State v. Goff

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. GOFF, APPELLANT.
                        [Cite as State v. Goff, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
         (No. 97-1130—Submitted March 3, 1998—Decided June 17, 1998.)
    APPEAL from the Court of Appeals for Clinton County, No. CA95-09-026.
                                  __________________
         {¶ 1} Appellant, James R. Goff, convicted of the aggravated murder of
Myrtle Rutledge, appeals his convictions and death sentence.
         {¶ 2} Rutledge, an eighty-eight-year-old woman, was in the process of
moving out of her old farmhouse and into a new doublewide trailer home that was
built directly behind the farmhouse. Her daughter, Esther Crownover, had been
helping her sort out items from the old house, in which she had lived for forty-seven
years.
         {¶ 3} Rutledge decided to purchase some new furniture for her new house,
and on September 14, 1994, she and Crownover went to Butler Home Furnishings
in Wilmington, Ohio. After purchasing a new mattress, box springs, chair, ottoman,
and sofa, Rutledge made arrangements for the furniture to be delivered the next
day.
         {¶ 4} Butler Home Furnishings had employed appellant for furniture
deliveries for about a year. Harold E. Butler, Jr., the son of the owner, would
contact appellant when he had a delivery and then, depending on the item, would
get another person to assist appellant with the delivery. Butler Furnishings had also
used Manuel Jackson as a delivery person for the seven months prior to September
1994.
         {¶ 5} Appellant and Jackson were contacted to make the delivery to
Rutledge on September 15, 1994. When appellant and Jackson arrived with the
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furniture, Rutledge directed them to put the new furniture in the new house. Since
there was no bed frame in the new house, appellant asked whether Rutledge wanted
them to obtain the frame from the old house and assemble the bed in the new house.
After they indicated that they would not charge Rutledge any additional money for
this service, Rutledge took them into the old house, up to the second floor, and
pointed out the bed frame that was to be used with the new bedding. The old house
was in a state of disarray from the ongoing moving process. Jackson thought he
saw appellant “snooping” through Rutledge’s belongings.
       {¶ 6} Appellant and Jackson disassembled the old bed, took the frame to the
new house, and set up the new bed. While Jackson finished the assembly, appellant
obtained Rutledge’s signature on the delivery form.
       {¶ 7} Later that afternoon, Rodney Rutledge, the victim’s son, arrived at his
mother’s house around 4:00 p.m. to mow the lawn. She showed him her new
furnishings that had been delivered that day. When he left (around 5:30 p.m.), his
mother’s car was parked in the driveway next to the house.
       {¶ 8} On the night of September 15, Myrtle Rutledge spoke on the
telephone to her sister (6:30-7:00 p.m.) and her sister-in-law (around 9:00 p.m.)
concerning the upcoming family reunion on Saturday, September 17. On Friday,
September 16, 1994, Rutledge’s son drove past his mother’s house six different
times during the course of his employment. Each time his mother’s car was not
parked in the driveway next to the house. Rutledge’s sister also drove past the
house and noticed the car was not there.
       {¶ 9} On Saturday morning, Crownover went to Rutledge’s home to pick
her up for the reunion. The car was not there, and when her mother did not answer
the door, Crownover assumed that she had already left for the reunion. When she
arrived at the reunion her mother was not there. She went back to her mother’s
house, entered, and went upstairs to her mother’s bedroom. There she found her
mother’s battered and naked body lying on the floor of the bedroom. A pool of



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blood was on the bed, as well as the floor area. After ascertaining that there was
no pulse, she tried using the phone to call the police, but there was no dial tone.
She covered her mother with a blanket and drove to the police station.
           {¶ 10} The police and an ambulance were dispatched.          Once it was
determined that Rutledge was dead, the police secured the scene and began a
criminal investigation.       Deputy Sheriff Fred W. Moeller, the crime scene
investigator, determined that the door to the victim’s house had been forced open.
Someone had apparently tried to enter the home through a window, because the
window screen was lying on the ground outside the house, but entry was not made
though the window. The phone wires on the outside of the house were cut.
           {¶ 11} No fingerprints were found in the bedroom. In Moeller’s opinion,
the room had been cleaned. Other fingerprint smudges were found in the house,
but never matched. There was no evidence of blood anywhere else in the house
except the bedroom. Denise K. Rankin, a serologist, identified a pubic hair found
at the scene as being consistent with a pubic hair obtained from appellant after his
arrest.
           {¶ 12} After Moeller left the scene to return to the police station, he was
notified that the victim’s car was found on North High Street in the city of
Wilmington. He went to the scene, and the keys to the car were found on the floor
on the driver’s side. A pink towel was on the front seat of the car, and no prints
were found anywhere on the car. Moeller believed that someone had wiped down
the car.
           {¶ 13} The deputy coroner testified that Rutledge died from blunt and sharp
trauma to the head, neck, shoulders, and ankle. Her death also resulted from blood
loss due to multiple stab wounds, one of which severed the carotid artery. The
coroner was unable to determine the time of death.
           {¶ 14} When appellant and Jackson left Rutledge’s house after delivering
the furniture on September 15, they purchased some crack cocaine and went to




