Appellant has raised ten propositions of law. Each has been thoroughly reviewed and, for the reasons stated below, we find all to be without merit, and uphold appellant’s conviction and death sentence.
I
Appellant alleges in. his first proposition of law that the trial court’s jury instruction on specific intent was not adequate.
However, appellant failed to object to this instruction. Appellant’s failure to object waives this issue on appeal absent plain error. State v. Thompson (1987),
A jury instruction must be viewed in the context of the overall charge rather than in isolation. State v. Price (1979),
II
Appellant argues in his second proposition of law that the trial court erred by failing to state its reasons for its finding that the aggravating circumstance outweighed the mitigating factors.
R.C. 2929.03(F) requires the trial court or three-judge panel to “state in a separate opinion its specific findings as to the existence of any of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code, the existence of any other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. * * * ”
The trial court did not comply -with the above statute because it did not state its reasons for finding that the aggravating circumstance outweighed the mitigating factors. Instead, the trial court merely concluded that the aggravating circumstance did outweigh the mitigating factors.
In a similar case, State v. Maurer, supra, the trial court also did not state its reasons for concluding that the aggravating circumstances outweighed the mitigating circumstances. We held that the appellant was not prejudiced because independent review of each stage of appeal can correct such omission. Id.,
III
Appellant in his third proposition of law alleges the state failed to establish aggravated robbery because there is no evidence that the appellant intended to rob the victim at the time the murder occurred.
This court discussed a similar issue in State v. Smith (1991),
In addition, appellant was asked if he planned to rob the victim. He answered, “Sort of. Right before we was getting out of the car I turned to Richard and said, ‘Man, I’m getting tired of this old man, I feel like kicking his ass, talking that shit.’ Richard said, ‘Go ahead. I’m with you.’ He like enticed me.”
“ * * * The relevant inquiry [in regard to determining the sufficiency of evidence on appeal] is whether, after viewing the evidence in a 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),
In light of appellant’s “sort of’ response as to whether he intended to rob the victim, and the testimony of Parker, there is no evidence, other than the unsworn statement of appellant, that his purpose was anything other than to beat and rob the victim. A rational trier of fact could have easily found the establishment of aggravated robbery. Accordingly, this proposition is not well taken.
IV
Appellant in his fourth proposition of law alleges the trial court failed to explain to the jury the function of mitigating factors. However, appellant failed to object to the instructions and has thus waived all but plain error. Additionally, the trial court did explain the function of mitigating factors in its charge to the jury.
Appellant cites as authority Spivey v. Zant (C.A.5, 1981),
A reading of the court’s charge regarding considering mitigation factors shows the jury was instructed on the definition of “mitigating factors,” the purpose of weighing mitigating factors against the aggravating circumstance, and hence the function of mitigating factors. In addition, the court set forth the pertinent statutory mitigating factors. Accordingly, this proposition is not well taken.
V
Appellant in his fifth proposition of law alleges that the underlying felony of aggravated robbery cannot also be used as an aggravating circumstance.
This court held in State v. Henderson (1988),
VI
Appellant in his sixth proposition of law states that he was denied his constitutional rights to effective assistance of counsel, an impartial jury and due process of law because R.C. 2929.03(C) requires the same jury at both the guilt and sentencing phases of trial.
The constitutionality of Ohio’s death penalty scheme in total has been upheld by this court, State v. Jenkins (1984),
VII
Appellant in his seventh proposition of law states the prosecutor violated his right to remain silent and his right to a fair trial by commenting that appellant’s statement was unsworn as opposed to the testimony of the other witnesses.
In State v. DePew (1988),
VIII
Appellant in his eighth proposition of law alleges that his right to a fair trial by an impartial jury was violated by an improper communication to the jury.
This proposition is based on an event that occurred during an adjournment during the guilt phase. The victim’s brother-in-law approached the second alternate juror, Laurel Barr, and stated, “Isn’t this a really boring case?” Barr stated she told the man “no” and began to use the phone. Then he told her, “Because that’s my brother-in-law that was killed.” Barr stated that she told several other jurors about the incident.
