State v. Simko

OPINIONS OF THE SUPREME COURT OF OHIO

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The State of Ohio, Appellee, v. Simko, Appellant.
[Cite as State v. Simko (1994), Ohio St.3d .]
Criminal law -- Death penalty upheld, when.
(No. 93-569 -- Submitted November 30, 1994 -- Decided
December 30, 1994.)
Appeal from the Court of Appeals for Lorain County, No.
91CA005214.
Defendant-appellant, John Simko, Jr., was convicted by a
three-judge panel of the kidnapping and aggravated murder of
his ex-girlfriend, Mary Jane Johnson, and the kidnapping of her
coworker, Harold "Buddy" Baker. The crimes were committed the
morning of August 7, 1990, at the Lorain Durling Elementary
School where the victims worked. The following events led to
this tragedy.
Appellant and Mary Jane Johnson had had an on-again-off-
again relationship for approximately five to seven years. At
the time of the shooting, the couple had been apart for about
one to four weeks.
On August 2, 1990, appellant entered the Magnum-Fire Gun
Shop in Lorain, Ohio and expressed an interest in purchasing a
.357 Magnum Smith & Wesson revolver. On August 3, 1990, he
returned to the store and bought the gun and a box of
ammunition. That same day, appellant went to his cousin Larry
Simko's house to learn how to use the weapon.
Three days later, on August 6, around 10:30 p.m., Johnson
and her best friend and neighbor, Mary Hembree, were sitting on
Johnson's porch drinking coffee. They saw appellant walk by
the house. He appeared to be intoxicated. After Johnson
expressed fear at seeing appellant, the women decided to finish
their coffee at Hembree's house. Before going to Hembree's,
however, they watched appellant walk past Hembree's house.
They then entered Hembree's car and drove around to determine
if appellant's car was parked nearby. From the car they saw
appellant on an adjacent street, behind Johnson's house.
Not finding appellant's car, they drove to Hembree's
house. When they arrived there, they observed appellant
driving stop-and-go through the neighborhood in his car.
Johnson ran into Hembree's house and again expressed fear.
Because Johnson was unwilling to do so, Hembree called the
sheriff's department to report appellant.
Several hours later, at approximately 1:00 a.m., on August
7, appellant went to his son James Simko's house. Appellant
woke him up and had him drive to Tiny's Bar.
At the bar, appellant had a few more drinks. Appellant
told his son that he was going to shoot himself and Johnson and
that he wanted to prepare a will. Appellant wrote on a piece
of paper, "I leave Jim my TV 2 VCRs a chair, & boat air
compressor battery charger, tools, & whatever I own."
Appellant signed his name and then had a patron of the bar
witness his signature. In addition, appellant wrote a check to
James Simko to exhaust the balance of his bank account. The
men stayed at the bar until it closed.
After leaving the bar, James Simko drove his father home.
They stayed there for approximately ten to twenty minutes. At
about 3:00 a.m., since he had to be at work by 6:00 a.m.,
appellant asked James to drive him to Lorain Clearview High
School, where he worked as a custodian. At the school,
appellant grabbed a bottle of whiskey and made some coffee,
which James drank. Appellant had one or two shots of whiskey
and a coke.
At around 4:00 a.m., when James was out of the room,
appellant called his cousin, Larry Simko. Appellant asked
Larry to hide his (appellant's) boat and told him that he was
"going to shoot two people." Although Larry testified he did
not take appellant's threat seriously because he thought
appellant was drunk, Larry admittedly dressed and went looking
for appellant.
James Simko stayed with his father until 5:50 a.m. when he
dropped him off at nearby Durling Elementary School where
Johnson worked as a cleaner. James did not think his father
was drunk, just "hung over." Although James did not take his
father's threat seriously, he admittedly drove by the school
three times that morning.
At around 6:00 a.m., Harold Baker, a fellow custodian,
arrived for work at Durling. He saw appellant walking toward
him. Baker thought appellant might have been drinking, but he
did not think he was drunk. Upon appellant's request to "have
five minutes" with Johnson, Baker unlocked the school and
appellant accompanied him to the teachers' lounge. Baker did
not notice whether appellant had a gun.
When Johnson arrived for work, soon after 6:00 a.m., Baker
met her at the front of the building, and told her of
appellant's request. Johnson went to the teachers' lounge.
Upon hearing Johnson scream his name, Baker ran to the lounge,
unlocked the door and saw appellant with his left arm around
Johnson and a gun in his right hand. Johnson was crying, and
appeared to be scared and nervous. Appellant yelled at Baker
to "get the hell out," but when Baker attempted to exit the
lounge to the hallway, appellant said, "No, not there," and
instead directed Baker to go into the restroom located in the
lounge.
Once in the restroom, Baker locked the door and after
removing the screen, escaped through the window. Baker then
drove his truck to the nearby bus garage to find someone to
call the police. While the police were being summoned, Baker
saw a student being dropped off at school. Baker jumped in his
truck to stop the boy from entering the school.