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appellant’s house to smoke it. Appellant later returned the truck to the furniture
store.
         {¶ 15} Jackson did not see appellant again until 1:00-1:30 a.m. the
following morning when he saw him running through an alley. Jackson later saw
him on Grant Street. Appellant had changed his clothes from earlier in the day
when they had delivered the furniture.
         {¶ 16} Appellant asked Jackson whether he wanted to smoke some crack,
showing him what Jackson thought was about $80 worth of crack. Jackson was
with Tim Bart, and all three proceeded to appellant’s house. After they smoked the
crack, which took a couple of hours, Bart suggested stealing some meat to trade for
more crack. They were going to walk to the store, when appellant indicated he
knew where there was a car they could use, but it was stolen. Appellant said the
car was on North High Street. Bart and Jackson opted not to use the stolen car, and
they walked to Bob and Carl’s Meat Store. Bart stole the meat, and he and appellant
“took off.”
         {¶ 17} Jackson saw appellant around noon the next day, and appellant asked
him to tell anyone who asked, that he (appellant) had been with Jackson from 9:00
p.m. on September 15 until 3:00 a.m. on September 16.
         {¶ 18} Later, on September 17, Timothy Shaffer found appellant playing
pool at a game room in Wilmington. Appellant, Shaffer, and David Walls ended
up at Shaffer’s trailer, where they smoked three to four “joints.” All three left the
trailer and went to buy some crack. After the purchase, Shaffer and appellant went
to appellant’s house to smoke the crack. Appellant wanted Shaffer to sign a note
saying that he (Shaffer) helped in a crime committed on September 15, but Shaffer
refused to sign. Appellant went and stayed at Shaffer’s trailer until September 21.
         {¶ 19} While staying with Shaffer, appellant talked with him about
Rutledge’s death. Appellant asked Shaffer what he would do if he killed someone.
Appellant then told him he stabbed a lady and bent the blade of the knife. He also



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                                January Term, 1998




choked her. Appellant then told Shaffer he took her car and left it in front of the
Mulberry Hill Apartments. After wiping the steering wheel, he drove the car to
North High Street, where he left it, and then bought about $90 worth of crack and
smoked it. Appellant admitted that he went to Rutledge’s house to rob her.
          {¶ 20} On September 21, Shaffer saw a newspaper article about the
Rutledge murder and asked appellant to leave his trailer. About two weeks later,
Shaffer received a letter from appellant telling him that his (appellant’s) life was in
Shaffer’s hands and to not tell anyone. Shaffer eventually called Colonel Tim
Smith at the sheriff’s department, and turned over a pair of tennis shoes and a
laundry basket belonging to appellant. Shaffer ultimately told Smith all of what
appellant had said about the murder.
          {¶ 21} Appellant was arrested on September 21, 1994 on a drug charge.
During the interrogation, appellant admitted that he had a crack habit, that he
bought crack whenever he could, and that he would steal and trade items to buy
crack. He indicated that he delivered furniture to the Rutledge residence, but when
questioned about the murder, appellant asked for an attorney and questioning
ceased.
          {¶ 22} The state also presented three inmates, Jerry Lee Price, Danny
Smith, and Keith Jones, to testify to various statements appellant had made to them
regarding the Rutledge crime while incarcerated on the drug charge. Smith’s
testimony was excluded, since he failed to identify appellant in court; however,
both Price and Jones testified regarding the murder.
          {¶ 23} Jones’s testimony was by far the most damaging. Appellant told
Jones that he had delivered furniture to an old lady in her late 80’s. She had given
appellant some money when he put the new bed together and later that night he
went back to get the rest of the money he saw she had. Appellant entered through
the kitchen and found Rutledge in the bedroom. Appellant told him that Rutledge
called him “Jimmy,” so he “had to get rid of the bitch.” Jones asked him questions




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concerning the crime because Jones could not believe appellant could do such a
thing to an old woman. Appellant asserted that she had lived her life, and since she
could send him to prison, he had to kill her. After he took the money and the car,
he went and bought crack. Appellant ran into a friend and they went and smoked
it. Appellant said he killed her by himself, using a fishing tackle knife from his
house. He told Jones they would never find the knife because he got rid of it. Jones
wrote a letter to the prosecutor’s office, although he was not sure he believed
appellant, but that he (Jones) had an elderly mother and could not think of
something like that happening to her.
          {¶ 24} Appellant was indicted in January 1995 with alternate counts of
capital aggravated murder of Myrtle Rutledge.           He was also charged with
aggravated robbery, aggravated burglary, and grand theft of a motor vehicle. The
jury found him guilty of eight of the counts and not guilty of one of the grand theft
counts.
          {¶ 25} Four witnesses testified on appellant’s behalf during the penalty
phase. The jury recommended the death penalty on both counts. After the state
elected the first count for sentencing, the trial court sentenced appellant to death.
The court of appeals affirmed the convictions and sentences, including the death
sentence.
          {¶ 26} The cause is now before this court upon an appeal as of right.
                                __________________
          Gary W. Crim and Luigia Tenuta, for appellant.
                                __________________


          ALICE ROBIE RESNICK, J.
          {¶ 27} In this appeal, appellant has raised eleven propositions of law.
Finding none meritorious, we affirm his convictions.          In addition, we have
independently reviewed the record, weighed the aggravating circumstance against



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the mitigating factors, and examined the proportionality of the death sentence in
this case to the penalty imposed in similar cases. Upon a complete review of the
record, we affirm appellant’s convictions and sentences.
                                          I
                          Penalty Phase Jury Instructions
       {¶ 28} Appellant’s first proposition of law includes fifteen subsections
challenging the penalty-phase instructions. All but one of the challenges were
preserved in the trial court and in the court of appeals. See State v. Wolons (1989),

, 

, paragraph one of the syllabus.
       {¶ 29} While it is prejudicial error to refuse a requested charge that
correctly states the law and is not covered by the general charge, the charge need
not be given in the exact language requested. See State v. Hicks (1989), 

, 

.
                     A. Jury’s Discretion Must be Channeled
       {¶ 30} Appellant makes a generalized claim that the trial court’s
instructions to the jury failed to channel the jury’s discretion and thereby resulted
in the arbitrary imposition of the death penalty in this case.         However, the
instructions given to the jury were not incorrect, nor did they fail to guide the jury
in its decision-making process.
       B. Instruction that Sole Juror May Prevent the Imposition of Death
       {¶ 31} Appellant requested that the jury be instructed:
       “If you are unable to agree unanimously that a death sentence is appropriate
under this standard of proof, you are to proceed to consider which of the life
sentence verdicts (recommendations) to return.
       “You are not required to determine unanimously that the death sentence is
inappropriate before you consider the life sentences.”
       {¶ 32} The trial court denied the request and instead instructed the jury:




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       “You shall recommend death only if you unanimously find by proof beyond
a reasonable doubt that the aggravating circumstances outweigh the mitigating
factors. if [sic] you do not so find, you shall unanimously sign a verdict for either
a sentence of life with parole eligibility after serving 20 full years of imprisonment
or a sentence of life with parole eligibility after serving 30 full years of
imprisonment.”
       {¶ 33} Appellant now argues that the jury could infer through this
instruction that it must unanimously find that the death sentence was inappropriate
before considering a life sentence. In addition, appellant argues that this instruction
failed to inform the jurors what to do if they could not reach a unanimous agreement
on life or death. Appellant relies on our decision in State v. Brooks (1996), 

, 

.
       {¶ 34} We stated in Brooks, “In Ohio a solitary juror may prevent a death
penalty recommendation by finding that the aggravating circumstances in the case
do not outweigh the mitigating factors. Jurors from this point forward should be so
instructed.” (Emphasis added.) 

