State v. Reynolds

[This opinion has been published in Ohio Official Reports at 

80 Ohio St.3d 670

.]




            THE STATE OF OHIO, APPELLEE, v. REYNOLDS, APPELLANT.
                     [Cite as State v. Reynolds, 

1998-Ohio-171

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
   (No. 96-1956—Submitted September 23, 1997—Decided January 14, 1998.)
        APPEAL from the Court of Appeals for Summit County, No. 16845.
                                  __________________
        {¶ 1} Appellant, Lawrence Reynolds, Jr. (“Reynolds”), was convicted of
the aggravated murder of Loretta Foster. He appeals his convictions and death
sentence.
        {¶ 2} In early January 1994, Foster complained to her son that a neighbor,
Reynolds, had been knocking on her door after dark. Reynolds had recently painted
Foster’s basement and claimed that he needed to put a paint can in the basement.
Foster told her son that she was scared of Reynolds.
        {¶ 3} On January 11, 1994, Foster’s sister-in-law, Norma Haubert, took her
to a doctor’s appointment. Foster told Haubert that a neighbor had been acting
“weird”; that is, he would knock on the door, hide, and then jump out at her. Foster
told her doctor and her doctor’s office manager about Reynolds in an effort to
explain why her blood pressure was elevated. After the visit to the doctor, Foster
stopped at her credit union and withdrew fifty dollars. Haubert dropped Foster off
at home around 3:00 p.m.
        {¶ 4} Around 7:30 p.m. that evening, Reynolds and his brother Jason went
to Northgate Lanes to shoot pool with Jason’s friend Joseph Hindel. Upon arriving,
Reynolds told Brian Baker and Jim Ferrando that that would be his last night to
party with them because he had killed someone and was leaving town the next day.
        {¶ 5} Reynolds told them that he had knocked on Foster’s door and told her
that he had something to give her from his sister. He had rope and a tent pole with
                            SUPREME COURT OF OHIO




him. Foster opened the door and a struggle began. Reynolds hit Foster and she fell
to the floor. He began to rummage through her purse. When he realized she was
attempting to reach for the phone, he cut the phone line, “tied her up,” and hit her
once or twice with the tent pole. He tried to strangle her with his hands, but was
unsuccessful.
       {¶ 6} At some point during the struggle, Reynolds received a rope burn on
his hand, which he showed his listeners. Reynolds told them that he had left Foster
lying naked in the living room, and that he had taken forty dollars in cash and a
blank check from her checkbook before leaving through the back door.
       {¶ 7} The group proceeded to the Rainbow Bar where Reynolds continued
to discuss how he had killed Foster. Baker and Ferrando did not know whether to
believe Reynolds, so they left the bar and went to Foster’s house. They looked into
the living room window and saw Foster’s nude body lying on the floor.
       {¶ 8} Reynolds and Jason also went to Foster’s house after leaving the
Rainbow Bar. Jason was stunned to see Foster’s body. Reynolds picked up a glove
and a tent stake that he had left and attempted to brush off the purse. Then they
returned to their home.
       {¶ 9} Baker and Ferrando went to a friend’s house because they knew his
father was a police officer. They told Officer Joe Orsine what Reynolds had told
them and described what they had seen at Foster’s house. They later went to the
police station and made a statement.
       {¶ 10} Police officers were dispatched to investigate. After finding the
victim’s body, the police initiated a homicide investigation and obtained an arrest
warrant for Lawrence Reynolds, Jr.
       {¶ 11} Officers went to the Reynolds home and arrested Reynolds. While
the officers were there, Lawrence Reynolds, Sr. consented, verbally and in writing,
to a search of the house. He specifically consented to a search of Reynolds’s




                                         2
                                 January Term, 1998




bedroom and the basement. Police seized a camouflage outfit, gloves, a tent pole,
white rope, a knife, and a blank check.
          {¶ 12} Forensic tests revealed that the rope found in Reynolds’s bedroom
matched the rope used to tie up Foster. Human hair on the rope matched a hair
sample taken from Foster. Blood found on the camouflage overalls was of the same
type as Foster’s.
          {¶ 13} On January 20, 1994, the Summit County Grand Jury indicted
Lawrence Reynolds, Jr. for one count of aggravated murder committed during the
course of a robbery and/or burglary and/or kidnapping and/or attempted rape. Four
separate aggravating circumstances, pursuant to R.C. 2929.04(A)(7), were alleged,
i.e., murder during an aggravated robbery, murder during an aggravated burglary,
murder during a kidnapping, and murder during an attempted rape. Reynolds was
also charged with four separate felonies—aggravated robbery, aggravated burglary,
kidnapping, and attempted rape.
          {¶ 14} While awaiting trial in the Summit County Jail, Reynolds told an
inmate, Neil Webster, the same story he had told his friends. Reynolds also stated
that he had taken off Foster’s blouse to enable him to see her hands at all times.
Webster questioned him concerning a newspaper article that asserted that the victim
was found with her pants off. Initially, Reynolds claimed that Foster’s pants had
come off in the struggle, but he later told Webster that “he tried to stick his meat in
her.” When Webster specifically questioned him, Reynolds denied trying to rape
Foster.
          {¶ 15} The autopsy showed that Foster had been strangled. She had also
been subjected to blunt force trauma. No evidence of spermatozoa was found in
her vagina or rectum, and there was no physical evidence of sexual conduct.
          {¶ 16} At trial, the defense did not deny that Reynolds was responsible for
Foster’s death. Instead, the defense attacked various elements of the offenses