When Baker arrived back at the school, he saw the youth
starting down the hall. Baker apprised him of the situation.
As the two were starting to leave, Baker saw appellant shoot
himself in the foot, as he stood in the doorway of the lounge.
Baker and the boy left the school. Once they were
outside, Larry Simko approached Baker and asked him if he had
seen appellant. Baker told him what was happening. Larry
entered the school and shouted out to appellant. After hearing
two shots, the men decided to leave. Back at the bus garage,
the men then heard two more shots around 6:40 a.m.
It was later determined that the first two shots had been
fired at the lounge's door lock, and the second two shots had
been fired at Johnson.
Sometime later, around 8:30 a.m., the rescue squad came
and took Johnson to the hospital.
Upon her arrival at the hospital, Johnson was alert and
oriented. Just before surgery, Johnson was interviewed by
Detective Bruce Johnston of the Lorain County Sheriff's
Department. Although Johnson was unable to talk because she
was intubated, she nodded her head in response to the
detective's questions. Detective Johnston testified that
Johnson nodded affirmatively when asked if appellant had told
her he was going to kill her and kill himself, and if she had
attempted to run from the appellant. Johnson also nodded yes
to whether appellant shot her twice and then fled from the
school building. Despite efforts to save her, Johnson died one
day later from injuries caused by the gunshot wounds.
Police found appellant walking in the area and arrested
him. Expert testimony indicated that appellant's blood alcohol
level at the time of the shooting would have been about .14
percent.
On August 14, 1990, appellant was indicted for two counts
of kidnapping and one count of aggravated murder with a felony-
murder specification alleging kidnapping and a firearm
specification. The three-judge panel convicted appellant as
charged.
Appellant called several family members, coworkers, and a
clinical forensic psychologist during the sentencing hearing.
Most family members acknowledged that appellant had a drinking
problem. Some said that when drunk he was more likely to be
aggressive and mean. All the family members and coworkers
related specific instances where appellant had been thoughtful
and caring. These included the care of his elderly and
arthritic mother, who witnesses testified was a demanding and
difficult person. In addition, appellant's stepson told how
appellant had supported his ex-wife, both emotionally and
financially, while she was dying of cancer. The stepson also
detailed the help appellant had provided to him, a paraplegic.
A coworker testified to appellant's strong work ethic and the
work he did overseeing troubled youth in a work study program
at the school.
Appellant's family was neither close nor loving. Although
appellant's brother testified that appellant's upbringing had
been fairly normal, another family member testified that
appellant's father had been an alcoholic. Appellant's former
sister-in-law testified that appellant's father had been a
cruel man and a "demonic person" when he drank.
Family members and coworkers agreed that although
appellant was likable, he was also reserved and uncomfortable
around people. Although appellant quit school in the tenth
grade, he received a high school equivalency diploma while in
the service. Appellant did not attend college like his
siblings. Instead, he successfully served eight years in the
air force.
Dr. James Brown diagnosed appellant as suffering from
"avoidant personality disorder" ("APD"), as well as a history
of alcohol dependency. Dr. Brown stated that the symptoms of
APD include pervasive social anxiety, a fear of rejection, and
a hypersensitivity to the reactions of others. He testified
that alcohol disinhibits feelings of anger, and renders a
person like appellant more prone to violence.
Despite this disorder, Dr. Brown testified, appellant was
able to form a close, loving relationship with Johnson, which
was unique in his life. When this relationship was threatened,
appellant reacted in an uncharacteristic manner. Dr. Brown
believed that APD together with the alcoholism contributed to
Johnson's death.
Sergeant Thomas Tomasheski of the Lorain County Sheriff's
Department testified that appellant had no prior convictions or
criminal record. Corrections Officer Robert Vansant testified
that appellant had adjusted to incarceration and was not a
discipline problem.
Finally, appellant gave a brief unsworn statement
indicating his remorse.
In rebuttal, the state presented James Simko, who
testified that he had seen his father assault his mother "quite
a few times," and that this was what led to their divorce.
After this testimony, in an attempt to impeach his credibility,
the defense questioned James about his own record of domestic
violence and his drug problems. The defense also questioned
James about the approximately $16,600 he had received from
appellant's retirement fund which was now missing.
After considering this mitigation evidence, the panel
sentenced appellant to death. For the firearm specification
and the remaining offenses, appellant was sentenced in
accordance with law. The court of appeals affirmed the
convictions and sentences, including the sentence of death.
The cause is now before this court upon an appeal as of
right.

David H. Bodiker, Ohio Public Defender, Kathleen A.
McGarry and Linda E. Prucha, Assistant Public Defenders, for
appellant.
Gregory A. White, Lorain County Prosecuting Attorney, and
Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, for
appellee.

Francis E. Sweeney, Sr., J. Beginning in State v.
Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570, and
recently reiterated in State v. Scudder (1994), Ohio
St.3d , N.E.2d , we expressed the view that when we
review death penalty cases, our obligation under the law does
not require us to address all propositions of law in opinion
form. We adhere to this view today, and therefore summarily
dispose of many propositions of law where either the error was
not properly preserved or the propositions have been decided
adversely to the appellant. In doing so, we hasten to add that
although this opinion does not separately address each of the
twenty-one propositions of law (see Appendix), we have fully
reviewed the record and passed upon each one prior to reaching
our decision. In addition, we independently assessed the
evidence relating to the death sentence, balanced the
aggravating circumstance against the mitigating factors, and
reviewed the proportionality of the sentence to sentences
imposed in similar cases. As a result, we affirm the
convictions and sentence, including the death penalty.
I
GUILT PHASE
Sufficiency of Evidence
In Proposition of Law I, appellant challenges the
sufficiency of the evidence for the capital specification and
for the separate kidnapping offense charged in count two.1
The capital specification appellant was convicted of was
kidnapping: "committing, attempting to commit, or fleeing
immediately after committing or attempting to commit
kidnapping." R.C. 2929.04(A)(7). Appellant was also convicted
of the separate offense of kidnapping Johnson. R.C. 2905.01,
as charged in this case, involves the removing of a person by
force, threat, or deception from the place where she is found,
or restraining her of her liberty, to terrorize or inflict
serious harm on the victim. R.C. 2905.01(A)(3).
Appellant argues that under this court's decision in State
v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d
1345, the state failed to present sufficient evidence of either
the elements of kidnapping or a separate animus from the animus
to commit aggravated murder to sustain his convictions on these
charges. Appellant asserts that the alleged kidnapping of
Johnson was incidental to the murder, as in State v. Jenkins
(1984), 15 Ohio St.3d 164, 198, 15 OBR 311, 340, 473 N.E.2d
264, 295 (no kidnapping where restraint was in a public bank
and incidental to robbery).
In Logan, supra, this court held that where the murder is
the underlying crime, "a kidnapping in facilitation thereof
would generally constitute a separately cognizable offense."
Id. at 135, 14 O.O.3d at 379, 397 N.E.2d at 1352. However, the
test to determine whether the kidnapping was committed with a
separate animus and thus amounts to a separate offense is
"whether the restraint or movement of the victim is merely
incidental to a separate underlying crime, or instead, whether
it has a significance independent of the other offense." Id.
at 135, 14 O.O.3d at 378, 397 N.E.2d at 1351.
In State v. Seiber (1990), 56 Ohio St.3d 4, 14, 564 N.E.2d
408, 420, we found kidnapping where bar patrons were repeatedly
ordered to lie on the floor while defendant and his accomplice
had drawn guns. When another bystander refused to comply with
the demands, he was shot and killed. Under these
circumstances, this court held that it was reasonable for a
jury to conclude that Seiber had restrained that victim of his
liberty and that this evidence was sufficient to support the
kidnapping charge and specification.
Clearly, the instant facts present a more compelling case
of kidnapping than even Seiber. According to Harold Baker's
testimony, Johnson was restrained and terrorized by the armed
appellant for approximately one-half hour. Further evidence
indicated that Johnson managed to escape from appellant, but
appellant shot her twice in the back while she was fleeing down
the school hallway. Thus, contrary to appellant's assertion,
the evidence and testimony indicate that Johnson's kidnapping
was completed prior to the murder, and appellant did not murder
Johnson until she fled from him. Therefore, the prosecution
presented sufficient evidence to prove not only kidnapping, but
also an animus for kidnapping separate from the aggravated
murder. We reject this proposition of law.
In Proposition of Law VIII, appellant argues that the
state failed to introduce evidence sufficient to convict him of
kidnapping Harold Baker. Appellant contends that "any movement
of Harold Baker was incidental to the murder of Mary Jane
Johnson."
This proposition of law is also without merit. A review
of the evidence reveals that it was sufficient to support
appellant's conviction for kidnapping Baker.
Baker testified that when he encountered appellant in the
teachers' lounge, appellant had a gun in one hand and an arm
around Johnson. When Baker attempted to help Johnson,
appellant told him to "get the hell out of here." When Baker
reached for the door leading out to the hallway, appellant told
him "No, not there" and motioned with the gun for Baker to go
into the teachers' lounge restroom. After removing the screen
from the window, Baker managed to escape. This testimony
clearly indicated that Baker was restrained of his liberty to
exit the teacher's lounge and was forced by appellant to enter
the lounge restroom which had no outside exit. Moreover, Baker
testified he was "scared" because appellant had a gun, thus
demonstrating appellant's terrorizing of Baker (and
inferentially Johnson). We reject this proposition of law.
Hearsay
In Proposition of Law VI, appellant argues that the trial
court improperly admitted prejudicial hearsay testimony that
did not qualify as an exception under either Evid.R.
804(B)(2)--dying declaration, or Evid.R. 803(2)--excited
utterance.