, 

. However, Brooks
was decided on March 4, 1996, six months after appellant was tried. Further, the
jury here did not receive the erroneous instruction that served as the basis for the
reversal in Brooks.
       {¶ 35} The jury was informed that it must be unanimous in finding that the
aggravating circumstances outweighed the mitigating factors. The jury was also
informed that if it did not make that unanimous finding, one of the life verdicts
“shall [be found].” Again, it would be preferable to include the missing piece, that
the jury does not have to unanimously find that the aggravating circumstances do
not outweigh the mitigating factors before considering the life sentence options.
Yet, the “substance” of what the jury must determine was included in the charge
given; therefore, appellant was not prejudiced.
                 C. Instruction on Unanimity on Mitigating Factors



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                                  January Term, 1998




       {¶ 36} Appellant argues that the trial court should have instructed the jury
that it did not have to unanimously agree on each mitigating factor before it could
be considered in the weighing process. Here, the trial court instructed, “In making
your decision you will consider all the evidence … [m]itigating factors must be
considered collectively when they are weighed against the aggravating
circumstances.” The jury was never told that it had to make a unanimous finding
on the individual factors before weighing them. The trial court did not err in
overruling appellant’s request.
                      D. Miscellaneous Mitigation Requests
       {¶ 37} In subsections D-F, H-K, and M, appellant alleges that the trial court,
despite requests, failed to expound on what is an aggravating circumstance, failed
to define “mitigation” for the jury, or give specific instructions concerning
mitigating factors set forth by the defense.
       {¶ 38} In subsections (F) and (I), appellant had requested that the court
instruct, with more specificity, regarding the aggravating circumstances and
weighing process.     However, the court correctly identified the aggravating
circumstances, and the process of weighing the aggravating circumstances against
the mitigating factors. Therefore, the requests were, at least in substance, in the
court’s charge to the jury. See Hicks, 

, 

.
       {¶ 39} In subsection (D), appellant argues the trial court failed to define
“mitigating evidence” as set forth in State v. Holloway (1988), 

,

. In Holloway, the court explained that “mitigating factors under
R.C. 2929.04(B) are not related to a defendant’s culpability but, rather, are those
factors that are relevant to the issue of whether a defendant convicted under R.C.
2903.01 should be sentenced to death.” 

, 

. See, also,
State v. Lawrence (1989), 

, 

. Here, no
specific instruction defining “mitigation” was given.




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        {¶ 40} The trial court’s failure to define “mitigation” for the jury does not
constitute prejudicial error. The trial court defined what factors the jury was to
consider, and implicit in the trial court’s instruction was that the factors set forth by
the defense were factors relevant to whether appellant should be sentenced to death.
        {¶ 41} In the remaining subsections (E, H, J, K, M), appellant argues the
trial court erred in refusing to instruct the jury on specific mitigating factors raised
by the evidence in the penalty phase. A sentencing authority may not “refuse to
consider, as a matter of law, any relevant mitigating evidence.”            Eddings v.
Oklahoma (1982), 

, 

, 

. Here, the trial court never restricted the jury from considering appellant’s
evidence as a mitigating factor. The court instructed:
        “In making your decision you will consider all the evidence, the arguments
of counsel, and all other information and all other reports which are relevant to the
nature and circumstances of the aggravating circumstances or to any mitigating
factors including, but not limited to, the nature and circumstances of the offense,
and 1) the history and character and background of the Defendant, 2) the youth of
the Defendant, and 3) any other factors that are relevant to the issue of whether the
Defendant should be sentenced to death.”
        {¶ 42} Thus, the jury was allowed to consider all the mitigation evidence
and was not precluded from considering any evidence as mitigating. The trial court
need not specifically instruct that particular evidence is mitigating, nor are
comments by the court on evidence generally appropriate. In State v. Landrum
(1990), 

, 

, we held that a trial judge
did not err by simply following the statutory language and declining to instruct that
particular evidence was a specific mitigating factor.
        {¶ 43} The United States Supreme Court recently addressed these issues,
including the failure to define mitigation, in Buchanan v. Angelone (1998), 

, ___, 

, 

, holding that the absence



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of instructions on the concept of mitigation and on particular statutorily defined
mitigating factors does not violate the Eighth and Fourteenth Amendments. An
important factor in the court’s decision was its belief that the jury, after hearing two
days of testimony relating to the petitioner’s family background and mental and
emotional problems, as well as arguments from both sides on mitigating evidence
and its effect, would be unlikely to disregard that evidence in making its
determination. See 

, 

, 

.
        {¶ 44} Buchanan, like appellant here, had requested several specific jury
instructions concerning specific mitigating factors. While the court indicated that
it has been consistently concerned that restrictions on the jury’s sentencing
determination not preclude the jury from being able to give effect to mitigating
evidence, “we have never gone further and held that the state must affirmatively
structure in a particular way the manner in which juries consider mitigating
evidence.” 

, 

, 

. Like the
instructions in Buchanan, the instructions here did not foreclose the jury’s
consideration of any mitigating evidence. “By directing the jury to base its decision
on ‘all the evidence,’ the instruction afforded jurors an opportunity to consider
mitigating evidence.” 

