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

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. Loza, Appellant.
[Cite as State v. Loza (1994), Ohio St.3d .]
Criminal law -- Aggravated murder -- Death penalty upheld, when.
(No. 93-1245 -- Submitted September 13, 1994 -- Decided
November 30, 1994.)
Appeal from the Court of Appeals for Butler County, No.
CA91-11-0198.
On January 16, 1991, defendant-appellant, Jose Trinidad
Loza, shot four members of the family of his girlfriend, Dorothy
Jackson. The victims were shot in the head at close range while
they slept in their home in Middletown, Ohio. Loza shot
Jackson's mother, Georgia Davis; her brother, Gary Mullins; and
her two sisters, Cheryl (Mullins) Senteno and Jerri Luanna
Jackson. Mullins died almost immediately from his wound; Davis
and Senteno survived several hours before dying. Jerri Jackson,
six months pregnant at the time of the shooting, died on January
31, 1991.
On the afternoon of January 16, 1991, Gary Hoertt observed
an individual in a white Mazda pick-up truck with California
plates loading trash into his dumpster at his shop in
Middletown. Having had previous problems with the unauthorized
use of his dumpster, Hoertt searched the dumpster for something
with which to identify the individual. Hoertt found a letter in
the dumpster signed by Loza with a return address in Butler
County. Hoertt read the letter, the contents of which indicated
that Loza was involved in a drive-by shooting in Los Angeles and
that he came to Ohio to avoid apprehension by the Los Angeles
police.
After reading the letter, Hoertt called the Warren County
Sheriff's Department to report his discovery. Hoertt was
informed that it would take some time before a deputy could
respond. During that time, Hoertt was informed by an employee
that the individual, later identified as Loza, and a female
companion were seen in the vicinity of the nearby Greyhound bus
station. Hoertt then called Middletown police detective Roger
Knable.
After Knable arrived at Hoertt's shop and read the letter,
Knable and Hoertt went to the dumpster, where they retrieved

other items that Loza had discarded, which included: a knife; an
empty box for a .25 caliber Raven automatic handgun; a receipt
signed by a Judy A. Smith for the purchase of the handgun on
January 15, 1991; a woman's purse; a blank check on the account
of Georgia L. Davis; a general money order made payable to Jose
Loza; clothing; and some other personal items.
As Hoertt and Knable were going through the items in
Hoertt's office, Hoertt saw Loza approach the dumpster. Knable
went to his cruiser and requested his dispatcher to notify Warren
County deputies that the individual had returned and that he was
going to speak to him. Knable identified himself as a police
officer, approached Loza with his gun in his hand, and instructed
Loza to place his hands on the front of the car. Knable searched
Loza and asked his name. At this time, Loza identified himself
as "Jose Rodriguez." Knable told Loza the reason he was being
stopped was because of what he put in the dumpster. Loza
responded "yes." Knable said the letter indicated that Loza may
have been involved in a drive-by shooting in Los Angeles. Loza
again responded "yes." Knable then informed Loza that he was
going to handcuff him and hold him until Warren County deputies
arrived. Knable then went to locate the woman who had been seen
with Loza earlier. Loza said that the woman's name was Cynthia
Rodriguez, that she was his wife, and that they were headed to
California.
Knable then went inside the bus station and approached
Dorothy Jackson. He asked her name and she responded "Dorothy
Jackson." When asked, Jackson stated that Loza's name was "Jose
Rodriguez," and that they were not married. Within a short time
after Knable's initial contact with Loza, Warren County deputies
arrived. The deputies determined Jackson was under age and that
she planned to travel to California with Loza. When asked,
Jackson gave her mother's telephone number to the deputies.
Knable was unsuccessful in reaching Davis, Jackson's mother, by
phone. Detectives Knable and George Jeffery then went to Davis's
home at 1408 Fairmont, but did not receive any response when they
knocked at the door. A neighbor approached the detectives and
said that she had been trying unsuccessfully all day to get
someone from the house to respond.
Because the police were unable to determine if Jackson had
permission to travel out of state, she was arrested for being an
unruly minor and was taken to the Warren County Juvenile
Detention Center. Loza was arrested for contributing to the
delinquency or unruliness of a minor and was taken to the Warren
County Justice Center.
When the detectives began questioning Jackson at the
juvenile detention center, she did not initially tell them of the
murders. Shortly into the questioning, she began crying. She
said she did not want to go to jail, and that Loza had killed her
family. Jackson then told the detectives what she knew about the
murders.
Based upon Jackson's statement, Detective Knable obtained a
search warrant for the house at 1408 Fairmont. When the police
entered the house, they discovered the victims.
Knable and Jeffery then returned to the Warren County
Justice Center and began questioning Loza. The detectives'
interview with Loza was videotaped. At the beginning of the
interview, Loza waived his Miranda rights. Initially, Loza said

that he and Jackson were traveling to California with her
mother's permission. The detectives told Loza they knew what had
happened, and that it would be in his, Jackson's and the unborn
baby's best interest if he just told the truth. About one hour
into the interview, Loza confessed to the murders. Loza detailed
the murders, including the order in which he shot the victims.
Loza stated that Jackson was not in the house at the time of the
murders, and that she did not know that he was going to kill her
family members.
The detectives asked Loza when he began thinking about
murdering Jackson's family members. Loza responded that he had
been thinking about it since he had obtained the gun and
particularly after Davis had threatened to have him arrested if
he tried to leave the state with Jackson. Loza explained that he
shot Davis because of her threats. When asked why he shot the
others, he responded: "Knowing I had to do one, I had to do all.
*** Because if I only done one, they would have -- they would
have known it was me. If I would have done all of them, nobody
would have found out."
Loza was indicted on four counts of aggravated murder, with
three death penalty specifications and a gun specification added
to each murder charge. Death specification number one alleged
murder to escape detection and arrest, R.C. 2929.04(A)(3); death
specification number two alleged "course of conduct" murders,
R.C. 2929.04(A)(5); and death specification number three alleged
murder during an aggravated robbery, R.C. 2929.04(7). Appellant
pleaded not guilty to all the charges.
Appellant waived his right to a jury trial and proceeded to
trial before a three-judge panel. During cross-examination of
the state's final witness, the defense moved for a mistrial on
the basis that the state had failed to disclose certain
exculpatory evidence during discovery. Over the state's
objection, the court granted a mistrial without prejudice. The
trial court denied appellant's subsequent motion to bar his
retrial on double jeopardy grounds.
After the court denied appellant's pretrial motion to
suppress all statements and evidence seized in this matter, a
trial by jury commenced on October 21, 1991.
Prior to submitting the case to the jury, the court
dismissed the aggravated-robbery specification with respect to
the aggravated murder of Jerri Jackson. The jury found appellant
guilty on all four counts of aggravated murder. The jury also
found appellant guilty of all remaining specifications except for
the R.C. 2929.04(A)(3) specification with respect to the
aggravated murders of Senteno and Jerri Jackson.
At the conclusion of the penalty phase, the court merged the
R.C. 2929.04(A)(3) and 2929.04(A)(5) specifications with respect
to the aggravated murders of Davis and Mullins. The jury
recommended the death sentence for the aggravated murders of
Mullins, Senteno, and Jerri Jackson and thirty years to life
imprisonment for the aggravated murder of Davis. The court
accepted the recommendation and sentenced appellant to death for
the aggravated murders of Mullins, Senteno, and Jerri Jackson.
The court also sentenced appellant to thirty years to life
imprisonment for the aggravated murder of Davis and imposed a
three-year term of actual incarceration for the firearm
specification. The court ordered the life and three-year firearm

sentences to be served consecutively to appellant's death
sentences.
The court of appeals affirmed the decision of the trial
court.
The cause is now before this court upon an appeal as of
right.