The testimony was elicited from Detective Bruce Johnston
of the Lorain County Sheriff's Department. Defense counsel
challenged Detective Johnston's testimony on the grounds that
the dying declaration exception did not apply since the victim
had no reason to believe she was dying at the time Detective
Johnston questioned her. In response, the prosecution claimed
that it was relying not only on the dying declaration
exception, but also on the excited utterance exception applied
in State v, Huertas (1990), 51 Ohio St.3d 22, 31, 553 N.E.2d
1058, 1068. The trial court then permitted the detective's
testimony. The prosecution now concedes that the declaration
does not qualify as a dying declaration under Evid.R.
804(B)(2). However, the state asserts it is admissible under
the excited utterance exception.
In Huertas, id. at 31, 553 N.E.2d at 1068, this court,
quoting paragraph two of the syllabus in Potter v. Baker
(1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 140, set
forth the standard for the excited utterance exception: "To be
admissible under Evid.R. 803(2) as an excited utterance, a
statement must concern 'some occurrence startling enough to
produce a nervous excitement in the declarant,' which
occurrence the declarant had an opportunity to observe, and
must be made 'before there had been time for such nervous
excitement to lose a domination over his reflective
faculties. * * *'"
The testimony in issue consisted of Detective Johnston's
questions to the victim, who was unable to speak because she
was intubated. The detective testified that the victim nodded
her head in response to specific questions posed to her. When
asked if appellant had told her that he was going to kill her
and kill himself, the victim nodded affirmatively. The victim
also nodded yes as to whether she had attempted to run from
appellant, and whether appellant had shot her twice and then
fled the school building.
Appellant asserts that Huertas is not on point because
there the declarant made oral statements, but here the victim
only nodded in response to words of the detective. In
addition, appellant points to paragraph two of the syllabus in
State v. Wallace (1988), 37 Ohio St.3d 87, 524 N.E.2d 466,
where this court held: "The admission of a declaration as an
excited utterance is not precluded by questioning which: (1)
is neither coercive nor leading, (2) facilitates the
declarant's expression of what is already the natural focus of
the declarant's thoughts, and (3) does not destroy the
domination of the nervous excitement over the declarant's
reflective faculties."
A review of Huertas and Wallace justifies the admission of
the testimony as an excited utterance. Given that the victim
was unable to speak because of the intubation in her throat,
the questions posed to her by the detective could certainly be
characterized as leading under the syllabus in Wallace, supra.
However, the questioning by the detective does not appear to be
coercive, and the victim could have readily shook her head "no"
to any of the questions, since the detective described her as
being "alert" and "aware of what was going on." Therefore,
appellant's sixth proposition of law is overruled.
In Proposition of Law XII, appellant contends that the
testimony of Mary Hembree and Cheryl Hutchison contained
irrelevant and prejudicial hearsay.
In the first instance, appellant characterizes as
irrelevant the testimony of Hembree, the best friend of the
deceased victim, who testified with respect to her activities
with the victim on the night before the shooting. Appellant
asserts that this testimony was not used by the state to show
that appellant had harassed the victim, but rather to elicit
testimony from Hembree that the victim had said she was
"scared," which was clearly hearsay under Evid.R. 801(C).
The other instance of hearsay cited by appellant concerns
the testimony of Cheryl Hutchison, the victim's daughter. In
response to the prosecutor's inquiry as to why the victim had
changed her phone number, Hutchison testified that her mother
had changed the number because appellant kept calling her
mother after being told to stop. Defense counsel objected on
hearsay grounds, but the trial court overruled the objection.
For Hembree's testimony, the prosecution cited Evid.R.
803(1) to support admission of the hearsay statements as
statements of present sense impressions. In support of
Hutchinson's testimony, the prosecutor referred to "present
sense of mind," conflating the exceptions of Evid.R. 803(1) and
(3). Evid.R. 803(1) permits admission of "[a] statement
describing or explaining an event or condition made while the
declarant was perceiving the event or condition * * *." The
court of appeals found the testimony of Hembree to be properly
admitted under Evid. R. 803(3), which permits "[a] statement of
the declarant's then existing state of mind, emotion, [or]
sensation * * *." In addition, the appellate court held that
Hembree's testimony was "arguably relevant" to show that
appellant was distraught and that he was following Mary Jane
Johnson on the night before the shooting, showing prior
calculation and design on the part of appellant.
The testimony of both witnesses is relevant, and its
admission under Evid.R. 803(3) is supportable. Testimony
similar to Hembree's was upheld in State v. Apanovitch (1987),
33 Ohio St.3d 19, 21-22, 514 N.E.2d 394, 398. (Testimony that
the victim was fearful and apprehensive was not inadmissible
hearsay and was properly admitted.)
Assuming, arguendo, that the testimony should not have
been allowed, the other evidence in the case is still
overwhelming. In addition, since this case was tried before a
three-judge panel, it is presumed that the court considered
only the relevant, material and competent evidence in arriving
at its judgment, State v. Post (1987), 32 Ohio St.3d 380, 384,
513 N.E.2d 754, 759; State v. White (1968), 15 Ohio St.2d 146,
151, 44 O.O.2d 132, 135, 239 N.E.2d 65, 70, and nothing in the
record compels a contrary conclusion. Consequently, any error
is harmless beyond a reasonable doubt. Accordingly,
appellant's twelfth proposition of law is rejected.
