78 Ohio St. 3d 426 | Ohio | 1997
Appellant presents twelve propositions of law for our consideration. Additionally, the state of Ohio has filed a cross-appeal challenging the court of appeals’ findings of insufficiency of proof that the murder was committed while appellant was committing or while fleeing immediately after committing aggravated robbery. We have considered all of the propositions of law raised by the parties and have independently reviewed appellant’s death sentence for appropriateness and proportionality. Upon review, and for the reasons that follow, we reverse the judgment of the court of appeals on the matters raised in
I
In his first proposition of law, appellant contends that he is not statutorily eligible for the death penalty because the specifications of aggravating circumstances alleged in the indictment omitted the language from R.C. 2929.04(A)(7) that “either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” Appellant contends that the omission of this language from the specifications of aggravating circumstances set forth in his indictment rendered that indictment “insufficient to sustain a capital charge.” We do not agree.
Initially, we note that appellant never objected at any time before or during his trial that the R.C. 2929.04(A)(7) specifications of aggravating circumstances were allegedly defective on the basis that they omitted an allegation either that appellant was the principal offender in the commission of the aggravated murder or, if not the principal offender, that he had committed the offense with prior calculation and design. Consequently, appellant’s failure to timely object to the allegedly defective indictment constitutes a waiver of the issues involved. State v. Joseph (1995), 73 Ohio St.3d 450, 455, 653 N.E.2d 285, 291. See, also, State v. Mills (1992), 62 Ohio St.3d 357, 363, 582 N.E.2d 972, 980 (“Under Crim.R. 12[B] and 12[G], alleged defects in an indictment must be asserted before trial or they are waived.”). Accordingly, our discretionary review of the alleged error must proceed, if at all, under the plain error analysis of Crim.R. 52(B). Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. Joseph at 455, 653 N.E.2d at 291. See, also, State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899.
Turning to the merits, we find that our recent decision in Joseph, 73 Ohio St.3d 450, 653 N.E.2d 285, is dispositive of appellant’s contentions. In Joseph, Richard E. Joseph and Jose Bulerin were jointly indicted for the aggravated (felony) murder of Ryan Young. The indictment contained an R.C. 2929.04(A)(7) death penalty specification alleging that Joseph and Bulerin had committed the aggravated murder during the course of a kidnapping, and that the offenders were the principal offenders in the commission of the kidnapping. In Joseph, we found that the specification failed to correspond with the language of R.C. 2929.04(A)(7) because the specification should have indicated that the offenders were the principal offenders in the commission of the aggravated murder. Id. at 455, 653 N.E.2d at 291. However, we found that the error did not render the indictment invalid, since the record clearly demonstrated that Joseph “had sufficient notice
“The penalty for aggravated murder is life imprisonment or death. R.C. 2929.02. If the state desires to seek the death penalty for a defendant who commits aggravated murder, the indictment charging the offense must contain at least one of eight specifications enumerated in R.C. 2929.04(A)(1) through (8). R.C. 2929.04(A) provides: ‘Imposition of the death penalty is precluded, unless one or more of the following is specified in the indictment or the count of the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt.’ That section then sets out eight different aggravating circumstances.
“The form of the specification is governed by R.C. 2941.14(C), which requires that the aggravating circumstance ‘may be stated in the words of the subdivision in which it appears, or in words sufficient to give the accused notice of the same.’ Thus, the language of the statute clearly provides that the specification is sufficient if the accused knows which subsection, or which aggravating circumstance of the eight listed in R.C. 2929.04(A) has been alleged.
“While the specification in the present case contained a technical error, we cannot find that this error rendered the indictment invalid, as the correct language of the specification was clearly ascertainable to appellant. The indictment’s aggravated-felony-murder count and specification recited an obvious and undeniable reference to R.C. 2929.04(A)(7) (the felony murder specification) as the capital specification * * *. The indictment informed appellant of all elements comprising the capital offense of aggravated murder under R.C. 2901.03(B) [sic, 2903.01(B) ], as the exact language of that section containing all the elements for that offense was correctly recited in the single count of the indictment. Following the count set forth in the indictment and pursuant to R.C. 2941.14, a capital specification was included, which stated verbatim the relevant language of R.C. 2929.04(A)(7), except for the substitutional error in the last word of the specification. However, appellant certainly had sufficient notice from the wording of the specification that the aggravating circumstance set forth in R.C. 2929.04(A)(7) was being alleged. In fact, appellant, his attorneys, the prosecutor, and the trial judge treated the indictment as valid at all stages of the proceedings, never noticing any flaw in the indictment. Thus, the record demonstrates that the wording of the specification was sufficient to give appellant notice that the state was required to prove that he was a principal offender in the commission of the aggravated murder of Ryan Young pursuant to the specification contained in R.C. 2929.04(A)(7).
