State v. Rojas - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
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The State of Ohio, Appellee, v. Rojas, Appellant.
[Cite as State v. Rojas (1992), Ohio St. 3d .]
Criminal law -- Aggravated murder -- Death penalty upheld,
when.
(No. 91-374 -- Submitted April 28, 1992 -- Decided July 1,
1992.)
Appeal from the Court of Appeals for Hamilton County, No.
C-880332.
On May 14, 1987, Martin J. Rojas, defendant-appellant,
forcibly entered the apartment of Rebecca ("Becky") Scott,
stabbed her in the back and raped her. Before he left, Rojas
washed his clothes, spread paint stripping gel, an accelerant,
throughout her apartment, opened a gas valve to the kitchen
stove, lit several candles, and stole $25 from Scott's purse.
Guilt Phase
In 1986, Rojas moved from Denver, Colorado to Cincinnati
where he enrolled in a drug and alcohol rehabilitation
program. Later that year, Rojas attended the Voice of Calvary
Church and met Scott. They became friends. Scott devoted
herself to weaning Rojas from drugs and alcohol; however, Rojas
apparently wanted Scott as his girlfriend. Because Rojas had
struck Scott several times, they went together on May 13 to the
home of Edna White, a lay minister and speaker for the church.
Becky exhibited bruises on her neck and arm. White, Becky and
Rojas prayed together for Rojas to reform. On May 14, Becky
told Rojas she did not want to see him again.
According to his later confessions, Rojas decided to kill
Scott after she rejected him on May 14. That afternoon, he
purchased a filleting knife, telling the clerk that it was a
gift for a bachelor party. He then called Scott, who refused
to meet him at her apartment building. But she did agree to
meet him at a nearby restaurant at 6:30 p.m. Rojas then went
to Scott's apartment and hid outside in the hallway. Around
6:15 p.m., when Scott left to go to their meeting, Rojas
confronted her, pulled her by the hair, chased her into the
apartment, and stabbed her in the back.
After stabbing Scott, Rojas removed her clothes and his
clothes and raped her twice. In two confessions, Rojas
admitted that Scott was still alive when he had intercourse,

and the coroner estimated she lived from one to three hours
after the knife wounds were inflicted. According to Rojas,
Becky told him, as she was bleeding to death, that she loved
him and forgave him, that God also loved him and forgave him
for what he had done.
According to his confessions, Rojas stayed in Scott's
apartment for approximately five and one-half hours. He stole
$25 from her purse and washed and dried his clothes to remove
the blood. From a gallon container, he spread a highly
flammable gel paint-and-varnish remover throughout the
apartment so that a resulting fire would destroy the crime
scene. He disconnected the kitchen stove to create a natural
gas leak and he lit several candles around the apartment. He
left at midnight. When he arrived home, he hid the clothes he
had been wearing.
On May 15, Rojas called Edna White. He told her he had
killed Scott. "She's with Jesus," he said. He also said he
intended to kill himself by jumping off a bridge. Instead,
Rojas cashed his paycheck and took a 12:50 p.m. bus to Denver,
Colorado. After Rojas' telephone call, White called a copy
center, where Scott worked (located on the ground floor in
Scott's apartment building). White asked that someone check on
Scott.
Daniel Krieger, a copy center employee, climbed an outside
fire escape to Scott's third floor apartment. Once inside,
Krieger discovered Scott's body cold and naked on her bedroom
floor. Krieger summoned co-worker Daniel Engle, and another
co-worker called the police. An opened kitchen window had
apparently prevented the gas from reaching an explosive level.
Krieger, Engle and the police turned the gas off, extinguished
the candles, and opened other windows. No fire or explosion
occurred.
Police found a highly flammable pink gel, containing
methanol, acetone, methylene chloride, and toluene, spread
throughout the apartment. Police detected acetone and toluene
on a pair of Rojas' shoes recovered from where Rojas lived.
Police found candles on Scott's kitchen stove, in the dining
room, and on the bedroom floor near Scott's feet.
