[This opinion has been published in Ohio Official Reports at
73 Ohio St.3d 308.]
THE STATE OF OHIO, APPELLEE, v. DUNLAP, APPELLANT.
[Cite as State v. Dunlap, 1995-Ohio-243.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 94-1777—Submitted June 6, 1995—Decided August 23, 1995.)
APPEAL from the Court of Appeals for Hamilton County, No. C-930121.
__________________
{¶ 1} On October 6, 1991, at a Cincinnati park, defendant-appellant
Timothy Dunlap used a crossbow to shoot two arrows into his girlfriend, Belinda
Bolanos. After Dunlap left Bolanos to die, he drove her Chevette across the country
until he arrived on October 16 at Soda Springs, Idaho. There, Dunlap used a sawed-off shotgun to rob a bank and kill bank teller Tonya Crane. Idaho police captured
him that afternoon. Dunlap now appeals his Ohio conviction and death sentence
for the aggravated murder and robbery of Bolanos.1
{¶ 2} In June 1991, Dunlap traveled from Indiana to Cincinnati, where he
found casual labor jobs and lived on the streets and in inexpensive motels. That
summer, he met Bolanos in Cincinnati, where he worked as a temporary worker.
They began dating, traveled to Florida, and in mid-September started living
together in her early 1980s Chevette hatchback. In late September, Dunlap bought
a crossbow and thought about killing Bolanos.
{¶ 3} On Sunday morning, October 6, 1991, Dunlap asked Bolanos to go
with him for a picnic near the Ohio River. When they arrived at a river park, Dunlap
told her he had a surprise for her. Dunlap described later how he "blind folded her,
walked her into the woods, had the cross bow with me, shot her once in the neck,
1. In Idaho, Dunlap pled guilty to Crane's murder and was sentenced to death. Upon appeal, the
Idaho Supreme Court affirmed his death sentence. See State v. Dunlap (1993), 125 Idaho 530,
873
P.2d 784.
SUPREME COURT OF OHIO
she fell to the ground, then I shot her once in the head." He shot her in the neck so
"she wouldn't be able to scream." In the head, he chose "the closest place to the
temple, softest part of the skull." Dunlap killed her to "get her car, credit card and
checks." When he left her, he drove her Chevette to Louisville, Kentucky.
{¶ 4} In Louisville, Dunlap purchased a 12-gauge shotgun and then drove
for several days through Kentucky, Missouri, Arkansas, Oklahoma, Kansas,
Colorado, Utah, Wyoming, and Idaho until he arrived at Soda Springs, Idaho.
Along the way, he sawed several inches off the shotgun barrel. During his journey,
he assumed the fictitious name of Steve Bolanos and used Belinda's credit card to
pay for gas, meals and lodging.
{¶ 5} On October 12, while Dunlap was driving across the country,
Bolanos's body was discovered in the woods. The coroner found that Bolanos died
as a result of wounds caused by two arrows: one arrow went through her throat
almost five inches, and the other arrow, shot into the right side of her head, pierced
her brain for six inches. Despite these injuries, Bolanos probably lived for fifteen
to thirty minutes after she was shot.
{¶ 6} Around 9:30 a.m., October 16, Dunlap walked into a Soda Springs,
Idaho bank with the sawed-off shotgun and asked teller Crane for all of her money.
According to one teller, Dunlap shot Crane "as quickly as he grabbed the money."
Dunlap was described as "very cool, very calm, and very collected," with "the
coldest eyes." Another teller confirmed that Crane "did everything" Dunlap asked,
"and he shot her for no reason." Crane died as a result of the shotgun blast to her
chest. A bystander wrote down a description of Dunlap and the car including the
license number.
{¶ 7} Later that afternoon, Dunlap abandoned the Chevette after a chase and
escaped into nearby woods, but was later apprehended. After being advised of his
Miranda rights, Dunlap admitted he had robbed the Soda Springs bank and shot the
teller.
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January Term, 1995
{¶ 8} During interviews on October 17 and 19, Dunlap again admitted to
police that he robbed the bank and shot Crane, because "she set the alarm to the
police and she didn't give me all the money." Dunlap asserted, however, he "never
intended to kill her." Because he had loaded the shotgun with bird shot, he thought
she would just wind up in the hospital.