                                           3
                              SUPREME COURT OF OHIO




charged and attempted to show that Reynolds had been drunk and had not gone to
Foster’s house intending to kill her.
          {¶ 17} Reynolds was twenty-seven years old when the crime was
committed and had been drinking alcohol since he was approximately fourteen
years old. During his high school years, he drank as many as twelve cans of beer a
day. Despite this drinking, Reynolds apparently had a normal childhood in a middle
class family. After high school, he enlisted in the Army for four years and then re-
enlisted for two more years. He served in Korea for eighteen months and was often
drunk when he telephoned home.
          {¶ 18} When he got out of the Army, he became depressed because his
girlfriend and the son he had fathered with her did not come to Ohio with him. His
aunt and uncle helped him get a job with a replacement window company. He
worked there for about two years before being fired because of alcohol-related
chronic tardiness and absenteeism.
          {¶ 19} Approximately two years before the murder, Reynolds had been
arrested for driving under the influence and failing to comply with a police officer’s
order. He moved in with his parents and completed an alcohol treatment program.
Even so, he continued to drink. He paid rent to his parents when he first moved
home, but had not given them any rent for about four months prior to Foster’s death.
He had been unable to find a job and sold personal items to support his drinking
habit. When he had nothing left to sell, he apparently decided to steal money from
Foster.
          {¶ 20} The jury found Reynolds guilty of all charges and recommended the
death penalty. The trial court adopted the jury’s recommendation and sentenced
Reynolds to death. The court of appeals affirmed the convictions and sentences.
          {¶ 21} The cause is now before this court upon an appeal as of right.
                                __________________




                                           4
                               January Term, 1998




       Maureen O’Connor, Summit County Prosecuting Attorney, and Philip D.
Bogdanoff, Assistant Prosecuting Attorney, for appellee.
       Burton & Merlitti and Lawrence J. Whitney; and Renee W. Green, for
appellant.
                              __________________
       PFEIFER, J.
       {¶ 22} In this appeal, Reynolds advances nineteen propositions of law. For
the reasons that follow, we reject all his propositions of law and affirm each
conviction and the death sentence.
                         Ineffective Assistance of Counsel
       {¶ 23} In his first proposition of law, Reynolds contends that he was denied
the effective assistance of counsel because his lead attorney was appointed to
represent him only two weeks prior to trial. Sup.R. 20 (formerly C.P.Sup.R. 65)
provides that two attorneys, certified pursuant to the rule, must be appointed to
represent indigent persons charged with a capital crime. One attorney is designated
lead counsel and the other is designated co-counsel. The Committee on the
Appointment of Counsel for Indigent Defendants in Capital Cases certifies
attorneys as either lead or co-counsel, based on training and experience. One of the
attorneys appointed to an indigent capital defendant must be certified as lead
counsel.
       {¶ 24} Attorneys George Keith and George Pappas were appointed to
represent Reynolds. After pretrial motion hearings, but before the trial began, the
trial court discovered that neither attorney was certified as lead counsel. Keith
moved to withdraw from the case and requested that an attorney certified as lead
counsel be appointed. The trial court appointed Kerry O’Brien, a lead-counsel
certified attorney. Voir dire began two and a half weeks later.
       {¶ 25} Reynolds contends he was denied the effective assistance of counsel
because it is unreasonable to expect counsel to prepare for a capital trial in two




                                         5
                             SUPREME COURT OF OHIO




weeks. The record reflects that the trial court questioned O’Brien extensively
concerning his ability to prepare for trial in the short period of time available to
him. O’Brien stated that he could be adequately prepared. The court also asked
Reynolds and Pappas whether they were comfortable with the timetable. Reynolds
and Pappas expressed their agreement with the new arrangement.
       {¶ 26} O’Brien prepared for the trial by reviewing materials that had been
prepared by Pappas and Keith.        Pappas remained on the case and provided
continuity of representation to Reynolds. The trial court indicated, by journal entry,
that new counsel would be granted time to file additional motions and to request a
delay if necessary.
       {¶ 27} At oral argument, Reynolds’s counsel invited this court to adopt a
per se rule that appointed counsel cannot be required to begin a capital trial within
such a short period of time. We decline the invitation. Instead, we examine
counsel’s performance under the standard set forth in Strickland v. Washington
(1984), 

466 U.S. 668

, 

104 S.Ct. 2052

, 

80 L.Ed.2d 674

. In order to prevail on a
claim of ineffective assistance of counsel, Reynolds must show that counsel’s
performance fell below an objective standard of reasonableness and that prejudice
arose from counsel’s performance. See 

Strickland at 687

, 

104 S.Ct. at 2064

, 

80 L.Ed.2d at 693

; State v. Bradley (1989), 

42 Ohio St.3d 136

, 

538 N.E.2d 373

,
paragraphs two and three of the syllabus.
       {¶ 28} Reynolds has not demonstrated that he was prejudiced by lead
counsel’s belated appointment. We also find no evidence in the record that O’Brien
was hampered by his late appointment. O’Brien, separately or together with
Pappas, filed motions in addition to those filed by Keith and Pappas, questioned
jurors during voir dire, cross-examined the state’s witnesses in the trial phase,
conducted direct examination in the penalty phase, and gave closing arguments in
both phases. We conclude that Reynolds was not prejudiced by the appointment of
O’Brien two weeks prior to trial, and accordingly reject the first proposition of law.



                                          6
                               January Term, 1998




                           Pretrial Suppression Issues
       {¶ 29} In his second proposition of law, Reynolds argues that the evidence
obtained from his bedroom should have been suppressed because his father did not
have authority to consent to a search. Lawrence Reynolds, Sr. gave permission to
police officers to enter his home.    Once inside, the officers established that
Reynolds, Sr. owned the home and that Reynolds had not paid rent in the past four
months. They also determined that Reynolds and Reynolds, Sr. had no agreement
about whether Reynolds’s bedroom was off limits and that Reynolds did not have
any locked compartments in his bedroom. Detective Michael Gay obtained verbal
and written consent to search the house and Reynolds’s bedroom from Reynolds,
Sr. Reynolds, Sr. also provided a taped statement of consent after the search had
been completed.
       {¶ 30} While the Fourth Amendment prohibits warrantless searches, there
are exceptions to this general rule. For instance, searches may be conducted when
the owner of the property or a person with common authority over the property
voluntarily consents to a search. United States v. Matlock (1974), 

415 U.S. 164

, 

94 S.Ct. 988

, 

39 L.Ed.2d 242

; State v. Sneed (1992), 

63 Ohio St.3d 3, 7

, 

584 N.E.2d 1160, 1165

. The state has the burden of establishing that Reynolds’s father had the
required common authority to consent to a search. Illinois v. Rodriguez (1990), 

497 U.S. 177, 181

, 

110 S.Ct. 2793, 2797

, 

111 L.Ed.2d 148, 156

.
       {¶ 31} Parents may consent to a search of premises owned by them. See
State v. McCarthy (1971), 