John F. Holcomb, Butler County Prosecuting Attorney, Noah E.
Powers II and Daniel G. Eichel, Assistant Prosecuting Attorneys,
for appellee.
David H. Bodiker, Ohio Public Defender, Joann Bour-Stokes
and Joseph Wilhelm, Assistant Public Defenders, for appellant.

Per Curiam. J. We are required by R.C. 2929.04(A) to
review Loza's thirty-three propositions of law. Many of these
legal issues have been decided in prior cases and will be
disposed of accordingly. State v. Poindexter (1988), 36 Ohio
St.3d 1, 3, 520 N.E.2d 568, 570. We also must make an
independent review of the record to determine whether the
aggravating circumstances outweigh the mitigating factors beyond
a reasonable doubt. Finally, 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 sentences of death.
I
A
In his first proposition of law, appellant asserts that
psychological testimony concerning the voluntariness of his
confession should have been admitted during the guilt phase of
his trial.
The trial court did not permit the jury to hear testimony of
Dr. Roger Fisher, a clinical psychologist, who would have
testified that appellant's confession resulted from police
coercion and duress caused by statements made by the police
officers during the interrogation. Dr. Fisher would have
testified that, in his opinion, appellant confessed because his
background, psychological makeup, and his personal code of
conduct required that he not "snitch" and that he "protect
Dorothy." Dr. Fisher would have testified that because Loza had
a difficult childhood he was compelled to confess to protect his
girlfriend and unborn child. The trial court concluded that
since it had made a pretrial determination that Loza's confession
was voluntary, Dr. Fisher's testimony was not appropriate during
the guilt phase.
Appellant argues that Crane v. Kentucky (1986), 476 U.S.
683, 106 S.Ct. 2142, 90 L.Ed.2d 636, requires the admission of
Dr. Fisher's testimony. In Crane, a sixteen-year-old defendant
sought to introduce testimony regarding the psychological impact
of the length of his interrogation and the manner in which it was
conducted.1 The United States Supreme Court held that the
exclusion of the testimony about the circumstances of the
defendant's confession deprived him of his fundamental
constitutional right to a fair opportunity to present a defense.
The court recognized that while the issue of whether a confession
is voluntary is a question of law for the court, the jury was
entitled to hear the excluded testimony in order to make a

factual determination of whether the manner in which the
confession was obtained cast doubts on its credibility. Id. at
689, 106 S.Ct. at 2146, 90 L.Ed.2d at 644.
The testimony of Dr. Fisher is clearly outside the holding
of Crane. The testimony of the witnesses in Crane related to how
the physical and psychological environment of the interrogation
could have impacted the voluntariness and credibility of the
confession. Dr. Fisher's proffered testimony relates to how
Loza's individual, psychological makeup, independent of the
circumstances surrounding the interrogation, could have impacted
the voluntariness and credibility of the confession.
Consequently, Crane does not require the admission of Dr.
Fisher's testimony.
The jury was able to accurately consider the credibility and
weight of the confession by watching it on videotape. They could
see and hear the tone and manner of the interrogation, the number
of officers present, the physical characteristics of the room,
and the length of the interrogation. The jury had the
opportunity to evaluate the credibility of the appellant and to
give the confession its appropriate probative weight. See State
v. Jamison (1990), 49 Ohio St.3d 182, 191, 552 N.E.2d 180, 189
(the weight to be given evidence and the credibility of witnesses
are jury issues). Because the trial court already had ruled on
the voluntariness of the confession and the jury had the
opportunity to evaluate the credibility of the confession, the
trial court did not abuse its discretion by excluding the
testimony of Dr. Fisher during the guilt phase of the trial.
This proposition of law is overruled.
B
Appellant contends in his second and fifth propositions of
law that his confession was involuntary because of psychological
coercion, trickery, and deception by the police.
Appellant's pretrial motion to suppress was based upon what
he contended was an illegal arrest at the Greyhound station.
Although he did not raise the issue of voluntariness in the
motion to suppress, we will address the issue here.
A confession is involuntary and violative of the United
States and the Ohio Constitutions if it is the product of
"coercive police activity." Colorado v. Connelly (1986), 479
U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484. "In
deciding whether a defendant's confession is involuntarily
induced, the court should consider the totality of the
circumstances, including the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency
of interrogation; the existence of physical deprivation or
mistreatment; and the existence of threat or inducement." State
v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d
1051, paragraph two of the syllabus, vacated in part on other
grounds (1978), 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155.
Appellant contends that his confession was involuntary
because detectives Knable and Jeffery were psychologically
abusive during the interrogation. Appellant asserts that the
detectives were aware of his deep feelings for Jackson and his
unborn child and they played upon those feelings in order to
coerce appellant into confessing. Additionally, appellant
asserts the detectives offered a plethora of promises, including
lenient treatment from the court, a visit with Jackson, and a

promise to release Jackson if he would just "tell *** the truth."
Admonitions to tell the truth are considered to be neither
threats nor promises and are permissible. State v. Cooey (1989),
46 Ohio St.3d 20, 28, 544 N.E.2d. 895, 908; State v. Wiles
(1991), 59 Ohio St.3d 71, 81, 571 N.E.2d 97, 112. The detectives
did no more than urge the appellant to tell the truth.
The detectives' references to Jackson were made in response
to appellant's repeated inquires about what would happen to her.
No threats were made concerning Jackson or what would happen if
appellant did not confess. The detectives merely informed
appellant of the possible consequences of his actions. By the
time the detectives were questioning appellant, Jackson had
already told the police about appellant's involvement in the
murders. Appellant sought the release of Jackson and he
initiated the bargaining for her release. Under these
circumstances, the statements made to the detectives were
voluntary beyond doubt. See State v. Melchior (1978), 56 Ohio
St.2d 15, 25-26, 10 O.O.3d 8, 14-15, 381 N.E.2d 195, 201-202.
The detectives made no promises regarding the treatment
appellant would receive from the court. They did say that they
would be willing to testify that appellant was cooperative.
Promises that a defendant's cooperation would be considered in
the disposition of the case, or that a confession would be
helpful, does not invalidate an otherwise legal confession.
Edwards, supra, at 40-41, 3 O.O.3d at 23-24, 358 N.E.2d at
1058-1059.
The detectives made no promises regarding a visit with
Jackson; the detectives did say that they would try to make
arrangements for appellant and Jackson to visit "after all of
this [was] done." Contrary to the interpretation proffered by
the defense, taken in the proper context of the entire confession
the detectives' statements could not be viewed as a coercive
tactic used by the police to elicit the confession.
Appellant also contends that the police used trickery to
induce his confession. Knable told appellant that Jerri Jackson
was alive. He also stated that she had identified her assailant,
which was not the case. However, all the other circumstances
surrounding the confession indicate that it was made voluntarily,
and the confession is admissible even though the police misled
appellant by suggesting that they received certain information
from the victim of the crime. See Wiles, supra, at 81, 571
N.E.2d at 112.
Applying the test of voluntariness set forth in State v.
Edwards, supra, and in carefully reviewing the totality of the
circumstances in this case, we concur in the trial court's
finding that the appellant's statements were voluntarily made and
that the appellant's will to resist was not overborne by threats
or improper inducements. Appellant was of majority age and was
in command of his faculties at the time he confessed. He was not
interrogated for an unreasonable length of time, and was not
subjected to physical abuse or harsh conditions. We note that
before the interrogation began, appellant waived his Miranda
rights.2 Upon completion of the interrogation, when the
detectives asked appellant if he felt threatened by them or if
they had made any promises to him, appellant responded that "no,"
they had not threatened him, and agreed they had not made any
promises to him. Through these affirmations, appellant has

