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

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THE STATE OF OHIO, APPELLEE, v. GOFF, APPELLANT.
[Cite as State v. Goff (1998), 82 Ohio St.3d 123.]
Criminal law -- Aggravated murder -- Death penalty upheld, when.
(No. 97-1130 -- Submitted March 3, 1998 -- Decided June 17, 1998.)
APPEAL from the Court of Appeals for Clinton County, No. CA95-09-026.

Appellant, James R. Goff, convicted of the aggravated murder of Myrtle
Rutledge, appeals his convictions and death sentence.

Rutledge, an eighty-eight-year-old woman, was in the process of moving
out of her old farmhouse and into a new doublewide trailer home that was built
directly behind the farmhouse. Her daughter, Esther Crownover, had been helping
her sort out items from the old house, in which she had lived for forty-seven years.

Rutledge decided to purchase some new furniture for her new house, and on
September 14, 1994, she and Crownover went to Butler Home Furnishings in
Wilmington, Ohio. After purchasing a new mattress, box springs, chair, ottoman,
and sofa, Rutledge made arrangements for the furniture to be delivered the next
day.

Butler Home Furnishings had employed appellant for furniture deliveries
for about a year. Harold E. Butler, Jr., the son of the owner, would contact
appellant when he had a delivery and then, depending on the item, would get
another person to assist appellant with the delivery. Butler Furnishings had also
used Manuel Jackson as a delivery person for the seven months prior to September
1994.

Appellant and Jackson were contacted to make the delivery to Rutledge on
September 15, 1994. When appellant and Jackson arrived with the furniture,
Rutledge directed them to put the new furniture in the new house. Since there was
no bed frame in the new house, appellant asked whether Rutledge wanted them to

obtain the frame from the old house and assemble the bed in the new house. After
they indicated that they would not charge Rutledge any additional money for this
service, Rutledge took them into the old house, up to the second floor, and pointed
out the bed frame that was to be used with the new bedding. The old house was in
a state of disarray from the ongoing moving process. Jackson thought he saw
appellant "snooping" through Rutledge's belongings.

Appellant and Jackson disassembled the old bed, took the frame to the new
house, and set up the new bed. While Jackson finished the assembly, appellant
obtained Rutledge's signature on the delivery form.

Later that afternoon, Rodney Rutledge, the victim's son, arrived at his
mother's house around 4:00 p.m. to mow the lawn. She showed him her new
furnishings that had been delivered that day. When he left (around 5:30 p.m.), his
mother's car was parked in the driveway next to the house.

On the night of September 15, Myrtle Rutledge spoke on the telephone to
her sister (6:30-7:00 p.m.) and her sister-in-law (around 9:00 p.m.) concerning the
upcoming family reunion on Saturday, September 17. On Friday, September 16,
1994, Rutledge's son drove past his mother's house six different times during the
course of his employment. Each time his mother's car was not parked in the
driveway next to the house. Rutledge's sister also drove past the house and
noticed the car was not there.

On Saturday morning, Crownover went to Rutledge's home to pick her up
for the reunion. The car was not there, and when her mother did not answer the
door, Crownover assumed that she had already left for the reunion. When she
arrived at the reunion her mother was not there. She went back to her mother's
house, entered, and went upstairs to her mother's bedroom. There she found her
mother's battered and naked body lying on the floor of the bedroom. A pool of

2

blood was on the bed, as well as the floor area. After ascertaining that there was
no pulse, she tried using the phone to call the police, but there was no dial tone.
She covered her mother with a blanket and drove to the police station.

The police and an ambulance were dispatched. Once it was determined that
Rutledge was dead, the police secured the scene and began a criminal
investigation. Deputy Sheriff Fred W. Moeller, the crime scene investigator,
determined that the door to the victim's house had been forced open. Someone
had apparently tried to enter the home through a window, because the window
screen was lying on the ground outside the house, but entry was not made though
the window. The phone wires on the outside of the house were cut.

No fingerprints were found in the bedroom. In Moeller's opinion, the room
had been cleaned. Other fingerprint smudges were found in the house, but never
matched. There was no evidence of blood anywhere else in the house except the
bedroom. Denise K. Rankin, a serologist, identified a pubic hair found at the
scene as being consistent with a pubic hair obtained from appellant after his arrest.

After Moeller left the scene to return to the police station, he was notified
that the victim's car was found on North High Street in the city of Wilmington.
He went to the scene, and the keys to the car were found on the floor on the
driver's side. A pink towel was on the front seat of the car, and no prints were
found anywhere on the car. Moeller believed that someone had wiped down the
car.

The deputy coroner testified that Rutledge died from blunt and sharp trauma
to the head, neck, shoulders, and ankle. Her death also resulted from blood loss
due to multiple stab wounds, one of which severed the carotid artery. The coroner
was unable to determine the time of death.

3

When appellant and Jackson left Rutledge's house after delivering the
furniture on September 15, they purchased some crack cocaine and went to
appellant's house to smoke it. Appellant later returned the truck to the furniture
store.

Jackson did not see appellant again until 1:00-1:30 a.m. the following
morning when he saw him running through an alley. Jackson later saw him on
Grant Street. Appellant had changed his clothes from earlier in the day when they
had delivered the furniture.

Appellant asked Jackson whether he wanted to smoke some crack, showing
him what Jackson thought was about $80 worth of crack. Jackson was with Tim
Bart, and all three proceeded to appellant's house. After they smoked the crack,
which took a couple of hours, Bart suggested stealing some meat to trade for more
crack. They were going to walk to the store, when appellant indicated he knew
where there was a car they could use, but it was stolen. Appellant said the car was
on North High Street. Bart and Jackson opted not to use the stolen car, and they
walked to Bob and Carl's Meat Store. Bart stole the meat, and he and appellant
"took off."

Jackson saw appellant around noon the next day, and appellant asked him to
tell anyone who asked, that he (appellant) had been with Jackson from 9:00 p.m.
on September 15 until 3:00 a.m. on September 16.