26 Ohio St.2d 87, 92

, 

55 O.O.2d 161, 164

, 

269 N.E.2d 424, 427

; State v. Carder (1966), 

9 Ohio St.2d 1, 10

, 

38 O.O.2d 1, 6

, 

222 N.E.2d 620, 627

. Reynolds, Sr. owned the house that was searched and there was no
agreement between him and Reynolds concerning the privacy of Reynolds’s
bedroom. See United States v. Evans (C.A.7, 1994), 

27 F.3d 1219, 1230

; United
States v. Roark (C.A.6, 1994), 

36 F.3d 14, 17

; State v. Chapman (1994), 

97 Ohio App.3d 687, 691-692

, 

647 N.E.2d 504, 507

; State v. Gavin (1977), 

51 Ohio App.2d 7

                             SUPREME COURT OF OHIO




49, 53, 

5 O.O.3d 168, 170

, 

365 N.E.2d 1263, 1265

. Reynolds had not been paying
rent, which would have given him a claim that he had a proprietary interest in his
bedroom. For these reasons, we conclude that the investigating officers received
constitutionally adequate consent from Reynolds, Sr. We reject Reynolds’s second
proposition of law.
        {¶ 32} In his third proposition of law, Reynolds challenges the trial court’s
denial of his motion to suppress statements. One particular statement that Reynolds
moved to suppress was ruled admissible though never introduced at trial. Pursuant
to Crim.R. 52(A), a court should disregard any error “which does not affect
substantial rights.” If any error existed in denying the motion to suppress the
statement, it was harmless beyond a reasonable doubt. Reynolds’s third proposition
of law is rejected.
                                  Voir Dire Issues
        {¶ 33} Reynolds asserts in his fourth proposition of law that the trial court
erred when it overruled his motion to prohibit the use of peremptory challenges to
exclude jurors who expressed concerns about capital punishment. In State v.
Esparza (1988), 

39 Ohio St.3d 8, 13

, 

529 N.E.2d 192, 198

, we held that the use of
peremptory challenges against prospective jurors opposed to the death penalty was
not improper. Prosecutors can exercise peremptory challenges for any reason,
without inquiry, and without a court’s control, except that jurors cannot be excluded
on the basis of race or gender. State v. Seiber, 

56 Ohio St.3d 4, 13

, 

564 N.E.2d 408, 419

; J.E.B. v. Alabama ex rel. T.B. (1994), 

511 U.S. 127

, 

114 S.Ct. 1419

, 

128 L.E.2d 89

. Thus, it was not error for the trial court to allow the challenged
peremptory challenges. The fourth proposition of law is rejected.
        {¶ 34} In his fifth proposition of law, Reynolds argues that the jury panel
was tainted because the trial court erred by delaying an excusal for cause.
Prospective juror John Vanhyning was a part-time police officer for the city of
Rittman and had been involved in law enforcement for forty years. Defense counsel



                                          8
                                  January Term, 1998




moved to exclude Vanhyning for cause based on his answers during individual voir
dire. The trial court “noted” the objection, but allowed the prospective juror to
proceed into general voir dire.
       {¶ 35} During general voir dire, Vanhyning disclosed that he knew many of
the state’s witnesses, such as the coroner, Bureau of Criminal Investigation
investigators, and police officers.       Vanhyning knew the county prosecutor
personally and had previously worked with Michael Carroll, one of the assistant
prosecutors in this case. Vanhyning also indicated that he had always found “the
gentleman that I knew,” presumably Detective Michael Gay (one of the state’s
witnesses), to be truthful. After these comments, the court called the prospective
juror and counsel to sidebar where the court and counsel further questioned
Vanhyning. The trial court then, sua sponte, excused Vanhyning for cause.
       {¶ 36} As Vanhyning was excused for cause and did not sit on Reynolds’s
jury, the only issue is whether Vanhyning’s comments during general voir dire
tainted the remaining jurors. Vanhyning’s comments about Gay’s truthfulness
were potentially prejudicial.     However, these remarks were tempered by the
prosecutor’s response that the other jurors did not know the detective and would
have to evaluate his testimony based on what he said in court. Vanhyning also
commented that his experience indicated that prosecutor Carroll was efficient. This
comment was also tempered by the prosecutor, who replied that what happened in
the past was in the past and this case would have to be decided based on evidence
presented in this courtroom. The trial court instructed the jury on what evidence
could properly be considered, and further instructed that they would have to decide
the case for themselves. No evidence in the record suggests that the jury that was
seated in this case was not a fair and impartial jury as mandated by the Constitution.
We reject the fifth proposition of law.
                                  Trial Phase Errors




                                           9
                            SUPREME COURT OF OHIO




       {¶ 37} In his sixth proposition of law, Reynolds argues that the trial court
erred in admitting gruesome photographs. Seven photographs taken at the crime
scene were admitted into evidence and fourteen slides were used by the coroner
during his testimony.    Reynolds argues that the photographs duplicated the
coroner’s slides and that the readmission of two of the seven photographs (State’s
Exhibits 23 and 24) in the penalty phase was error.
       {¶ 38} Each photograph admitted had significant probative value for the
prosecution. The admitted photographs illustrated the testimony of the state’s
witnesses concerning evidence found at the murder scene and the condition of
Foster’s body. We conclude that the trial court did not abuse its discretion in
admitting the photographs because they were relevant and of probative value. See
State v. Maurer (1984), 

15 Ohio St.3d 239

, 15 OBR 379, 

473 N.E.2d 768

,
paragraph seven of the syllabus, and State v. Morales (1987), 

32 Ohio St.3d 252, 258

, 

513 N.E.2d 267, 273-274

.
       {¶ 39} The coroner’s slides served a wholly different purpose than the crime
scene photographs. The slides illustrated the coroner’s testimony concerning the
injuries sustained by Foster and the cause of her death. The photographs showed
how the body was found at the crime scene as well as other items found at the scene,
such as the phone ripped out of the wall and a jug containing one inch of water that
had possibly been used to dilute blood stains. The photographs thus gave the jury
an “appreciation of the nature and circumstances of the crimes.” State v. Evans
(1992), 