The physical evidence corroborated the confessions made by
Rojas. In the kitchen, police found the murder knife and the
sales receipt for the knife. The receipt contained Rojas'
fingerprint. Police found Rojas' fingerprints or palm prints
elsewhere in the apartment, and they found the red gift box for
the knife just outside Scott's apartment where Rojas had
discarded it. Police also found Rojas' fingerprints on the
gift box and on the tissue paper inside. The store clerk who
sold Rojas the knife identified Rojas, the knife, the sales
receipt, and the gift box.
The coroner confirmed that Scott died from two stab
wounds, a six-inch wound to the back and a five-inch chest
wound. The stab wounds were not immediately fatal, and Scott
could have lived from one to three hours. With timely medical
intervention, she might have survived the wounds. Scott had
blood type A-positive, consistent with blood found on the
murder knife, on a rug in the kitchen wastebasket, on her
nearby clothes, on a bed sheet, and on Rojas' clothing found at
his residence. Chemical and microscopic examination revealed

evidence of semen in Scott's vagina, and a swab of her nipples
revealed evidence of saliva.
On May 18, the day after Rojas was arrested in Denver,
Detective Sergeant Joe Russell secured a fifty-three-minute
videotaped confession. Rojas had been advised of his Miranda
rights. Also on May 18, Cheviot, Ohio Police Chief Voss
advised Rojas of his rights and secured a tape-recorded
confession. Over defense objection, the trial court admitted
Rojas' videotaped and tape-recorded confessions.
In both statements, Rojas claimed to have been drinking
heavily in a bar and taking amphetamines just before the
murder. Rojas mentioned a voice in his head that told him to
kill Scott. Rojas asserted that a romantic tie existed between
them. He had been seen frequently at her apartment. Several
shirts found in the apartment supposedly belonged to Rojas.
Rojas was charged with seven offenses, including murder
with prior calculation and design (Count I), aggravated murder
with three death specifications alleging murder in the course
of aggravated burglary, rape, and aggravated robbery (Count
II), aggravated burglary (Count III), rape (Count IV),
aggravated robbery with a knife (Count V), aggravated robbery
causing serious injury (Count VI), and aggravated arson (Count
VII). Although Rojas pled not guilty by reason of insanity, he
presented no testimony disputing mental responsibility. A
three-judge panel found him guilty as charged.
Sentence Hearing
At the outset of the sentencing hearing, Sheriff's
Lieutenant George McCamey reported that Rojas had attempted to
escape and had repeatedly threatened to escape. As a
precaution, the court ordered Rojas shackled.
Rojas asserted he wanted no mitigation evidence presented
beyond his own unsworn statement. He explained:
"I feel that it's not necessary to have the doctors
testify because the only reason why I pleaded insanity was
because I consider it as my last straw of hope of being able to
reside in society again[.] * * * I tried to persuade them to
believe that I was on the borderline personality or had
difficulties with my mind, and I feel that their reports that
they have are inaccurate, considering my behavior and my
characteristics of my personal life."
Despite Rojas' request, his attorneys presented expert
testimony from psychiatrists and psychologists. A
psychologist, two Ph.D. clinical psychologists and two
psychiatrists testified for the defense; a clinical
psychologist testified for the state. The experts confirmed
that Rojas suffered from disorders resulting from substance
abuse and most agreed that he had a borderline personality
disorder. They disagreed on the extent of this condition, on
Rojas' mental abilities, and the extent to which he was
malingering.
Dr. Robert W. Noelker, a clinical psychologist, found
Rojas to be multihandicapped, retarded with a performance IQ of
fifty-seven, and suffering from major personality disorders and
probable organic brain damage. Noelker found Rojas to have
been actively psychotic at times, suffering from delusions and
hallucinations, especially religious preoccupations. Noelker
found Rojas competent to stand trial, but substantially

impaired at the time of the murder. Rojas' behavior disorders
were a chronic and severe mental disease or defect of
longstanding duration and multiple causation. Noelker found no
evidence of malingering.