Later, on September 17, Timothy Shaffer found appellant playing pool at a
game room in Wilmington. Appellant, Shaffer, and David Walls ended up at
Shaffer's trailer, where they smoked three to four "joints." All three left the trailer
and went to buy some crack. After the purchase, Shaffer and appellant went to
appellant's house to smoke the crack. Appellant wanted Shaffer to sign a note

4

saying that he (Shaffer) helped in a crime committed on September 15, but Shaffer
refused to sign. Appellant went and stayed at Shaffer's trailer until September 21.

While staying with Shaffer, appellant talked with him about Rutledge's
death. Appellant asked Shaffer what he would do if he killed someone. Appellant
then told him he stabbed a lady and bent the blade of the knife. He also choked
her. Appellant then told Shaffer he took her car and left it in front of the Mulberry
Hill Apartments. After wiping the steering wheel, he drove the car to North High
Street, where he left it, and then bought about $90 worth of crack and smoked it.
Appellant admitted that he went to Rutledge's house to rob her.

On September 21, Shaffer saw a newspaper article about the Rutledge
murder and asked appellant to leave his trailer. About two weeks later, Shaffer
received a letter from appellant telling him that his (appellant's) life was in
Shaffer's hands and to not tell anyone. Shaffer eventually called Colonel Tim
Smith at the sheriff's department, and turned over a pair of tennis shoes and a
laundry basket belonging to appellant. Shaffer ultimately told Smith all of what
appellant had said about the murder.

Appellant was arrested on September 21, 1994 on a drug charge. During
the interrogation, appellant admitted that he had a crack habit, that he bought crack
whenever he could, and that he would steal and trade items to buy crack. He
indicated that he delivered furniture to the Rutledge residence, but when
questioned about the murder, appellant asked for an attorney and questioning
ceased.

The state also presented three inmates, Jerry Lee Price, Danny Smith, and
Keith Jones, to testify to various statements appellant had made to them regarding
the Rutledge crime while incarcerated on the drug charge. Smith's testimony was

5

excluded, since he failed to identify appellant in court; however, both Price and
Jones testified regarding the murder.

Jones's testimony was by far the most damaging. Appellant told Jones that
he had delivered furniture to an old lady in her late 80's. She had given appellant
some money when he put the new bed together and later that night he went back to
get the rest of the money he saw she had. Appellant entered through the kitchen
and found Rutledge in the bedroom. Appellant told him that Rutledge called him
"Jimmy," so he "had to get rid of the bitch." Jones asked him questions
concerning the crime because Jones could not believe appellant could do such a
thing to an old woman. Appellant asserted that she had lived her life, and since
she could send him to prison, he had to kill her. After he took the money and the
car, he went and bought crack. Appellant ran into a friend and they went and
smoked it. Appellant said he killed her by himself, using a fishing tackle knife
from his house. He told Jones they would never find the knife because he got rid
of it. Jones wrote a letter to the prosecutor's office, although he was not sure he
believed appellant, but that he (Jones) had an elderly mother and could not think
of something like that happening to her.

Appellant was indicted in January 1995 with alternate counts of capital
aggravated murder of Myrtle Rutledge. He was also charged with aggravated
robbery, aggravated burglary, and grand theft of a motor vehicle. The jury found
him guilty of eight of the counts and not guilty of one of the grand theft counts.

Four witnesses testified on appellant's behalf during the penalty phase. The
jury recommended the death penalty on both counts. After the state elected the
first count for sentencing, the trial court sentenced appellant to death. The court of
appeals affirmed the convictions and sentences, including the death sentence.

The cause is now before this court upon an appeal as of right.

6

__________________

Gary W. Crim and Luigia Tenuta, for appellant.
__________________

ALICE ROBIE RESNICK, J. In this appeal, appellant has raised eleven
propositions of law. Finding none meritorious, we affirm his convictions. In
addition, we have independently reviewed the record, weighed the aggravating
circumstance against the mitigating factors, and examined the proportionality of
the death sentence in this case to the penalty imposed in similar cases. Upon a
complete review of the record, we affirm appellant's convictions and sentences.
I
Penalty Phase Jury Instructions

Appellant's first proposition of law includes fifteen subsections challenging
the penalty-phase instructions. All but one of the challenges were preserved in the
trial court and in the court of appeals. See State v. Wolons (1989), 44 Ohio St.3d
64, 541 N.E.2d 443, paragraph one of the syllabus.

While it is prejudicial error to refuse a requested charge that correctly states
the law and is not covered by the general charge, the charge need not be given in
the exact language requested. See State v. Hicks (1989), 43 Ohio St.3d 72, 77, 538
N.E.2d 1030, 1037.
A. Jury's Discretion Must be Channeled

Appellant makes a generalized claim that the trial court's instructions to the
jury failed to channel the jury's discretion and thereby resulted in the arbitrary
imposition of the death penalty in this case. However, the instructions given to the
jury were not incorrect, nor did they fail to guide the jury in its decision-making
process.
B. Instruction that Sole Juror May Prevent the Imposition of Death

7

Appellant requested that the jury be instructed:

"If you are unable to agree unanimously that a death sentence is appropriate
under this standard of proof, you are to proceed to consider which of the life
sentence verdicts (recommendations) to return.

"You are not required to determine unanimously that the death sentence is
inappropriate before you consider the life sentences."

The trial court denied the request and instead instructed the jury:

"You shall recommend death only if you unanimously find by proof beyond
a reasonable doubt that the aggravating circumstances outweigh the mitigating
factors. if [sic] you do not so find, you shall unanimously sign a verdict for either
a sentence of life with parole eligibility after serving 20 full years of imprisonment
or a sentence of life with parole eligibility after serving 30 full years of
imprisonment."

Appellant now argues that the jury could infer through this instruction that it
must unanimously find that the death sentence was inappropriate before
considering a life sentence. In addition, appellant argues that this instruction
failed to inform the jurors what to do if they could not reach a unanimous
agreement on life or death. Appellant relies on our decision in State v. Brooks
(1996), 75 Ohio St.3d 148, 159-162, 661 N.E.2d 1030, 1040-1042.