63 Ohio St.3d 231, 251

, 

586 N.E.2d 1042, 1058

; State v. Allen (1995), 

73 Ohio St.3d 626, 636

, 

653 N.E.2d 675, 686

. We conclude that the coroner’s slides
and the crime scene photographs were not cumulative.
       {¶ 40} The two crime scene photographs readmitted in the penalty phase
(State’s Exhibits 23 and 24) were used to illustrate the aggravating circumstances
of the case. We conclude that the photographs were not cumulative because they
served a different purpose during the penalty phase. See State v. DePew (1988), 38



                                        10
                                January Term, 

1998 Ohio St.3d 275

, 282-283, 

528 N.E.2d 542, 551-552

. We reject Reynolds’s sixth
proposition of law.
       {¶ 41} In his seventh proposition of law, Reynolds argues that the trial court
gave an impermissible “acquittal first” instruction on the aggravated murder and
aggravated burglary charges. No objection was raised to either instruction at trial
and no error was assigned in the court of appeals. Therefore this issue is waived
and must fail absent plain error. State v. Campbell (1994), 

69 Ohio St.3d 38

, 40-
41, 

630 N.E.2d 339, 344-345

. See Crim.R. 52(B).
       {¶ 42} “An alleged error ‘does not constitute a plain error or defect under
Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have
been otherwise.’ ” 

Campbell at 41

, 

630 N.E.2d at 345

, citing 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 trial court did not err because the instructions given were consistent with those
approved by this court in State v. Thomas (1988), 

40 Ohio St.3d 213, 218-221

, 

533 N.E.2d 286, 291-293

, and paragraph three of the syllabus. We reject the seventh
proposition of law.
       {¶ 43} In his eighth proposition of law, Reynolds contends that statements
made by Foster to three persons prior to her death were hearsay and improperly
admitted. Defense counsel did not object to these statements at trial and the issue
was not assigned as error in the court of appeals. Therefore, this issue was waived
and must fail absent plain error. Campbell, 

69 Ohio St.3d at 40-41

, 

630 N.E.2d at 344-345

.
       {¶ 44} Foster’s statements to her son and sister-in-law that she was
“fearful” or “concerned” were admissible under Evid.R. 803(3), which permits
admission of a “statement of the declarant's then existing state of mind, emotion,
[or] sensation * * *.” See State v. Apanovitch (1987), 

33 Ohio St.3d 19, 21

, 

514 N.E.2d 394, 397

; State v. Simko (1994), 

71 Ohio St.3d 483, 491

, 

644 N.E.2d 345

,




                                         11
                             SUPREME COURT OF OHIO




352-353; and State v. Frazier (1995), 

73 Ohio St.3d 323, 338

, 

652 N.E.2d 1000, 1013

.
        {¶ 45} Foster’s statements concerning Reynolds’s actions in the days before
the murder and her statements explaining the reasons why she was scared were
clearly hearsay and not admissible under any of the recognized exceptions to the
rule. 

Apanovitch at 21

, 

514 N.E.2d at 397-398

. Since the defense failed to object,
we must determine whether the admission of these statements affected the outcome
of the trial. We conclude that it did not, primarily because Reynolds did not deny
his involvement in the murder and because he told a number of witnesses on the
night of the murder what he had done. There was no plain error with respect to
these hearsay statements.
        {¶ 46} Denise Feist, who worked for Foster’s doctor, testified that Foster
stated that her blood pressure was probably high because Foster was nervous about
her neighbor (Reynolds). Feist testified that Foster had stated that the neighbor had
knocked on her door after dark and that she was afraid because she did not know
what he wanted. Feist identified State’s Exhibit 69 as a page from Foster’s medical
records in which the doctor had written down her blood pressure and noted she was
“[a]nxious about young neighbor that keeps coming over.”            The statements
concerning the fact that Foster was nervous or fearful are admissible under Evid.R.
803(3). See discussion supra. The statements concerning her high blood pressure
are also admissible under Evid.R. 803(4), which creates an exception to the hearsay
evidence rule for statements made for purposes of medical diagnosis or treatment.
State v. Boston (1989), 

46 Ohio St.3d 108, 120-121

, 

545 N.E.2d 1220, 1233

. While
the remaining statements should have been excluded as hearsay, no objection was
raised and plain error is not evident. We reject Reynolds’s eighth proposition of
law.
                             Sentencing Phase Issues




                                         12
                               January Term, 1998




       {¶ 47} The state opened the penalty phase by calling Foster’s son, Michael
Foster, as a “victim-impact witness.” Foster testified that he was an only child and
that his father had passed away many years earlier, that his mother was from a large
family and her house had been the gathering place for the family, and that his
mother had touched “everyone’s life” and been a special part of their lives. When
the prosecutor asked him to describe the effect his mother’s death had had on him,
Michael became distraught and was unable to answer. He indicated that one of his
daughters was getting married in July and that his mother had been looking forward
to the wedding. Michael’s other daughter had once lived with Foster for a period
of time. He testified that both granddaughters missed their grandmother very much.
       {¶ 48} The prosecutor incorporated the victim-impact testimony into his
closing argument:
       “He told you as best he can the effect this crime has had on himself and his
family, and it is an extended family of Mrs. Foster. Considerations of the effect of
a crime upon the victim, the victim’s family, are things you can think about in
making a decision here. And I urge you to do that.” (Emphasis added.)
       {¶ 49} Reynolds presents four propositions of law concerning this victim-
impact evidence which we will address in turn.
       {¶ 50} In his tenth proposition of law, Reynolds argues that the admission
of victim-impact testimony was error. Counsel did not object. Accordingly, the
allowance of the victim-impact testimony must be examined under the plain-error
standard. Campbell, 

69 Ohio St.3d 38

, 

630 N.E.2d at 339

. Given the four
aggravating circumstances and the fact that the statement was not overly emotional
or directed to the penalty to be imposed, it cannot be said that the sentence would
clearly have been otherwise but for the victim-impact evidence. See State v. Taylor
(1997), 