, 

, 

.
See, also, Boyde v. California (1990), 

, 

, 

 (“[T]here is not a reasonable likelihood that the jurors in
petitioner’s case understood the challenged instructions to preclude consideration
of relevant mitigating evidence offered by petitioner.”).
                   E. Instructions on Mercy and Residual Doubt
        {¶ 45} Despite appellant’s claims, the trial court need not instruct on mercy.
State v. Allen (1995), 

, 

; State v.
Lorraine (1993), 

, 

. Nor need the court
instruct on residual doubt. State v. Garner (1995), 

, 

. Furthermore, residual doubt is not relevant in a mitigation




                                          11
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consideration. State v. McGuire (1997), 

, 

,
syllabus (“Residual doubt is not an acceptable mitigating factor under R.C.
2929.04[B], since it is irrelevant to the issue of whether the defendant should be
sentenced to death.”).
               F. Definition of Reasonable Doubt for Penalty Phase
        {¶ 46} During the penalty phase the trial court overruled the appellant’s
request for the following instruction: “Reasonable doubt is present when you are
not firmly convinced that death is the appropriate punishment.”
        {¶ 47} The trial court instructed instead:
        “Reasonable doubt is present when after you have carefully considered and
compared all the evidence, you cannot say you are firmly convinced of the truth of
the charge. Reasonable doubt is a doubt based upon reason and common sense.
Reasonable doubt is a doubt—reasonable doubt is not mere possible doubt, because
everything relating to human affairs or depending on moral courage—on moral
evidence is open to some possible doubt. Proof beyond a reasonable doubt is proof
of such character that an ordinary person would be willing to rely and act upon it
in the most important of his or her own affairs.”
        {¶ 48} While the foregoing is generally an acceptable definition of
“reasonable doubt,” in State v. Taylor (1997), 

, 

, we recognized that this definition, taken from 4 OJI 403.50 (1997) (see 4 OJI
503.016[A][3]), may not be a fully appropriate instruction during the penalty phase
of a capital case. In Taylor, the defendant had requested the same instruction as
that requested in this case.     We stated that “[a]lthough appellant’s proposed
instruction may be preferred, the flaw, if any, is harmless.” 

, 

. In so stating, we did not mean to indicate or to otherwise suggest that the
instruction that had been proposed was an instruction that should have been given.
In Taylor, we went on to explain that “[o]verall, the trial court clearly instructed the
jury that, before recommending death, it must be convinced beyond a reasonable



                                          12
                                January Term, 1998




doubt that the aggravating circumstance outweighed the mitigating factors, and that
the prosecution had the burden of proof on the issue.” 

, 

.
Thus, as we indicated in Taylor, and as we once again emphasize today, an
appropriate penalty-phase instruction on the issue of reasonable doubt should
convey to jurors that they must be firmly convinced that the aggravating
circumstance(s) outweigh the mitigating factor(s), if any. As in Taylor, when all
the penalty-phase instructions are considered together, there is no prejudicial error.
See, also, State v. Woodard (1993), 

, 

;
State v. Spirko (1991), 

, 

.
        {¶ 49} Our clarification today, which sets forth the essence of what the
instructions should convey, will, hopefully, resolve any misunderstandings that
may have arisen from our statement in Taylor concerning what is or is not
preferable in terms of a reasonable doubt instruction in the penalty phase of a capital
case.   We suggest that it may be appropriate for the Ohio Jury Instructions
Committee of the Ohio Judicial Conference to consider drafting an instruction
specifically for the penalty phase regarding reasonable doubt.
                                G. Parole Instruction
        {¶ 50} Appellant filed a motion requesting a jury instruction on how the
parole system works, such as the circumstances under which appellant would be
released on parole. The trial court denied the motion. Appellant now claims error.
        {¶ 51} We have consistently held that consideration of parole and
consecutive or concurrent sentences is not for the jury’s consideration. See State
v. Mills (1992), 

, 

; State v. Mitts (1998),

, 

. The trial court did not
abuse its discretion in declining to instruct the jury as appellant requested. Further,
appellant’s trial counsel made it clear in closing argument that the sentence imposed
on the aggravated murder count would be in addition to the sentences he would
receive on the other charges. Defense counsel also emphasized in voir dire and in




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closing argument that even if a life sentence was imposed, there was no guarantee
that parole would be granted.
        {¶ 52} In sum, none of appellant’s assertions rises to the level of prejudicial
error; therefore, his first proposition of law is overruled.
                                           II
                                 Trial Court Opinion
        {¶ 53} Appellant argues in his second proposition of law that the trial court
committed error in its sentencing opinion by refusing to give mitigating weight to
the fact that he suffered from alcohol and drug abuse. The trial court stated in
relevant part:
        “The Defendant has argued that he suffered from alcohol and/or drug
impairment at the time of the offense.
        “Although there was evidence that the Defendant had used crack cocaine
earlier in the day, there was no evidence that at the time of the offense he had used
alcohol or was under the influence of either alcohol or crack cocaine at the time of
this offense.    Furthermore, the use of alcohol or drugs is not an excuse for
committing a crime.
        “The Court assigns no weight to this as a mitigating factor.”
        {¶ 54} Appellant argues that the evidence of his alcohol and drug abuse was
not offered as an excuse for the crime; instead, it was presented to show that his
cocaine habit controlled his life and the decisions he made. Appellant argues that
therefore, the trial court should not have refused to consider it as a mitigating factor.
The court of appeals found that “while the trial court’s statement that ‘the use of
alcohol or drug[s] is not an excuse for committing a crime’ is arguably inartful …
*, it does not, contrary to appellant’s assertion, require the drug or alcohol use to
rise to the level of a defense before it can be considered as a mitigating factor.” The
court of appeals determined that the trial court did consider appellant’s alcohol and
drug abuse as a mitigating factor, “but chose to assign absolutely no weight to it.”