We stated in Brooks, "In Ohio a solitary juror may prevent a death penalty
recommendation by finding that the aggravating circumstances in the case do not
outweigh the mitigating factors. Jurors from this point forward should be so
instructed." (Emphasis added.) Id. at 162, 661 N.E.2d at 1042. However, Brooks
was decided on March 4, 1996, six months after appellant was tried. Further, the
jury here did not receive the erroneous instruction that served as the basis for the
reversal in Brooks.

8

The jury was informed that it must be unanimous in finding that the
aggravating circumstances outweighed the mitigating factors. The jury was also
informed that if it did not make that unanimous finding, one of the life verdicts
"shall [be found]." Again, it would be preferable to include the missing piece, that
the jury does not have to unanimously find that the aggravating circumstances do
not outweigh the mitigating factors before considering the life sentence options.
Yet, the "substance" of what the jury must determine was included in the charge
given; therefore, appellant was not prejudiced.
C. Instruction on Unanimity on Mitigating Factors

Appellant argues that the trial court should have instructed the jury that it
did not have to unanimously agree on each mitigating factor before it could be
considered in the weighing process. Here, the trial court instructed, "In making
your decision you will consider all the evidence * * * [m]itigating factors must be
considered collectively when they are weighed against the aggravating
circumstances." The jury was never told that it had to make a unanimous finding
on the individual factors before weighing them. The trial court did not err in
overruling appellant's request.
D. Miscellaneous Mitigation Requests

In subsections D-F, H-K, and M, appellant alleges that the trial court,
despite requests, failed to expound on what is an aggravating circumstance, failed
to define "mitigation" for the jury, or give specific instructions concerning
mitigating factors set forth by the defense.

In subsections (F) and (I), appellant had requested that the court instruct,
with more specificity, regarding the aggravating circumstances and weighing
process. However, the court correctly identified the aggravating circumstances,
and the process of weighing the aggravating circumstances against the mitigating

9

factors. Therefore, the requests were, at least in substance, in the court's charge to
the jury. See Hicks, 43 Ohio St.3d at 77, 538 N.E.2d at 1037.

In subsection (D), appellant argues the trial court failed to define
"mitigating evidence" as set forth in State v. Holloway (1988), 38 Ohio St.3d 239,
527 N.E.2d 831. In Holloway, the court explained that "mitigating factors under
R.C. 2929.04(B) are not related to a defendant's culpability but, rather, are those
factors that are relevant to the issue of whether a defendant convicted under R.C.
2903.01 should be sentenced to death." Id. at 242, 527 N.E.2d at 835. See, also,
State v. Lawrence (1989), 44 Ohio St.3d 24, 28-29, 541 N.E.2d 451, 457. Here,
no specific instruction defining "mitigation" was given.

The trial court's failure to define "mitigation" for the jury does not
constitute prejudicial error. The trial court defined what factors the jury was to
consider, and implicit in the trial court's instruction was that the factors set forth
by the defense were factors relevant to whether appellant should be sentenced to
death.

In the remaining subsections (E, H, J, K, M), appellant argues the trial court
erred in refusing to instruct the jury on specific mitigating factors raised by the
evidence in the penalty phase. A sentencing authority may not "refuse to consider,
as a matter of law, any relevant mitigating evidence." Eddings v. Oklahoma
(1982), 455 U.S. 104, 113-114, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1, 10-11.
Here, the trial court never restricted the jury from considering appellant's evidence
as a mitigating factor. The court instructed:

"In making your decision you will consider all the evidence, the arguments
of counsel, and all other information and all other reports which are relevant to the
nature and circumstances of the aggravating circumstances or to any mitigating
factors including, but not limited to, the nature and circumstances of the offense,
10

and 1) the history and character and background of the Defendant, 2) the youth of
the Defendant, and 3) any other factors that are relevant to the issue of whether the
Defendant should be sentenced to death."

Thus, the jury was allowed to consider all the mitigation evidence and was
not precluded from considering any evidence as mitigating. The trial court need
not specifically instruct that particular evidence is mitigating, nor are comments by
the court on evidence generally appropriate. In State v. Landrum (1990), 53 Ohio
St.3d 107, 122, 559 N.E.2d 710, 727-728, we held that a trial judge did not err by
simply following the statutory language and declining to instruct that particular
evidence was a specific mitigating factor.

The United States Supreme Court recently addressed these issues, including
the failure to define mitigation, in Buchanan v. Angelone (1998), 522 U.S. ___,
___, 118 S.Ct. 757, 762, 139 L.Ed.2d 702, 711, holding that the absence of
instructions on the concept of mitigation and on particular statutorily defined
mitigating factors does not violate the Eighth and Fourteenth Amendments. An
important factor in the court's decision was its belief that the jury, after hearing
two days of testimony relating to the petitioner's family background and mental
and emotional problems, as well as arguments from both sides on mitigating
evidence and its effect, would be unlikely to disregard that evidence in making its
determination. See id., 522 U.S. at ___, 118 S.Ct. at 762, 139 L.Ed.2d at 711.