{¶ 9} In the same interviews, Dunlap admitted he shot Bolanos with the
crossbow in order to get her car, check book, and credit cards. Dunlap recognized
"it didn't have to be done, it is just I was broke, I had no money. I was hardly
working." He felt a "little bit of sadness" because "I liked her a little bit." In the
October 19 interview, Dunlap also claimed that an ex-boyfriend of Bolanos gave
him money to kill her, but no evidence at trial supported that assertion.
{¶ 10} On October 16, Dunlap consented to a search of the car. On October
18, police searched the Chevette and found the crossbow, the shotgun, numerous
credit card receipts signed by Dunlap as "Steve Bolanos," Belinda's personal
belongings, and a large quantity of loose cash.
{¶ 11} The grand jury indicted Dunlap for two aggravated murder counts
relating to Bolanos, murder done with prior calculation and design (count I) and
felony murder (count II), as well as aggravated robbery (count III). Each murder
count included two death penalty specifications alleging murder as a "course of
conduct" and murder during an aggravated robbery in violation of R.C.
2929.04(A)(5) and (7). At trial, Dunlap asked his attorneys not to challenge the
prosecution's guilt-phase evidence or to cross-examine prosecution witnesses.
Defense did move to suppress Dunlap's pretrial statements to police and also
contested Dunlap's guilt as to the "course of conduct" death penalty specification.
The jury convicted Dunlap as charged.
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SUPREME COURT OF OHIO
Evidence at Sentencing
{¶ 12} Dunlap's mother, Patricia Dunlap, testified that Dunlap was born in
August 1968, and his stepfather adopted him in 1969. As a youth, Dunlap played
sports, served as an altar boy, a school crossing guard, and a cub scout, and was in
the county sheriff's cadet program. In high school, he was in several plays and
played the school mascot. In two years of college, he studied business law,
communications, and drama and had the lead in a college play. When he was
twenty-one, he got married and had a son, but the marriage lasted less than a year.
Until his divorce, he was never in trouble with the law, and he even ran for political
office twice.
{¶ 13} John Dunlap, his stepfather, testified he was a good son, who was
introverted in grade school, but he blossomed in high school. At eighteen, he was
rebellious. Dunlap's grandmother spoke highly of him. His sister testified that he
had few friends and started rebelling against his parents in high school. In college,
Dunlap did well and loved acting. After his marriage, his wife had a child, and he
was "a very loving father." He went "over the edge" when his wife divorced him
less than a year later.
{¶ 14} His mother thought Dunlap "always had mental problems." When
he was twelve, his mother took him for counseling and therapy, but that stopped
when he told her, "I just can't go anymore." He reportedly had comprehension
problems and a learning disability. In January 1991, police arrested Dunlap for
harassing his ex-wife. After some time in jail, he was admitted at a mental health
facility. That facility's records report that Dunlap was "manipulative" and prone to
violence, and he had a history of depression, temper outbursts, and possible
hallucinations. Those records reflect a diagnosis of disassociative disorder,
intermittent explosive disorder, depressive disorder, and personality disorder with
a possible partial complex seizure disorder.
4
January Term, 1995
{¶ 15} When released from that facility, Dunlap went back to jail and then
to Madison State Hospital in Indiana. In June 1991, he escaped from Madison and
went to Cincinnati. His family did not see him again until after his October 1991
arrest in Idaho.
{¶ 16} When his family first talked and met with Dunlap after his October
arrest, he seemed like a different person. Dunlap's voice showed "no feeling, no
warmth, no emotion." Dunlap had an unfamiliar "hideous laugh" and "cold, glaring
stare." Yet his mother, sister, and grandmother all agreed that Dunlap, after time,
showed remorse in jail. Dunlap told his grandmother he was sorry for what he had
done and had asked God to forgive him.