                                           14
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        {¶ 55} We generally agree with this conclusion reached by the court of
appeals. The trial court’s statement that it “assigns no weight to this as a mitigating
factor” indicates clearly that the trial court did not “refuse to consider” alcohol and
drug abuse as a mitigating factor. At the same time, we also agree that some of the
trial court’s earlier chosen language may be inartful, to the extent that the trial
court’s sentencing opinion may be susceptible of a reading that indicates no need
to consider the factor simply because appellant was not under the influence of drugs
or alcohol at the time of the offense. The court’s statement in that regard would be
an incorrect definition of mitigation, one that relates directly to culpability, as
opposed to those factors that are relevant to whether the offender should be
sentenced to death. See State v. Holloway, 

, 

. However, when this portion of the sentencing opinion is considered in its
entirety, there is no error. Moreover, if there was error, our independent review
would cure it. We overrule appellant’s second proposition of law.
                                          III
                                 Voir Dire Questioning
        {¶ 56} In his third proposition of law, appellant argues that the sentencing
decision is unreliable because the trial court overemphasized the death penalty in
its questioning of the jurors.
        {¶ 57} During individual voir dire, the parties questioned the potential
jurors extensively on the death penalty. After the juror had been passed for cause,
the trial court concluded questioning by asking that juror, “If the case were proper,
and the facts would warrant it, and the law would permit it, could you join in signing
a verdict form which recommends to the Court the imposition of the death penalty?”
        {¶ 58} Appellant concedes that under certain circumstances this question
could be proper. However, since this was the last question that each juror was asked
before being excused for the day, and since the jurors were not asked whether they




                                          15
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could join in the verdict for a life sentence, appellant asserts that it unduly
emphasized death and denied him an impartial jury.
        {¶ 59} Trial counsel did not object to the questioning and therefore the issue
must be reviewed under the plain error standard. An alleged error “does not
constitute a plain error … unless, but for the error, the outcome of the trial clearly
would have been otherwise.” State v. Long (1978), 

, 

, 

, paragraph two of the syllabus. Appellant has not met that
burden here.
        {¶ 60} While the question may have been repetitive at times, the same
question was asked of almost all prospective jurors, which provided consistency of
questioning. Since plain error is absent here, appellant’s third proposition of law is
overruled.
                                           IV
       Prosecution Argument—Non-Statutory Aggravating Circumstances
        {¶ 61} Appellant alleges in his fourth proposition of law that the death
sentence must be reversed because of the prosecutor’s penalty-phase closing
argument. Appellant argues that the state failed to limit itself to argument solely
on the statutory aggravating circumstances and therefore infected the jury
deliberations.
        {¶ 62} Appellant appears to believe that the prosecutor’s argument was
limited solely to the aggravating circumstances. Therefore, appellant argues,
evidence that the defense presented during the penalty phase was not subject to
comment by the prosecutor. This contention is simply wrong.
        {¶ 63} Appellant mischaracterizes the prosecutor’s arguments. All of the
prosecutor’s arguments cited by appellant were proper, and were based on
testimony and evidence presented by the defense. See State v. DePew (1988), 

, 

.




                                           16
                                January Term, 1998




       {¶ 64} The prosecutor, however, did overstep the bounds of proper
argument on one occasion, arguing that the jury must set the standards of behavior
acceptable to society, and appealing to public sentiment. However, defense counsel
immediately objected, and the jury was instructed to disregard the prosecutor’s
inappropriate comments. The jury is presumed to follow the court’s instruction.
State v. DePew, 

, 

. Appellant’s fourth
proposition of law is overruled.
                                          V
                 Jury Deliberation on Two Counts for One Victim
       {¶ 65} Appellant was indicted on two counts of aggravated murder for the
death of one victim. Both counts alleged aggravated felony murder under R.C.
2903.01(B); however, count one included aggravated burglary as the felony and
count two relied on aggravated robbery. Appellant was convicted on both counts.
       {¶ 66} Appellant filed a motion prior to trial requesting that the state elect
which count it would go forward on. The court overruled the motion. After
conviction, but prior to the start of the penalty phase, appellant renewed the motion.
The state again objected, arguing that it was not required to elect until “sentencing.”
       {¶ 67} At the close of the evidence in the penalty phase, the defense again
renewed all its motions, which the court overruled. At the sentencing hearing, the
state elected to proceed on the first count for sentencing purposes. The trial court
sentenced appellant to death on count one. Appellant now argues in his fifth
proposition of law that it was error to allow the jury to consider both counts.
       {¶ 68} In State v. Brown (1988), 

, 

, this court stated, “Case precedent establishes that the state may submit to the
jury two crimes that are allied offenses of similar import. However, the law
prohibits a conviction of both crimes. State v. Osborne (1976), 

,

, 

.” A “conviction” includes both the guilt determination
and the penalty imposition. Only one penalty of death was given to appellant.




                                          17
                             SUPREME COURT OF OHIO




Thus, only one conviction actually occurred. See State v. Henderson (1979), 

, 

, 

; R.C. 2941.25(A).
       {¶ 69} In State v. Waddy (1992), 

, 

, we rejected the proposition that the prosecution must elect, before the penalty
phase, which count shall be submitted to the jury for sentencing. See, also, State v.
Poindexter (1988), 

, 

. Appellant’s fifth
proposition of law is overruled.
                                         VI
                        Application of Evidence Rule 612
       {¶ 70} Manuel Jackson was a key witness for the state.             On cross-examination of Jackson, appellant used two separate documents in an attempt to
impeach his testimony. Appellant now argues in his sixth proposition of law that
the state was erroneously allowed to elicit “extraneous matters” from these
documents in violation of Evid.R. 612. There is no merit to appellant’s argument
regarding either document.
       {¶ 71} The first document was a statement that Jackson gave to the Clinton
County Sheriff’s Department. Defense counsel used the statement during cross-examination to impeach Jackson concerning the time that he and appellant
delivered the furniture to Rutledge. The prosecutor sought to have Jackson read
the entire statement to the jury. Defense counsel objected and the court sustained
the objection. The prosecutor then requested Jackson to read the statement silently
to himself and inquired whether there was anything else in the statement that
conflicted with his testimony. After reviewing the statement, Jackson indicated
that there was not.
       {¶ 72} Defense counsel also questioned Jackson concerning whether he had
been working with the police to obtain a confession from appellant. When Jackson
said that he did not recall doing that, defense counsel asked Jackson about a letter
Jackson had written Judge McBride of the municipal court. Jackson remembered