Dr. David Helm, a psychiatrist who examined Rojas before
trial, found it difficult to conclude whether Rojas suffered
from mental illness. Helm found that Rojas was not competent
to stand trial, but Helm did not dispute subsequent findings of
competency since he suspected that Rojas was not honest in the
interview. Helm never formed an opinion as to Rojas' ability
to distinguish right from wrong or his frame of mind at the
time of the offense.
Dr. Michael F. Hartings, a clinical psychologist, found
Rojas to be a marginally functioning handicapped individual,
who was significantly impaired in his psychological, social and
occupational functioning. Rojas refused to take an
intelligence test from Hartings; however, Hartings concluded
that Rojas was not retarded. Hartings estimated Rojas' IQ to
be eighty to ninety, and Hartings regarded the estimate of
sixty as definitely too low. When tested, Rojas intentionally
gave incorrect answers. While Rojas may have had prior
psychotic episodes, Rojas was not psychotic at the time of the
offenses or when Hartings saw him. According to Hartings,
Rojas suffered from behavior disorders but not from a
substantial mental disease or defect. Rojas exhibited a high
level of activity requiring concentrated and directed efforts,
suffered no loss of cognition or control over his behavior,
knew his actions were wrong and could have conformed his
behavior to the law. Rojas had little empathy for others and
little rehabilitation potential.
Hartings reported that Rojas said he had had intercourse
with Scott for the first time on the day before the murder:
"[I]mmediately thereafter she [Scott] turned away from
him, apparently in prayer, and to God, and with remorse, and I
think he--his fragile self concept, his fragile ego, had a very
hard time integrating that in acting rationally, in dealing
* * * with his frustration."
Mark Kroger, a counseling psychologist, concluded that
Rojas was retarded and had a verbal IQ of fifty-five. Rojas'
judgment, reasoning skills, and memory were all impaired.
Kroger found past symptoms of schizophrenia, and he believed
Rojas was then in the residual phase of schizophrenic
disorder. Kroger did not believe Rojas was malingering;
however, Kroger never talked to Rojas after an initial pretrial
interview. Kroger believed Rojas had a significant mental
disease or defect that kept him from conforming his conduct to
the law. Yet, Kroger agreed that Rojas did not meet the
criteria for the defense of not guilty by reason of insanity.
Kroger agreed Rojas was a poor candidate for rehabilitation.
Dr. Glenn M. Weaver, a forensic psychiatrist, concluded
that Rojas, while in prison in 1983, appeared on the brink of
psychosis, paranoia and schizophrenia. Weaver noted that
previous tests indicated that Rojas had an IQ in the
sixty-seven to seventy-five range, but he believed Rojas
functioned at a level of eighty-five to ninety. Weaver
testified that "substance abuse" and "borderline" personality
disorders were mental diseases or defects. At the time of the

offense, Rojas suffered from uncontrollable anger, rage, and
instability of mood. Weaver agreed that Rojas knew right from
wrong and could refrain from wrong, but he thought Rojas was a
candidate for the defense of diminished capacity. Weaver
agreed that Rojas may have tried to make himself look less
intelligent than he is.
In an unsworn statement, Rojas reported that he tried to
make the doctors believe he was stupid and that he had a
terrible childhood. He asserted that his lawyers held back
evidence showing he was not mentally retarded. Rojas would
accept whatever punishment the court decided upon, and he hoped
that Scott's family would forgive him. Rojas killed Scott
because she rejected him. Previously, she had accepted him for
what he was and knew she could not persuade him to change.
He said he felt "[o]verwhelmed completely with depression
and stress, not because I'm in jail, but because of what I did.
"I don't * * * believe that the Court should have any
mercy on me * * * because I didn't have no mercy on Becky when
I killed her. * * *
"* * *
"I feel that if the death sentence is not imposed that
justice will not be completed on my behalf and the family of
Ms. Scott and those of her friends."