confirmed that his confession was voluntarily made.
Thus, we reject appellant's propositions of law two and
five.
C
In proposition of law three, appellant contests the
constitutional sufficiency of the evidence with which he was
convicted. Appellant argues that his confession was involuntary
and therefore is not to be believed, that Jackson's testimony is
neither reliable nor credible, that he had an affirmative defense
to the child-stealing charge,3 that the state did not
scientifically link Loza to the crime, and that the state's
evidence did not establish beyond a reasonable doubt that
appellant killed anyone. Appellant's assertions are without
merit.
The inquiry with regard to the issue of the sufficiency of
evidence must focus on whether the evidence could reasonably
support a finding of guilt beyond a reasonable doubt. "[T]he
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." Jackson v. Virginia (1979), 443 U.S. 307,
319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. If there is
sufficient evidence upon which a jury could conclude that all the
elements of an offense have been proved beyond a reasonable
doubt, the evidence is legally sufficient. State v. Eley (1978),
56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, syllabus.
In his first challenge to the sufficiency of the evidence,
appellant asserts that his confession was not voluntarily made.
We already have determined that appellant's confession was
voluntarily made; therefore, the issue need not be addressed
further.
In his second challenge to the sufficiency of the evidence,
appellant argues that Jackson's testimony was neither reliable
nor credible. The weight to be given evidence and the
credibility of witnesses are primarily for the trier of fact.
State v. Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819,
825 (citing State v. DeHass [1967], 10 Ohio St.2d 230, 39 O.O.2d
366, 227 N.E.2d 212, paragraph one of the syllabus). As has been
previously stated by this court, "[n]ot even in a capital case
may we sit as a 'thirteenth juror' *** as to a judgment of
conviction." (Citation omitted.) State v. Tyler (1990), 50 Ohio
St.3d 24, 33, 553 N.E.2d 576, 589.
Our independent review of the record establishes that the
state produced evidence of appellant's guilt beyond a reasonable
doubt. In addition to appellant's videotaped confession,
appellant confessed to Jackson in person and in letters that he
wrote to Jackson while he was in jail. Appellant also confessed
to the murders in a letter that he wrote to his mother.
Appellant was alone with the victims in the house at the time of
the murders. Personal items belonging to Davis were found in the
dumpster, where appellant was seen disposing of various items,
and personal items of Davis and Senteno were also found among
appellant's personal items which were packed in U-Haul boxes
found at the Greyhound station. Appellant was identified as
driving Mullins' truck. Forensic evidence established that the
Raven .25 found among appellant's personal items in the U-Haul
boxes was the murder weapon. Having found the evidence of

appellant's guilt sufficient to support the convictions,
appellant's challenge is without merit.
In his third challenge to the sufficiency of the evidence,
appellant claims to have an affirmative defense to specification
one in the bill of particulars, which states: "*** Jose Trinidad
Loza committed the above offense for the purpose of escaping
detection, apprehension, trial, and punishment for other offenses
committed by him, to wit: child-stealing and contributing to the
delinquency of a minor with respect to his victim's minor child,
Dorothy Jackson." Loza asserts that he reasonably believed that
his conduct was necessary to preserve Jackson's health or
welfare. See R.C. 2905.04(B). Each death specification in a
multiple-count aggravated murder case must be considered
separately. State v. Hooks (1988), 39 Ohio St.3d 67, 529 N.E.2d
429. Loza's contention that his convictions must be overturned
is without merit, because each aggravated murder charge had
multiple death penalty specifications attached of which Loza was
found guilty.
Appellant further contends that the state failed to
establish his identity as the offender through scientific
evidence. Although laboratory technicians did not find any blood
or gun powder residue on appellant's clothing, it must be noted
that the .25 caliber bullets did not splatter much blood, as can
be evidenced from the crime scene photos and videotape. Although
no blood or gun powder residue scientifically linked the
appellant to the crime, there was sufficient probative evidence
from which reasonable minds could conclude that Loza committed
the crimes alleged. Accordingly, appellant's third proposition
of law is without merit.
D
In his fourth proposition of law, appellant argues that the
trial court erroneously denied his motion to bar his retrial on
double-jeopardy grounds. Appellant initially waived his right to
a jury trial and proceeded before a three-judge panel. During
cross-examination of the state's final witness, it was discovered
that a chemical analysis of appellant's clothing failed to reveal
the presence of blood. The results of this analysis were not
made known to the appellant before trial. Over the state's
objection, the three-judge panel, in a split decision, granted
the defense motion for a mistrial.
In a subsequent motion, appellant claimed the state
intentionally provoked a mistrial by deliberately withholding the
test results and other evidence, which could have been used to
challenge Jackson's credibility. The trial court determined that
the state neither intended to provoke a mistrial nor acted in an
overreaching manner.
The Double Jeopardy Clause of the Fifth Amendment, made
applicable to the states through the Fourteenth Amendment,
protects a criminal defendant from repeated prosecutions for the
same offense. Oregon v. Kennedy (1982), 456 U.S. 667, 671, 102
S.Ct. 2083, 2087, 72 L.Ed.2d 416, 422. When a trial court grants
a criminal defendant's request for a mistrial, the Double
Jeopardy Clause does not bar a retrial. Id. at 673, 102 S.Ct. at
2088, 72 L.Ed.2d at 423. A narrow exception lies where the
request for a mistrial is precipitated by prosecutorial
misconduct that was intentionally calculated to cause or invite a
mistrial. Id. at 678-679, 102 S.Ct. at 2091, 72 L.Ed.2d at 427.

