## Facts

- Robert Shane II called police around 6:00 a.m. to report Tina Wagner’s death and stated that he killed her by choking her.
- Police found Wagner nearly nude on a bed with a shirt wrapped tightly around her throat.
- The autopsy concluded Wagner died from asphyxiation by strangulation; toxicology indicated a high urine alcohol concentration.
- Shane and Wagner lived together with their infant child.
- Shane was indicted for murder under Ohio Rev. Code § 2903.02 and pleaded not guilty.
- At trial, Shane admitted the killing but claimed he acted under extreme emotional disturbance after Wagner told him she had been sleeping with other men and no longer cared for him.
- Shane testified he became extremely upset and then “came to” after apparently passing out, finding Wagner beneath him.

## Issues

1. When is a defendant in a murder prosecution entitled to a voluntary manslaughter instruction as an inferior-degree offense based on “serious provocation” by the victim?
2. Can “words alone,” including a verbal confession of adultery and rejection, constitute provocation reasonably sufficient to warrant a voluntary manslaughter instruction?
3. If the evidence does not warrant a voluntary manslaughter instruction, must the court decide the certified question about which party bears the burden of proof on the mitigating elements?

## Decision

- The Supreme Court of Ohio affirmed the murder conviction.
- The court held Shane was not entitled to a voluntary manslaughter instruction because the alleged provocation was legally insufficient as a matter of law.
- The trial court erred by giving the voluntary manslaughter instruction, but the error was harmless because the jury convicted Shane of murder and the evidence did not support the inferior-degree charge.
- The court declined to decide the certified burden-of-proof question because the instruction should not have been given.

## Legal Principles

- Before instructing on voluntary manslaughter in a murder case, the trial judge must determine as a threshold matter whether evidence of provocation is reasonably sufficient to warrant the instruction.
- Voluntary manslaughter is an inferior degree of murder: it contains the murder elements plus additional mitigating elements.
- A voluntary manslaughter instruction is warranted only if the evidence would reasonably support both an acquittal on murder and a conviction for voluntary manslaughter.
- The provocation analysis has an objective gatekeeping component for the judge (reasonable sufficiency and cooling-off under a reasonable-person standard) and a subjective component for the jury (whether the defendant actually acted under sudden passion or rage and actually did not cool off), but only if the objective threshold is met.
- Words alone generally do not constitute reasonably sufficient provocation to incite the use of deadly force; verbal confessions of adultery and rejection, without more, are typically insufficient.

## Conclusion

The court held that a voluntary manslaughter instruction requires legally sufficient provocation, and that a victim’s verbal admission of infidelity and rejection—standing alone—does not usually meet the reasonable-sufficiency threshold; because Shane’s evidence failed that threshold, the manslaughter instruction was erroneous but harmless, and the burden-of-proof question was not reached.


State v. Shane, 63 Ohio St. 3d 630 (Ohio 1992)