Marilyn Brooks, an assistant hotel manager, testified that
Rojas functioned well as a hotel telephone operator from
December 1986 to May 1987. Rojas was cooperative, met all
hotel standards, never had difficulty comprehending
instructions, had an excellent time and attendance record, and
performed well under stress. Rojas did not appear to be
mentally retarded, nor was he known to abuse drugs or alcohol.
Rojas was talented as an artist, and Brooks encouraged him to
take up commercial art. Brooks testified that his artwork was
nothing like the stick drawings he drew for the doctors who
examined him.
Dr. Donald G. Beal, a clinical psychologist, found Rojas
to function in the dull normal range, with an IQ in the tenth
or fifteenth percentile, and not retarded. Rojas refused
intelligence tests, and Beal concluded that Rojas was
malingering, by deliberately answering questions incorrectly
and by falsely reporting that he heard voices. Beal believed
that Rojas was competent to stand trial. Rojas did have
psychological problems with impulse control and substance
abuse, but he could refrain from committing acts he knew to be
wrong, and he knew what he did to Scott was wrong. Beal
reported that a day or two before the murder, Scott and Rojas
had sex for the first time. Scott then asked Rojas to give his
life to God. That discussion triggered Rojas' anger and the
later chain of events.
A presentence investigation ("PSI") revealed Rojas, born
on November 2, 1959, had eight arrests as a juvenile. Juvenile
courts placed him on probation for burglary and theft and later
sentenced him to two years for robbery. As an adult, Rojas was
convicted of aggravated motor vehicle theft, vehicle theft,
menacing, criminal mischief, resisting arrest, assault,
forgery, and DUI. In 1986, Rojas was convicted in Ohio for DUI
and theft. Rojas refused to make any statement for the PSI
report, but a previous Colorado presentence report revealed

that Rojas had eight half-brothers and half-sisters, and that
his father left his mother some four years after he was born.
Rojas withdrew from school in the ninth grade.
Following a sentencing hearing, the trial panel sentenced
Rojas to death for aggravated murder (Count II), and to
consecutive terms of imprisonment for the other offenses, with
the exception of Count VI, which was merged with Count V. The
court of appeals affirmed, and this appeal followed. On
November 12, 1991, Rojas filed a pro se motion to withdraw his
appeal and asked for an execution date. On January 22, 1992,
this court denied Rojas' motion to withdraw his appeal.

Arthur M. Ney, Jr., Prosecuting Attorney, and William E.
Breyer, for appellee.
H. Fred Hoefle, for appellant.

Herbert R. Brown, J. R.C. 2929.05(A) requires a
three-part analysis in capital cases. First, we must review
the judgment and consider Rojas' claims of error. Second, we
must independently weigh the evidence of aggravating
circumstances and mitigating factors. Third, we must decide
whether the sentence of death is excessive or disproportionate
to the penalty imposed in similar cases. For the reasons set
forth below, we affirm the convictions and uphold the sentence
of death.
I
Constitutional Issues
In proposition of law No. I, Rojas (for convenience, we
will refer to claims by counsel as being made by Rojas although
he personally wishes to withdraw the appeal) argues that the
federal and Ohio Constitutions prohibit the execution of
mentally retarded defendants and that since he is mentally
retarded, he cannot be executed. The arguments lack legal and
factual merit.
The United States Supreme Court has held that the United
States Constitution does not forbid imposing the death penalty
on mentally impaired defendants:
"* * * [M]ental retardation is a factor that may well
lessen a defendant's culpability for a capital offense. But we
cannot conclude today that the Eighth Amendment precludes the
execution of any mentally retarded person * * * . So long as
sentencers can consider and give effect to mitigating evidence
of mental retardation in imposing sentence, an individualized
determination whether 'death is the appropriate punishment' can
be made in each particular case. * * *" Penry v. Lynaugh
(1989), 492 U.S. 302, 340, 109 S.Ct. 2934, 2958, 106 L.Ed.2d
256, 292.