In the case at bar, Count One of the indictment charged appellant with the aggravated (felony) murder of Tami Engstrom. The single count of aggravated murder carried two R.C. 2929.04(A)(7) death penalty specifications. The two specifications of aggravating circumstances expressly referred to R.C. 2929.04(A)(7) and stated, respectively, that “KENNETH BIROS committed the offense at bar [aggravated murder] while he was committing or fleeing immediately after committing Aggravated Robbery” and “KENNETH BIROS committed the offense at bar [aggravated murder] while he was attempting to commit or fleeing immediately after attempting to commit Rape.” The specifications did not expressly track the language of R.C. 2929.04(A)(7), since there was no specific allegation that appellant was the “principal offender” in the aggravated murder or that he had committed the offense with prior calculation and design. However, notwithstanding that omission, the indictment clearly provided appellant with adequate notice of the death penalty specifications with which he was being charged. The record clearly demonstrates that at all stages of the proceedings, appellant understood that he was being prosecuted for having personally killed Tami Engstrom during the course of an aggravated robbery and attempted rape. Appellant, defense counsel, the prosecution and the trial court treated the indictment as valid throughout the proceedings without noticing any defect in the specifications of aggravating circumstances. Moreover, appellant was indicted and tried on the basis that he had acted alone in the killing, without any accomplices. He was the only individual accused of killing Tami Engstrom and, as the only offender, appellant was, ipso facto, the “principal offender.” Based upon the rationale and holdings in Joseph, we reject appellant’s arguments concerning the sufficiency of the indictment.
In this proposition, appellant also contends that the trial court erred by failing to instruct the jury that appellant must be found to be the principal offender of the aggravated murder offense to be found guilty of the R.C. 2929.04(A)(7) death penalty specifications. Additionally, appellant protests that the verdict forms failed to reflect that the jury found appellant to be the principal offender. However, appellant failed to object to the absence of the term “principal offender” in the jury instructions and verdict forms. Thus, these issues have been waived. Further, there is absolutely no evidence in this case to suggest that the aggravated murder of Tami Engstrom involved more than one offender. Indeed, appellant even admitted at trial that he had acted alone in causing the death of his victim. Thus, appellant was either the principal offender in the
Additionally, with respect to the charges in connection with Count One of the indictment, appellant argues that “[bjecause the verdict forms failed to state the ‘degree’ (capital offense) of the charge or the additional elements, ‘principal’ or ‘prior calculation or design,’ the verdict constituted a finding of the ‘least degree’ of the offense charged, i.e. aggravated murder without specifications.” Here, the jury returned a guilty verdict on Count One of the indictment, and the verdict clearly reflects that the charge upon which the verdict was returned was “aggravated murder.” As the court of appeals recognized, “aggravated murder” is the degree of the offense with which appellant was charged in Count One of the indictment. See R.C. 2901.02(A). Separate verdict forms were also returned for each of the two specifications of aggravating circumstances in connection with Count One. Therefore, we reject appellant’s contentions that the verdict forms are somehow defective for failing to state the degree of the offense charged.
Accordingly, for the foregoing reasons, appellant’s first proposition of law is not well taken.
II
Prior to trial, appellant filed a motion to suppress the incriminating statements he had made to police during his February 9, 1991 interview at the Brookfield Township Police Department. The trial court denied appellant’s motion to suppress. In his second proposition of law, appellant contends that the trial court committed reversible error in denying the motion since, according to appellant, his statements to police were obtained in violation of Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Specifically, appellant asserts that he was subjected to “custodial interrogation” before police advised him of his Miranda rights. We disagree.
In Miranda^ the United States Supreme Court held that:
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous*440 opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (Emphasis added and footnote omitted.) Id. at 444-445, 86 S.Ct. at 1612, 16 L.Ed.2d at 706-707.
Police are not required to administer Miranda warnings to everyone whom they question. Oregon v. Mathiason (1977), 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719. “Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. Only custodial interrogation triggers the need for Miranda warnings. Id. at 494, 97 S.Ct. at 713, 50 L.Ed.2d at 719. See, also, Berkemer v. McCarty (1984), 468 U.S. 420, 440-442, 104 S.Ct. 3138, 3150-3152, 82 L.Ed.2d 317, 335-336. The determination whether a custodial interrogation has occurred requires an inquiry into “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer at 442, 104 S.Ct. at 3151, 82 L.Ed.2d at 336. “[T]he ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler (1983), 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279. See, also, State v. Barnes (1986), 25 Ohio St.3d 203, 207, 25 OBR 266, 270, 495 N.E.2d 922, 925.
The following matters were elicited at the hearing on appellant’s motion to suppress. On Saturday, February 9, 1991, Lieutenant Frank Murphy of the Brookfield Township Police Department left a message on appellant’s answering machine asking appellant to come to the police station to discuss the disappearance of Tami Engstrom. Police wanted to speak with appellant because he had been the last person to have seen Tami before her disappearance. Subsequently, Murphy asked Officer Marchio of the Brookfield Township Police Department to drive to appellant’s residence to see whether appellant was home and to ask appellant to come to the police station. While en route to appellant’s residence, Officer Marchio passed appellant on King Graves Road. Appellant informed Marchio that he was on his way to the police station. Appellant then continued on his way to the station, apparently unaccompanied by Marchio. After arriving
Appellant argues that he was subjected to custodial interrogation from the beginning of his interview with police since, according to appellant, a reasonable person in his situation would have considered himself to be “in custody.” To support this argument, appellant protests that “[officers did not wait for [appellant] to voluntarily respond to their invitation [to come to the police station] but rather sent a car to look for him.” Appellant also asserts that a custodial interrogation occurred because (1) “he was crowded into a small interrogation room with three officers,” (2) he was asked to explain inconsistencies in his statements, (3) Klaric questioned appellant using interview techniques whereby he suggested certain scenarios that might have occurred between appellant and Tami Engstrom, (4) appellant was asked to take a polygraph test, and (5) police told appellant that he would feel better if he “got it out.”