See, also, State v. Doherty (1984), 20 Ohio App.3d 275, 20 OBR
338, 485 N.E.2d 783. Only where the prosecutorial conduct in
question is intended to "goad" the defendant into moving for a
mistrial may defendant raise the bar of double jeopardy to a
second trial after having succeeded in aborting the first on his
own motion. Oregon v. Kennedy, supra, at 676, 102 S.Ct. at 2089,
72 L.Ed.2d at 425.
After reviewing the record, we must conclude that the
conduct of the state was not intended to provoke the appellant
into moving for a mistrial. The prosecution was not aware of the
chemical analysis report until the morning of the last day of
trial. There is no indication that the state engaged in an
intentional act of deception, or that the state intentionally
withheld exculpatory evidence. For these reasons, appellant's
fourth proposition of law is overruled.
E
Appellant's sixth and seventh propositions of law are
interrelated. In proposition of law six, appellant asserts that
Detective Knable lacked probable cause to arrest him, and,
therefore, the ensuing confession must be suppressed. In
proposition of law seven, appellant argues that the trial court
committed plain error in admitting appellant's statements to
Knable following the investigatory stop.
Appellant argues that Knable had neither probable cause nor
a reasonable suspicion to believe that appellant had committed
any crime and, therefore, his warrantless seizure was
unjustified. We disagree.
In order to warrant a brief investigatory stop, the police
officer "must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant that intrusion." Terry v. Ohio (1967), 392
U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906. Such a
stop must be viewed in light of the totality of the surrounding
circumstances presented to the police officer. State v. Freeman
(1980), 64 Ohio St.2d 291, 18 O.O. 3d 472, 414 N.E.2d 1044. The
standard for reviewing such police conduct is an objective one:
would the facts available to the officer at the moment of the
seizure or the search "'warrant a man of reasonable caution in
the belief' that the action taken was appropriate?" Terry at 22,
88 S.Ct. at 1880, 20 L.Ed.2d at 906; State v. Williams (1990), 51
Ohio St.3d 58, 60-61, 554 N.E.2d 108, 111.
Knable was able to point to specific and articulable facts
which warranted his actions. Knable stopped Loza because of the
letter that was found in the dumpster indicating that there was a
drive-by shooting in Los Angeles in which three people were
killed and the author of the letter, Loza, left Los Angeles
because the police were searching for him. Loza was identified
as the man who had disposed of items in the dumpster. An empty
gun box was found in close proximity to the letter in the
dumpster. Knable could not be sure whether Loza or his companion
was armed. It was necessary for Knable to prevent Loza from
leaving the area while he went to talk to Dorothy Jackson. Loza
was detained in the back of Knable's car until Warren County
deputies arrived. Once the deputies arrived, Knable instructed
them to remove Loza's handcuffs, as there was no longer a need to
restrain him.
Appellant's contention that the statements he made to Knable

after being stopped should be suppressed because he was not given
Miranda warnings is baseless. Knable merely asked Loza his name
and other general questions associated with a police
investigation. This type of questioning is not affected by the
Supreme Court's holding in Miranda. Miranda v. Arizona (1966),
384 U.S. 436, 477-478, 86 S.Ct. 1602, 1629-1630, 16 L.Ed.2d 694,
725-726.
Under the circumstances, Knable was justified in stopping
Loza, conducting a limited search for weapons, and detaining Loza
until the Warren County deputies arrived. The circumstances
surrounding the stop rendered Knable's conduct reasonable and
appropriate under the guidelines established by Terry and its
progeny. Accordingly, we reject appellant's sixth and seventh
propositions of law.
F
In his eighth proposition of law, appellant argues that the
trial court applied an erroneous standard in overruling his
motion to suppress. In his ninth proposition of law, appellant
argues that the trial court did not comply with Crim. R. 12(E),
because it did not state its essential factual findings on the
record when it overruled Loza's motion to suppress. Since the
evidence supported the denial of the motion, any error would be
harmless.
The trial court applied a "reasonableness" standard when it
ruled on the motion to suppress. The court stated: "[T]he court
on analysis finds it very difficult to think of what else Officer
Knable could have done, or if he hadn't done as he did quite
likely would have been derelict in his duties."
The standard applied in Terry is an objective standard based
upon reasonableness. The trial court did not look at Detective
Knable's actions subjectively, as suggested by the defense.
Rather, after looking at all the surrounding circumstances, the
court properly applied an objective standard to Knable's
actions. We therefore reject appellant's eighth proposition of
law.
Appellant asserts the trial court failed to state its
essential findings of fact when it overruled his motion to
suppress. Appellant contends that this is a violation of Crim.
R. 12(E) and serves to frustrate the review required in a capital
case by R.C. 2929.05. R.C. 2929.05 requires the court of appeals
and this court to review and independently weigh all the facts and
other evidence disclosed in the record. Because our review is
independent of the lower court's and encompasses the entire
record,
a partial failure by the trial court to state all its essential
factual findings does not serve to hinder the review process.
Furthermore, in order to invoke Crim. R. 12(E), the
defendant must request that the court state its essential
findings of fact in support of its denial of a motion. State v.
Benner (1988), 40 Ohio St.3d 301, 317, 533 N.E.2d 701, 718.
Appellant failed to make such a request. Upon an independent
review of the record, we find the evidence supports the denial of
appellant's motion to suppress. Accordingly, appellant's ninth
proposition of law is rejected.
G
In propositions of law ten, eleven, twelve, and eighteen,
appellant contests certain jury issues.

In proposition of law ten, appellant argues the trial court
denied him due process of law by rejecting a proposed jury
questionnaire. "The scope of voir dire is within the trial
court's discretion and varies depending on the circumstances of
each case." State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529
N.E.2d 913, 920, citing State v. Anderson (1972), 30 Ohio St.2d
66, 73, 59 O.O.2d 85, 89, 282 N.E. 2d 568, 572. The trial judge
had discretion to limit voir dire and did not abuse this
discretion in rejecting the defense questionnaire in this case.
Furthermore, appellant had ample opportunity to freely question
prospective jurors during voir dire. See State v. Mills (1992),
62 Ohio St.3d 357, 365, 582 N.E.2d 972, 981. Thus, appellant's
right to a meaningful voir dire was fully preserved, and this
proposition of law is overruled.
In proposition of law eleven, appellant asserts that a
prospective juror who believes the responsibility for determining
punishment in a capital case rests with the trial court should
not be permitted to serve on a capital jury.
During voir dire, a prospective juror twice indicated that
she believed it was up to the court to determine what the
punishment should be in the event the appellant was found
guilty. However, when defense counsel asked whether she could
"listen to the Court, listen to the instructions, listen to the
evidence, follow the rules of law the Judge says applies, and
make your decision accordingly," the juror clearly indicated
that she understood her responsibility as a juror and would
follow the law as instructed. In addition, the juror did not
express any reluctance in sitting on the jury, and she agreed
that the verdicts were hers.
Appellant also contests the trial court's instructions
during the guilt phase of the trial, which indicated that any
recommendation of death by the jury would only be a
recommendation and would not be binding on the court. "The jury
in the penalty phase of a capital prosecution may be instructed
that its recommendation to the court that the death penalty be
imposed is not binding and that the final decision as to whether
the death penalty shall be imposed rests with the court." State
v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264,
paragraph six of the syllabus. This court has repeatedly stated
our preference that no comment be made on the question of who
bears the responsibility for determining the appropriateness of a
death sentence. However, we also have held that such an
instruction accurately states Ohio law and does not constitute
reversible error. State v. Henderson (1988), 39 Ohio St.3d 24,
30, 528 N.E. 2d 1237, 1243. See, also, State v. Williams (1986),
23 Ohio St.3d 16, 21-22, 23 OBR 13, 18-19, 490 N.E. 2d 906, 912;
State v. Steffen (1987), 31 Ohio St.3d 111, 113-114, 31 OBR 273,
275, 509 N.E. 2d 383, 387-388. Appellant's eleventh proposition
of law is, therefore, without merit.
In his twelfth proposition of law, appellant argues that the
trial court should have conducted additional voir dire when it
learned that a seated juror had a problem that might affect the
juror's ability to be impartial. The trial court received a note
from a juror's husband which reflected that he was very upset
about her jury selection, that he wanted her to be excused, and
that she might as well leave home for three weeks. Defense
counsel did not challenge the seating of this juror for cause,