{¶ 17} In an unsworn statement, Dunlap said "I am but a man who thought
he was pushed to the edge of desperation, living in dire straights [sic]." Now, he
felt "sorry for what [he's] done." As to the bank robbery, he "did not intend,
calculate or design the death of the teller." When he thought she pushed the alarm,
his "anger and frustration turned to rage," and he shot her. The "same pent up anger
and rage led to [his] crime here in Ohio." On the streets of Cincinnati, he lived "on
the razor's edge of sanity struggling every day to survive." He had nowhere to stay
but in Bolanos's car. He had "very little money [and] wore the same clothes.…
The fear, anxiety, frustration and desperation ate at [him] more and more each day."
He challenged the jury that "If any one of you can … place yourself in my
situation and state of mind, [and say] you would have done different, then you're
simply dealing in lunacy and can't possibly say one way or the other."
{¶ 18} He told the jury, "I don't want you to think I'm trying to excuse what
I've done, I am not, nor am I trying to lessen the fact that two women are dead. I'm
sorry for what I've done." Further, he said, "I care about my family, my friends,
and my son, and the people I hurt, and ask them to forgive me." Now, he hopes for
"a chance to rehabilitate" himself in prison. "And though I took two lives, I do not
deserve to die."
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SUPREME COURT OF OHIO
{¶ 19} In rebuttal, Dr. Michael Estess, a board-certified psychiatrist,
testified via videotape that he had interviewed Dunlap and reviewed various
records. In his view, Dunlap had "personality disorders," including "passiveaggressive," "histrionic" and "explosive" disorder. These disorders did not
constitute a mental disease or defect, and Dunlap understood right from wrong and
could conform his actions to law. Estess agreed that Dunlap might possibly have
some level organic brain dysfunction, but even if that were true, it had no particular
significance or relevance. Estess disbelieved Dunlap's claims of occasional
blackouts or hallucinations; instead he thought Dunlap was prone to "theater,"
"embellishment," and even "malingering."2
{¶ 20} Also, in rebuttal, a reporter testified that he had interviewed a Tim
Dunlap by phone after his Ohio arraignment. The reporter satisfied himself the
caller was Dunlap because of the caller's personal knowledge. When asked about
remorse, Dunlap replied, "Yeah, I've got to regret I didn't get away." In surrebuttal,
Dunlap's mother testified that he was still agitated, upset, and confused when he
first returned to Ohio, but he later changed and became truly sorry. More recently,
Dunlap had told another reporter that he was sorry and "wished things could have
turned out differently."
{¶ 21} After considering the evidence, the jury recommended the death
penalty on both aggravated murder counts. The trial court agreed and sentenced
Dunlap to death on each murder count. The court of appeals affirmed Dunlap's
convictions and death penalty.
{¶ 22} The cause is now before this court upon an appeal as of right.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
2. The video deposition lasted one hour and seventeen minutes, but was stopped after an extensive
cross-examination because of lack of tape. No issue has been raised as to that.
6
January Term, 1995
Elizabeth E. Agar, for appellant.
__________________
PFEIFER, J.
{¶ 23} Dunlap presents fifteen propositions of law for our consideration.
We have considered Dunlap's propositions of law, independently weighed the
statutory aggravating circumstances against the evidence presented in mitigation,
and reviewed the death penalty for appropriateness and proportionality. Upon
review, and for the reasons which follow, we affirm the judgment of the court of
appeals.
I. Admission of Confession
{¶ 24} In his twelfth proposition of law, Dunlap argues the trial court erred
in failing to suppress his pretrial statements to the police. At a pretrial hearing,
Dunlap testified that Idaho police officers manhandled and threatened him when
they arrested him. He claimed he waived his Miranda rights "out of fear of what
might happen" because "they were going to hurt me if I didn't say it was me."
Dunlap also claimed that he requested counsel several times before interrogation,
but the police ignored those requests. Dunlap admitted he signed waivers of rights
and submitted to interviews on October 16, 17 and 19.
{¶ 25} Of course, if Dunlap did request counsel, and police ignored the
request and continued questioning him, his statements would be inadmissible.