The trial court denied appellant’s motion to suppress on the basis that the interview conducted by the police did not constitute a custodial interrogation. The trial court found that appellant “came to the [station] voluntarily in his own vehicle. The evidence revealed he was not placed under arrest, booked, photographed, or fingerprinted.” Further, the trial court found that appellant “was taken to an interview room and interviewed * * *. [Police] not only advised Defendant that he was not under arrest, but also that he could get up and leave at any time. This Court finds that the interview of Defendant did not constitute a custodial interrogation as outlined in Oregon v. Mathiason (1977), 429 U.S. 492 [97 S.Ct. 711, 50 L.Ed.2d 714].”
We find that the trial court did not err in reaching this conclusion. Officer Marchio was asked to go to appellant’s residence merely to request that appellant come to the police station. Before Marchio actually arrived at appellant’s residence, appellant was already voluntarily on his way to the station in his own
Appellant also contends that he was pressured by police to reveal the location of the body after he had requested to speak with an attorney. We disagree. When police asked appellant for the precise location of Tami’s body, appellant requested to speak with an attorney. At that point, Detective Fonce terminated his interview with appellant. Appellant was also told by Captain Klaric that he would not be asked any further questions. Klaric then commented that appellant had “done the right thing” and that Tami’s family deserved to know the location of the body. However, appellant was asked no further questions and Klaric’s comment elicited no response from appellant. After consulting with counsel, appellant voluntarily revealed the exact location of Tami’s body.
We find no violation of Miranda on the facts of this case. Appellant was not in custody at the time he admitted his involvement in Tami’s death. When appellant finally admitted involvement, he was properly advised of his Miranda rights. After appellant requested to speak with his attorney, all further questioning ceased. Thereafter, appellant voluntarily agreed to reveal the location of the victim’s body. Thus, we reject appellant’s assertions that the trial court erred in denying the motion to suppress.
Accordingly, appellant’s second proposition of law is not well taken.
Ill
In his third proposition of law, appellant argues that certain statements made by the trial court and by counsel during voir dire violated R.C. 2929.03(B). Specifically, appellant contends that “the trial court in the present case instructed numerous jurors, and allowed the attorneys to also instruct the jurors that a finding of guilt on at least one of the two specifications was necessary before the appellant could face the possibility of the death penalty.” However, appellant did not object to these statements at trial and, thus, his arguments have been waived. See State v. Campbell (1994), 69 Ohio St.3d 38, 40-41, 630 N.E.2d 339, 344. Additionally, as noted by the court of appeals, “appellant’s counsel engaged in
In any event, we find no reversible error. Here, appellant points to several instances during voir dire in which prospective jurors were informed of the possibility of a mitigation hearing in the event appellant was found guilty of aggravated murder and at least one of the specifications of aggravating circumstances. Appellant claims that discussing such matters with prospective jurors violates R.C. 2929.03(B), which provides that, in a capital case, the trial court’s instructions to the jury “shall not mention the penalty that may be the consequence of a guilty or not guilty verdict on any charge or specification.” However, “R.C. 2929.03(B) applies to the guilt phase of the bifurcated trial, directing that during such phase the jury shall not be permitted to consider a possible penalty.” State v. Jester (1987), 32 Ohio St.3d 147, 154, 512 N.E.2d 962, 970. Nothing in the statute indicates that it was intended to apply to voir dire. Further, as was the case in Jester, to apply R.C. 2929.03(B) in a manner suggested by appellant would needlessly complicate or render impossible the already difficult process of “death-qualifying” a jury. Id.
Appellant has failed to demonstrate the existence of any error rising to the level of plain error, and, accordingly, we reject appellant’s third proposition of law.
IV
In his fourth proposition of law, appellant argues that the trial court erred by allowing the prosecution to peremptorily challenge two prospective jurors who expressed or indicated some aversion to the death penalty. However, we have held that “apart from excluding jurors based on race or gender, ‘prosecutors can exercise a peremptory challenge for any reason, without inquiry, and without a court’s control.’ ” State v. Ballew (1996), 76 Ohio St.3d 244, 253, 667 N.E.2d 369, 379. Therefore, appellant’s fourth proposition of law is not well taken.
V
In his fifth proposition of law, appellant argues that the trial court abused its discretion by admitting into evidence nineteen gruesome photographic projection slides and five enlarged (approximately twelve by eighteen inches) gruesome photographs. Appellant contends that the photographs and slides were repetitive and cumulative in number, and that the prejudicial impact of the evidence far exceeded its probative value. Additionally, appellant contends that the photo
Under Evid.R. 403 and 611(A), the admission of photographs is left to the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 121, 559 N.E.2d 710, 726. In State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus, we held that “[pjroperly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.” See, also, State v. Morales (1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267, 273-274. Further, gruesome photographic projection slides of a victim are not per se inadmissible. See, generally, State v. Thompson (1987), 33 Ohio St.3d 1, 9, 514 N.E.2d 407, 415-416; and Joseph, 73 Ohio St.3d at 460, 653 N.E.2d at 294. Nor does size alone automatically increase the prejudicial aspect of the photographic evidence in question. See, generally, State v. Gumm (1995), 73 Ohio St.3d 413, 425, 653 N.E.2d 253, 265; and State v. DePew (1988), 38 Ohio St.3d 275, 282, 528 N.E.2d 542, 551.
In the case at bar, the jury viewed nineteen autopsy slides which were projected on a screen during the testimony of Dr. William Cox, the Summit County Coroner. Virtually all of the slides showed the victim’s body and body parts and were, in fact, gruesome. The slides were used to illustrate Dr. Cox’s testimony and corroborated his conclusions that, among other things, the victim had been severely beaten and that there had been an attempt at sexual mutilation.