Prejudicial Expert Testimony During Cross-examination
In Proposition of Law XIII, appellant contends that the
trial court permitted inadmissible, prejudicial expert
testimony during cross-examination. This testimony was
elicited by the prosecution from appellant's expert witness,
Dr. Robert Forney, a pathologist called to testify regarding
appellant's blood alcohol level at the time of the murder.
During direct examination, Dr. Forney testified that based
on tests he conducted upon appellant's blood sample taken after
his arrest, appellant's blood alcohol level at the time of the
shooting would have been .14 percent. On cross-examination,
the state attempted to ask Dr. Forney whether a person with a
blood alcohol level of .14 percent could form specific intent
or purpose. Defense counsel objected and the prosecutor
rephrased the question several times, which prompted further
objections by appellant. Dr. Forney responded as follows to
the prosecutor's question whether he understood the defense of
intoxication: "[I]f intoxication is to such a degree as to
prevent the formation of intent, that may be considered as a
mitigating circumstance by the Court."
When asked by the prosecutor, over defense objection,
whether a person with a blood alcohol content of .14 percent
would be so intoxicated as to prevent formation of intent, Dr.
Forney responded, "No, they would not be so intoxicated." Upon
defense counsel's request that the answer be stricken as too
confusing on legal issues as to which Dr. Forney could not
testify, the court replied:
"He's [Dr. Forney] talking about his belief and his field
as a toxicological expert. * * * I'm not going to strike it.
We will give it such weight as is appropriate.
"We are well aware of our responsibility to rule on issues
of law."
Dr. Forney further testified that while appellant's blood
alcohol level of .14 percent would affect his perception and
judgment as well as be disinhibiting to him, "it would not go
to the purpose of Mr. Simko on August 7th, 1990." Defense
counsel's motion to strike this statement was overruled.
"Purpose" and "intent" are not arcane legal terms
unfamiliar to nonlawyers. Thus Dr. Forney's testimony in this
regard did not constitute a legal determination but was merely
his professional opinion as to how a .14 percent blood alcohol
level will affect a person's mind. This opinion meets the
criteria of Evid.R. 702. Accordingly, appellant's thirteenth
proposition of law should be overruled.
Ineffective Assistance of Counsel
In Proposition of Law XVI, appellant claims he was
deprived of the effective assistance of counsel throughout his
trial. We have considered appellant's arguments, and find that
he has failed to meet his burden of establishing ineffective
assistance under the standards set forth in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674. We, therefore, reject this proposition of law.
II
PENALTY PHASE
Appropriateness of Death Penalty
In his second proposition of law, appellant submits that
the facts of this case do not warrant the sentence of death.
Appellant argues that he presented substantial mitigating
evidence, that he was found guilty of only one aggravated
circumstance, and that the kidnapping was merely incidental to
the aggravated murder. Appellant further argues that the court
of appeals' review of the trial court's action in this respect
was cursory, contrary to R.C. 2929.05, and unconstitutional.
First, with respect to appellant's assertion that the
kidnapping of Mary Jane Johnson was merely incidental to the
aggravated murder, this argument was explored and rejected
under Proposition of Law I.
Second, a review of the trial court's separate opinion,
required pursuant to R.C. 2929.03(F), indicates that the court
thoroughly explored various possible mitigating factors
including the history, character and background of appellant.
The trial court gave "some weight" to appellant's lack of a
prior criminal history, as well as appellant's work record,
service record, adjustment to his incarceration, and his
support and assistance of his family members. The court also
considered appellant's remorse. Nevertheless, the three-judge
panel found that the aggravating circumstance outweighed the
mitigating factors beyond a reasonable doubt. Similar to the
trial court in State v. Stumpf (1987), 32 Ohio St.3d 95, 103,
512 N.E.2d 598, 607; and State v. Steffen (1987), 31 Ohio St.3d
111, 509 N.E.2d 383, the trial panel below properly discharged
its duties under R.C. 2929.03(F).
The court of appeals' discussion of the mitigating factors
was somewhat more than cursory, but not as thorough as the
trial court's. In addition, the appellate court failed to
state what weight, if any, it gave to any of the mitigating
factors in favor of the appellant. Nevertheless, this court's
independent weighing of the aggravating circumstance versus the
mitigating factors and proportionality review will cure any
error in this regard. State v. Clark (1988), 38 Ohio St.3d
252, 263, 527 N.E.2d 844, 856; State v. Evans (1992), 63 Ohio
St.3d 231, at 253, 586 N.E.2d 1042, at 1059.
For these reasons, we reject Proposition of Law II.