When counsel is requested, interrogation must cease until a lawyer is provided or
the suspect reinitiates the interrogation. Arizona v. Roberson (1988), 486 U.S. 675,
108 S.Ct. 2093,
100 L.Ed.2d 704; Edwards v. Arizona (1981),
451 U.S. 477,
101
S.Ct. 1880,
68 L.Ed.2d 378.
{¶ 26} However, the record of the suppression hearing supports a finding
that Dunlap voluntarily waived his rights and never requested to consult counsel
before agreeing to be interviewed by police or while being interviewed. The
October 16 interview was videotaped, and the interviews on October 17 and 19
7
SUPREME COURT OF OHIO
were audiotaped. The tapes show that during hours of interviews, police readvised
or reminded Dunlap of his rights several times, and he signed two separate waivers
of rights. At no time during these taped interviews did appellant decline to answer
questions or ask to consult a lawyer before answering questions. The police never
threatened appellant or promised him anything to secure his cooperation. On
October 19, appellant freely talked with Cincinnati police officers after again
waiving his Miranda rights.
{¶ 27} Admittedly, at one point during the taping of Dunlap's October 17
statement, the police chief briefly referred to the fact that the interview had been
interrupted so Dunlap could sign "a document for the Court." That document "has
to do with appointing an attorney, which you [Dunlap] do not have enough funds
for."
{¶ 28} However, the context makes it clear that this request concerned the
appointment of counsel for future court hearings. Dunlap did not ask to consult
with a lawyer before answering questions nor did he ask for a lawyer to be present
during any interviews. "The rationale underlying Edwards is that the police must
respect a suspect's wishes regarding his right to have an attorney present during
custodial interrogation." Davis v. United States (1994), 512 U.S. 452,
114 S.Ct.
2350, 2355,
129 L.Ed.2d 362, 372. As Davis held, "the suspect must
unambiguously request counsel."
Id. at __,
114 S.Ct. 2355,
129 L.Ed.2d at 371.
Dunlap made no unambiguous request to consult counsel. See Connecticut v.
Barrett (1987),
479 U.S. 523,
107 S.Ct. 828,
93 L.Ed.2d 920; United States v. Mills
(C.A.6, 1993),
1 F.3d 414. Instead, he simply took a short break to sign a document
to allow the Idaho court to appoint him an attorney to represent him in future court
proceedings. Thereafter, Dunlap resumed the interview with the police chief that
Dunlap had himself initiated.
{¶ 29} Moreover, that break in appellant's taped October 17 confession
occurred relatively late in the course of that interview—two thirds of the way
8
January Term, 1995
through, in fact. After that point in the interview, the police chief and Dunlap
mostly discussed the Idaho robbery, not the Ohio murder. Since abundant other
evidence established appellant's guilt of that second "course of conduct" murder,
admitting the last portion of appellant's October 17 confession or even his October
19 statement, even if error, was harmless beyond a reasonable doubt.
{¶ 30} "[T]he weight of the evidence and credibility of witnesses are
primarily for the trier of the facts. … This principle is applicable to suppression
hearings as well as trials." State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR
57, 58,
437 N.E.2d 583, 584. Accord State v. DePew (1988),
38 Ohio St.3d 275,
277,
528 N.E.2d 542, 547.
{¶ 31} The trial court's decision to admit the statements rests upon
substantial evidence. We find no basis to reverse the trial court's decision and reject
the interview tapes and police officers' testimony in favor of Dunlap's claims. We
reject Dunlap's twelfth proposition.
II. Multiple Charges and Specifications
{¶ 32} In his first proposition of law, Dunlap correctly argues that the trial
court erred by submitting two charges of aggravated murder to the jury for separate
penalty determinations and in imposing two death sentences. Since both charges
"involve the same victim, they merge." State v. Lawson (1992), 64 Ohio St.3d 336,
351,
595 N.E.2d 902, 913; State v. Huertas (1990),
51 Ohio St.3d 22, 28,
553
N.E.2d 1058, 1066.
{¶ 33} However, we find this error harmless beyond a reasonable doubt.
State v. Cook (1992), 65 Ohio St.3d 516, 526-527,
605 N.E.2d 70, 82; State v.
Brown (1988),
38 Ohio St.3d 305, 317-318,
528 N.E.2d 523, 538-539. Moreover,
the court of appeals explicitly merged the two murder counts and approved only a
single death sentence. Accordingly, we recognize that only a single death sentence
remains but otherwise reject Dunlap's first proposition.
