom with him." after arguments from counsel for each side, excuse" the killing of her lover, this court affirmed the trial court's refusal to give a voluntary terrion, had become rocky. when mr. and mrs. terrion moved back to ohio from las vegas, instructed to mail a notice of entry of this judgment to the parties and to make a notation of the repeatedly asked her questions in an attempt to gain a confession. id. at 637. she denied his mr. terrion became suspicious that she was having an affair. he installed a keylogger program mailing in the docket, pursuant to app.r. 30. fit of rage[.]" id. reasonably sufficient provocation is provocation "sufficient to arouse the moore, j. counselor. around april of 2009, mrs. terrion began spending more time outside the home. st.3d 136, 140. constitutional right to due process in denying him the apartment. he testified that he was going to give her the gun and silencer as a gift because it was manslaughter instruction under stronger provocation than mr. terrion experienced. in state v. and she was acting defensive. eventually she told him to leave. nothing for him to worry about. on april 1, 2009, he confronted her and asked if she was having 7 requiring between one and five minutes to complete. id. the court distinguished this from a that determination was properly overruled. further, this ruling did not violate mr. terrion's due instructions on inferior degree offenses to murder." andrew goselin, and in denying his resulting motion for mistrial. we do not agree. the victim specifically taunted the defendant about his wife's infidelity. id. nonetheless, this bags in the attic. when his parents left for work the next day, mr. terrion, a former police the test for whether a judge should give a jury an instruction on voluntary manslaughter when a objective standard is met, the subjective component involves an inquiry into the "emotional and (1992), 63 ohio st.3d 630, 632. this is so because "its elements are * * * contained within the defense attempted to call mr. goselin after mr. terrion testified. mr. terrion's testimony did is best decided by the trial judge who is in a significantly better position to analyze the impact of


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