nor did he exercise any of his peremptory challenges to prevent
this juror from serving. The juror never expressed reluctance to
sit on the jury; it was her husband who was reluctant to have her
absent for a protracted period of time. The trial court did not
abuse its discretion by retaining this juror. This proposition
of law is meritless.
In his eighteenth proposition of law, appellant asserts that
the trial court erred by allowing jurors to take notes and bring
them into deliberations. The rule in Ohio is that notetaking by
a juror does not, by itself, constitute unfair prejudice to the
defendant.
In addition, a trial court has the discretion to permit
jurors to take notes if warranted under the circumstances. See
State v. Jones (1988), 50 Ohio App.3d 40, 552 N.E.2d 651; and
State v. Williams (1992), 80 Ohio App.3d 648, 610 N.E.2d 545.
There is nothing in the record that indicates that the appellant
suffered undue prejudice as a result of juror notetaking.
Furthermore, as there is no indication that the trial court acted
unreasonably, arbitrarily, or unconscionably, appellant's
eighteenth proposition of law is rejected.
H
In his thirteenth proposition of law, appellant challenges
the introduction of evidence relating to his alleged involvement
in the following unrelated criminal acts: a drive-by shooting in
California, his juvenile arrest, gang-related activities, and
participation in the assault of a man in California.
Generally, evidence of the bad character of a witness is
inadmissible. Evid. R. 404(B) provides:
"Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident."
See, also, R.C. 2945.59.4
Appellant failed to object to much of the evidence, which
waives all but plain error. State v. Landrum (1990), 53 Ohio
St.3d 107, 111, 559 N.E.2d 710, 717. "The failure to object has
been held to constitute a waiver of the error and to preclude its
consideration upon appeal, for, absent an objection, the trial
judge is denied an opportunity to give corrective instructions as
to the error." State v. Wade (1978), 53 Ohio St.2d 182, 188, 7
O.O.3d 362, 365, 373 N.E.2d 1244, 1248. Concerning the items to
which Loza did object, the trial judge gave a curative
instruction to the jury that it was to disregard the statements
relating to the drive-by shooting, the juvenile arrest and gang
involvement. A jury is presumed to follow the instructions given
to it by the trial judge. State v. Henderson, supra, at 33, 528
N.E.2d at 1246, citing Parker v. Randolph (1979), 442 U.S. 62, 99
S.Ct. 2132, 60 L.Ed.2d 713. Furthermore, evidence admitted at
trial refuted the appellant's involvement in the drive-by
shooting. Appellant denied any involvement in the drive-by
shooting in his confession, and Knable testified that he did not
find any connection between Loza and any drive-by shootings in
Los Angeles.
In light of the other overwhelming evidence, we find that
this testimony did not contribute to appellant's conviction.

Therefore, appellant's thirteenth proposition of law is overruled.
I
In his fourteenth proposition of law, appellant contests the
admission of "inflammatory and gruesome" photographs of the
victims and a videotape from the crime scene.
"Properly 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." State v. Maurer (1984), 15 Ohio St.3d
239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the
syllabus. The photographs and videotape had significant
probative value in proving the state's case. This court has
previously held that "'[t]he state must prove, and the jury must
find, that the killing was purposefully done. The number of
shots fired, the places where the bullets entered the body, and
the resulting wounds are all probative evidence of a purpose to
cause death.'" Id. at 265, 15 OBR at 401, 473 N.E.2d at 792,
citing State v. Strodes (1976), 48 Ohio St.2d 113, 116, 2 O.O.3d
271, 272, 357 N.E.2d 375, 378, vacated in part on other grounds,
(1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1154. The
photographs and videotape were particularly illustrative of the
fact that the victims' wounds involved the splattering of very
little blood. The lack of blood splattering was relevant to
rebut the appellant's claim that the absence of blood on the
clothes he wore shows that he could not have committed the
murders.
The photographs that were admitted were neither repetitive
nor cumulative. Of those that were admitted, perhaps only two
could be considered "gruesome." However, the mere fact that a
photograph is gruesome is not sufficient to render it per se
inadmissible. State v. Maurer, supra. The probative value of
each challenged exhibit appears to outweigh any prejudicial
impact the photographs may have had.
Additionally, with respect to the videotape of the crime
scene, appellant objected and the court excluded the sound. The
video depicts the crime scene as Loza left it. Because a small
caliber gun was used, not much blood can be seen. Overall, the
victims merely appear to be asleep. Although the portion of the
tape that shows the paramedics assisting Jerri Jackson is
dramatic, when viewed without the sound, as it was for the jury,
it is neither gruesome nor prejudicial.
Accordingly, appellant's fourteenth proposition of law is
without merit.
J
In his fifteenth proposition of law, appellant contests the
admissibility of the testimony of Stephen Greene, a document
examiner, who testified that appellant wrote letters to his
mother and to Jackson in which he admitted culpability for the
murders. Because the defense did not object to this testimony at
trial, reversal requires a finding of plain error.
No plain error occurred with regard to the admissibility of
Greene's testimony. Appellant never disputed the fact that he
wrote the letters. He handed the letters to Knable personally
and asked Knable to mail them. Furthermore, appellant was