Nevertheless, appellant would have us believe that there were no contested issues concerning the cause and manner of the victim’s death and that the photographs and slides had absolutely no relevance to any factual matters at issue. However, the record belies appellant’s assertions in this regard.
At trial, appellant admitted causing the victim’s death, but claimed that he had simply placed his hand over the victim’s mouth and had accidentally killed her. The testimony of Dr. Karle Williams, the defense pathologist, discounted some of the state’s evidence of a severe beating, and appellant testified that he never struck Tami with his fists or with the blunt end of a knife. The defensive wounds and the numerous lacerations, abrasions, avulsions, and contusions depicted in the slides and photographs supported Cox’s testimony. Specifically, the wounds depicted in the slides, combined with Cox’s expert testimony, confirmed that the victim had been severely beaten. Appellant also testified that he had cut apart Tami’s body in a blind rage, using only a pocket knife. Conversely, the slides and
Upon review of the photographic evidence and the events at trial, we find that the wounds depicted in the slides and photographs were probative of contested issues of intent, purpose, motive, and the cause, manner and circumstances of the victim’s death. Although gruesome, the photographic evidence of the victim’s body and body parts was highly probative, and the value of that evidence clearly outweighed the danger of unfair prejudice.
Moreover, before allowing the jury to view the slides, the trial court had reviewed in camera thirty-one autopsy slides that had been offered by the prosecution. The record is clear that the trial court carefully examined each slide and entertained arguments by the prosecution and defense regarding the repetitive nature of some slides. Only nineteen of the thirty-one slides were shown to the jury. We agree with the court of appeals’ finding that the slides were neither repetitive nor cumulative and that, in fact, “[t]he number of slides [was] kept to a minimum in relation to the factual issues in dispute.” As to the five enlarged photographs, the court of appeals held, the state concedes, and we agree, that these five photographs were repetitive of some slides. However, these photographs were admitted into evidence as substitutes for the slides, and were made available to the jury for use during deliberations in lieu of the slides. Further, the trial court’s charge to the jury at the conclusion of the guilt phase included a cautionary instruction informing the jury that “these photos are introduced in order to show you what has been described as premortem and postmortem injury. These photos are introduced for this purpose and this purpose only.”
In addition, we find nothing in the record to support appellant’s contentions that the photographic evidence at issue had been enlarged to inflame the passions of the jury. There is nothing in the record to suggest that the prosecution intended to inflame the jury or that the passions of the jury became inflamed as a
For the foregoing reasons, we find that the trial court did not abuse its discretion in admitting the slides and photographs into evidence. Accordingly, we reject appellant’s fifth proposition of law.
VI
In his sixth proposition of law, appellant contends that the evidence was insufficient to support a finding of attempted rape. On this basis, appellant seeks reversal of his attempted rape conviction as well as the finding of guilt on the R.C. 2929.04(A)(7) specification that the killing had occurred while appellant was committing attempted rape. In reviewing the sufficiency of evidence, “the relevant question 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 beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.
Appellant relies on State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026, to support his claim that the evidence in the present case is legally insufficient to sustain a finding of attempted rape. In Heinish, a majority of this court reversed an aggravated murder conviction on the basis that the state had failed to adduce sufficient proof of attempted rape, which was the only felony underlying the aggravated murder charge considered in that case. Id. at 238-239 and 241, 553 N.E.2d at 1034-1035 and 1037. In Heinish, the victim was found with her jeans partially unzipped and pulled partially down from her waist. Her blouse was partially up from the waist. She was wearing no underwear and no shoes. A saliva stain which could have come from the defendant was found on the outside of the victim’s jeans. The majority in Heinish concluded that these facts were legally insufficient to sustain Heinish’s attempted rape conviction. Id. at 238-239, 553 N.E.2d at 1034-1035. Appellant suggests that the evidence of attempted rape in Heinish was even more compelling than the evidence of the attempted rape in the case at bar.
Conversely, the state contends, and we agree, that the evidence of attempted rape in the case at bar (1) far exceeds the evidence of attempted rape in Heinish, (2) is even more compelling than the facts and circumstances found sufficient to support a rape and aggravated murder conviction in State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674, and (3) is at least as compelling as the evidence found sufficient to support an attempted rape and aggravated murder conviction in State v. Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524.
“In this case, the prosecution presented highly probative circumstantial evidence. Except for a pair of tennis shoes, the victim’s body was found nude from the waist down. In addition, Deborah Mullins testified that when she saw Angel [the victim] tied up in the back of appellant’s car, appellant informed Deborah that he was going to kill Angel because she would tell. Based upon these facts, we believe that there was sufficient probative evidence from which a rational trier of fact could have found the appellant guilty of rape beyond a reasonable doubt.”
It is important to note that Durr was decided after Heinish had been decided. Additionally, both Heinish and Durr were decided under the former rule that convictions based solely on circumstantial evidence may be sustained only where the evidence excluded all reasonable hypotheses of innocence. In State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, we abandoned that former rule and held that “[circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof.” Id. at paragraph one of the syllabus.
More recently, we unanimously held, in Scudder, 71 Ohio St.3d at 274-275, 643 N.E.2d at 533, that the following facts and circumstances were “clearly sufficient” to support a finding of attempted rape:
“[Ajppellant [Scudder] suggests that the evidence was insufficient to support a finding of attempted rape. We disagree. Appellant’s sexual interest in Tina [the victim] was apparent. The evidence indicated that appellant desperately wanted to be alone with Tina. Tina was found with her pants at her ankles and her panties at midthigh. The evidence indicated that Tina had been forcibly undressed. The killer had apparently raked his fingers over Tina’s stomach and downward toward the pubic region. Bloody hand marks were found on Tina’s thighs, indicating that the killer had tried to force Tina’s legs apart. Appellant’s blood was found on Tina’s body and clothing. A drop of appellant’s blood had apparently dripped onto Tina’s face while she was still alive, and while appellant was standing directly above her. This evidence was clearly sufficient for a reasonable jury to conclude that appellant attempted to rape Tina.” (Emphasis added.)