Buchanan, like appellant here, had requested several specific jury
instructions concerning specific mitigating factors. While the court indicated that
it has been consistently concerned that restrictions on the jury's sentencing
determination not preclude the jury from being able to give effect to mitigating
evidence, "we have never gone further and held that the state must affirmatively
structure in a particular way the manner in which juries consider mitigating
11

evidence." Id., 522 U.S. at ___, 118 S.Ct. at 761, 139 L.Ed.2d at 710. Like the
instructions in Buchanan, the instructions here did not foreclose the jury's
consideration of any mitigating evidence. "By directing the jury to base its
decision on `all the evidence,' the instruction afforded jurors an opportunity to
consider mitigating evidence." Id., 522 U.S. at ___, 118 S.Ct. at 762, 139 L.Ed.2d
at 710. See, also, Boyde v. California (1990), 494 U.S. 370, 386, 110 S.Ct. 1190,
1201, 108 L.Ed.2d 316, 333 ("[T]here is not a reasonable likelihood that the jurors
in petitioner's case understood the challenged instructions to preclude
consideration of relevant mitigating evidence offered by petitioner.").
E. Instructions on Mercy and Residual Doubt

Despite appellant's claims, the trial court need not instruct on mercy. State
v. Allen (1995), 73 Ohio St.3d 626, 638, 653 N.E.2d 675, 687; State v. Lorraine
(1993), 66 Ohio St.3d 414, 417, 613 N.E.2d 212, 216. Nor need the court instruct
on residual doubt. State v. Garner (1995), 74 Ohio St.3d 49, 56-57, 656 N.E.2d
623, 632. Furthermore, residual doubt is not relevant in a mitigation
consideration. State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112,
syllabus ("Residual doubt is not an acceptable mitigating factor under R.C.
2929.04[B], since it is irrelevant to the issue of whether the defendant should be
sentenced to death.").
F. Definition of Reasonable Doubt for Penalty Phase

During the penalty phase the trial court overruled the appellant's request for
the following instruction: "Reasonable doubt is present when you are not firmly
convinced that death is the appropriate punishment."

The trial court instructed instead:

"Reasonable doubt is present when after you have carefully considered and
compared all the evidence, you cannot say you are firmly convinced of the truth of
12

the charge. Reasonable doubt is a doubt based upon reason and common sense.
Reasonable doubt is a doubt -- reasonable doubt is not mere possible doubt,
because everything relating to human affairs or depending on moral courage -- on
moral evidence is open to some possible doubt. Proof beyond a reasonable doubt
is proof of such character that an ordinary person would be willing to rely and act
upon it in the most important of his or her own affairs."

While the foregoing is generally an acceptable definition of "reasonable
doubt," in State v. Taylor (1997), 78 Ohio St.3d 15, 29, 676 N.E.2d 82, 96, we
recognized that this definition, taken from 4 OJI 403.50 (1997) (see 4 OJI
503.016[A][3]), may not be a fully appropriate instruction during the penalty
phase of a capital case. In Taylor, the defendant had requested the same
instruction as that requested in this case. We stated that "[a]lthough appellant's
proposed instruction may be preferred, the flaw, if any, is harmless." Id. at 29,
676 N.E.2d at 96. In so stating, we did not mean to indicate or to otherwise
suggest that the instruction that had been proposed was an instruction that should
have been given. In Taylor, we went on to explain that "[o]verall, the trial court
clearly instructed the jury that, before recommending death, it must be convinced
beyond a reasonable doubt that the aggravating circumstance outweighed the
mitigating factors, and that the prosecution had the burden of proof on the issue."
Id. at 30, 676 N.E.2d at 96. Thus, as we indicated in Taylor, and as we once again
emphasize today, an appropriate penalty-phase instruction on the issue of
reasonable doubt should convey to jurors that they must be firmly convinced that
the aggravating circumstance(s) outweigh the mitigating factor(s), if any. As in
Taylor, when all the penalty-phase instructions are considered together, there is no
prejudicial error. See, also, State v. Woodard (1993), 68 Ohio St.3d 70, 76-77,
13

623 N.E.2d 75, 80; State v. Spirko (1991), 59 Ohio St.3d 1, 17, 570 N.E.2d 229,
248.

Our clarification today, which sets forth the essence of what the instructions
should convey, will, hopefully, resolve any misunderstandings that may have
arisen from our statement in Taylor concerning what is or is not preferable in
terms of a reasonable doubt instruction in the penalty phase of a capital case. We
suggest that it may be appropriate for the Ohio Jury Instructions Committee of the
Ohio Judicial Conference to consider drafting an instruction specifically for the
penalty phase regarding reasonable doubt.
G. Parole Instruction

Appellant filed a motion requesting a jury instruction on how the parole
system works, such as the circumstances under which appellant would be released
on parole. The trial court denied the motion. Appellant now claims error.

We have consistently held that consideration of parole and consecutive or
concurrent sentences is not for the jury's consideration. See State v. Mills (1992),
62 Ohio St.3d 357, 374, 582 N.E.2d 972, 987; State v. Mitts (1998), 81 Ohio St.3d
223, 229-230, 690 N.E.2d 522, 528-529. The trial court did not abuse its
discretion in declining to instruct the jury as appellant requested. Further,
appellant's trial counsel made it clear in closing argument that the sentence
imposed on the aggravated murder count would be in addition to the sentences he
would receive on the other charges. Defense counsel also emphasized in voir dire
and in closing argument that even if a life sentence was imposed, there was no
guarantee that parole would be granted.

In sum, none of appellant's assertions rises to the level of prejudicial error;
therefore, his first proposition of law is overruled.
II
14

Trial Court Opinion

Appellant argues in his second proposition of law that the trial court
committed error in its sentencing opinion by refusing to give mitigating weight to
the fact that he suffered from alcohol and drug abuse. The trial court stated in
relevant part:

"The Defendant has argued that he suffered from alcohol and/or drug
impairment at the time of the offense.

"Although there was evidence that the Defendant had used crack cocaine
earlier in the day, there was no evidence that at the time of the offense he had used
alcohol or was under the influence of either alcohol or crack cocaine at the time of
this offense. Furthermore, the use of alcohol or drugs is not an excuse for
committing a crime.

"The Court assigns no weight to this as a mitigating factor."

Appellant argues that the evidence of his alcohol and drug abuse was not
offered as an excuse for the crime; instead, it was presented to show that his
cocaine habit controlled his life and the decisions he made. Appellant argues that
therefore, the trial court should not have refused to consider it as a mitigating
factor. The court of appeals found that "while the trial court's statement that `the
use of alcohol or drug[s] is not an excuse for committing a crime' is arguably
inartful * * *, it does not, contrary to appellant's assertion, require the drug or
alcohol use to rise to the level of a defense before it can be considered as a
mitigating factor." The court of appeals determined that the trial court did
consider appellant's alcohol and drug abuse as a mitigating factor, "but chose to
assign absolutely no weight to it."