Errors in Sentencing Opinion and Penalty Phase
In his third proposition of law, appellant contends that
errors within the sentencing opinion of the trial court
necessitate vacation of his capital sentence.
Appellant asserts that the trial court made findings that
were inconsistent with the evidence presented at trial.
Specifically, appellant contends there was no evidence of when
or where the victim was shot. While it is true that the
prosecution did not present an eyewitness blow-by-blow account
of the victim's escape or the shooting by appellant, the
physical and testimonial evidence was more than sufficient for
the court to infer that appellant shot the victim as she
escaped and ran down the school hallway.
Appellant next cites a misrepresentation of the record in
the sentencing opinion's statement that the victim had
indicated to appellant that she did not want to reestablish
their relationship. The mistake was certainly harmless.
Appellant then cites seven other instances in which the
sentencing opinion allegedly misrepresented the record by
failing to include evidence that could have been mitigating.
However, as pointed out by the appellate court below, "while
the panel was required to consider and weigh the nature of the
circumstances of the offenses with the mitigating factors
[Stumpf, supra], as trier of fact, it was not required to
believe or consider relevant all evidence presented to it.
Furthermore, the panel was not required to enumerate every
piece of evidence presented in the record of this opinion."
While appellant asserts that, based on the language of the
sentencing opinion, the court might not have found him guilty
of the aggravating circumstance until the penalty phase, the
filed verdicts show that the finding of guilt was properly made
during the guilt phase. Likewise, appellant's argument
concerning the trial court's reference to "circumstances" in
the plural at several points in the opinion, rather than to the
single aggravating circumstance, is similar to the argument
rejected by this court in State v. Jells (1990), 53 Ohio St.3d
22, 33-34, 559 N.E.2d 464, 475-476.
Appellant also claims error in the sentencing opinion
where the trial court found "that the Defendant has not
established by a preponderance of the evidence sufficient
mitigating factors set forth in R.C. 2929.04(B) which prevent
the aggravating circumstances from outweighing the mitigating
factors beyond a reasonable doubt." Although appellant asserts
that the trial court erroneously switched the burden of proof
to him, appellant misreads the trial court's statement.
For all these reasons, Proposition of Law III is overruled.
In his fifth proposition of law, appellant argues that
three egregious errors during the penalty phase compel vacation
of his death sentence.
First, appellant seizes on a comment made by one member of
the panel during a hearing prior to the penalty phase: "* * *
I am not clear on a distinction between mitigating factors and
exculpatory evidence * * *." Appellant also cites a statement
by defense counsel that is inconsistent with State v. Holloway
(1988), 38 Ohio St.3d 239, 527 N.E.2d 831, paragraph one of the
syllabus:
"I think mitigating evidence, Your Honor, has been defined
that mitigating factors are factors that while they do not
justify or excuse the crime, nevertheless in fairness and mercy
may be considered by you as extenuating or reducing degree of
the defendant's blame for punishment."
Appellant points out that counsel for the state also
injected culpability into a definition of mitigation, and that
this combination of errors mandates vacation of the death
sentence.
While it is clear that mitigating factors "are not
necessarily related to a defendant's culpability," Holloway,
supra, paragraph one of the syllabus, the sentencing opinion
indicates that the trial court considered all the proffered
mitigating factors, not merely those related to appellant's
culpability.
Appellant also contends under this proposition that the
trial court erred in ordering a guilt-phase transcript.
Defendant relies on State v. DePew (1988), 38 Ohio St.3d 275,
528 N.E.2d 542, in arguing that under R.C. 2929.03(D)(3), the
sentencing court may only consider the "relevant evidence
raised at trial," and that admission of the transcript would
permit the court to consider irrelevant and prejudicial
evidence contained therein.
The instant cause was tried before a three-judge panel,
and the admission of the transcript by the panel did not
deprive appellant of a fair trial since the court may consider
"the testimony" at trial. In addition, the presumption applies
that the trial panel considered only the relevant, material and
competent evidence in arriving at its judgment unless it
affirmatively appears to the contrary. Post, supra, 32 Ohio
St.3d 380, 513 N.E.2d 754. Since it does not affirmatively
appear that the trial panel considered irrelevant, immaterial
or incompetent evidence, this argument is rejected.
Appellant also asserts that the trial court erred in
allowing, over defense counsel's objection, improper rebuttal
testimony from James Simko, appellant's son, that appellant hit
his ex-wife. However, in its sentencing opinion, the panel
stated that it did not find this testimony credible and did not
rely on it. Accordingly, this proposition of law is meritless.
III
INDEPENDENT ASSESSMENT OF SENTENCE
 Pursuant to our duties imposed by R.C. 2929.05(A), we now
independently review the death penalty sentence for
appropriateness and proportionality.
The evidence establishes beyond a reasonable doubt the
aggravating circumstance that appellant killed Johnson during
the commission of a kidnapping.