9
SUPREME COURT OF OHIO
{¶ 34} In his second proposition of law, Dunlap argues that the trial court's
submission to the jury of the R.C. 2929.04(A)(7), felony-murder death
specification, in counts I and II, prejudiced his rights to a fair sentencing
determination. Dunlap argues the specifications and instructions improperly
multiplied the felony-murder aggravating circumstance into two aggravating
circumstances as proscribed in State v. Penix (1987), 32 Ohio St.3d 369, 370-372,
513 N.E.2d 744, 746-747.
{¶ 35} As Penix notes, 32 Ohio St.3d at 371,
513 N.E.2d at 746, "[p]rior
calculation and design is an aggravating circumstance only in the case of an
offender who did not personally kill the victim." In this case, the sentencing
instructions referred to whether "the offense of aggravated murder was committed
while the defendant was committing aggravated robbery or was committed with
prior calculation and design …." (Emphasis added.) By so doing, the instructions
incorrectly described the aggravating circumstance. However, unlike the court in
Penix, the court here did not multiply a single felony murder specification into two
aggravating circumstances. The jury's findings of guilt, as well as the specifications
in the indictment, correctly stated this aggravating circumstance. Dunlap did not
object to the instruction. We find no plain error and reject Dunlap's second
proposition. See, also, State v. Cook,
65 Ohio St.3d at 527,
605 N.E.2d at 82.
III. Exclusion of Jurors
{¶ 36} In his third proposition, Dunlap argues that excluding jurors who
could not vote for the death penalty violated his right to a jury composed of a fair
cross-section of the community. However, death-qualifying a jury "does not deny
a capital defendant a trial by an impartial jury." State v. Jenkins (1984), 15 Ohio
St.3d 164, 15 OBR 311,
473 N.E.2d 264, paragraph two of the syllabus; Lockhart
v. McCree (1986),
476 U.S. 162,
106 S.Ct. 1758,
90 L.Ed.2d 137. Here, the record
demonstrates those excluded held views which "would prevent or substantially
impair the performance" of duties in accordance with the juror's "instructions and
10
January Term, 1995
oath." State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414,
478 N.E.2d 984,
paragraph three of the syllabus, following Wainwright v. Witt (1985),
469 U.S. 412,
105 S.Ct. 844,
83 L.Ed.2d 841. Thus, Dunlap's third proposition lacks merit. State
v. Tyler (1990),
50 Ohio St.3d 24, 30,
553 N.E.2d 576, 586.
IV. Mercy Instruction
{¶ 37} In his fourth proposition, Dunlap argues the trial court erred in its
penalty phase instructions by not allowing the jury to consider sympathy and by
failing to instruct on mercy. However, the court properly instructed the jury to
exclude sympathy. State v. Jenkins, 15 Ohio St.3d 164, 15 OBR 311,
473 N.E.2d
264, paragraph three of the syllabus; State v. Steffen (1987),
31 Ohio St.3d 111,
125, 31 OBR 273, 285, 509 N.E.2d. 383, 396. The court also properly refused to
instruct on mercy. State v. Lorraine (1993),
66 Ohio St.3d 414, 417,
613 N.E.2d
212, 216; State v. Hicks (1989),
43 Ohio St.3d 72, 78,
538 N.E.2d 1030, 1036.
V. Sufficiency of Evidence
{¶ 38} In his fifth and sixth propositions, Dunlap argues the evidence was
insufficient to establish his guilt of the R.C. 2929.04(A)(5) "course of conduct"
specification alleging "the purposeful killing" or attempt to kill two or more
persons. Dunlap argues he did not intend to kill Crane.