We generally agree with this conclusion reached by the court of appeals.
The trial court's statement that it "assigns no weight to this as a mitigating factor"
15

indicates clearly that the trial court did not "refuse to consider" alcohol and drug
abuse as a mitigating factor. At the same time, we also agree that some of the trial
court's earlier chosen language may be inartful, to the extent that the trial court's
sentencing opinion may be susceptible of a reading that indicates no need to
consider the factor simply because appellant was not under the influence of drugs
or alcohol at the time of the offense. The court's statement in that regard would be
an incorrect definition of mitigation, one that relates directly to culpability, as
opposed to those factors that are relevant to whether the offender should be
sentenced to death. See State v. Holloway, 38 Ohio St.3d at 242, 527 N.E.2d at
835. However, when this portion of the sentencing opinion is considered in its
entirety, there is no error. Moreover, if there was error, our independent review
would cure it. We overrule appellant's second proposition of law.
III
Voir Dire Questioning

In his third proposition of law, appellant argues that the sentencing decision
is unreliable because the trial court overemphasized the death penalty in its
questioning of the jurors.

During individual voir dire, the parties questioned the potential jurors
extensively on the death penalty. After the juror had been passed for cause, the
trial court concluded questioning by asking that juror, "If the case were proper,
and the facts would warrant it, and the law would permit it, could you join in
signing a verdict form which recommends to the Court the imposition of the death
penalty?"

Appellant concedes that under certain circumstances this question could be
proper. However, since this was the last question that each juror was asked before
being excused for the day, and since the jurors were not asked whether they could
16

join in the verdict for a life sentence, appellant asserts that it unduly emphasized
death and denied him an impartial jury.

Trial counsel did not object to the questioning and therefore the issue must
be reviewed under the plain error standard. An alleged error "does not constitute a
plain error * * * unless, but for the error, the outcome of the trial clearly would
have been otherwise." State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372
N.E.2d 804, paragraph two of the syllabus. Appellant has not met that burden
here.

While the question may have been repetitive at times, the same question was
asked of almost all prospective jurors, which provided consistency of questioning.
Since plain error is absent here, appellant's third proposition of law is overruled.
IV
Prosecution Argument -- Non-Statutory Aggravating Circumstances

Appellant alleges in his fourth proposition of law that the death sentence
must be reversed because of the prosecutor's penalty-phase closing argument.
Appellant argues that the state failed to limit itself to argument solely on the
statutory aggravating circumstances and therefore infected the jury deliberations.

Appellant appears to believe that the prosecutor's argument was limited
solely to the aggravating circumstances. Therefore, appellant argues, evidence
that the defense presented during the penalty phase was not subject to comment by
the prosecutor. This contention is simply wrong.

Appellant mischaracterizes the prosecutor's arguments. All of the
prosecutor's arguments cited by appellant were proper, and were based on
testimony and evidence presented by the defense. See State v. DePew (1988), 38
Ohio St.3d 275, 528 N.E.2d 542.
17

The prosecutor, however, did overstep the bounds of proper argument on
one occasion, arguing that the jury must set the standards of behavior acceptable
to society, and appealing to public sentiment. However, defense counsel
immediately objected, and the jury was instructed to disregard the prosecutor's
inappropriate comments. The jury is presumed to follow the court's instruction.
State v. DePew, 38 Ohio St.3d at 284, 528 N.E.2d at 553. Appellant's fourth
proposition of law is overruled.
V
Jury Deliberation on Two Counts for One Victim

Appellant was indicted on two counts of aggravated murder for the death of
one victim. Both counts alleged aggravated felony murder under R.C. 2903.01(B);
however, count one included aggravated burglary as the felony and count two
relied on aggravated robbery. Appellant was convicted on both counts.

Appellant filed a motion prior to trial requesting that the state elect which
count it would go forward on. The court overruled the motion. After conviction,
but prior to the start of the penalty phase, appellant renewed the motion. The state
again objected, arguing that it was not required to elect until "sentencing."

At the close of the evidence in the penalty phase, the defense again renewed
all its motions, which the court overruled. At the sentencing hearing, the state
elected to proceed on the first count for sentencing purposes. The trial court
sentenced appellant to death on count one. Appellant now argues in his fifth
proposition of law that it was error to allow the jury to consider both counts.
In
State v. Brown (1988), 38 Ohio St.3d 305, 317, 528 N.E.2d 523, 538, this
court stated, "Case precedent establishes that the state may submit to the jury two
crimes that are allied offenses of similar import. However, the law prohibits a
conviction of both crimes. State v. Osborne (1976), 49 Ohio St.2d 135, 3 O.O.3d
18

79, 359 N.E.2d 78." A "conviction" includes both the guilt determination and the
penalty imposition. Only one penalty of death was given to appellant. Thus, only
one conviction actually occurred. See State v. Henderson (1979), 58 Ohio St.2d
171, 12 O.O.3d 177, 389 N.E.2d 494; R.C. 2941.25(A).
In
State v. Waddy (1992), 63 Ohio St.3d 424, 447, 588 N.E.2d 819, 836, we
rejected the proposition that the prosecution must elect, before the penalty phase,
which count shall be submitted to the jury for sentencing. See, also, State v.
Poindexter (1988), 36 Ohio St.3d 1, 5-6, 520 N.E.2d 568, 572. Appellant's fifth
proposition of law is overruled.
VI
Application of Evidence Rule 612

Manuel Jackson was a key witness for the state. On cross-examination of
Jackson, appellant used two separate documents in an attempt to impeach his
testimony. Appellant now argues in his sixth proposition of law that the state was
erroneously allowed to elicit "extraneous matters" from these documents in
violation of Evid.R. 612. There is no merit to appellant's argument regarding
either document.