78 Ohio St.3d 15, 27

, 

676 N.E.2d 82, 94

; State v. Allard (1996), 

75 Ohio St.3d 482, 499-500

, 

663 N.E.2d 1277, 1292

; State v. Wilson, 

74 Ohio St.3d 381, 399

, 

659 N.E.2d 292, 309-310

; State v. Fautenberry (1995), 

72 Ohio St.3d 435

,




                                         13
                               SUPREME COURT OF OHIO




438-439, 

650 N.E.2d 878, 882

; State v. Lorraine (1993), 

66 Ohio St.3d 414, 421

,

613 N.E.2d 212, 219

; State v. Slagle (1992), 

65 Ohio St.3d 597, 611-612

, 

605 N.E.2d 916, 929-930

; and State v. Evans, 

63 Ohio St.3d at 238

, 

586 N.E.2d at 1050

.
See, also, Payne v. Tennessee (1991), 

501 U.S. 808, 827

, 

111 S.Ct. 2597, 2609

, 

115 L.Ed.2d 720, 736

. We find no plain error and therefore reject the tenth proposition
of law.
          {¶ 51} In his eleventh proposition of law, Reynolds contends that the
prosecutor’s statement cited above amounted to misconduct. We agree that the
prosecutor’s remarks imploring the jury to consider the effect of the crime on Foster
and her family were likely improper. It is impossible to determine the weight given
the victim-impact evidence by the jury. We conclude that the outcome of the
penalty phase would not clearly have been otherwise but for the imploring of the
prosecutor. See Long, 

53 Ohio St.2d at 96-97

, 

7 O.O.3d at 181

, 

372 N.E.2d at 808

.
We reject the eleventh proposition of law.
          {¶ 52} In his fifteenth proposition of law, Reynolds contends that the trial
court’s consideration of the victim-impact testimony was error. There is no
indication that the trial court considered or weighed this evidence in making its
determination. We reject the fifteenth proposition of law.
          {¶ 53} In his first proposition of law, Reynolds contends that counsel’s
failure to object to the victim-impact evidence or the prosecutor’s use of it
constituted ineffective assistance of counsel. Even though counsel should have
objected, Reynolds is unable to show prejudice. There is no reasonable probability
that the outcome would have been different. Accordingly, counsel’s failure to
object to the victim-impact testimony does not rise to the level of ineffective
assistance of counsel. We reject that portion of the first proposition of law.
          {¶ 54} After Michael Foster testified, the state called Reynolds’s brother,
Jason, as a witness. Defense counsel objected. The prosecutor stated that Jason
would testify about Reynolds’s state of mind when he and Reynolds went to



                                           14
                                January Term, 1998




Foster’s residence, only hours after the murder was committed. The trial court did
not allow the state to call Jason at that time. Later in the penalty phase, the court
permitted the state to call Jason as a rebuttal witness. In his ninth proposition of
law, Reynolds challenges the admission of his brother’s testimony.
        {¶ 55} Immediately after the state’s direct examination of Jason, defense
counsel moved to strike Jason’s testimony, arguing that it was improper rebuttal
evidence. The prosecutor claimed that Jason had been called as a witness to rebut
a statement made by defense counsel in his opening statement of the trial phase that
Reynolds had not attempted to conceal himself. The trial court denied the motion
to strike.
        {¶ 56} Reynolds now argues that the admission of this testimony was error
because it was improper and prejudicial rebuttal evidence. In construing R.C.
2929.03(D), we have held that the state may introduce evidence to rebut the
existence of any statutorily defined or other mitigating factors first asserted by the
defendant. DePew, 

38 Ohio St.3d at 286-287

, 

528 N.E.2d at 555

; State v. Gumm
(1995), 

73 Ohio St.3d 413

, 

653 N.E.2d 253

, syllabus. Jason’s testimony rebutted
defense penalty phase evidence. In his unsworn statement, Reynolds claimed that
he had been so intoxicated on the night of the murder that he hadn’t been able to
control what he was doing. Jason testified that when he saw Reynolds at 6:00 p.m.
on the night of the murder, he could tell that Reynolds had been drinking, but did
not think Reynolds was drunk. The defense attempted to portray the murder as
impulsive, brought on by Reynolds’s ingestion of alcohol. Jason’s testimony
rebutted this evidence and suggested that the crime was part of a calculated plan.
Accordingly, we conclude that the testimony offered by Jason was not improper or
prejudicial.
        {¶ 57} Reynolds also argues that the admission of Jason’s testimony
allowed the jury to infer that Jason was in favor of imposing the death sentence on
his brother. This argument is speculative. Jason expressed no opinion on the death




                                         15
                              SUPREME COURT OF OHIO




penalty, his feelings about what his brother had done, or what punishment his
brother should receive. Additionally, defense counsel had the opportunity, through
cross-examination, to clarify for the jury that Jason did not wish his brother to be
executed. We conclude that Jason’s testimony did not allow the jury to draw an
improper inference. We reject the ninth proposition of law.
         {¶ 58} In his eleventh proposition of law, Reynolds contends that two of the
prosecutor’s comments during the penalty phase were personal opinions and
therefore improper. In his opening statement, the prosecutor stated, “And I tell you
that the evidence in this case will prove beyond a reasonable doubt that the
aggravating circumstances do outweigh the mitigating factors.” (Emphasis added.)
The prosecutor used the same language in his penalty phase closing argument.
         {¶ 59} The general rule is that “where personal opinions of guilt are
predicated upon the evidence, though frowned upon, they are not deemed to be
prejudicially erroneous.” State v. Stephens (1970), 

24 Ohio St.2d 76, 83

, 

53 O.O.2d 182, 186

, 

263 N.E.2d 773, 777

. It is difficult for prosecutors to argue vigorously
for the death penalty without making statements that can be arguably construed as
statements of personal opinion. State v. Tyler (1990), 

50 Ohio St.3d 24, 41

, 

553 N.E.2d 576, 595

. We conclude that the statements made by the prosecutor were
permissible argument. We reject Reynolds’s eleventh proposition of law.
         {¶ 60} Reynolds was charged, convicted, and sentenced for four separate
felonies: aggravated burglary, aggravated robbery, kidnapping, and attempted
rape. In his seventeenth proposition of law, Reynolds argues that the four felony
counts should have been “merged” for sentencing. Reynolds argues, as did defense
counsel during the sentencing hearing, that since “all of the conduct of which
Defendant was convicted occurred within a relatively short period of time, during
the same evening, in the same flow and course of conduct,” the offenses should
merge.