Nor does the Ohio Constitution exempt one who has a low
intelligence from capital punishment. Mental capacity may be a
mitigating factor entitled to weight in Ohio's sentencing
scheme. However, we do not find, in this case or from
empirical evidence generally, that a fixed correlation can be
made between a defendant's level of intelligence and a
defendant's moral culpability.
We have upheld the death penalty where the defendant had a
low level of intelligence. See State v. Holloway (1988), 38
Ohio St.3d 239, 245-246, 527 N.E.2d 831, 838; State v. Jenkins

(1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264.
Moreover, the record does not indicate that Rojas was
mentally retarded. In his unsworn statement, Rojas admitted
that he intentionally did poorly in answering questions so he
would appear to be retarded. His admission is corroborated by
the conclusions of three expert witnesses.
Dr. Michael F. Hartings, a clinical psychologist, could
not formally test Rojas' mental capacity because Rojas refused
the test. However, Hartings, after five hours of interviewing
Rojas, concluded that Rojas had an IQ between eighty and ninety
and was not retarded. Dr. Donald G. Beal, a clinical
psychologist, agreed that Rojas was in the dull normal range of
intellectual functioning and not retarded. Dr. Glenn M.
Weaver, a forensic psychiatrist, noted that tests in Rojas'
file indicated an IQ between sixty-seven and seventy-five, but
he found Rojas functioning at a level of eighty-five to
ninety. Hartings, Beal and Weaver all found that Rojas was
malingering by making himself appear less intelligent than he
is.
Dr. Robert Noelker, a clinical psychologist, and Mark
Kroger, a counselling psychologist, found Rojas' intelligence
to be at the lower end of the mildly retarded range. However,
we agree with the trial court that the claims of Kroger and
Noelker were not credible. The evidence of malingering seen by
Hartings, Beal and Weaver is persuasive. Rojas worked
successfully as a telephone operator. We find, as did the
trial court, that Rojas' intelligence was above that of a
retarded person. Thus, we reject Rojas' proposition of law No.
I as unsupported in law or fact.
In proposition of law No. III, Rojas attacks the
constitutionality of Ohio's death penalty statute by arguments
we have previously rejected. State v. Beuke (1988), 38 Ohio
St.3d 29, 38-39, 526 N.E.2d 274, 285. See, also, State v.
Bedford (1988), 39 Ohio St.3d 122, 132, 529 N.E.2d 913, 923;
State v. Sowell (1988), 39 Ohio St.3d 322, 336, 530 N.E.2d
1294, 1309. Moreover, Rojas did not raise the subparagraph B,
C and G issues at trial and hence waived them. State v. Awan
(1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, syllabus.
We also reject Rojas' propositions of law Nos. IV and V
because we have previously sustained the constitutionality of
Ohio's proportionality review. See State v. Combs (1991), 62
Ohio St.3d 278, 289, 581 N.E.2d 1071, 1080-1081; State v.
Beuke, supra, at 37, 526 N.E.2d at 283; State v. Steffen
(1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383,
paragraph one of the syllabus.
In proposition of law No. VI, Rojas urges an equal
protection claim on the ground that persons convicted of the
murder of whites are more likely to receive the death penalty
than those convicted of killing blacks. The record provides no
basis for the claim, and Rojas did not preserve the issue for
review. Moreover, both the United States Supreme Court and
this court have rejected this claim. See McCleskey v. Kemp
(1987), 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262; State v.
Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585, syllabus; State
v. Beuke, supra, 38 Ohio St.3d at 37, 526 N.E.2d at 284.
II
Guilt Phase Issues

Sufficiency of Evidence
In proposition of law No. VII, Rojas argues that the
evidence was insufficient to sustain the charged aggravated
robbery offenses (Counts V and VI) as well as the death penalty
specification alleging murder in the course of aggravated
robbery. In his pretrial confession, Rojas admitted he took
$25 from Becky's purse while in the apartment. However, Rojas
now argues that he did so hours after he killed Becky; hence,
no aggravated robbery occurred.