                                         18
                                January Term, 1998




writing the letter, but not saying the things that defense counsel was questioning
him about. Defense counsel then showed Jackson the letter. After reading it,
Jackson admitted that the letter indicated that he had told Judge McBride that the
police wanted to put him in with appellant to get a confession, but that Jackson did
not remember saying that in the letter.
         {¶ 73} During redirect, the prosecutor sought to elicit from Jackson why he
wrote the letter to Judge McBride. Defense counsel objected, and the trial court
overruled it. Jackson, after reading the letter again, testified that he told the judge
that he had felt his family would be in danger if he testified against appellant.
         {¶ 74} Contrary to appellant’s assertions, at no time were the “entire
documents” either read to, or given to, the jury, nor were they admitted into
evidence.
         {¶ 75} Evid.R. 612 provides:
         “Except as otherwise provided in criminal proceedings by Rule 16(B)(1)(g)
and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing to
refresh his memory for the purpose of testifying, either: (1) while testifying; or (2)
before testifying, if the court in its discretion determines it is necessary in the
interests of justice, an adverse party is entitled to have the writing produced at the
hearing. He is also entitled to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony of the witness.
…”
         {¶ 76} Here, the requirements of Evid.R. 612 were met. Jackson used the
documents to refresh his recollection and then answered the defense questions
based upon the refreshed recollection. The documents themselves were given to
the witness and the prosecutor had an opportunity to examine them. The trial court
was correct in prohibiting the prosecutor from asking the witness to read the
statement aloud, but properly overruled the defense objections concerning the
remaining questioning on redirect. The defense counsel opened the door to the




                                          19
                             SUPREME COURT OF OHIO




questions regarding the documents during cross-examination. The state properly
probed the areas of cross-examination and was limited by the trial court from going
beyond the scope of cross-examination. Defense counsel was also given an
opportunity to recross the witness. The trial court committed no error. We overrule
appellant’s sixth proposition of law.
                                         VII
                         Failure to Excuse Juror for Cause
        {¶ 77} Appellant argues in his seventh proposition of law that the trial court
erred by failing to excuse prospective juror Murphy for cause. This prospective
juror indicated his belief that psychological testimony is used too often in trials. He
added, however, that he was willing to listen to the testimony. After Murphy was
questioned extensively by both parties and the trial court, the court overruled the
defense challenge for cause. Appellant later used a peremptory challenge to excuse
the juror.
        {¶ 78} The determination of issues raised in voir dire is within the trial
judge’s discretion. State v. Beuke (1988), 

, 

. “A trial court’s ruling on a challenge for cause will not be disturbed on appeal
unless it is manifestly arbitrary and unsupported by substantial testimony, so as to
constitute an abuse of discretion.” State v. Tyler (1990), 

, 

.
        {¶ 79} The trial court did not abuse its discretion in failing to excuse
Murphy for cause. Appellant’s seventh proposition of law is overruled.
                                         VIII
                     Sufficiency of Conviction on Grand Theft
        {¶ 80} Appellant was charged with two counts of grand theft for the taking
of Myrtle Rutledge’s automobile. One count relied on R.C. 2913.02(A)(1) and the
other on R.C. 2913.02(A)(4). A specification attached to each count alleged that
appellant caused physical harm to Rutledge during the commission of the offense.



                                          20
                                January Term, 1998




The jury found appellant guilty of one of the counts, R.C. 2913.02(A)(1), but
acquitted him of the other. He was also found not guilty of the specification.
Appellant now, in his eighth proposition of law, challenges the sufficiency of the
evidence relating to this charge.
       {¶ 81} When a defendant challenges the sufficiency of evidence, “[t]he
relevant inquiry is whether, after viewing the evidence in the 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), 

, 

, paragraph two of the syllabus. See Jackson v. Virginia
(1979), 

, 

, 

.
       {¶ 82} Pursuant to R.C. 2913.02, the state was required to prove:
       “(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services in any
of the following ways:
       “(1) Without the consent of the owner or person authorized to give consent.”
       {¶ 83} Mrs. Rutledge owned a 1980 Toyota. When her son left her house
on September 15, 1994, the car was parked at her house. On September 16, 1994,
persons traveling by the Rutledge house did not see the car. Linda Barkey testified
that in the early morning hours of September 16, 1994, the Toyota was parked
outside her house on North High Street, where it remained until she notified the
police on September 17. When the car was examined by trace evidence experts,
the car keys were on the floor of the driver’s side and, in the expert’s opinion, the
car had been “wiped down,” i.e., wiped clean of fingerprints.
       {¶ 84} Jackson testified that he and Bart met appellant between
approximately 1:00 a.m. and 1:30 a.m. on September 16, 1994. Appellant had
about $80 worth of crack on him, and they all went to appellant’s home to smoke
it. Later, they decided to steal some meat at a local grocery store. Jackson testified




                                         21
                             SUPREME COURT OF OHIO




that appellant stated that he knew where there was a car they could use to get to the
grocery, but it was stolen. Jackson and Bart decided against using the stolen car.
       {¶ 85} Appellant does not challenge the sufficiency of the evidence on any
of the remaining charges. All the evidence, when reviewed in a light most favorable
to the state, provides sufficient evidence of a grand theft of an automobile.
       {¶ 86} Appellant focuses on two points. First, he argues that Jackson’s
testimony concerning his statement that appellant knew where they could get a
stolen car to use in the robbery, should not be believed because Jackson was a crack
user who had been convicted of drug crimes. Appellant fails to recognize that in a
review of the sufficiency of the evidence, the court does not engage in a
determination of the witnesses’ credibility. State v. DeHass (1967), 

, 

, 

, paragraph one of the syllabus.
       {¶ 87} Second, appellant emphasizes that there was insufficient evidence to
prove that appellant intended to permanently withhold the vehicle from its owner.
However, that is just one alternative of the definition of deprive. To “deprive” also
includes “dispos[ing] of property so as to make it unlikely that the owner will
recover it” or “[a]ccept, use, or appropriate money, property, or services, with
purpose not to give proper consideration in return for the money, property, or
services, and without reasonable justification or excuse for not giving proper
consideration.” R.C. 2913.01(C)(1) and (3).
       {¶ 88} The state presented sufficient evidence that a reasonable jury could
find that appellant committed the crime of grand theft when he took the victim’s
vehicle. Appellant’s eighth proposition of law is overruled.
                                         IX
                         Ineffective Assistance of Counsel
       {¶ 89} In his ninth proposition of law, appellant cites four reasons why his
counsel’s representation was ineffective.       None of these reasons, however,
constitutes the ineffective assistance of counsel.