{¶ 39} In a review for sufficiency, the evidence must be considered in a
light most favorable to the prosecution. Jackson v. Virginia (1979), 443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560; State v. Davis (1988),
38 Ohio St.3d 361, 365,
528
N.E.2d 925, 930. "[T]he weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of the facts." State v. DeHass (1967),
10 Ohio
St.2d 230,
39 O.O.3d 366,
227 N.E.2d 212, paragraph one of the syllabus.
{¶ 40} We find the evidence established that Dunlap purposefully killed
Crane and thus his guilt of the "course of conduct" specification. Dunlap told Police
Chief Blynn Wilcox he was angry with Crane and shot her because "she set the
alarm to the police and she didn't give me all the money." One teller identified
11
SUPREME COURT OF OHIO
Dunlap as standing at the counter, and she saw the shotgun barrel "stick out from
the edge of the teller counter." According to her, Dunlap "did not hesitate. As soon
as he had the money, he shot her." Another teller described Dunlap as "very
determined" and "very deliberate," and the force was so strong Crane "was even
blown out of her shoes."
{¶ 41} Dunlap's deliberate close-range firing of a shotgun at Crane's chest,
whatever the type of shells, proved his intent to kill. "[A] firearm is an inherently
dangerous instrumentality, the use of which is reasonably likely to produce
death[.]" State v. Widner (1982), 69 Ohio St.2d 267, 270,
23 O.O.3d 265, 266,
431
N.E.2d 1025, 1028, followed in State v. Seiber (1990),
56 Ohio St.3d 4, 14,
564
N.E.2d 408, 419. Accord State v. Johnson (1978),
56 Ohio St.2d 35, 39,
10 O.O.3d
78, 81,
381 N.E.2d 637, 640.
VI. Other Evidentiary Issues
{¶ 42} In his thirteenth proposition of law, Dunlap argues the trial court
erred in allowing rebuttal testimony from reporter Hopkins in the mitigation phase.
In a phone call, Hopkins asked the caller, who named himself Tim Dunlap, about
remorse. Dunlap reportedly said, "Yeah, I've got to regret I didn't get away." In
extensive voir dire, Hopkins explained why he was satisfied that Dunlap was the
caller. Hence, the trial court did not abuse its discretion in allowing Hopkins to
testify. "The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court." State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375,
510 N.E.2d 343, paragraph two of the syllabus. See, also, Evid.R. 611 and 901.
{¶ 43} The prosecutor's failure to list Hopkins as a potential witness, or to
eject him from the courtroom under a witness separation order, did not mandate the
exclusion of Hopkins as a witness. A rebuttal witness's name need not always be
disclosed. See State v. Howard (1978), 56 Ohio St.2d 328, 333,
10 O.O.3d 448,
451,
383 N.E.2d 912, 915-916; State v. Lorraine,
66 Ohio St.3d at 422,
613 N.E.2d
at 220. Moreover, the exclusion of testimony for an asserted discovery violation is
12
January Term, 1995
discretionary. State v. Scudder (1994), 71 Ohio St.3d 263, 269,
643 N.E.2d 524,
530; State v. Wiles (1991),
59 Ohio St.3d 71, 78,
571 N.E.2d 97, 110. Also, any
error was harmless. Abundant other evidence suggests Dunlap lacked remorse,
including testimony from Dr. Estess, Dunlap's family, and even Dunlap's unsworn
statement.
{¶ 44} In his fourteenth proposition of law, Dunlap argues the trial court
erred in admitting four gruesome photographs, including one autopsy photo and
three crime scene photos. Under Evid.R. 403 and 611(A), the admission of
photographs is left to a trial court's sound discretion. State v. Jackson (1991), 57
Ohio St.3d 29, 37,
565 N.E.2d 549, 559; State v. Maurer (1984),
15 Ohio St.3d 239,
264, 15 OBR 379, 401,
473 N.E.2d 768, 791. We are satisfied the trial court did
not abuse its discretion in admitting these photographs. See State v. Morales
(1987),
32 Ohio St.3d 252, 257,
513 N.E.2d 267, 273; Maurer, at paragraph seven
of the syllabus Thus, we reject both propositions.