The first document was a statement that Jackson gave to the Clinton County
Sheriff's Department. Defense counsel used the statement during cross-
examination to impeach Jackson concerning the time that he and appellant
delivered the furniture to Rutledge. The prosecutor sought to have Jackson read
the entire statement to the jury. Defense counsel objected and the court sustained
the objection. The prosecutor then requested Jackson to read the statement silently
to himself and inquired whether there was anything else in the statement that
conflicted with his testimony. After reviewing the statement, Jackson indicated
that there was not.
19

Defense counsel also questioned Jackson concerning whether he had been
working with the police to obtain a confession from appellant. When Jackson said
that he did not recall doing that, defense counsel asked Jackson about a letter
Jackson had written Judge McBride of the municipal court. Jackson remembered
writing the letter, but not saying the things that defense counsel was questioning
him about. Defense counsel then showed Jackson the letter. After reading it,
Jackson admitted that the letter indicated that he had told Judge McBride that the
police wanted to put him in with appellant to get a confession, but that Jackson did
not remember saying that in the letter.

During redirect, the prosecutor sought to elicit from Jackson why he wrote
the letter to Judge McBride. Defense counsel objected, and the trial court
overruled it. Jackson, after reading the letter again, testified that he told the judge
that he had felt his family would be in danger if he testified against appellant.

Contrary to appellant's assertions, at no time were the "entire documents"
either read to, or given to, the jury, nor were they admitted into evidence.

Evid.R. 612 provides:

"Except as otherwise provided in criminal proceedings by Rule 16(B)(1)(g)
and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing
to refresh his memory for the purpose of testifying, either: (1) while testifying; or
(2) before testifying, if the court in its discretion determines it is necessary in the
interests of justice, an adverse party is entitled to have the writing produced at the
hearing. He is also entitled to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony of the
witness. * * *"

Here, the requirements of Evid.R. 612 were met. Jackson used the
documents to refresh his recollection and then answered the defense questions
20

based upon the refreshed recollection. The documents themselves were given to
the witness and the prosecutor had an opportunity to examine them. The trial
court was correct in prohibiting the prosecutor from asking the witness to read the
statement aloud, but properly overruled the defense objections concerning the
remaining questioning on redirect. The defense counsel opened the door to the
questions regarding the documents during cross-examination. The state properly
probed the areas of cross-examination and was limited by the trial court from
going beyond the scope of cross-examination. Defense counsel was also given an
opportunity to recross the witness. The trial court committed no error. We
overrule appellant's sixth proposition of law.
VII
Failure to Excuse Juror for Cause

Appellant argues in his seventh proposition of law that the trial court erred
by failing to excuse prospective juror Murphy for cause. This prospective juror
indicated his belief that psychological testimony is used too often in trials. He
added, however, that he was willing to listen to the testimony. After Murphy was
questioned extensively by both parties and the trial court, the court overruled the
defense challenge for cause. Appellant later used a peremptory challenge to
excuse the juror.

The determination of issues raised in voir dire is within the trial judge's
discretion. State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285. "A
trial court's ruling on a challenge for cause will not be disturbed on appeal unless
it is manifestly arbitrary and unsupported by substantial testimony, so as to
constitute an abuse of discretion." State v. Tyler (1990), 50 Ohio St.3d 24, 31, 553
N.E.2d 576, 587.
21

The trial court did not abuse its discretion in failing to excuse Murphy for
cause. Appellant's seventh proposition of law is overruled.
VIII
Sufficiency of Conviction on Grand Theft

Appellant was charged with two counts of grand theft for the taking of
Myrtle Rutledge's automobile. One count relied on R.C. 2913.02(A)(1) and the
other on R.C. 2913.02(A)(4). A specification attached to each count alleged that
appellant caused physical harm to Rutledge during the commission of the offense.
The jury found appellant guilty of one of the counts, R.C. 2913.02(A)(1), but
acquitted him of the other. He was also found not guilty of the specification.
Appellant now, in his eighth proposition of law, challenges the sufficiency of the
evidence relating to this charge.

When a defendant challenges the sufficiency of evidence, "[t]he relevant
inquiry 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 proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio
St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. See Jackson v. Virginia
(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.

Pursuant to R.C. 2913.02, the state was required to prove:

"(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services in any
of the following ways:

"(1) Without the consent of the owner or person authorized to give
consent."

Mrs. Rutledge owned a 1980 Toyota. When her son left her house on
September 15, 1994, the car was parked at her house. On September 16, 1994,
22

persons traveling by the Rutledge house did not see the car. Linda Barkey
testified that in the early morning hours of September 16, 1994, the Toyota was
parked outside her house on North High Street, where it remained until she
notified the police on September 17. When the car was examined by trace
evidence experts, the car keys were on the floor of the driver's side and, in the
expert's opinion, the car had been "wiped down," i.e., wiped clean of fingerprints.

Jackson testified that he and Bart met appellant between approximately 1:00
a.m. and 1:30 a.m. on September 16, 1994. Appellant had about $80 worth of
crack on him, and they all went to appellant's home to smoke it. Later, they
decided to steal some meat at a local grocery store. Jackson testified that appellant
stated that he knew where there was a car they could use to get to the grocery, but
it was stolen. Jackson and Bart decided against using the stolen car.

Appellant does not challenge the sufficiency of the evidence on any of the
remaining charges. All the evidence, when reviewed in a light most favorable to
the state, provides sufficient evidence of a grand theft of an automobile.

Appellant focuses on two points. First, he argues that Jackson's testimony
concerning his statement that appellant knew where they could get a stolen car to
use in the robbery, should not be believed because Jackson was a crack user who
had been convicted of drug crimes. Appellant fails to recognize that in a review of
the sufficiency of the evidence, the court does not engage in a determination of the
witnesses' credibility. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366,
227 N.E.2d 212, paragraph one of the syllabus.