                                          16
                                 January Term, 1998




       {¶ 61} R.C. 2941.25(A) provides that where the conduct of a defendant can
be construed as constituting two or more allied offenses of similar import, the
indictment may contain counts for all such offenses, but the defendant may be
convicted of only one. See Newark v. Vazirani (1990), 

48 Ohio St.3d 81

, 

549 N.E.2d 520

, syllabus.        Offenses are of similar import when their elements
“correspond to such a degree that commission of one offense constitutes
commission of the other offense.” State v. Bickerstaff (1984), 

10 Ohio St.3d 62, 66

, 10 OBR 352, 356, 

461 N.E.2d 892, 896

.
       {¶ 62} Aggravated robbery and aggravated murder are not allied offenses
of similar import. Bickerstaff, 

10 Ohio St.3d at 66

, 10 OBR at 356, 

461 N.E.2d at 895-896

. Aggravated burglary and aggravated murder are not allied offenses of
similar import. State v. Henderson (1988), 

39 Ohio St.3d 24, 28

, 

528 N.E.2d 1237, 1242

; Frazier, 

73 Ohio St.3d at 342-343

, 

652 N.E.2d at 1016

.
       {¶ 63} Reynolds committed aggravated burglary when he used deception to
obtain entry into Foster’s home and used force to complete that entry in order to
take her property. Reynolds committed aggravated robbery when he subjected
Foster to further injury in order to take her property. We conclude that the offenses
were committed separately and with a separate animus. See State v. Frazier (1979),

58 Ohio St.2d 253, 256

, 

12 O.O.3d 263, 264-265

, 

389 N.E.2d 1118, 1120

. In this
case, aggravated burglary and aggravated robbery were not allied offenses of
similar import.
       {¶ 64} The facts indicate that the defendant had an animus to rape Foster.
This animus was separate from the animus to commit burglary, robbery,
kidnapping, and murder. State v. Williams (1996), 

74 Ohio St.3d 569, 580

, 

660 N.E.2d 724, 734

. Accordingly, the attempted rape charge should not merge into
any of the other felonies.
       {¶ 65} Restraint, an essential element of kidnapping, is often necessary to
facilitate other crimes, such as rape, robbery, and murder. State v. Logan (1979),




                                         17
                             SUPREME COURT OF OHIO

60 Ohio St.2d 126

, 

14 O.O.3d 373

, 

397 N.E.2d 1345

. We have held that kidnapping
and another offense are committed with a separate animus when the “restraint of
the victim subjects the victim to a substantial increase in risk of harm separate and
apart from that involved in the underlying crime * * *.” Logan at paragraph (b) of
the syllabus.
       {¶ 66} Reynolds was in the process of robbing Foster when he noticed she
was attempting to use the phone and struck her. At that time, he tied Foster’s hands
behind her back, restraining her. Only after Reynolds had restrained Foster for a
period of time did he kill her. At some point, he attempted to rape her. It is apparent
to us that the kidnapping in this case constituted a separate offense from the murder,
State v. Jells (1990), 

53 Ohio St.3d 22, 33

, 

559 N.E.2d 464, 475

, from the attempted
rape, State v. Powell (1990), 

49 Ohio St.3d 255, 262

, 

552 N.E.2d 191, 199

, and
from the robbery, State v. Jenkins (1984), 

15 Ohio St.3d 164, 197-198

, 15 OBR
311, 339-340, 

473 N.E.2d 264, 295

; State v. Perkins (1994), 

93 Ohio App.3d 672, 684

, 

639 N.E.2d 833, 841

.
       {¶ 67} Unlike robbery or rape, burglary does not definitionally require the
victim's restraint, State v. Waddy (1992), 

63 Ohio St.3d 424, 448

, 

588 N.E.2d 819, 837

, because the infliction of physical harm, an essential element of aggravated
burglary under R.C. 2911.11(A)(1), does not require a victim to be restrained. Even
if it did, Reynolds imposed further restraint on the victim by tying her up. Thus,
aggravated burglary under either R.C. 2911.11(A)(1) or (3) and kidnapping are not
allied offenses of similar import. We conclude that none of the felonies in this case
were allied offenses of similar import. The seventeenth proposition of law is
rejected.
       {¶ 68} The four separate felonies of which Reynolds was convicted were
used to allege four separate aggravating circumstances under R.C. 2929.04(A)(7).
Defense counsel moved to merge the specifications prior to the start of the penalty
phase. The trial court denied the motion. In his sixteenth proposition of law,



                                          18
                                January Term, 1998




Reynolds argues that the trial court erred. Defendant relies on State v. Jenkins,
paragraph five of the syllabus, where this court stated, “where two or more
aggravating circumstances arise from the same act or indivisible course of conduct
and are thus duplicative, the duplicative aggravating circumstances will be merged
for purposes of sentencing.”     Only aggravating circumstances that are allied
offenses of similar import are “duplicative” within the meaning of Jenkins. See
Waddy, 

63 Ohio St.3d at 448

, 

588 N.E.2d at 837

. We have already determined that
none of the separate felonies constituted allied offenses of similar import. We
conclude that the trial court did not abuse its discretion in refusing to merge the
capital specifications. Reynolds’s sixteenth proposition of law is rejected.
                                Sentencing Hearing
       {¶ 69} After the jury recommended the death penalty, the trial court
scheduled the sentencing hearing for 8:45 a.m. on June 9, 1994. At that hearing,
the trial court addressed defendant's convictions for aggravated robbery, aggravated
burglary, kidnapping, and attempted rape. After permitting counsel for both parties
to speak about those convictions, the judge asked Reynolds if he had anything to
say before the court pronounced sentence for those crimes. Reynolds indicated he
had nothing to say.
       {¶ 70} After sentencing Reynolds for aggravated robbery, aggravated
burglary, kidnapping, and attempted rape, the judge addressed the aggravated
murder count, stating, “This Court's written decision has been prepared. It is now
being filed, and copies will soon be available to counsel.” The record indicates that
the opinion was filed at 9:05 a.m.
       {¶ 71} The trial court then asked counsel for both parties if they wished to
address the court concerning the aggravated murder count. The state urged the trial
court to impose the death penalty; defense counsel argued against imposition of the
death penalty. The trial court did not ask Reynolds if he wished to address the court
concerning the aggravated murder count. Defendant's lead counsel stated during