The state argues that a thief should not be rewarded
because he commits his offense at a leisurely, methodical
pace--killing his victim first and then stealing his property.
We agree. In State v. Smith (1991), 61 Ohio St.3d 284, 290,
574 N.E.2d 510, 516, we noted:
"* * * [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. A robber cannot avoid the effect of the
felony-murder rule by first killing a victim, watching her die,
and then stealing her property after the death. See State v.
Jester (1987), 32 Ohio St.3d 147, 151-152, 512 N.E.2d 962, 968;
Conrad v. State (1906), 75 Ohio St. 52, 78 N.E. 957."
In this case, the trial court reasonably could have found
that the theft, or the intent to steal, occurred at the outset
or during the one to three hours that Scott lived after being
wounded. Rojas claims he stabbed Scott in the back at the
outset, but no evidence exists as to when he stabbed her in the
chest. Although Rojas claims that no evidence shows that he
stabbed Scott with the intent of robbing her, he did steal from
her. His intent to rob can be inferred from the fact that he
did so. See State v. Lockett (1976), 49 Ohio St.2d 48, 3
O.O.3d 27, 358 N.E.2d 1062, reversed in part on other grounds,
Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
973.
Additionally, Rojas not only admitted he took the $25, he
also thought about taking Scott's stereo, bloody clothing, and
automobile, and he moved the stereo for that purpose. If Rojas
intended to steal Scott's property while she was alive, the
fact that he carried it away after she died is not crucial.
See State v. Durr (1991), 58 Ohio St.3d 86, 93, 568 N.E.2d 674,
682; State v. Smith, supra.
In a review for sufficiency, the evidence must be
considered in a light most favorable to the prosecution.
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560; State v. Davis (1988), 38 Ohio St.3d 361, 365, 528
N.E.2d 925, 930. The weight to be given the evidence and the
credibility of witnesses are primarily for the trier of the
facts. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d
150, 434 N.E.2d 1356, syllabus; State v. DeHass (1967), 10 Ohio
St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph two of the
syllabus. Here there was "substantial evidence upon which a
jury could reasonably conclude that all the elements of an
offense have been proven beyond a reasonable doubt." State v.
Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132,
syllabus.
In proposition of law No. VIII, Rojas maintains that the
evidence is insufficient to sustain convictions for rape and

aggravated burglary. These claims lack merit.
In both pretrial statements, Rojas asserted that Scott was
alive when he had intercourse with her. The physical evidence
corroborates the act of intercourse. Police found Scott's nude
body lying spread-eagled on the floor. The coroner found
evidence of semen in her vagina and of saliva on her nipples.
Additionally, the coroner estimated that Scott lived from one
to three hours after the knife wounds were inflicted, and Rojas
admitted she lived a couple of hours after he stabbed her.
Thus, the evidence establishes that Rojas raped her and that
she was then alive.
The evidence of aggravated burglary based upon Rojas'
unlawful entry into Scott's apartment is also compelling.
Although Rojas had previously been a guest, Scott rejected his
request to meet at her apartment building. Rojas confessed
that he hid outside Scott's apartment and confronted her, with
a knife in his hand, when she opened the apartment door to go
to their prearranged meeting. According to Rojas, Scott
rejected his request to come into her apartment when he
confronted her with the knife. Thus, the evidence sustains
both the rape and aggravated burglary offenses charged against
Rojas.
In proposition of law No. IX, Rojas asserts that the
capital specifications alleging murder in the course of
aggravated burglary, rape, and aggravated robbery were not
proven. However, the evidence was sufficient to prove those
offenses as discussed in propositions of law Nos. VII and VIII.
The evidence further established that Rojas killed Scott
"while * * * [he] was committing, attempting to commit, or
fleeing immediately after committing or attempting to commit *
* * rape * * * aggravated robbery, or aggravated burglary
* * * ." R.C. 2929.04(A)(7). In construing comparable
language, we have recognized that the term "while" does not
mean "simultaneously with," but only "associated with" or "as a
part of one continuous occurrence." State v. Smith, supra, 61
Ohio St.3d at 291, 574 N.E.2d at 517; State v. Cooey (1989), 46
Ohio St.3d 20, 23, 544 N.E.2d 895, 903. As we stated in State
v. Cooper (1977), 52 Ohio St.2d 163, 179-180, 6 O.O.3d 377,
386, 370 N.E.2d 725, 736:
"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 * * * ."