Second, appellant emphasizes that there was insufficient evidence to prove
that appellant intended to permanently withhold the vehicle from its owner.
However, that is just one alternative of the definition of deprive. To "deprive"
also includes "dispos[ing] of property so as to make it unlikely that the owner will
23

recover it" or "[a]ccept, use, or appropriate money, property, or services, with
purpose not to give proper consideration in return for the money, property, or
services, and without reasonable justification or excuse for not giving proper
consideration." R.C. 2913.01(C)(1) and (3).

The state presented sufficient evidence that a reasonable jury could find that
appellant committed the crime of grand theft when he took the victim's vehicle.
Appellant's eighth proposition of law is overruled.
IX
Ineffective Assistance of Counsel

In his ninth proposition of law, appellant cites four reasons why his
counsel's representation was ineffective. None of these reasons, however,
constitutes the ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, appellant
must show that counsel's performance fell below an objective standard of
reasonableness and, in addition, that prejudice arose from counsel's deficient
performance. See Strickland v. Washington (1984), 466 U.S. 668, 687-688, 104
S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; State v. Bradley (1989), 42 Ohio St.3d
136, 538 N.Ed.2d 373, paragraphs two and three of the syllabus. Appellant has
failed to meet either prong on any of his four allegations.

Appellant first argues that trial counsel should have objected to the trial
court's voir dire questions concerning the imposition of the death penalty.
However, we have upheld similar questioning in previous cases. See State v.
Evans (1992), 63 Ohio St.3d 231, 249-250, 586 N.E.2d 1042, 1057-1058; State v.
Rogers (1985), 17 Ohio St.3d 174, 177-178, 17 OBR 414, 417-418, 478 N.E.2d
984, 989-990. Therefore, the failure to object to this questioning was not
ineffective.
24

Appellant also asserts that his attorneys were ineffective for failing to
inquire about various mitigating factors during voir dire. However, this was not
error. We held in State v. Wilson (1996), 74 Ohio St.3d 381, 386, 659 N.E.2d 292,
301, that the trial court did not err by failing to allow defense counsel to voir dire
on individual mitigating factors. See, also, State v. Lundgren (1995), 73 Ohio
St.3d 474, 481, 653 N.E.2d 304, 314-315. Since no requirement exists for such
questioning, defense counsel did not err in failing, for whatever reason, to attempt
to question the jurors on specific factors. Further, defense counsel did question
the jurors concerning the probable testimony of a psychologist in the penalty phase
and obtained their views on this kind of testimony. In the course of this
questioning, counsel indicated that there would be a great deal of information on
appellant's family background.

Third, appellant argues that defense counsel failed to object to the court's
instructing the jurors on two counts of aggravated murder. Appellant
misrepresents the record in this regard. Counsel filed a motion concerning the
election of counts prior to the start of the penalty phase. Trial counsel properly
preserved this issue.

Finally, appellant argues that trial counsel failed to object to improper
prosecutorial argument. Again, appellant is incorrect. On the one occasion that
the state did make an improper argument, trial counsel objected, and the jury was
then instructed to disregard the state's argument.

Appellant has failed to meet his burden of showing that his trial attorneys
were ineffective in their representation, and therefore, his ninth proposition of law
is overruled.
X
Cumulative Error
25

Appellant argues in his tenth proposition of law that the cumulative effect of
all the errors he has presented violated his right to a fair trial. This court has found
in the past that multiple errors that are separately harmless may, when considered
together, violate a person's right to a fair trial in the appropriate situation. See
State v. DeMarco (1987), 31 Ohio St.3d 191, 31 OBR 390, 509 N.E.2d 1256,
paragraph two of the syllabus. However, in order even to consider whether
"cumulative" error is present, we would first have to find that multiple errors were
committed in this case. Appellant received a fair trial, and any errors were
harmless or non-prejudicial, cumulatively as well as individually. Appellant's
tenth proposition of law is overruled.
XI
Constitutional Challenge

Appellant argues in his eleventh proposition of law that Ohio's capital
sentencing scheme results in cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution. He alleges that the statute is
unconstitutional for twelve reasons. The court has previously examined these
issues and determined that Ohio's statute is constitutional. See State v. Jenkins
(1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264; State v. Sowell (1988),
39 Ohio St.3d 322, 336, 530 N.E.2d 1294, 1309; State v. Steffen (1987), 31 Ohio
St.3d 111, 125-126, 31 OBR 273, 285-286, 509 N.E.2d 383, 396; State v. Grant
(1993), 67 Ohio St.3d 465, 483, 620 N.E.2d 50, 69; State v. Maurer (1984), 15
Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph six of the syllabus; State
v. Lewis (1993), 67 Ohio St.3d 200, 206, 616 N.E.2d 921, 926; State v. Buell
(1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795. Therefore, these claims
are summarily rejected. State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568, at
the syllabus. Appellant's eleventh proposition of law is overruled.
26

XII
Independent Sentence Review and Proportionality Analysis

Having rejected all of appellant's propositions of law, we must
independently weigh the aggravating circumstance against the factors presented in
mitigation, as required by R.C. 2929.05(A).

The evidence in the record supports finding that appellant committed the
aggravated murder of Myrtle Rutledge while he was committing, attempting to
commit, or fleeing immediately after committing or attempting to commit
aggravated burglary. Moreover, the evidence establishes that appellant was the
principal offender in the commission of the aggravated murder.

The nature and circumstances of the crime offer nothing in mitigation for
appellant. However, his history, character, and background suggest some
mitigating factors.

Appellant's father died of a heart attack when appellant was four years old.
At the time appellant, his two sisters, and his parents were living in a trailer in
Somerset, Kentucky. After appellant's father's death, Kentucky social services
became involved with the family. As a result, appellant's sister Melissa went to
live with their grandmother in Florida, and appellant, his sister Janice, and his
mother moved to Ohio. Much of appellant's childhood was spent living in
housing that was condemned, many times without even toilet facilities in the
house.

Appellant's mother was not employed and subsisted on welfare. She was a
failure at motherhood, providing very little supervision. The children skipped
school most of the time.