The evidence of attempted rape in the case at bar is at least as compelling as the evidence of the attempted rape in Scudder. Here, there was an abundance of highly probative evidence which, if believed, was sufficient for any rational trier of fact to have found that appellant attempted to rape Tami beyond a reasonable doubt.
By his own admission, appellant drove Tami to a secluded area near his home while she was sleeping and without her consent. There was evidence that
Tami was found completely unclothed except for remnants of black leg stockings which appeared to have been forcibly rolled down to her feet or ankles. When police recovered Tami’s leather coat, there were two discernible cut marks on or near the collar. No other cut marks were noted anywhere else on the garment. The medical evidence established that Tami had been stabbed five times within minutes after her death. Some of the stab wounds were located in the area of the chest and abdomen. According to appellant, Tami was fully clothed at the time he inflicted the postmortem stab wounds. However, the absence of any coinciding punctures in the material of Tami’s coat supports the inference that the coat had been removed at some earlier point during the attack. Tami’s sweater, pants, and undergarments were never found, and appellant’s concealment or destruction of this and other evidence can be viewed as suggestive of appellant’s consciousness of guilt. Evidence was presented which, if accepted, revealed that Tami had been severely beaten and strangled by appellant and that there had been an attempt at sexual mutilation. A knife had been run down across Tami’s mouth. There were two premortem knife wounds near the nipple of the right breast. There were other premortem injuries to the breasts and in the area of the groin. The anus, rectum, right breast, and virtually all of the sexual organs had been removed from the torso within minutes after death. Appellant was able to lead police to the various locations of Tami’s dismembered body parts but, for some reason, he claimed not to recall what he had done with the anus, rectum, vagina, and sexual organs. A reasonable inference to be derived from the evisceration of Tami’s sexual organs is that appellant was attempting to conceal evidence of rape or attempted rape. As the court of appeals so ably recognized, “[the] facts evince lasciviousness and, further, the evisceration of the sexual organs is suggestive of concealment of consummated purpose.”
Viewing the evidence and the reasonable inferences to be derived therefrom in a light most favorable to the prosecution, we find that the evidence of record was clearly sufficient for a rational jury to conclude beyond a reasonable doubt that appellant purposefully killed Tami during the commission of an attempted rape. Accordingly, we reject appellant’s sixth proposition of law.
In his seventh proposition of law, appellant contends that the evidence was insufficient to sustain his conviction for aggravated robbery and the R.C. 2929.04(A)(7) specification premised on aggravated robbery because, according to appellant, he never had any intention to steal Tami’s property (the diamond ring) until after he had killed her. The court of appeals agreed, in part, holding that although the evidence was sufficient to sustain appellant’s conviction for aggravated robbery, the aggravated robbery could not serve as one of the underlying felonies for the felony-murder charge and that the trial court had erred in submitting to the jury, in the penalty phase, the R.C. 2929.04(A)(7) aggravating circumstance that the murder was committed during the course of the aggravated robbery. In reaching its conclusions concerning the insufficiency of proof, the court of appeals relied on the fact that there was no evidence to demonstrate that appellant had “formed the intent to rob the victim prior to or during the acts which resulted in her death.” Specifically, the court of appeals apparently construed the term “while,” as that term appears in R.C. 2903.01(B) and 2929.04(A)(7), as requiring proof that appellant intended to rob Tami at the time he killed her.
The state agrees with the court of appeals’ determination that there was sufficient evidence to sustain appellant’s conviction for aggravated robbery, but vehemently disagrees with the court of appeals’ remaining conclusions outlined above. The state’s sole proposition of law on cross-appeal reads:
“Under both R.C. § 2903.01(B) and R.C. § 2929.04(A)(7), the evidence need not establish that an offender formed an intent to commit an aggravated robbery at or prior to the time he committed an aggravated murder in order to support a conviction so long as the aggravated robbery was committed ‘while’ the offender was committing aggravated murder.”
The court of appeals’ findings of insufficiency of proof that the murder was committed while appellant was committing or fleeing immediately after committing aggravated robbery were based upon that court’s reliance upon its earlier decision in Williams, Trumbull App. No. 89-T-4210, unreported, 1995 WL 237092, which has since been reversed in relevant part. See State v. Williams (1996), 74 Ohio St.3d 569, 660 N.E.2d 724. In our decision in Williams at 576-578, 660 N.E.2d at 732-733, we specifically rejected any notion that R.C. 2903.01(B) and 2929.04(A)(7) require proof that the offender formed the intent to commit the pertinent underlying felony before or during the commission of the acts which resulted in the murder victim’s death. We held that: “Neither the felony-murder statute nor Ohio case law requires the intent to commit a felony to precede the murder in order to find a defendant guilty of a felony-murder
“This court has had occasion to explain the meaning of the word ‘while’ with respect to R.C. 2903.01(B), stating:
“ ‘ “The term ‘while’ does not indicate * * * that the killing must occur at the same instant as the [underlying felony], or that the killing must have been caused by [it], but, rather, indicates that the killing must be directly associated with the [underlying felony] as part of one continuous occurrence * * *.” * * * ’ State v. Cooey (1989), 46 Ohio St.3d 20, 23, 544 N.E.2d 895, 903, quoting State v. Cooper (1977), 52 Ohio St.2d 163, 179-180, 6 O.O.3d 377, 386, 370 N.E.2d 725, 736.” Williams, 74 Ohio St.3d at 577, 660 N.E.2d at 733.