The trial court conducted a voir dire of all the jurors in an effort to determine whether the incident had affected their ability to be fair and impartial. All the jurors stated that the incident did not affect their ability to be fair and impartial.
In State v. Hipkins (1982),
Alternate juror Barr did not participate in the jury deliberations in the guilt phase or the penalty phase. Appellant has not demonstrated how he was prejudiced by this contact with an alternate juror. The trial court negated any showing of prejudice by interrogating this alternate juror and conducting a voir dire of the remaining jurors. Accordingly, this proposition is not well taken.
IX
Appellant in his ninth proposition of law alleges that he was denied the effective assistance of counsel because defense counsel ordered a presentence report that included a pending, unproven charge.
Appellant claims he was deprived of his right to a fair trial by counsel’s request for a presentence report. Appellant alleges that his trial counsel were not aware that it was optional to request the report, and that they requested it without knowing the contents of the report. Appellant cites the following statement by
In State v. Hutton (1990),
In the instant case, defense counsel stated his reason for requesting the report. “[W]hat we had in mind was a social history when we asked for a presentence report * * *.” In Hutton, the court upheld the propriety of defense counsel’s request for a presentence report because the request could have been made for possible mitigation evidence. Here, from the comments of defense counsel, we can see that the reason for the request was to get a social history of appellant. This is a proper purpose, even if the report contains adverse information. Id.
Appellant also claims ineffective assistance of counsel for counsel’s failure to further inquire of the jurors regarding the incident discussed in his eighth proposition of law, supra. Since the voir dire conducted by the trial court was adequate, defense counsel did not prejudice appellant. Accordingly, this proposition is not well taken.
X
Independent Review
Appellant argues in his tenth proposition of law that the aggravating circumstance does not outweigh the mitigating factors in this case. For the following reasons, we find the trial judge properly determined that the aggravating circumstance of aggravated robbery outweighs the mitigating evidence presented.
Pursuant to R.C. 2929.05(A), we must independently determine whether the aggravating circumstance outweighs any mitigating factors that have been established and whether the sentence of death is appropriate.
Of the statutory mitigation factors, the only possible one was R.C. 2929.-04(B)(3), “[wjhether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law[.]” In regard to the R.C. 2929.04(B)(3) mitigating factor, several experts testified.
Defense witness Dr. Robert G. Kaplan, a clinical psychologist, concluded that appellant’s alcoholism was a mental defect and he was “unable to conform his behavior to what was prescribed by the law under those circumstances.” Kaplan also stated, “Mr. Lewis’ intent to kill Mr. Roach occurred after just the sort of provocation to which he was psychologically susceptible.” Kaplan explained that this statement meant “that he became furiously angry, that he became so angry that he couldn’t control he [sic ] behavior and wound up killing the man. * * * ”
State’s witness Dr. Magdi S. Rizk, a forensic psychiatrist, concluded that appellant did not suffer from any mental disease or defect; appellant had no history and no current symptoms of any mental disease or defect. Rizk also stated that alcoholism is not a mental disease, although appellant had problems with alcohol.
Other evidence introduced by appellant for mitigation purposes were his unsworn statement in which he stated that he only intended to beat Roach and the testimony of George Carlson, a counselor at a cocaine offenders’ program, that appellant described himself as a loner who was deeply hurt by the early death of his father and who later lived with a physically abusive stepfather. Dr. Kathleen C. Dougherty, a psychiatrist, testified that appellant was in the moderate to severe range of drug and alcohol dependency and that on the day of the murder, he had consumed one-half bottle of rum and later, two doubles of rum.
Although alcohol played a role in the events, we do not find that appellant lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Even if we consider Dr. Kaplan’s testimony as establishing the mitigating factor of R.C. 2929.04(B)(3), the nature and circumstances of appellant’s brutal murder of an acquaintance based, in part, on an intent to rob the victim, clearly outweigh any mitigating factor beyond a reasonable doubt.
Our final task is to determine whether the sentence of death is appropriate in this case. In carrying out this analysis, we find the sentence of death in this case is neither excessive nor disproportionate, but is appropriate, when compared with
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.