afforded the protection of Evid. R. 402, which provides that all
relevant evidence is admissible, and Evid. R. 702, which provides
for testimony by experts.
Greene was a qualified expert document examiner. He had
twelve years' experience as a document examiner with the Ohio
Bureau of Criminal Identification and Investigation, he received
training with the Secret Service and the FBI, and he conferred
regularly with various other examiners in Ohio and Michigan. He
testified that based upon his education, training, skill, and
experience as a handwriting analysis examiner and based on his
examination of the letters and handwriting samples provided by
appellant, it was his opinion, within a reasonable degree of
scientific certainty, that all the letters were written by
appellant. Additionally, "It is a well settled rule in this
state *** [that handwriting comparisons] *** may be made *** by
persons skilled in handwriting, such as are usually called
experts." Bell v. Brewster (1887), 44 Ohio St. 690, 696, 10 N.E.
679, 683. Thus, appellant's fifteenth proposition of law is
rejected.
K
Appellant in his sixteenth proposition of law challenges the
constitutionality of the actions of the police in seizing and
copying letters that appellant wrote from jail and admitting the
letters into evidence against him absent special justification.
Appellant asserts that the letters were the product of an illegal
search and seizure and were admitted in violation of his Fourth
Amendment rights, and that the seizure, reproduction and
admission of the letters violated his First Amendment rights.
Appellant's arguments are without merit.
Appellant sets forth a two-part test found in Procunier v.
Martinez (1973), 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224,
which pertains to the censorship of inmate correspondence. A
more appropriate test is set forth in Turner v. Safley (1986),
482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64, which holds that
prison regulations on correspondence are upheld if "reasonably
related" to legitimate penological interests.
Warren County prison officials had a legitimate security
interest in Loza's correspondence. Loza was writing to Dorothy
Jackson, an inmate at the juvenile detention center at the time
and a key witness in the state's case against him. Jackson had
already expressed her fear of appellant and mortification over
what he had done to her family. The state had an important
interest in ensuring that appellant was not threatening or
intimidating Jackson.
Furthermore, the letters were voluntarily written and no
threat or coercion was used to obtain them -- appellant handed
the unsealed letters to Knable and asked him to mail them. The
letters came into the possession of the officials under an
established practice, which was reasonably designed to promote
discipline. Under these conditions, there was not an
unreasonable search and seizure in violation of appellant's
constitutional rights or an infringement on appellant's First
Amendment rights. Stroud v. United States (1919), 251 U.S. 15,
21, 40 S.Ct. 50, 64 L.Ed. 103. Appellant's sixteenth proposition
of law is rejected.
L
Appellant contends in his seventeenth proposition of law

that due to prosecutorial misconduct during the guilt phase of
the trial, he was unduly prejudiced and therefore deprived of the
opportunity for a fair trial. Because appellant failed to object
until the close of all arguments, he has waived any right, save
plain error, to object to the prosecutor's initial closing
argument. See State v. Johnson (1989), 46 Ohio St.3d 96, 102,
545 N.E.2d 636, 642.
In general terms, the conduct of a prosecuting attorney
during trial is not a ground for error unless that conduct
deprives the defendant of a fair trial. State v. Maurer, 15 Ohio
St.3d at 266, 15 OBR at 402, 473 N.E.2d at 793; State v. Wade, 53
Ohio St.2d at 186, 7 O.O.3d at 364, 373 N.E.2d at 1247; Scott v.
State (1923), 107 Ohio St. 475, 490-491, 141 N.E. 19, 24; State
v. Papp (1978), 64 Ohio App. 2d 203, 211, 18 O.O.3d 157, 162, 412
N.E.2d 401, 407, 412 N.E.2d 401. The crucial aspect of the
analysis on this issue is the effect of the prosecutor's
statements on the jury's decision to recommend the death
penalty.
Parties are granted latitude in closing arguments, and the
question as to the propriety of these arguments is generally
considered one falling within the sound discretion of the trial
court. State v. Maurer, 15 Ohio St.3d at 269, 15 OBR at 404, 473
N.E.2d at 794-795. If it is clear beyond a reasonable doubt
that, absent the prosecutor's comments, the jury would have found
appellant guilty, then his conviction will not be reversed.
State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d
883.
Appellant asserts that the prosecution improperly commented
on his failure to testify at trial. The prosecutor quoted to the
jury a portion of the videotaped confession, in which appellant
stated, "I done it and I'm taking responsibility for it. It's
the whole truth and this is the same thing I'll be saying in
court." In the context in which this statement was given, the
prosecution did not focus on Loza's prior statement that he would
testify at trial, but rather, on Loza's admission of guilt.
As to appellant's argument that the prosecutor improperly
commented on Loza's request for a lesser included offense
instruction on murder during final argument, the prosecutor
merely was responding to defense counsel's closing argument, in
which defense counsel urged a guilty verdict on a murder charge
as an alternative to the charge of aggravated murder. Both
parties have latitude in responding to the arguments of opposing
counsel. State v. Brown (1988), 38 Ohio St.3d 305, 317, 528
N.E.2d 523, 538.
Appellant also alleges that the prosecutor improperly
inflamed the passions and prejudices of the jury by appealing to
the jury's emotional reaction to the crime to secure a conviction
out of moral indignation. A closing argument that goes beyond
the record may constitute prejudicial error, particularly where
the remarks call for the jury to convict in order to meet a
public demand. However, the closing argument must be reviewed in
its entirety to determine if the prosecutor's remarks were
prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17
O.O.3d 92, 97, 407 N.E.2d 1268, 1273. In the instant cause, we
conclude that a review of the prosecutor's closing argument in
its totality discloses no prejudice to the appellant. There are
several references throughout the closing argument that the jury

should decide the case based upon the evidence and the law.
Further, the court instructed the jury to decide the case on the
evidence. As has been previously stated, it is presumed that the
jury will follow the instructions given to it by the judge.
State v. Henderson, 39 Ohio St.3d at 33, 528 N.E.2d at 1246.
Appellant also asserts prosecutorial misconduct, in that the
prosecution misinformed the jury on the law by giving an overly
broad definition of an element of a "theft offense," and that
because of this definition, Loza could be convicted of a theft
offense by a mere finding that he used the victims' property
without their consent.
The statements made by counsel in closing arguments do not
govern the law that should be applied in this case. The trial
court gave the charge with regard to aggravated robbery and
defined each term in the charge. The trial court defined "theft"
as follows: "[T]he term 'theft' as used in this case means
knowingly obtaining property owned by another without the owner's
consent and for the purpose of depriving the owner of that
property." This is the law that governed this case. We presume
that the jury followed the instructions of the judge.
Without reservation, we can say beyond a reasonable doubt
that, despite the prosecutor's comments, the jury would have
found Loza guilty; therefore, the conviction need not be
reversed. Appellant's seventeenth proposition of law is
meritless.
M
In his nineteenth proposition of law, appellant contends
that he was deprived of due process of law, because the jury had
the entire videotaped confession replayed during its
deliberations.
Ohio courts follow the majority rule which permits the
replaying of a videotape exhibit during jury deliberations.
There is no prejudicial error in the jury's viewing a second time
an exhibit properly admitted into evidence. State v. Clark
(1988), 38 Ohio St.3d 252, 257, 527 N.E.2d 844, 851. Generally,
the propriety of sending a defendant's confession into the jury
room rests within the sound discretion of the trial judge. State
v. Doty (1916), 94 Ohio St. 258, 266-267, 113 N.E. 811, 814.
Because this court believes that it is not a per se abuse of
discretion to allow videotape recordings to be replayed in the
jury room, the only question remaining on this aspect is whether
it was an abuse of discretion to replay the tape before the
instant jury. We do not believe that the trial court's action
amounted to an abuse of discretion. Thus, we reject appellant's
nineteenth proposition of law.
N
Appellant's twenty through twenty-third and thirty-first
propositions of law pertain to the trial court's instructions
given during the guilt phase of the trial. Because Loza raises
these objections for the first time here, he has waived all but
plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 13, 3
OBR 360, 361, 444 N.E.2d 1332, 1333.
In proposition of law twenty, appellant argues that the
trial court erred by instructing the jury that the duty of
punishment may be placed by law on the court. We already have
rejected this argument above.
In proposition of law twenty-one, appellant argues that the