Here, appellant testified that fifteen to twenty minutes after he killed Tami, he began cutting her body and removing her clothes. The medical evidence confirmed that Tami had been eviscerated minutes after death. After cutting the body, appellant dragged the corpse into the woods. According to appellant, as he was dragging the body from the scene, he took Tami’s ring from her finger and placed the ring in his pocket. Appellant claimed that he did not intend to steal the ring. However, the fact that appellant took the ring gives rise to the inference that he intended to keep it, and the fact that he intended to keep the ring is supported by other inferences arising from his later activities with regard to that property. After removing the ring from Tami’s finger, appellant continued dragging the body through the woods until he arrived at his intended location, severed the head and right lower extremity for ease of burial, and buried the body.
Viewing the evidence and the reasonable inferences to be derived therefrom in a light most favorable to the prosecution, it is clear that any rational finder of fact could conclude that appellant committed an aggravated robbery
Moreover, the evidence was indeed sufficient to support a finding that the killing was “associated with” the aggravated robbery and the attempted rape “as part of one continuous occurrence.” Williams, 74 Ohio St.3d at 577, 660 N.E.2d at 733. Evidence was presented which, if accepted, clearly shows that appellant beat Tami, attempted to rape her, and strangled her to death. Appellant’s testimony was that he began cutting Tami’s body after he killed her, took her ring as he was dragging the body away, severed the head and leg, and then buried Tami’s body parts. Thus, even by appellant’s own testimony, his theft of the ring was associated uñth the killing as part of one continuous occurrence. Appellant cannot escape the effect of the felony-murder rule by claiming that the aggravated robbery was simply an afterthought. “[T]he victim of a robbery, killed just prior to the robber’s carrying off her property, is nonetheless the victim of an aggravated robbery. The victim need not be alive at the time of asportation.” State v. Smith (1991), 61 Ohio St.3d 284, 290, 574 N.E.2d 510, 516. Appellant’s intent to steal need not have preceded the murder for purposes of R.C. 2903.01(B) and 2929.04(A)(7). Williams, 74 Ohio St.3d 569, 660 N.E.2d 724.
Accordingly, we reject appellant’s seventh proposition of law and, in accordance •with our decision in Williams, we reverse the judgment of the court of appeals with respect to the issues raised in the state’s cross-appeal.
VIII
Dale Laux, a forensic scientist with the Ohio Bureau of Criminal Identification and Investigation, found blood spatters on the side of a steel railroad track at the crime scene, blood spatters inside the left sleeve of appellant’s coat, and two cut marks or defects on or near the collar of Tami’s black leather coat. At trial, Laux was permitted to testify as an expert concerning these and other matters. Laux testified that the blood spatters on the rail of the track and the spatters inside the left sleeve of appellant’s coat were “typical of’ and “consistent with” a beating. He also testified that blood spatters of the type found inside the left sleeve of appellant’s coat are typically generated in a situation where the person wearing the coat holds down a victim using the left hand while beating the victim with the right hand. Laux testified further that Tami’s black leather coat had two cut marks (as opposed to tears) on or near the collar. However, Laux was not permitted to render an expert opinion as to how the cuts had occurred.
In his eighth proposition of law, appellant claims that although Laux is an undisputed expert in the field of blood typing, he lacked proper qualifications to render an expert opinion concerning blood-spatter evidence and the fact that
In any event, “ ‘[u]nder Evid.R. 702, an expert may be qualified by knowledge, skill, experience, training, or education to give an opinion which will assist the jury to understand the evidence and determine a fact at issue.’ ” (Emphasis sic.) State v. Wogenstahl (1996), 75 Ohio St.3d 344, 362, 662 N.E.2d 311, 325, citing State v. Beuke (1988), 38 Ohio St.3d 29, 43, 526 N.E.2d 274, 289. In the case at bar, Laux testified that he had over eleven years’ experience as a forensic scientist with the Ohio Bureau of Criminal Identification and Investigation. In that capacity, he has been involved in the analysis of bloodstains, semen stains, and the examination and analysis of trace evidence such as hairs and fibers. He has attended numerous training classes in the areas of bloodstain and trace-evidence analysis at the Federal Bureau of Investigation Academy in Quantico, Virginia. He has also attended classes in bloodstain analysis at the Serological Research Institute in California. He has attended numerous seminars and workshops in the areas of his expertise. He holds both a Bachelor of Science and a Master of Science degree. During his career, Laux has been involved in several thousand cases dealing with blood analysis and trace evidence and has written several articles for scientific journals regarding, among other things, bloodstain analysis. Laux testified that he had taught a workshop in blood-spatter analysis and had generated spatters of the type at issue in this case. Additionally, with respect to the cuts on the collar of Tami’s coat, Laux had personally examined the garment. Laux testified that he had evaluated cuts and marks on similar items during the course of his work as a forensic scientist and that he had previously offered his opinions on such matters in other cases.
IX
In his ninth proposition of law, appellant complains of several instances of alleged prosecutorial misconduct which, according to appellant, deprived him of a fair trial. We disagree.