                                         19
                             SUPREME COURT OF OHIO




his presentation that defendant had “addressed the Court previously by way of a
letter.” The trial court proceeded to sentence defendant to death. The hearing was
concluded at 9:21 a.m.
       {¶ 72} In his eighteenth proposition of law, Reynolds argues that the
sentencing hearing was “a mockery” because the trial court filed its sentencing
opinion before the conclusion of the sentencing hearing. He argues that the trial
court also erred in failing to ask Reynolds if he desired to make a statement before
sentence was imposed on the aggravated murder count.
       {¶ 73} The state concedes that the trial court acted prematurely in filing its
sentencing order prior to the completion of the sentencing hearing. We agree that
the trial court should have waited until the sentencing hearing was completed to file
its sentencing order. However, it is apparent to us that Reynolds was not prejudiced
by the court’s premature filing.
       {¶ 74} The trial court sat through the trial and penalty phases of the case
and had listened to the evidence presented as to the aggravating circumstances and
mitigating factors. The court had from May 31st until June 9th to consider the
evidence presented by both sides. Counsel’s arguments for Reynolds during the
sentencing hearing were substantially the same as the arguments advanced during
the penalty phase. Had new evidence or information been presented during the
sentencing hearing, the trial court could have modified its sentencing order. We
conclude that the premature filing was not prejudicial error.
       {¶ 75} Crim.R. 32(A) provides that “[b]efore imposing sentence the court
shall afford counsel an opportunity to speak on behalf of the defendant and also
shall address the defendant personally and ask if he or she wishes to make a
statement in his or her own behalf or present any information in mitigation of
punishment.” Thus, the failure of the court to ask Reynolds if he wanted to make
a statement before imposition of sentence on the aggravated murder court was error.




                                         20
                                 January Term, 1998




        {¶ 76} Defense counsel spoke on his client’s behalf and stated that
“Reynolds has addressed the court previously by way of a letter.” The purpose of
allocution is to permit the defendant to speak on his own behalf or present any
information in mitigation of punishment. Reynolds had this opportunity in the
penalty phase of the case when he presented evidence and made an unsworn
statement. A court’s error in failing to ask a defendant if he wants to make a
statement prior to sentencing is not prejudicial where, as here, the defendant makes
an unsworn statement in the penalty phase, sends a letter to the trial court, and
where defense counsel makes a statement on behalf of the defendant.                 The
eighteenth proposition of law is rejected.
        {¶ 77} The penalty phase in a capital case is not a substitute for a
defendant’s right of allocution.      Failure to provide a defendant the right of
allocution could constitute reversible error in a future case.
                                 Trial Court Opinion
        {¶ 78} In his twelfth proposition of law, Reynolds contends that the trial
court erred in its written sentencing opinion by (1) failing to state why the
aggravating circumstances outweighed the mitigating factors, (2) considering
nonstatutory factors, and (3) failing to assign weight to the mitigating factor of
alcoholism.
        {¶ 79} Whether the trial court properly stated why the aggravating
circumstances outweighed the mitigating factors is arguable.              This court’s
independent sentence review of the aggravating circumstances and mitigating
factors will correct this deficiency, if indeed it is a deficiency. State v. Lott (1990),

51 Ohio St.3d 160, 170-173

, 

553 N.E.2d 293

, 304-307. We conclude that the trial
court’s failure to unambiguously explain why the aggravating circumstances
outweighed the mitigating factors is not prejudicial error.
        {¶ 80} While the trial court discussed the facts surrounding the crime (a
nonstatutory factor) in its opinion, it did not weigh those facts as aggravating




                                           21
                             SUPREME COURT OF OHIO




circumstances. Instead the court reviewed the nature and circumstances of the
crime, as it was required to do pursuant to R.C. 2929.03. State v. Stumpf (1987),

32 Ohio St.3d 95

, 

512 N.E.2d 598

, paragraph one of the syllabus; Lott, 

51 Ohio St.3d at 171

, 

553 N.E.2d at 304-305

. We conclude that the trial court did not
consider nonstatutory factors.
       {¶ 81} Reynolds argues that the trial court did not give “significant” weight
to his alcoholism. The statute does not require that significant weight be accorded.
The weight, if any, given to a mitigating factor is a matter for the discretion of the
individual decision-maker. State v. Fox (1994), 

69 Ohio St.3d 183, 193

, 

631 N.E.2d 124, 132

; State v. Mills (1992), 

62 Ohio St.3d 357, 376

, 

582 N.E.2d 972, 988

. We
conclude that the trial court properly weighed the mitigating factor of alcoholism.
       {¶ 82} We note, sua sponte, that the trial court did not correctly weigh the
aggravating circumstances and mitigating factors.         The court weighed each
aggravating circumstance separately against the mitigating factors instead of
weighing all the aggravating circumstances against all the mitigating factors. See
State v. Cooey (1989), 

46 Ohio St.3d 20, 38-39

, 

544 N.E.2d 895, 916-917

. The
trial court stated in its opinion that “the state of Ohio has proved beyond a
reasonable doubt that each aggravating circumstance for which he was found guilty
outweighed all the mitigating factors.” Although this issue was not raised by
Reynolds, our independent review will cure the error. Fox, 

69 Ohio St.3d at 191

,

631 N.E.2d at 131

.
       {¶ 83} We note, sua sponte, that the court’s journal entry imposes the
sentence of death five times — one for the aggravated murder charge and one for
each aggravating circumstance. Although this issue was not raised by the parties,
our independent review will cure the error.
       {¶ 84} We reject the twelfth proposition of law.
                             Constitutional Challenges




                                         22
                               January Term, 1998




       {¶ 85} In his fourteenth proposition of law, Reynolds argues that the death
penalty review procedures are flawed because this court reviews only death penalty
cases when conducting its statutorily mandated proportionality review.         We
summarily reject this argument on the authority of State v. Steffen (1987), 