The nature and circumstances of the offense provide few
mitigating features. Appellant and Johnson had an
on-again-off-again relationship that was definitely off at the
time of the offenses. Although appellant went on a drinking
binge during the twelve or so hours prior to the shooting,
evidence indicated that appellant was able to plan, move, and
make himself understood on the morning of the shooting. The
facts that appellant attempted to execute a will, emptied his
bank account and told his son that he was going to kill himself
and Johnson, that he declared to his cousin that he was going
to shoot two people, that he purchased a gun and ammunition
several days before and learned how to use the weapon, and that
the night before the shooting appellant stalked Johnson all
indicate that his crimes were not a sudden or provoked act of
passion. Appellant held his victim at bay for approximately
one-half hour, terrorizing her and kidnapping a coworker in
order to prevent him from obtaining help for the victim. Five
shots were fired from appellant's gun, two of which were
directed at Johnson's back as she tried to escape from him.
Afterwards, appellant fled and left her to die by the school
dumpsters. Help for Johnson did not arrive until sometime
later.
Appellant's history, character, and background do provide
mitigating features. Appellant's father was a cruel man and an
alcoholic. Evidence established that appellant, too, was
alcohol dependent. His mother was possessive and demanding.
However, appellant had several siblings, all of whom graduated
from college. Appellant served eight years in the armed
service and received an honorable discharge. Coworkers and
family members found appellant helpful and likable.
With respect to the statutory mitigating factors,
appellant's lack of a significant criminal history is entitled
to some weight, R.C. 2929.04(B)(5). Stumpf, supra; State v.
Brewer (1990), 48 Ohio St.3d 50, 64, 549 N.E.2d 491, 505.
Under the "other factors" provision, R.C. 2929.04(B)(7),
appellant's voluntary intoxication may be given some weight,
see State v. Lawson (1992), 64 Ohio St.3d 336, 352, 595 N.E.2d
902, 914. However, under the circumstances of this case,
intoxication is not accorded much weight, given the expert and
eyewitness testimony of appellant's level of intoxication and
behavior at the time of the murder. State v. Slagle (1992), 65
Ohio St.3d 597, 614, 605 N.E.2d 916, 931. The avoidant
personality disorder that appellant suffers from, as testified
to by Dr. Brown, is entitled to some weight in mitigation. See
State v. Davis (1992), 63 Ohio St.3d 44, 51, 584 N.E.2d 1192,
1198. However, this disorder does not qualify as a "mental
disease or defect" under R.C. 2929.04(B)(3). See Seiber,
supra, 56 Ohio St.3d at 9, 564 N.E.2d at 415. In addition,
appellant's alcoholism does not qualify as a "mental disease or
defect." See State v. Lewis (1993), 67 Ohio St.3d 200, 209, 16
N.E.2d 921, 928. Appellant's expression of remorse during his
unsworn statement should be accorded little if any weight given
the history of his relationship with the victim. See Post,
supra, 32 Ohio St.3d at 394, 513 N.E.2d at 768. Also,
appellant's work record, service record, adjustment to
incarceration, and assistance to his family members are
entitled to some weight in mitigation. While appellant was
under stress due to the breakup of his relationship with the
victim, it cannot be characterized as coercion or strong
provocation and is not entitled to any weight under R.C.
2929.04(B)(2). See State v. Bedford (1988), 39 Ohio St.3d 122,
133, 529 N.E.2d 913, 924. None of the other statutory
mitigating factors appear relevant.
Upon weighing the aggravating circumstance against the
mitigating factors, the aggravating circumstance outweighs the
mitigating factors beyond a reasonable doubt. Appellant
deliberately went to Johnson's place of employment armed with a
weapon he purchased only a few days before the murder. When
Johnson entered the teachers' lounge, appellant used the gun to
restrain her of her liberty. Appellant held Johnson against
her will and prevented her from leaving the lounge. In fact,
appellant had the opportunity to release Johnson when Baker
came to her aid. However, appellant chose to restrain Johnson
and ordered Baker into the restroom. Later, Johnson managed to
escape, and was shot twice in the back. This whole ordeal
lasted approximately thirty minutes. Thus, the evidence proved
a calculated, prolonged and unprovoked kidnapping in the course
of which appellant purposely murdered Johnson.
The death penalty imposed in this case is both appropriate
and proportionate when compared with similar capital cases.
While the circumstances of the instant murder do not contain
the brutality present in felony murder cases involving
kidnapping such as State v. Buell (1986), 22 Ohio St.3d 124, 22
OBR 203, 489 N.E.2d 795; State v. Cooey (1989), 46 Ohio St.3d
20, 544 N.E.2d 895; or State v. Spirko (1991), 59 Ohio St.3d 1,
570 N.E.2d 229; the penalty is justifiable when compared to the
sentence imposed in State v. Brewer (1990), 48 Ohio St.3d 50,
549 N.E.2d 491; State v. Seiber, supra, 56 Ohio St.3d 4, 564
N.E.2d 408; and State v. Fox (1994), 69 Ohio St.3d 183, 631
N.E.2d 124.
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
A.W. Sweeney, Douglas and Resnick, JJ., concur.