trial court failed to instruct the jury on contributing to the
delinquency or unruliness of a minor. Loza failed to object to
the trial court's instructions and, therefore, he must
demonstrate that but for the error, the outcome of the trial
clearly would have been different. Crim. R. 30(A); State v. Long
(1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph
two of the syllabus.
The jury acquitted Loza of the specification in Counts III
and IV, pertaining to the aggravated murder of Cheryl Senteno and
Jerri Jackson, and recommended thirty years to life imprisonment
as to Count I, pertaining to the aggravated murder of Georgia
Davis. With regard to those charges, the argument is moot.
Because Count II contains multiple specifications, the
finding of guilt on any other specification is sufficient to
warrant the death penalty. State v. Mapes (1985), 19 Ohio St.3d
108, 112, 19 OBR 318, 322, 484 N.E.2d 140, 145. The jury
convicted Loza of R.C. 2929.04(A)(3) (escape detection), (A)(5)
(course of conduct) and 2929.04(A)(7) (felony murder)
specifications. The trial court merged the R.C. 2929.04(A)(3)
and the 2929.04(A)(5) specifications and instructed the jury "to
consider those two circumstances as a single aggravating
circumstance." Accordingly, even a finding of plain error would
not affect the sentence. Therefore, we overrule appellant's
twenty-first proposition of law.
In proposition of law twenty-two, appellant argues that the
trial court's instructions on "purpose" created an
unconstitutional conclusive presumption and relieved the state of
its burden to prove this element beyond a reasonable doubt.
The trial court defined "purpose" as follows: "Purpose and
intent mean the same thing. *** The purpose with which a person
does an act is determined from the manner in which it is done,
the weapon used, and all the other facts and circumstances in
evidence. If a wound is inflicted upon a person with a deadly
weapon in a manner calculated to destroy life, the purpose to
cause the death may be inferred from the use of the weapon." The
trial court did not create a conclusive presumption with this
instruction. The court used the word "may," indicating that this
was a permissible presumption -- one the jury could choose to
accept or not. See State v. Edwards, 49 Ohio St.2d at 45, 3
O.O.3d at 26, 358 N.E.2d at 1061. This proposition of law is
without merit.
In his next proposition of law, appellant asserts that the
trial court erred in giving a supplemental charge to the jury.
The supplemental charge that the trial court gave was previously
approved in State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d
188, paragraph two of the syllabus.
After deliberating for a protracted period of time, the jury
asked for clarification on how to decide a specification if a
unanimous verdict could not be reached. The court advised the
jury to exhaust all reasonable efforts to reach a unanimous
verdict, gave the Howard charge, and told the foreman to note on
the verdict any failure to reach a unanimous verdict. After
continuing its deliberations for several more hours, the jury
reached a unanimous verdict.
Because the trial court gave a supplemental instruction that
was previously approved by this court, appellant's twenty-third
proposition of law is without merit.

In proposition of law thirty-one, appellant contends that
the trial court committed error by instructing the jury in
accordance with the statutory definition of "reasonable doubt" in
R.C. 2901.05(D). In State v. Van Gundy (1992), 64 Ohio St.3d
230, 232, 594 N.E.2d 604, 606, this court stated: "'The
definition of "reasonable doubt" set forth in R.C. 2901.05
correctly conveys the concept of reasonable doubt and, therefore,
is not an unconstitutional dilution of the state's requirement to
prove guilt beyond a reasonable doubt.'" Citing State v. Nabozny
(1978), 54 Ohio St.2d 195, 8 O.O.3d 181, 375 N.E. 2d 784,
paragraph two of the syllabus. This contention, therefore, is
rejected.
O
In proposition of law twenty-four, appellant argues that the
trial court erred by allowing the prosecutor to inject Loza's
future dangerousness into the sentencing proceedings.
During the sentencing phase, the prosecution asked defense
psychologist Dr. Fisher if Loza regretted the offense and if Loza
would do it again under the same circumstances. Fisher responded
that Loza did not express any regrets over the deaths and that he
would commit the offenses again under the same circumstances.
The prosecutor also referred to the lack of remorse Loza
displayed in his videotaped confession.
Our review of the record indicates that these comments were
not to be interpreted as non-statutory aggravating circumstances,
but rather, were related to Loza's "history, character, and
background" as specified in R.C. 2929.04(B). The trial court
instructed the jury on statutory aggravating circumstances and
mitigating factors only. Appellant's contention is without
merit.
P
In his twenty-fifth proposition of law, appellant contends
that the prosecutor's sentencing remarks denied him a fair
penalty determination. Reversal on this issue requires a finding
of plain error because Loza did not object to these remarks at
trial. In our independent assessment, we find that no plain
error exists. Any impropriety in the prosecution's argument did
not materially prejudice Loza.
A prosecutor can freely argue the weight to be given to
potentially mitigating factors. The weight to be given such
evidence is up to the individual decision-maker, who must be
allowed to freely decide whether to give any weight to the
mitigating evidence. State v. Steffen, 31 Ohio St.3d 111, 31 OBR
273, 509 N.E.2d 383, at paragraph two of the syllabus. The
prosecution's remarks were properly directed to the weight to be
given to the mitigating factors presented by Loza.
Appellant also contends the prosecutor sought to inject
non-statutory aggravating circumstances into the case by making
comments about one of the victims being pregnant, by stating that
there were four victims, and by mentioning Loza's gang
affiliations. It is true that the nature and circumstances of an
offense are not a statutory aggravating circumstance. However,
"R.C. 2929.04(B) requires the jury, trial court, or three-judge
panel to 'consider, and weigh against the aggravating
circumstances proved beyond a reasonable doubt, the nature and
circumstances of the offense ***.'" (Emphasis sic.) State v.
Stumpf (1987), 32 Ohio St.3d 95, 99, 512 N.E.2d 598, 604.