Coerced Confessions
In proposition of law No. X, Rojas argues that his
pretrial statements were involuntary because the police
promised to provide him psychiatric assistance but did not do
so. Rojas did not raise this issue before the court of appeals
and, thus, waived it. State v. Williams (1977), 51 Ohio St.2d
112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the
syllabus.
Moreover, the claim lacks merit. At a pretrial hearing on
his motion to suppress, Rojas testified that he told Denver
Detective Sergeant Russell and Cheviot Police Chief Voss that
he wanted to talk with a psychiatrist. Rojas claims their
promises to provide him assistance induced him to tell what

happened. Admittedly, Rojas did not see a psychiatrist before
he waived extradition and returned to Ohio. However, neither
officer explicitly promised immediate psychiatric assistance,
as Rojas claims.
After listening to the conflicting testimony of Rojas and
Police Chief Voss and reviewing all the evidence, the trial
court made these findings:
"The Court finds that the police did not induce a
confession by either coercion or promise. In fact, the most
favorable interpretation of the evidence for the defendant is
his own statement at Page 20 of his interview with Chief Voss
where defendant states, quote: You know the only reason why I'm
telling you this is because my mom told me she said she'd stick
by me and that she would keep the baby for me. She told me not
to lie. She told me to tell everything about what happened,
end of quote."
The evidence of record supports these trial court
findings. Rojas was fully advised of his rights and claims no
other alleged coercion or violation of rights. Accordingly,
proposition of law No. X lacks merit.
Effective Assistance of Appellate Counsel
In proposition of law No. XI, Rojas argues he did not
receive the effective assistance of appellate counsel because
counsel did not raise the issue of coerced confessions, as
discussed in proposition of law No. X, before the court of
appeals. This proposition lacks merit.
Rojas was entitled to the effective assistance of
appellate counsel on a first criminal appeal as of right.
Evitts v. Lucey (1985), 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d
821. Counsel must exercise reasonable professional judgment in
presenting an appeal. See Jones v. Barnes (1983), 463 U.S.
745, 751, 103 S.Ct. 3308, 3312-3313, 77 L.Ed.2d 987, 993. On
appeal, the two-prong Strickland standard applies. See
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674; Smith v. Murray (1986), 477 U.S. 527, 535-536,
106 S.Ct. 2661, 2667, 91 L.Ed.2d 434, 445; State v. Watson
(1991), 61 Ohio St.3d 1, 16, 572 N.E.2d 97, 109-110.
However, appellate counsel performed adequately. The
trial court's explicit findings demonstrate that the coerced
confession issue had little merit. "This process of 'winnowing
out weaker arguments on appeal and focusing on' those more
likely to prevail, far from being evidence of incompetence, is
the hallmark of effective appellate advocacy. * * *" Smith v.
Murray, supra, at 536, 106 S.Ct. at 2667, 91 L.Ed.2d at 445.
Rojas failed to establish either part of the two-prong
Strickland test, i.e., deficient performance by counsel or
prejudice to essential rights.
III
Sentence Phase Issue
Trial Court Sentencing Error
In proposition of law No. II, Rojas argues the trial court
improperly considered the nature and circumstances of the
offense as a nonstatutory aggravating circumstance. However,
the trial court's opinion precisely identified as aggravating
circumstances the fact that the murder occurred in the course
of an aggravated burglary, rape and aggravated robbery, and
that Rojas was the principal offender. The opinion listed no

other aggravating circumstances.
We reject Rojas' proposition. As we stated in State v.