                                          22
                                January Term, 1998




       {¶ 90} In order to prevail on a claim of ineffective assistance of counsel,
appellant must show that counsel’s performance fell below an objective standard
of reasonableness and, in addition, that prejudice arose from counsel’s deficient
performance. See Strickland v. Washington (1984), 

, 

, 

; State v. Bradley (1989), 

,
538 N.Ed.2d 373, paragraphs two and three of the syllabus. Appellant has failed to
meet either prong on any of his four allegations.
       {¶ 91} Appellant first argues that trial counsel should have objected to the
trial court’s voir dire questions concerning the imposition of the death penalty.
However, we have upheld similar questioning in previous cases. See State v. Evans
(1992), 

, 

; State v. Rogers
(1985), 

, 17 OBR 414, 417-418, 

, 989-
990. Therefore, the failure to object to this questioning was not ineffective.
       {¶ 92} Appellant also asserts that his attorneys were ineffective for failing
to inquire about various mitigating factors during voir dire. However, this was not
error. We held in State v. Wilson (1996), 

, 

, that the trial court did not err by failing to allow defense counsel to voir dire
on individual mitigating factors. See, also, State v. Lundgren (1995), 

, 

.            Since no requirement exists for such
questioning, defense counsel did not err in failing, for whatever reason, to attempt
to question the jurors on specific factors. Further, defense counsel did question the
jurors concerning the probable testimony of a psychologist in the penalty phase and
obtained their views on this kind of testimony. In the course of this questioning,
counsel indicated that there would be a great deal of information on appellant’s
family background.
       {¶ 93} Third, appellant argues that defense counsel failed to object to the
court’s instructing the jurors on two counts of aggravated murder. Appellant
misrepresents the record in this regard. Counsel filed a motion concerning the




                                         23
                              SUPREME COURT OF OHIO




election of counts prior to the start of the penalty phase. Trial counsel properly
preserved this issue.
        {¶ 94} Finally, appellant argues that trial counsel failed to object to
improper prosecutorial argument. Again, appellant is incorrect. On the one
occasion that the state did make an improper argument, trial counsel objected, and
the jury was then instructed to disregard the state’s argument.
        {¶ 95} Appellant has failed to meet his burden of showing that his trial
attorneys were ineffective in their representation, and therefore, his ninth
proposition of law is overruled.
                                           X
                                   Cumulative Error
        {¶ 96} Appellant argues in his tenth proposition of law that the cumulative
effect of all the errors he has presented violated his right to a fair trial. This court
has found in the past that multiple errors that are separately harmless may, when
considered together, violate a person’s right to a fair trial in the appropriate
situation. See State v. DeMarco (1987), 

, 31 OBR 390, 

, paragraph two of the syllabus. However, in order even to consider
whether “cumulative” error is present, we would first have to find that multiple
errors were committed in this case. Appellant received a fair trial, and any errors
were harmless or non-prejudicial, cumulatively as well as individually. Appellant’s
tenth proposition of law is overruled.
                                          XI
                              Constitutional Challenge
        {¶ 97} Appellant argues in his eleventh proposition of law that Ohio’s
capital sentencing scheme results in cruel and unusual punishment in violation of
the Eighth Amendment to the United States Constitution. He alleges that the statute
is unconstitutional for twelve reasons. The court has previously examined these
issues and determined that Ohio’s statute is constitutional. See State v. Jenkins



                                          24
                                January Term, 1998




(1984), 

, 15 OBR 311, 

; State v. Sowell (1988),

, 

; State v. Steffen (1987), 

, 31 OBR 273, 285-286, 

; State v. Grant
(1993), 

, 

; State v. Maurer (1984), 

, 15 OBR 379, 

, paragraph six of the syllabus; State v.
Lewis (1993), 

, 

; State v. Buell (1986),

, 22 OBR 203, 

. Therefore, these claims are
summarily rejected. State v. Poindexter, 

, 

, at the
syllabus. Appellant’s eleventh proposition of law is overruled.
                                        XII
           Independent Sentence Review and Proportionality Analysis
       {¶ 98} Having rejected all of appellant’s propositions of law, we must
independently weigh the aggravating circumstance against the factors presented in
mitigation, as required by R.C. 2929.05(A).
       {¶ 99} The evidence in the record supports finding that appellant committed
the aggravated murder of Myrtle Rutledge while he was committing, attempting to
commit, or fleeing immediately after committing or attempting to commit
aggravated burglary. Moreover, the evidence establishes that appellant was the
principal offender in the commission of the aggravated murder.
       {¶ 100} The nature and circumstances of the crime offer nothing in
mitigation for appellant. However, his history, character, and background suggest
some mitigating factors.
       {¶ 101} Appellant’s father died of a heart attack when appellant was four
years old. At the time appellant, his two sisters, and his parents were living in a
trailer in Somerset, Kentucky. After appellant’s father’s death, Kentucky social
services became involved with the family. As a result, appellant’s sister Melissa
went to live with their grandmother in Florida, and appellant, his sister Janice, and