VII. Constitutional Issues
{¶ 45} In his eighth proposition, Dunlap challenges the constitutionality of
the felony-murder provisions in Ohio's death penalty statute. However, we have
long rejected those claims. See State v. Henderson (1988), 39 Ohio St.3d 24,
528
N.E.2d 1237, paragraph one of the syllabus. See, also, Lowenfield v. Phelps (1988),
484 U.S. 231,
108 S.Ct. 546,
98 L.Ed.2d 568; State v. Benner (1988),
40 Ohio St.3d
301, 306,
533 N.E.2d 701, 708.
{¶ 46} We rejected challenges such as Dunlap's ninth proposition in State
v. Beuke (1988), 38 Ohio St.3d 29, 38-39,
526 N.E.2d 274, 285. See, also, State v.
Bedford (1988),
39 Ohio St.3d 122, 132,
529 N.E.2d 913, 923; State v. Sowell
(1988),
39 Ohio St.3d 322, 335-336,
530 N.E.2d 1294, 1308-1309. Dunlap's tenth
proposition also lacks merit. See State v. Jenkins,
15 Ohio St.3d at 176, 15 OBR at
321-322,
473 N.E.2d 278-279; State v. Steffen,
31 Ohio St.3d 111, 31 OBR 273,
509 N.E.2d 383, at paragraph one of the syllabus.
13
SUPREME COURT OF OHIO
VIII. Other Sentencing Issues
{¶ 47} In his seventh proposition, Dunlap correctly argues the trial court
erred by allowing the prosecutor to improperly refer to the nature and circumstances
of the offense as aggravating circumstances. Admittedly, "the nature and
circumstances of an offense are not a statutory aggravating circumstance and cannot
be considered as such." State v. Lott (1990), 51 Ohio St.3d 160, 171,
555 N.E.2d
293, 304; State v. Davis,
38 Ohio St.3d at 370-371,
528 N.E.2d at 934.
{¶ 48} However, we find any error harmless, since the prosecutor's
misstatement did not materially prejudice Dunlap. The trial court's sentence
instructions explained to the jury the weighing process and the aggravating
circumstances, and these instructions negated the prosecutor's misstatements. See
State v. Greer (1988), 39 Ohio St.3d 236, 251,
530 N.E.2d 382, 400. "Moreover,
the prosecutor could legitimately refer to the nature and circumstances of the
offense, both to refute any suggestion that they were mitigating and to explain why
the specified aggravating circumstance … outweighed mitigating factors." State
v. Combs (1991),
62 Ohio St.3d 278, 283,
581 N.E.2d 1071, 1077. See, also, State
v. Stumpf (1987),
32 Ohio St.3d 95,
512 N.E.2d 598, paragraph one of the syllabus.
{¶ 49} In his eleventh proposition, Dunlap argues the trial court erred in not
requiring the jury, as he requested, to articulate the method by which the jury
weighed the aggravating circumstances against mitigation evidence. In effect,
Dunlap argues that the jury should make special findings and justify their
sentencing verdict.
{¶ 50} However, the Constitution does not require a jury in a capital case to
render a special verdict or special findings. See State v. Jenkins, 15 Ohio St.3d at
212, 15 OBR at 352, 473 N.E.2d at 306; Hildwin v. Florida (1989),
490 U.S. 638,
109 S.Ct. 2055,
104 L.Ed.2d 728. Additionally, the General Assembly mandated
special findings from the jury as to aggravating circumstances in R.C. 2929.03(B).
14
January Term, 1995
However, the General Assembly did not require the jury to explain its findings in
the sentencing recommendation. Hence, we reject this proposition.
IX. Reservation of Issues
{¶ 51} In his fifteenth proposition, Dunlap asks this court to consider other
trial errors which may exist even though he failed to argue or specify such errors.
However, absent plain error, Dunlap waived any such issue by not raising them
here and in the court of appeals. State v. Williams (1977), 51 Ohio St.2d 112,
5
O.O.3d 98,
364 N.E.2d 1364. In any event, we find no plain error that is so grievous
that "but for the error, the outcome of the trial clearly would have been otherwise."
State v. Long (1978),
53 Ohio St.2d 91,
7 O.O.3d 178,
372 N.E.2d 804, at paragraph
two of the syllabus. Proof of Dunlap's guilt from his statements and the results of
the car search was compelling. Our independent reassessment of the sentence will
negate the effect of any unasserted error affecting the sentence.