During the state’s opening argument in the guilt phase, the prosecutor commented that the victim’s body had not been disturbed by animals prior to being recovered by police. In the guilt phase, the prosecutor elicited testimony from Pennsylvania State Trooper Daniel Keith Johnson that there were no signs of animal bites on any of the body parts recovered from Pennsylvania. The prosecutor also questioned Dr. Cox on this issue, and Cox noted that there was no evidence that animals had tampered with the body.
Appellant argues that the prosecutor’s remark during opening arguments was improper and inflammatory, and that Johnson’s testimony regarding animal bites was “completely irrelevant.” We reject appellant’s arguments in this regard. The prosecutor’s remark was not improper and was later substantiated by testimony in the guilt phase. If the prosecutor had not negated the possibility of damage by animals, appellant may have attempted to argue that tampering by animals contributed to the condition of Tami’s body. The testimony of Trooper Johnson and Dr. Cox was relevant to negate mutilation by wildlife as a possible alternative source of damage to the body. Thus, we find no prosecutorial misconduct with respect to the prosecutor’s remark and the above testimony.
In this proposition of law, appellant also complains of four additional instances of alleged prosecutorial misconduct that occurred during the guilt phase. According to appellant, the following four instances of alleged misconduct involved the improper introduction of victim-impact evidence in the guilt phase and/or gave rise to matters that were “entirely irrelevant to the guilt or innocence of [the] defendant.”
The first instance of alleged misconduct occurred during the prosecutor’s cross-examination of appellant in the guilt phase when the prosecutor referred to
The second instance of alleged misconduct also occurred during the cross-examination of appellant. Specifically, the prosecutor asked appellant if Tami had cried on the night in question and whether she had asked appellant to “please stop.” Appellant failed to object to these questions and, thus, his arguments have been waived. Further, we find that the prosecutor’s questions were not improper. Appellant testified on direct examination that Tami had hit him, yelled at him, and had thrown rocks at him. Appellant portrayed Tami as the initial aggressor. Appellant claimed that he had acted merely to defend himself from Tami, and that he had attempted to calm Tami down. However, given Tami’s defensive injuries, the fact of her resistance was clear. The prosecutor’s questions whether Tami had cried and had asked appellant to “please stop” were relevant to the circumstances surrounding her death.
The third instance of alleged misconduct occurred when the prosecutor asked appellant during cross-examination whether appellant had given any thought to Tami, her family, or her friends while burying the body at the crime scene. We find that the prosecutor’s question was improper and that it was completely irrelevant to the issue of appellant’s guilt or innocence. However, defense counsel immediately objected to the inquiry, and the jury was promptly instructed to disregard the question. We presume that the jury followed the trial court’s instruction in this regard. Moreover, it is clear to us that this comment by the prosecutor did not operate to deny appellant a fair trial.
The fourth instance of alleged misconduct occurred when the prosecutor commented during final closing arguments in the guilt phase that, unlike appellant, Tami did not have the opportunity to testify. The trial court sustained an objection to the prosecutor’s comment. Although the prosecutor’s comment was improper, it tended to state a rather obvious fact of which everyone was already aware. No prejudicial error resulted from this remark by the prosecutor.
We find that the foregoing instances of alleged misconduct, taken singly or together, did not substantially prejudice appellant or deny him a fair trial. Indeed, we are in total agreement with the court of appeals that “[g]iven the insubstantial nature of the errors, the corrective actions of the court, and the weight of the evidence against appellant, it is clear beyond a reasonable doubt that the prosecutor’s behavior did not have an effect on the outcome of the trial.” Accordingly, appellant’s ninth proposition of law is not persuasive.
In his eleventh proposition of law, appellant claims that the trial court erred in instructing the jury that the jury’s sentencing decision in the penalty phase was a “recommendation.” Appellant also argues that certain remarks by the prosecutor concerning the jury’s role in the sentencing process constitute reversible error. However, the argument appellant now raises has been considered and rejected by this court under analogous circumstances on a number of previous occasions. See, e.g., State v. Woodard (1993), 68 Ohio St.3d 70, 77, 623 N.E.2d 75, 80-81, and State v. Phillips (1995), 74 Ohio St.3d 72, 101, 656 N.E.2d 643, 669. As appellant presents no compelling argument why we should now change our position on this issue, we reject appellant’s eleventh proposition of law.
XI
In his tenth proposition of law, appellant contends that he was deprived of the effective assistance of trial counsel. Appellant claims that counsel was deficient for failing to object to the alleged errors that are the subject of his first, third and eleventh propositions of law. However, with respect to these propositions of law, we have found either no error or no prejudicial error. Thus, we find that appellant has failed to meet his burden of establishing ineffective assistance of counsel under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accordingly, we reject appellant’s tenth proposition of law.
XII
In his twelfth proposition of law, appellant argues that Ohio’s death penalty scheme is unconstitutional. We have held, time and again, that Ohio’s death penalty scheme is constitutional. As appellant presents us with no compelling argument why we should now find Ohio’s death penalty statute to be unconstitutional, we reject appellant’s twelfth proposition of law.
XIII
Having considered the propositions of law, we must now independently review the death penalty for appropriateness and proportionality. Again, we find that the two specifications of aggravating circumstances appellant was found guilty of committing were proven beyond a reasonable doubt.