                                         25
                             SUPREME COURT OF OHIO




his mother moved to Ohio. Much of appellant’s childhood was spent living in
housing that was condemned, many times without even toilet facilities in the house.
       {¶ 102} Appellant’s mother was not employed and subsisted on welfare.
She was a failure at motherhood, providing very little supervision. The children
skipped school most of the time.
       {¶ 103} In 1988, Clinton County Children Services got involved and gave
appellant’s mother two weeks to move out of the house. When appellant was
thirteen, his mother moved them to the home of a man she had met that same day
at a supermarket.    By this time, appellant’s older sister had already become
pregnant, then married and moved out of the house.
       {¶ 104} Children Services eventually removed Melissa and appellant from
the custody of their mother, and eventually placed them into Mid-Western
Children’s Home (“Midwest”). Appellant never had the structured environment
and parental guidance as a base and rebelled when he was placed in Midwest (and
later numerous foster homes) and rules were imposed upon him. Even though his
mother visited him only rarely, he strove to get back to live with her so he could do
as he pleased.
       {¶ 105} Sharon Cole, one of appellant’s teachers, testified that she would
pick him up from Midwest on Saturdays to spend time with her family. She
indicated that she wished she could have helped appellant because when he was
with her and her family he seemed fun-loving, giving, and affectionate.
       {¶ 106} When appellant became eighteen, he was no longer under the
authority of Children Services and moved back with his mother. Later, he and Tim
Shaffer moved in together. Charlotte Fisher, his landlady, testified that she rented
an apartment in her house to appellant and Shaffer from October 1993 until January
1994. Appellant always paid his rent on time and was a good tenant. They were
asked to move out because of problems with Shaffer.




                                         26
                               January Term, 1998




       {¶ 107} Dr. Jeffrey Smalldon examined and tested appellant and
determined him to have an overall IQ of 86. During the testing, Dr. Smalldon found
that appellant did better on perceptual motor skills and nonverbal tasks. Appellant
had difficulty with abstract reasoning and analytical problem solving. He had
repeated kindergarten twice and failed the third grade. He never graduated from
high school.
       {¶ 108} Dr. Smalldon’s investigation into appellant’s life revealed that
appellant was an unwanted child from the moment of conception. His mother had
undergone a tubal ligation, but appellant was conceived after that procedure. While
the doctors recommended abortion, his mother chose to give birth. His father died
when appellant was very young, and it affected him so traumatically that he tried
to crawl into the casket with his father at the funeral home. Dr. Smalldon testified
that it is not possible to overemphasize the effect the loss of the same sex parent
has on a child.
       {¶ 109} Dr. Smalldon described appellant’s childhood as chaotic.
Appellant started shoplifting when he was six years old.          His mother was
“profoundly neglectful,” failing to provide even the basic needs of food, clothes
and school. Because of his experience with his mother, appellant never learned the
connection between hard work and getting what he wanted. Appellant would
shoplift clothes and food. He first appeared in juvenile court when he was eleven
or twelve.
       {¶ 110} The Minnesota Multiphasic Personality Inventory (MMPI) showed
appellant to be a person with significant problems with trust and a suspicious
attitude towards others. He had a tendency to engage in anti-social behavior and
could be described as self-absorbed and grandiose.
       {¶ 111} Appellant’s history, character, and background are entitled to some
mitigating weight.




                                        27
                            SUPREME COURT OF OHIO




       {¶ 112} The factors set forth in R.C. 2929.04(B)(1), (2), (3), (5), and (6) are
inapplicable. Appellant was nineteen years of age at the time of the crime, and that
factor is entitled to consideration under R.C. 2929.04(B)(4). However, under the
circumstances of this case, we afford it little weight. See State v. Beuke, 

, 

.
       {¶ 113} Under R.C. 2929.04(B)(7) (the catchall provision), we consider
appellant’s history of substance abuse, including alcohol, which he began in earnest
when he was eleven. He also used marijuana, “speed,” and inhalants. His crack
cocaine dependency occurred during a period of several months in 1994, leading to
this crime. However, we give little weight to appellant’s voluntary substance abuse.
See State v. Benge (1996), 

, 

; State
v. Slagle (1992), 

, 

; State v. Clark
(1988), 

, 

.
       {¶ 114} It was Dr. Smalldon’s opinion that appellant would do well in a
structured environment. While appellant’s ability to adjust to prison life can be
considered under R.C. 2929.04(B)(7), we accord little weight to this point. Finally,
“residual doubt” is not a factor for our consideration, since it is not relevant to
whether appellant should be sentenced to death. See State v. McGuire (1997), 

, 

, at the syllabus.
       {¶ 115} When the aggravating circumstance is weighed against the
mitigating factors taken together, it outweighs the factors in mitigation beyond a
reasonable doubt.
       {¶ 116} This court has reviewed at least three other cases with the sole
aggravating circumstance of aggravated burglary: State v. Bonnell (1991), 

, 

; State v. Franklin (1991), 

, 

; and State v. Campbell (1994), 

, 

. In
Bonnell, the defendant entered a home through deceit and shot the victim two times.
The only factor presented in mitigation was residual doubt. In Franklin, the



                                         28
                               January Term, 1998




defendant broke into the victim’s apartment, beat the victim to death with a claw
hammer, and then robbed the victim. Franklin presented evidence in mitigation
that included his age (twenty-one), residual doubt, lack of a serious prior criminal
record, his childhood illnesses that resulted in a poor school performance, and a
loving, nurturing family. In Campbell, the defendant entered the victim’s home to
rob him; the victim was found murdered with a knife through his wrist. Campbell
presented some compelling mitigating evidence in that he was disfigured as a child
in a fire and spent a year in the hospital. This event affected Campbell’s life,
causing him to turn to drugs and alcohol and to develop mental and emotional
problems.
       {¶ 117} In each of the three cases, we affirmed the death sentence. While
appellant’s mitigating evidence may seem somewhat more compelling than that in
either Bonnell’s or Franklin’s case, appellant’s case is comparable to Campbell’s.
Appellant’s childhood was also difficult and resulted in a significant drug and
alcohol problem. Appellant was only nineteen when the crime was committed,
compared to Campbell’s age of twenty-seven; however, that distinction alone does
not make appellant’s death sentence disproportionate.
       {¶ 118} For all of the foregoing reasons, the judgment of the court of
appeals is affirmed.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                              __________________




                                        29