Wе are required by R.C. 2929.05(A) to undertake a three-prong analysis in all death penalty cases. First, we must review each of the nine propositions of law raised by appellant. Second, we must independently review the record to determine whether the aggravating circumstances outweigh the mitigating factors. Finally, we must independently determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. For the reasons set forth below, we reverse the court of appeals in part, and affirm the convictions and sentence of death.
In Proposition of Law II, appellant contends that the jury verdict was improper because it did not indicate that the jury unanimously found either that he was the principal offender in the murder or that he acted with prior calculаtion and design. . We first note that appellant did not timely object to the verdict forms and thus waived all but plain error. Moreover, each of the verdict forms which the jury used and signed contained language, conforming to the statute, stating either that Williams was the principal offender, or that Williams had committed the murder with prior calculation and design. See R.C. 2929.04(A)(7); see State v. Penix (1987),
Appellant also contends as part of Propositiоn of Law II that the trial court should have instructed the jury on the law of aiding and abetting. This argument is without merit. As the person who performed every act constituting the aggravated murder, Williams was the principal offender. State v. Sneed (1992),
In Proposition of Law IX, appellant contends that the trial court erred because it did not instruct the jury on the lesser included offensе of involuntary manslaughter. Involuntary manslaughter is a lesser included offense to aggravated murder. State v. Thomas (1988),
Here, under any reasonable view of the evidence, Williams was the principal actor in the purposeful killing of Mr. Melnick. If the defense had argued that Williams was a bystander or that the killing was not purposeful, an instruction on involuntary manslaughter would have been necessary. As it was, the defense contended that Williams was not present at the crime. Thus, on the evidence presented, the jury сould not have found Williams not guilty of aggravated murder and guilty of involuntary manslaughter. Accordingly, the trial court’s failure to instruct on involuntary manslaughter was not error.
Furthermore, the injuries that Mr. Melnick suffered do not reasonably permit a finding that he was not killed purposefully. In Thomas, this court stated, “It is axiomatic that ‘a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts.’ ” Id.,
In Proposition of Law V, appellant claims that a crime scene video and gruesome, inflammatory, and duplicative photographs prejudiced his right to a fair trial. The defense timely objected to the photographs. However, the defense did not timely object to the final edited version of the video and thus waived all but plain error with respect to that issue. State v. Williams (1977),
Under Evid.R. 403 and 611(A), the admission of photographs is within the trial court’s sound discretion. State v. Landrum (1990),
Six of the objected-to photographs depicted separate injuries to Mr. Melnick’s head. One of the other photographs depicted defensive-type wounds on Mr. Melnick’s arm, and another showed leg wounds. Collectively, the photographs illustrated and corroborated the testimony of the cоroner and the police officers. The photographs also depicted the nature and severity of the wounds and were thus probative of the killer’s intent to kill. The trial court closely examined every proffered photograph and in fact excluded several. There was no abuse of discretion with respect to these photographs.
As to the final edited version of the videotape, the defensе failed to object at trial and thus waived all but plain error. Since nothing in the record suggests that the verdict would have clearly been otherwise if the videotape had not been admitted, there was no plain error. See State v. Underwood (1983),
In Proposition of Law VIII, appellant makes three arguments with respect to the jury’s finding that Williams was guilty of attempted rape. Appellant argues that the prosecutor asked an expert witness improper and prejudicial questions, that the trial court erred in denying defense counsel’s Crim.R. 29 motion for acquittal, and that the trial court improperly charged the jury on the lesser included offense of attempted rape. We address each of these arguments separately.
The prosecutor asked criminalist Dale L. Laux, “[I]n your experience, training and analysis, have you had an occasion tо analyze rape kits in alledged [sic]
The admission of expert testimony is within a trial court’s discretion. State v. Williams (1983),
With respect to appellant’s argument that the trial court improperly rejected the Crim.R. 29 motion for acquittal, the “relevant inquiry 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),
Mrs. Melnick had been beaten and was found lying in a pool of her own blood, with her underwear on the floor beside her. She remembered nothing about the attack other than that she had been wearing underwear immediately before the attack. Lance Owens, Henry Daniel, Jr., Ruben Gunther and Mario Daniel, all testified that Williams had told them about raping Mrs. Melnick. Given this evidence and testimony, it is certainly possible that a “rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jenks,
The court of appeals reversed appellant’s conviction under Count Three, finding that “there was no evidence to suggest that Appellant formed his intent to rape Katherine Melnick prior to the time that he inflicted his fatal assault on George Melnick.” In Proposition of Law I of its cross-appeal, the state contends
“[Rojas ] established that for purposes of R.C. 2903.01(B) and R.C. 2929.04(A)(7), it is necessary that evidence be presented from which a fact finder could reasonably conclude that the defendant formed his intent to commit the underlying felony prior to or during the commission of the acts which resulted in thе murder victim’s death.”
The state contends that the evidence “need not establish that an offender formed an intent to commit an attempted rape at or prior to the time” he committed the murder. Rather, R.C. 2929.04(A)(7) requires that the murder occur “while the offender was” committing a felony, attempting to commit a felony, or fleeing from the scene of a felony. The trial court correctly instructed the jury that the term “while” “means thаt the death must occur as part of acts leading up to, or occurring during, or immediately subsequent to the [relevant felony].”