In mitigation, appellant presented the testimony of his mother, grandmother, and two sisters. These witnesses testified concerning the difficult circumstances surrounding appellant’s childhood. Testimony established that throughout appellant’s childhood, Pete Biros, appellant’s father, was a domineering and tyrannical
Dr. James Eisenberg, a psychologist, testified in mitigation. Eisenberg first interviewed appellant in March 1991. Between that time and the time of the mitigation hearing, Eisenberg interviewed appellant on several occasions, performed psychological testing, reviewed appellant’s records, and interviewed members of appellant’s family. Eisenberg noted that appellant had come from an “extremely dysfunctional family,” and believed that appellant’s relationship with his father had significantly affected his life and personality. Eisenberg testified that while appellant was gutting and dismembering Tami’s body, appellant was mentally reenacting scenes from when he hunted deer with his father and would have to slaughter the kill while being told that he was worthless and incompetent. Eisenberg diagnosed appellant as suffering from a “schizoid personality disorder,” and from lifelong alcohol dependence and neurotic depression. Eisenberg also testified that appellant had graduated from college after having worked toward obtaining a degree for thirteen years. According to Eisenberg, this indicates that appellant has been able to persevere despite the trying circumstances of his youth. Further, Eisenberg noted that appellant had been employed throughout most of his adult life, that appellant had no significant history of prior criminal convictions, and that between February 1991 and the time of trial, appellant had no reported problems in the Trumbull County Jail. Prior to the offenses in the case at bar, appellant’s only known criminal history consisted of one arrest for theft in 1977 and a 1986 conviction for either driving under the influence of alcohol or for reckless operation of a motor vehicle. Eisenberg testified that appellant was not insane at the time of trial or at the time of the killing.
On cross-examination, Eisenberg testified that appellant knows the difference between right and wrong. Eisenberg also testified that, in his opinion, the mitigating factor set forth in R.C. 2929.04(B)(3) is inapplicable in this case. Therefore, Eisenberg admitted that, at the time of the killing, appellant’s psychological conditions did not rise to the level of a mental disease or defect that deprived appellant of a substantial capacity to appreciate the criminality of his conduct or to conform to the requirements of law.
Upon a review of the evidence presented in mitigation, it is clear to us that appellant had a troubled childhood. We find that appellant’s troubled childhood, history, and family background are entitled to some, but very little, weight in mitigation.
The nature and circumstances of the offense reveal nothing of any mitigating value. The R.C. 2929.04(B)(1) and (2) mitigating factors are inapplicable on the record before us, since there exists no credible evidence that the victim induced or facilitated the murder (R.C. 2929.04[B][1]), and there exists no credible evidence that appellant acted under duress, coercion, or strong provocation (R.C. 2929.04[B][2]). Further, the R.C. 2929.04(B)(6) mitigating factor is inapplicable, since appellant was the principal and only offender.
The R.C. 2929.04(B)(3) mitigating factor was not established by a preponderance of the evidence. Nevertheless, we find that appellant’s personality disorder, lifelong alcohol dependence, and depression, as testified to by Dr. Eisenberg, are collectively entitled to some, but very little, weight in mitigation.
We have considered the R.C. 2929.04(B)(4) mitigating factor (youth of the offender), but find that this factor is entitled to no weight in mitigation. Appellant was thirty-two years of age at the time of the offense.
The record is clear that appellant lacks a significant history of prior criminal convictions and delinquency adjudications. We find that this R.C. 2929.04(B)(5) mitigating factor is entitled to some weight in mitigation. Additionally, we find that the evidence of appellant’s steady work record and his achievement in obtaining a college degree after thirteen years of effort is entitled to some, but very minimal, weight in mitigation. We assign little or no weight to appellant’s unsworn statement wherein he apologized to the victim’s family and to his own family and accepted responsibility for the death of Tami Engstrom.
We have also considered whether this appellant might be capable of long-term rehabilitation and ultimate reintegration into society after lengthy incarceration, given his favorable work record, his college degree, and his lack of a significant prior criminal history. However, the acts of sheer inhumanity demonstrated by this appellant in the nature and circumstances of the offense convince us that he is incapable of any meaningful rehabilitation. Additionally, we have considered Eisenberg’s testimony that appellant did well in a controlled institutionalized setting between the time of his arrest and the time of trial. We assign this evidence little or no weight in mitigation.
Finally, we have undertaken a comparison of the sentence imposed in this case to those in which we have previously affirmed the death penalty. We have previously upheld the death sentence in cases involving murder during the course of an aggravated robbery (see, e.g., State v. Berry [1995], 72 Ohio St.3d 354, 650 N.E.2d 433; Woodard, 68 Ohio St.3d 70, 623 N.E.2d 75; State v. Hawkins [1993], 66 Ohio St.3d 339, 612 N.E.2d 1227; and State v. Montgomery [1991], 61 Ohio St.3d 410, 575 N.E.2d 167), in cases involving murder during the commission of an attempted rape (see, e.g., Scudder, 71 Ohio St.3d 263, 643 N.E.2d 524), and in cases involving murder during the commission of an aggravated robbery and rape (see, e.g., Smith, 61 Ohio St.3d 284, 574 N.E.2d 510). Appellant’s death sentence is neither excessive nor disproportionate in comparison.
For the foregoing reasons, we affirm the judgment of the court of appeals in part and reverse it in part. Specifically, we affirm appellant’s convictions and sentences, including the death sentence, but reverse the judgment of the court of appeals on the issues raised in the cross-appeal.
Judgment affirmed in part and reversed in part.
. At the time of the offense, former R.C. 2911.01 provided:
“(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
“(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control;
“(2) Inflict, or attempt to inflict serious physical harm on another.
“(B) Whoever violates this section is guilty of aggravated robbery, an aggravated felony of the first degree.” (Emphasis added.) 140 Ohio Laws, Part I, 583, 590.