Appellant also contends that his death sentence should be
reversed because the prosecution's comments about the murder of a
pregnant woman and the loss of many expected years of life
allegedly violates Ohio law as improper victim-impact evidence.
Although reliance upon victim-impact evidence in arguing for the
death penalty is improper and constitutes error in the sentencing
phase of a capital trial, the same evidence may be admissible,
relevant evidence in the guilt phase of the proceedings.
No prosecutorial misconduct deprived Loza of his right to a
fair and reliable penalty determination. Appellant's
twenty-fifth proposition of law is without merit.
Q
In his twenty-sixth proposition of law, appellant contends
that the trial court discounted certain mitigating evidence
offered by Loza, because it was not relevant to the
appropriateness of the death penalty.
The trial court did not discount the mitigating evidence
presented by appellant; it determined that the aggravating
circumstances outweighed the mitigating factors beyond a
reasonable doubt. The weight to be given mitigating factors is
left to a sentencing authority's sound judgment. State v. Mills,
62 Ohio St.3d at 376, 582 N.E.2d at 988. As noted below, we
agree with the trial court's assessment on this issue. This
proposition is rejected.
R
In proposition twenty-seven, appellant claims that he was
denied effective assistance of counsel.
A reversal based upon a claim of ineffective assistance of
counsel requires the defendant to show, first, that counsel's
performance was deficient and, second, that the deficient
performance prejudiced his defense so as to deprive him of a fair
trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104
S.Ct. 2052, 2064, 80 L.E.2d 674, 693. The proper standard for
judging attorney performance is whether the attorney provided
reasonably effective assistance, considering all the
circumstances. When a convicted defendant complains of the
ineffectiveness of counsel's assistance, the defendant must show
that counsel's representation fell below an objective standard of
reasonableness. Id. at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at
693. The ultimate focus must be on the fundamental fairness of
the proceeding that is being challenged. Id. at 696, 104 S.Ct.
at 2069, 80 L.Ed.2d at 699. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, that course should be followed. Id. at 697, 104 S.Ct.
at 2069, 80 L.Ed.2d at 699. With regard to the required showing
of prejudice, the proper standard requires the defendant to show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at
698.
Even though defense counsel did not raise at trial the
issues in propositions of law three, seven through nine, eleven
through eighteen, twenty and twenty-one, twenty-eight, and
thirty-one, defense counsel's performance did not fall below an
objective standard of reasonableness. Furthermore, Loza does
not demonstrate that there is a reasonable probability that, but
for the alleged errors, the result of the proceeding would have

been different. Appellant's ineffective assistance of counsel
claim is overruled.
S
In proposition of law twenty-eight, appellant argues that
the trial court erred in imposing a thirty years to life sentence
and a three-year term of imprisonment consecutive to a death
penalty.
The prison sentence is rendered moot by the imposition of
the death sentence.
Propositions of law twenty-nine and thirty pertain to
residual doubt. In proposition of law twenty-nine, appellant
relies upon residual doubt to challenge the appropriateness of
his death sentences. Appellant asserts numerous factors that
purportedly create a residual doubt with respect to his guilt.
These factors include the trauma of his childhood, his father
abandoning the family when Loza was very young, his surreptitious
entrance into the United States to be reunited with his mother,
and his emotional insecurity coupled with his desire to protect
his girlfriend and unborn child. In addition, appellant argues
that Jackson's testimony was not credible, and that there was no
scientific evidence connecting Loza to the murders.
These matters were presented to the jury, the trial judge,
and the court of appeals, all of whom found no residual doubt.
In our independent assessment of the factors presented by Loza,
we support the findings of the lower courts. Appellant's
twenty-ninth proposition of law is without merit.
In proposition of law thirty, appellant argues that the
court of appeals erred in its independent sentence review by
deferring to the trial court's finding that no residual doubt
existed. The court of appeals did not simply defer to the trial
court's finding; it supported the findings after conducting its
own independent review of the case and the mitigating factors
presented by Loza. Proposition of law thirty is without merit.
T
In proposition of law thirty-two, appellant asserts that
Ohio's death penalty proportionality review is unconstitutional.
This claim is summarily rejected. See State v. Steffen, supra,
paragraph one of the syllabus.
In his final proposition of law, appellant challenges the
constitutionality of Ohio's death penalty statute. This argument
also is summarily rejected. See State v. Jenkins, supra (15 Ohio
St.3d 164, 15 OBR 311, 473 N.E.2d 264).
II
R.C. 2929.05 requires that we perform an independent review
of the record to determine whether the aggravating circumstances
outweigh the mitigating factors asserted beyond a reasonable
doubt.
The aggravating circumstances are as follows: Loza, with
prior calculation and design, murdered four people for the
purpose of escaping detection, apprehension, trial, or punishment
for other offenses (R.C. 2929.04[A][3]); Loza murdered the four
victims as part of a course of conduct involving the purposeful
killing of two or more persons (R.C. 2929.04[A][5]); and Loza
murdered the four victims while acting as the principal offender
in the commission of aggravated robbery (R.C. 2929.04[A][7]).
As to the statutory mitigating factors, the evidence shows
that Loza was aware that Dorothy Jackson was the target of

chronic physical and verbal abuse from Davis, Mullins and
Senteno. In this respect, the evidence indicates that their
actions may have "induced or facilitated" the offense. R.C.
2929.04(B)(1). Due to the same set of circumstances, Loza may
also have been under duress, coercion or strong provocation at
the time of the murders. R.C. 2929.04(B)(2). Loza was not under
any mental disease or defect and did not lack mental capacity at
the time of the murders; therefore, R.C. 2929.04(B)(3) is
inapplicable. Loza was close to nineteen years old at the time
the murders occurred; accordingly, R.C. 2929.04(B)(4) is a
mitigating factor. The record does not indicate that Loza had a
significant history of prior criminal convictions or delinquency
adjudications; therefore, R.C. 2929.04(B)(5) is a mitigating
factor. R.C. 2929.04(B)(6) is inapplicable as a mitigating
factor because Loza was the principal offender. We already have
evaluated the mitigating factor of residual doubt as required by
R.C. 2929.04(B)(7).
Independently weighing the aggravating circumstances against
the mitigating factors, we find that the aggravating
circumstances outweigh the mitigating factors beyond a reasonable
doubt.
III
Pursuant to our statutory duty, we now assess whether the
imposition of the death penalty in this case is disproportionate
or excessive when compared to other cases in which we have
imposed the death penalty.
After conducting a proportionality review and comparing
Loza's case with similar cases, we find that Loza's death
sentence is proportionate and not excessive. See State v. Brown
(1988), 38 Ohio St. 3d 305, 528 N.E.2d 523; State v. Frazier
(1991), 61 Ohio St.3d 247, 574 N.E.2d 483; State v. Hooks (1988),
39 Ohio St.3d 67, 529 N.E.2d 429; State v. Lott (1990), 51 Ohio
St.3d 160, 555 N.E.2d 293.
Accordingly, appellant's convictions and sentences are
affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.
FOOTNOTES:
1 The defendant in Crane testified that he had been detained
in a windowless room for a protracted period of time, that he had
been surrounded by as many as six police officers during the
interrogation, that he had repeatedly requested and been denied
permission to telephone his mother, and that he had been badgered
into making a confession.
2 See North Carolina v. Butler (1979), 441 U.S. 369, 373, 99
S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (an express written or oral
statement of waiver of the right to remain silent or the right to
counsel is usually strong proof of the validity of that waiver).
3 One of the death specifications with which the appellant
was charged with respect to the murders of Mullins and Davis was
the commission of the offense to escape detection, apprehension,
trial or punishment for another offense committed by the
offender, namely, the crimes of child stealing and contributing
to the unruliness of a minor, pursuant to R.C. 2929.04(A)(3),
2905.04(A) and 2919.24.
4 R.C. 2945.59 provides:

"In any criminal case in which the defendant's motive or
intent, the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing an act is material,
any acts of the defendant which tend to show his motive or
intent, the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing the act in question
may be proved, whether they are contemporaneous with or prior or
subsequent thereto, notwithstanding that such proof may show or
tend to show the commission of another crime by the defendant."