Wiles (1991), 59 Ohio St.3d 71, 90, 571 N.E.2d 97, 120:
"[W]here the court below correctly identifies the
statutory aggravating circumstances pleaded and proven at
trial, this court will infer that the trial court 'understood
the difference between statutory aggravating circumstances and
facts describing the nature and circumstances of the offense.'
State v. Sowell (1988), 39 Ohio St.3d 322, 328, 530 N.E.2d
1294, 1302."
The trial court is required to review the nature and
circumstances of the offense to determine if they are a
possible mitigating factor. As we noted in State v. Steffen,
supra, 31 Ohio St.3d at 117, 31 OBR at 278, 509 N.E.2d at 390,
"* * * By its statement on the gruesome and vicious nature of
the murder, the trial court herein was merely justifying its
conclusion that no mitigating factors can be gleaned from the
nature and circumstances of this particular offense."
Moreover, a three-judge panel "may rely upon and cite the
nature and circumstances of the offense as reasons supporting
its finding that the aggravating circumstances were sufficient
to outweigh the mitigating factors." State v. Stumpf (1987),
32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus.
IV
Our Independent Review
We find beyond a reasonable doubt that Rojas killed
Rebecca Scott in the course of rape, aggravated burglary, and
aggravated robbery. In independently considering the death
penalty and possible mitigating factors, we find that the
nature and circumstances of the offense offer no mitigating
features. Rojas acted with prior planning, calculation and
design to trap Scott as she left her apartment. Then he
attacked her without mercy or hesitation. After stabbing her,
he did nothing to get her medical attention. He allowed her to
bleed to death in her bedroom while he raped and robbed her.
Rojas' history and background do warrant some weight in
mitigation. Rojas suffers from "substance abuse" and
"borderline" personality disorders. The evidence at trial
categorized these disorders as mental diseases or defects. The
evidence also established that Rojas took amphetamines and may
have been intoxicated at the time of the offenses. Little
evidence was presented at trial about Rojas' upbringing. Rojas
did have psychological problems.
In considering statutory mitigating factors, we find that
the evidence does not suggest that Scott "induced or
facilitated" the offense within the meaning of R.C.
2929.04(B)(1). Nor was Rojas under any "duress, coercion, or
strong provocation[,]" as set forth in R.C. 2929.04(B)(2).
The evidence is conflicting as to whether, at the time of
the offense, Rojas "lacked substantial capacity to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of the law[.]" See R.C. 2929.04(B)(3). After
considering the evidence, we conclude, as the trial court and
court of appeals did, that this factor was not proved. The
evidence does not support a conclusion that the defendant's
criminal acts resulted from the defendant's low level of
intelligence. However, we have considered his lower level of

intelligence as mitigating, albeit of slight weight in this
crime. The defendant's history and background are entitled, at
most, to modest mitigating weight.
Rojas was twenty-seven at the time of the offense, which
negates youth as a mitigating factor under R.C. 2929.04(B)(4),
and his prior history negates the factor of lack of a
significant criminal history under R.C. 2929.04(B)(5). No
other actors were involved; hence, R.C. 2929.04(B)(6) is
inapplicable.
As to R.C. 2929.04(B)(7), "other factors," Rojas expressed
remorse and sorrow for the offenses at trial. Rojas also
assisted the police and confessed to the crime. His remorse
and assistance to the police are mitigating factors.
When weighed, the aggravating circumstances outweigh the
mitigating factors. Rojas committed aggravated burglary,
aggravated robbery and rape in his deliberate and calculated
quest to kill Rebecca Scott.
In this case, we conclude that the death penalty is
appropriate and proportionate when compared with similar
aggravated murder cases. State v. Franklin (1991), 62 Ohio
St.3d 118, 580 N.E.2d 1; State v. Smith, supra; State v.
Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710; State v.
Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293; State v.
Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237; State v.
Van Hook (1988), 39 Ohio St.3d 256, 530 N.E.2d 883; State v.
Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394; State v.
Steffen, supra.
Accordingly, we affirm the convictions and sentence,
including the death penalty.
Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and Resnick,
JJ., concur.