In 1988, Clinton County Children Services got involved and gave
appellant's mother two weeks to move out of the house. When appellant was
27

thirteen, his mother moved them to the home of a man she had met that same day
at a supermarket. By this time, appellant's older sister had already become
pregnant, then married and moved out of the house.

Children Services eventually removed Melissa and appellant from the
custody of their mother, and eventually placed them into Mid-Western Children's
Home ("Midwest"). Appellant never had the structured environment and parental
guidance as a base and rebelled when he was placed in Midwest (and later
numerous foster homes) and rules were imposed upon him. Even though his
mother visited him only rarely, he strove to get back to live with her so he could
do as he pleased.

Sharon Cole, one of appellant's teachers, testified that she would pick him
up from Midwest on Saturdays to spend time with her family. She indicated that
she wished she could have helped appellant because when he was with her and her
family he seemed fun-loving, giving, and affectionate.

When appellant became eighteen, he was no longer under the authority of
Children Services and moved back with his mother. Later, he and Tim Shaffer
moved in together. Charlotte Fisher, his landlady, testified that she rented an
apartment in her house to appellant and Shaffer from October 1993 until January
1994. Appellant always paid his rent on time and was a good tenant. They were
asked to move out because of problems with Shaffer.

Dr. Jeffrey Smalldon examined and tested appellant and determined him to
have an overall IQ of 86. During the testing, Dr. Smalldon found that appellant
did better on perceptual motor skills and nonverbal tasks. Appellant had difficulty
with abstract reasoning and analytical problem solving. He had repeated
kindergarten twice and failed the third grade. He never graduated from high
school.
28

Dr. Smalldon's investigation into appellant's life revealed that appellant
was an unwanted child from the moment of conception. His mother had
undergone a tubal ligation, but appellant was conceived after that procedure.
While the doctors recommended abortion, his mother chose to give birth. His
father died when appellant was very young, and it affected him so traumatically
that he tried to crawl into the casket with his father at the funeral home. Dr.
Smalldon testified that it is not possible to overemphasize the effect the loss of the
same sex parent has on a child.

Dr. Smalldon described appellant's childhood as chaotic. Appellant started
shoplifting when he was six years old. His mother was "profoundly neglectful,"
failing to provide even the basic needs of food, clothes and school. Because of
his experience with his mother, appellant never learned the connection between
hard work and getting what he wanted. Appellant would shoplift clothes and food.
He first appeared in juvenile court when he was eleven or twelve.

The Minnesota Multiphasic Personality Inventory (MMPI) showed
appellant to be a person with significant problems with trust and a suspicious
attitude towards others. He had a tendency to engage in anti-social behavior and
could be described as self-absorbed and grandiose.

Appellant's history, character, and background are entitled to some
mitigating weight.

The factors set forth in R.C. 2929.04(B)(1), (2), (3), (5), and (6) are
inapplicable. Appellant was nineteen years of age at the time of the crime, and
that factor is entitled to consideration under R.C. 2929.04(B)(4). However, under
the circumstances of this case, we afford it little weight. See State v. Beuke, 38
Ohio St.3d at 44-45, 526 N.E.2d at 290.
29

Under R.C. 2929.04(B)(7) (the catchall provision), we consider appellant's
history of substance abuse, including alcohol, which he began in earnest when he
was eleven. He also used marijuana, "speed," and inhalants. His crack cocaine
dependency occurred during a period of several months in 1994, leading to this
crime. However, we give little weight to appellant's voluntary substance abuse.
See State v. Benge (1996), 75 Ohio St.3d 136, 147, 661 N.E.2d 1019, 1029; State
v. Slagle (1992), 65 Ohio St.3d 597, 614, 605 N.E.2d 916, 931; State v. Clark
(1988), 38 Ohio St.3d 252, 264, 527 N.E.2d 844, 856.

It was Dr. Smalldon's opinion that appellant would do well in a structured
environment. While appellant's ability to adjust to prison life can be considered
under R.C. 2929.04(B)(7), we accord little weight to this point. Finally, "residual
doubt" is not a factor for our consideration, since it is not relevant to whether
appellant should be sentenced to death. See State v. McGuire (1997), 80 Ohio
St.3d 390, 686 N.E.2d 1112, at the syllabus.

When the aggravating circumstance is weighed against the mitigating
factors taken together, it outweighs the factors in mitigation beyond a reasonable
doubt.

This court has reviewed at least three other cases with the sole aggravating
circumstance of aggravated burglary: State v. Bonnell (1991), 61 Ohio St.3d 179,
573 N.E.2d 1082; State v. Franklin (1991), 62 Ohio St.3d 118, 580 N.E.2d 1; and
State v. Campbell (1994), 69 Ohio St.3d 38, 630 N.E.2d 339. In Bonnell, the
defendant entered a home through deceit and shot the victim two times. The only
factor presented in mitigation was residual doubt. In Franklin, the defendant
broke into the victim's apartment, beat the victim to death with a claw hammer,
and then robbed the victim. Franklin presented evidence in mitigation that
included his age (twenty-one), residual doubt, lack of a serious prior criminal
30

record, his childhood illnesses that resulted in a poor school performance, and a
loving, nurturing family. In Campbell, the defendant entered the victim's home to
rob him; the victim was found murdered with a knife through his wrist. Campbell
presented some compelling mitigating evidence in that he was disfigured as a child
in a fire and spent a year in the hospital. This event affected Campbell's life,
causing him to turn to drugs and alcohol and to develop mental and emotional
problems.

In each of the three cases, we affirmed the death sentence. While
appellant's mitigating evidence may seem somewhat more compelling than that in
either Bonnell's or Franklin's case, appellant's case is comparable to Campbell's.
Appellant's childhood was also difficult and resulted in a significant drug and
alcohol problem. Appellant was only nineteen when the crime was committed,
compared to Campbell's age of twenty-seven; however, that distinction alone does
not make appellant's death sentence disproportionate.

For all of the foregoing reasons, the judgment of the court of appeals is
affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
31