X. Independent Sentence Assessment
{¶ 52} After independent assessment, we find the evidence clearly proves
the aggravating circumstances for which Dunlap was convicted, i.e., murder during
a robbery and as a "course of conduct" in purposefully killing or attempting to kill
more than one person. As to possible mitigating factors, we find nothing in the
nature and circumstances of the offense to be mitigating. Dunlap lured his
girlfriend to a secluded park area, blindfolded her, and promised her a surprise.
Then, he led her into the woods and cruelly shot her twice with a crossbow. He left
her to die alone, and killed her simply to secure her possessions: an old car, credit
cards, and checkbook.
{¶ 53} Dunlap's history and background provide modest mitigating
features. However, his childhood and life as a young adult are mostly
unremarkable. He had the advantages of a stable home, loving parents, and a solid
education. Although regularly employed, he did not keep jobs very long.
Unfortunately, an early marriage turned sour in its first year, and he became
15
SUPREME COURT OF OHIO
entangled in courts and mental hospitals. After living homeless in Cincinnati, he
turned on Bolanos, who had befriended him. Dunlap denied use of drugs or
excessive use of alcohol. His admitted personality disorders, confirmed by hospital
records and Dr. Estess's testimony, provide only slight mitigation. Additionally,
the fact he has a son and a family who love him deserves some weight. Yet, we
find nothing in his character to be mitigating.
{¶ 54} The statutory mitigating factors of age and lack of a significant
criminal history are relevant and deserve modest weight. See R.C. 2929.04(B)(4)
and (5). Dunlap had no criminal convictions prior to this offense. Although Dunlap
was twenty-three at the time of the offense, he did have some college and was
mature.
{¶ 55} We find no other applicable statutory mitigating factors in R.C.
2929.04(B)(1) to (6). His "personality disorders" were not a mental disease or
defect as Dr. Estess confirmed. See R.C. 2929.04(B)(3); State v. Fox (1994), 69
Ohio St.3d 183, 192,
631 N.E.2d 124, 131-132. As to "other factors," in R.C.
29292.04(B)(7), Dunlap's cooperation with police was mitigating evidence.
However, no significant "other factors," as specified in R.C. 2929.04(B)(7), are
relevant. His personality disorders have already been considered as part of his
background. Some evidence exists that Dunlap expressed remorse, but other
evidence, including his unsworn statement, contradicts his claims of remorse.
Under the circumstances, we assign little weight to Dunlap's remorse.
{¶ 56} In our view, the aggravating circumstances outweigh the modest
mitigating factors present in this case beyond any reasonable doubt. Dunlap killed
Bolanos to rob her, and he robbed her using treachery and extreme violence. Then,
he stole her car, assumed the identity of her fictitious husband, Steve Bolanos, and
used her credit cards to travel across the country. In Idaho, he killed another
woman, thus establishing the calculated "course of conduct." Even when
16
January Term, 1995
considered collectively, the mitigating factors he raises deserve only modest weight
and offer no redeeming value. Thus, we find the death penalty is appropriate.
{¶ 57} We find the death penalty in this case is neither excessive nor
disproportionate when compared with the penalty imposed in similar cases of
felony murder. See State v. Loza (1994), 71 Ohio St.3d 61,
641 N.E.2d 1082; State
v. Woodard (1993),
68 Ohio St.3d 70,
623 N.E.2d 75; State v. Green (1993),
66
Ohio St.3d 141,
609 N.E.2d 1253; State v. Mills (1992),
62 Ohio St.3d 357,
582
N.E.2d 972. We further find the death sentence proportionate when compared with
similar "course of conduct" murders. See State v.
Loza, supra; State v. Grant
(1993),
67 Ohio St.3d 465,
620 N.E.2d 50; State v. Lorraine,
66 Ohio St.3d 414,
613 N.E.2d 212; State v. Hawkins (1993),
66 Ohio St.3d 339,
612 N.E.2d 1227;
State v. Montgomery (1991),
61 Ohio St.3d 410,
575 N.E.2d 167; State v. Frazier
(1991),
61 Ohio St.3d 247,
574 N.E.2d 483; State v. Combs,
62 Ohio St.3d 278,
581 N.E.2d 1071.
{¶ 58} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ.,
concur.
__________________
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