31 Ohio St.3d 111

, 31 OBR 273, 

509 N.E.2d 383

, paragraph one of the syllabus.
       {¶ 86} Reynolds argues that Ohio's capital sentencing scheme violates the
Cruel and Unusual Punishment Clause of the Eighth Amendment to the United
States Constitution. We summarily reject this argument on the authority of State v.
Poindexter (1988), 

36 Ohio St.3d 1

, 

520 N.E.2d 568

, syllabus; Jenkins at paragraph
one of the syllabus; State v. Sowell (1988), 

39 Ohio St.3d 322, 336

, 

530 N.E.2d 1294, 1309

; Steffen, 

31 Ohio St.3d at 125

, 31 OBR at 285-286, 

509 N.E.2d at 396

;
State v. Grant (1993), 

67 Ohio St.3d 465, 483

, 

620 N.E.2d 50, 69

; Maurer at
paragraph one of the syllabus; and State v. Buell (1986), 

22 Ohio St.3d 124

, 22
OBR 203, 

489 N.E.2d 795

.
                          Independent Sentence Review
       {¶ 87} This court is required by R.C. 2929.05 to independently review this
case and conduct an appropriateness and proportionality evaluation as to the death
sentence. We conclude that the evidence in the record supports a finding that
Lawrence Reynolds, Jr. committed the aggravated murder of Loretta Foster while
committing, attempting to commit, or fleeing immediately after committing or
attempting to commit kidnapping, rape, aggravated robbery, and aggravated
burglary. Moreover, the evidence establishes that Reynolds was the principal
offender in the commission of the aggravated murder.
       {¶ 88} The nature and circumstances of the crime offer nothing in
mitigation for Reynolds. His history, character, and background suggest some
mitigating factors. Reynolds was raised in a middle class home by both parents.
He began drinking alcohol in his early teens. After graduating from high school,
he served in the Army for six years before being honorably discharged. Upon




                                        23
                             SUPREME COURT OF OHIO




discharge, he moved in with his parents. He eventually found employment and
moved into his own apartment. Throughout this time, the use of alcohol continually
plagued his life.
       {¶ 89} As his alcohol usage increased, it affected his employment, leading
to his termination from his job. In January 1992, he was arrested for driving under
the influence and failing to comply with a police officer’s signal or order. He
moved back in with his parents and completed alcohol treatment as part of his
probation, but soon began drinking again. He appears to have been employed, or
earning some money, until about four months prior to the crimes. He then began
to sell his personal belongings to support his drinking habit. By the time of the
murder, he had become desperate because he had nothing more to sell.
       {¶ 90} Dr. Joseph Bendo, a psychologist, diagnosed Reynolds as having an
adjustment disorder, which caused him to react more strongly than the stressors or
the environment in his life might warrant. Dr. Bendo concluded that Reynolds had
an antisocial personality type with addictive-proneness to alcohol and drugs. His
drinking was a product of his inability to relate effectively with people. While this
proclivity does not meet the mitigating factor standard of R.C. 2929.04(B)(3), we
will consider it under R.C. 2929.04(B)(7).
       {¶ 91} In an unsworn statement, Reynolds expressed his remorse to the
victim’s family and to his own family and asked the jury to spare his life.
       {¶ 92} We weigh the aggravating circumstances against the following
mitigating factors: lack of a substantial criminal record (R.C. 2929.04[B][5]),
honorable military service to his country, alcoholism, emotional problems, and
remorse for the crime. The lack of a substantial criminal record is entitled to
relatively significant weight. The remaining factors, such as his military service,
are entitled to some weight.      Another factor to consider is the prosecutor’s
“overzealous” application of the aggravating circumstances “to the same act or




                                         24
                                January Term, 1998




indivisible course of conduct,” which was criticized in Jenkins, 

15 Ohio St.3d at 197

, 15 OBR at 339, 473 N.E.2d at 294.
         {¶ 93} We conclude that the aggravating circumstances outweigh the
mitigating factors beyond a reasonable doubt. While this court has not had any
prior cases with the same four aggravating circumstances, we will review
comparable cases for proportionality comparison.
         {¶ 94} In State v. Durr (1991), 

58 Ohio St.3d 86

, 

568 N.E.2d 674

, Durr was
found guilty and sentenced to death for aggravated murder during the course of a
kidnapping, aggravated robbery, and rape. The mitigating evidence was minimal,
Durr came from a broken home, and his common-law wife was pregnant. Durr
exhibited no remorse for his crimes. The court found the death penalty appropriate
in Durr.
         {¶ 95} In State v. Rojas (1992), 

64 Ohio St.3d 131

, 

592 N.E.2d 1376

, Rojas
was found guilty and sentenced to death for aggravated murder during the course
of a rape, aggravated burglary, and aggravated robbery. Rojas suffered from a
mental disease which was not strong enough to be considered under R.C.
2929.04(B)(3).    Rojas was the same age when the crime was committed as
Reynolds. Rojas had a much lower intelligence level than Reynolds. Rojas
exhibited remorse for his crimes. The court found the death penalty appropriate in
Rojas.
         {¶ 96} State v. Holloway (1988), 

38 Ohio St.3d 239

, 

527 N.E.2d 831

, and
State v. Murphy (1992), 

65 Ohio St.3d 554

, 

605 N.E.2d 884

, are also comparable
to the case before us. Holloway and Murphy broke into the homes of elderly female
neighbors to rob them. The mitigating evidence presented in Holloway (mild
mental retardation, personality disorder, physical deformity, and abuse) and
Murphy (mental impairment, impoverished background, alcoholic father,
victimization by verbal, physical, and sexual abuse) was more compelling than that
presented herein. This court found the death penalty appropriate in those cases.




                                         25
                            SUPREME COURT OF OHIO




We conclude that the death sentence in the case before us is not disproportionate to
the death sentences imposed in similar death penalty cases.
        {¶ 97} Finding the death penalty appropriate and proportionate, we affirm
the sentence of death. The judgment of the court of appeals is hereby affirmed.
                                                                Judgment affirmed.
        MOYER, C.J., DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON,
JJ., concur.
        RESNICK, J., concurs in judgment only.
                              __________________




                                        26