The Rojas decision itself supports the state’s argument on this issue. Rojas did not rob his victim until hours after he had stabbed her and the case reflects that he did not stab her in order to rob her. State v. Rojas,
. 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 attempted rape, or that the killing must have been caused by the attempt, but, rather, indicates that the killing must be directly associated with the attempted rape as part of one continuous occurrence * * *.’ * * * The evidence here showed that the murders were associated with the kidnappings, robbery, and rapes ‘as part of one continuous occurrence.’ ” State v. Cooey (1989),
In this case, the murder of Mr. Melnick was “associated” with the attempted rape of Mrs. Melnick “as part of one continuous occurrence.” As such, this case satisfies the Cooey test. The facts are even stronger than those in Rojas and Smith, in which death sentences were affirmed, because there is no evidence which suggests a substantial passage of time between the assault on Mr. Melnick and the attempted rape of Mrs. Melnick. Thus, we find that neither the felony-
Appellant’s final argument within Proposition of Law VIII is that the trial court improperly instructed the jury on attempted rape. We reject this contention because the crime of attempted rape, which is a lesser included offense of rape, was raised by the evidence. See State v. Thomas,
In Proposition of Law I, appellant argues that the court of appeals lacked the authority to affirm his death sentence by reweighing the evidence because the court of appeals found that some mitigating evidence had been improperly excluded by the trial court. We reject this argument.
Indepеndent appellate reweighing has been upheld in varied situations and “does not contravene the role of the jury in the penalty proceeding.” State v. Holloway (1988),
The testimony that the trial court excluded was that of attorney R. Scott Krichbaum. The defense wanted him to testify, as an expert, regarding whether Williams lacked a “significant history of prior criminal convictions” pursuant to R.C. 2929.04(B)(5). (The parties had stipulated to Williams’s criminal record.) The court of appeals held that excluding the proffered testimony was error. We reverse that holding.
Whether an accused’s criminal history is “significant” under R.C. 2929.04(B)(5) is a jury question. The weight to be given such a conclusion is also a question for the jury. The trial court simply exercised its discretion “to refuse to admit the testimony of an expert witness on an ultimate issue where such testimony is not
The jury knew of Williams’s criminal record and was properly instructed with respect to mitigating factors by the trial judge. The jury thus had all the information necessary to properly evaluate this asserted mitigating factor. “Expert” testimony on such an issue would have been improper. We find that whether a person has a “significant history of prior criminal convictions” under R.C. 2929.04(B)(5) is а question for the jury and is specifically outside the province of expert testimony.
In Proposition of Law III, appellant contends that the trial court erred because it did not merge the four separate death penalty specifications charged against Williams for sentencing purposes. As the defense failed to object at trial, it waived all but plain error. Thus, the defense must, but did not, establish that “the outcome of the trial clearly would have been otherwise” if the asserted error had not occurred. State v. Long (1978),
The defense’s argument is based primarily on this court’s decision in State v. Jenkins (1984),
In this case, the felony-murder and multiple murder specifications represent distinct and separate aggravating circumstances and therefore are not duplicative. See State v. Frazier (1991),
In Proposition of Law IV, appellant argues that the prosecutor improperly referred to Williams’s failure to testify at the sentencing hearing. During his closing argument at the sentencing hearing the prosecutor said, “Finally the last person presented in the penalty phase of this case was the Defendant. * * * Every witness who’s testified as to what happеned in this case took that witness stand under oath and told you what happened. Every witness except one. The Defendant.” The setting of the comments and the context indicate that the prosecutor’s comments were directed to the unsworn statement made by Williams at the sentencing hearing. However poorly crafted the comments may have been, they were not directed to Williams’s failure to testify at trial. Consequently, the prosecutor’s comments were not improper and we reject Proposition of Law IV. State v. DePew (1988),
In Proposition of Law VI, appellant argues that when the trial court reviewed the jury’s recommendation for the death penalty it improperly considered the facts and circumstances of the case itself, as what the appellant terms “a non-statutory aggravating circumstance.” To the contrary, thе trial court accurately identified, and the jury found, four specified aggravating circumstances. When a court so finds, there is a presumption that it relied only on those specified aggravating circumstances and that it did not rely on nonstatutory aggravating circumstances. State v. Rojas,
In Proposition of Law VII, appellant challenges the constitutionality of Ohio’s death penalty statute. This challenge is summarily rejected. State v. Poindexter (1988),
We find that the evidence supports a finding of the aggravating circumstances charged against Williams beyond a reasonable doubt. We therefore agree with
Some mitigating factors are present in this case. Williams has a low IQ, which was recognized by authorities who attempted to provide help and assistance. However, no evidence at trial established that Williams’s low IQ caused him to lack the “substantial capacity to appreciate the criminality of his conduct” or “conform” to the law. Williams was raised by a grandmother who loved, supported and nurtured him. He was twenty-one at the time of the offense.
We believe that Williams can also qualify for the R.C. 2929.04(B)(5) mitigating factor, “lack of a significant history of prior criminal convictions[.]” His two 1987 assault convictions and his 1988 shoplifting conviction diminish the significance of this mitigating factor. We find that since Williams personally killed Mr. Melnick, he fails to qualify for the R.C. 2929.04(B)(6) mitigating factor. None of the mitigating factors in R.C. 2929.04(B)(1) and (2) appears applicable, since no evidence suggests that the victims induced the offense or that Williams acted under “duress, coercion, or strong provocation.” No “other factors,” R.C. 2929.04(B)(7), are applicable. While we recognize that some mitigating factors are relevant to this case, we find that the aggravating circumstances outweigh the mitigating factors.
The sentence of death is proportionate when compared with similar felony-murder cases. See State v. Slagle,
We affirm the convictions and death penalty sentence and reverse on the cross-appeal.
Judgment affirmed in part and reversed in part.
Notes
. Defense counsel failed to object at trial to eithеr the instructions given by the judge or the verdict forms, thereby waiving all but plain error. To prove plain error, the defense must establish that, but for the asserted deficiency, “the outcome of the trial clearly would have been otherwise.” State v. Underwood (1983),