Moyer, C.J., Wright and Pfeifer, JJ., dissent.
Footnote:
1 At trial, defense counsel conceded that appellant had
killed Johnson.
APPENDIX
"Proposition of Law No. I[:] Where the state fails to
introduce sufficient evidence to prove a capital specification
of kidnapping beyond a reasonable doubt, a defendant is
deprived of his right to due process of law under the
Fourteenth Amendment to the United States Constitution, and
Section 16, Article I of the Ohio Constitution.
"Proposition of Law No. II[:] The death sentence imposed
in appellant Simko's case was inappropriate, in violation of
the Fifth, Eighth and Fourteenth Amendments to the United
States Constitution and Sections 9 and 16, Article I of the
Ohio Constitution.
"Proposition of Law No. III[:] Errors in the opinion of
trial court, filed pursuant to R.C. 2929.03(F), mandate
vacation of the death sentence.
"Proposition of Law No. IV[:] Where the trial court fails
to assess a defendant's knowledge of the relevant circumstances
and likely consequences of his waiver of jury trial, the court
has failed to insure an intelligent, voluntary and knowing
waiver of rights guaranteed by the Fifth, Sixth, Eighth and
Fourteenth Amendments of the United States Constitution and
Sections 5, 9 and 16, Article I of the Ohio Constitution.
"Proposition of Law No. V[:] Any egregious error in the
penalty phase of a death penalty proceeding will be cause to
vacate the sentence of death.
"Proposition of Law No. VI[:] Where the trial court
allows the admission of improper and prejudicial hearsay
testimony, a defendant's conviction is unconstitutional and
must be reversed.
"Proposition of Law No. VII[:] The admission of victim
character evidence in the guilt-innocence phase of a capital
case, and victim impact evidence in the penalty phase is
contrary to Ohio law and denies a capital defendant a fair
determination of his guilt and sentence.
"Proposition of Law No. VIII[:] Where a state fails to
introduce sufficient evidence to prove beyond a reasonable
doubt, a conviction for kidnapping is unconstitutional and
cannot stand.
"Proposition of Law No. IX[:] The 'presumption' applied
in three-judge panel cases that the judges do not consider and
are not influenced by any erroneously admitted evidence denies
capital defendants due process and equal protection.
"Proposition of Law No. X[:] Misconduct by the prosecutor
during the guilt/innocence phase of a capital case eradicates
the reliability of the guilt determination.
"Proposition of Law No. XI[:] Any egregious error in the
penalty phase of a death penalty proceeding, including
prosecutorial misconduct, will be cause to vacate the sentence
of death with a subsequent remand to the trial court for a new
sentencing procedure. (State v. Thompson [1987], 33 Ohio St.3d
1 [514 N.E.2d 407], followed.)
"Proposition of Law No. XII[:] Hearsay statements are not
admissible unless they meet one of the recognized exceptions.
"Proposition of Law XIII[:] Where the trial court allows
inadmissible and prejudicial testimony during cross-examination
of a witness, defendant's conviction and sentence are rendered
unconstitutional and must be reversed.
"Proposition of Law No. XIV[:] In a capital case, the
accused is required to be present at every stage of the
proceedings unless he, personally, voluntarily absents himself.
"Proposition of Law No. XV[:] Where the trial court
admits improper evidence in the guilt/innocence phase of a
capital trial, the resulting conviction is unreliable and must
be reversed.
"Proposition of Law No. XVI[:] Counsel's performance will
be deemed ineffective if it falls below an objective standard
of reasonable representation and prejudice arises from
counsel's performance.
"Proposition of Law No. XVII[:] Where the trial court
allows the state to conduct the examination of its own
witnesses through the use of leading questions, a defendant is
denied rights guaranteed by the Sixth and Fourteenth Amendments
to the United States Constitution.
"Proposition of Law No. XVIII[:] The state should not be
allowed to cross-exam a defense witness concerning a prior
inconsistent statement when such statement is posed without a
good faith belief that such statement was actually made.
"Proposition of Law No. XIX[:] The Fifth, Eighth and
Fourteenth Amendments to the United States Constitution,
Sections 10 and 16, Article I of the Ohio Constitution and Ohio
Revised Code Section 2929.05 guarantee a convicted capital
defendant a fair and impartial review of his death sentence.
The statutorily mandated proportionality process in Ohio is
fatally flawed thereby denying appellant Simko the above rights.
"Proposition of Law No. XX[:] Where the trial court
abuses its discretion in denying a defendant's motion to permit
the three-judge panel to view the scene, it violates a
defendant's rights as guaranteed by the Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution and
Sections 10 and 16, Article I of the Ohio Constitution.
"Proposition of Law No. XXI[:] The Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution and
Sections 2, 9, 10 and 16, Article I of the Ohio Constitution
establish the requirements for a valid death penalty scheme.
Ohio Revised Code, Section 2903.01, 2929.02, 2929.021,
2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio's
statutory provisions governing the imposition of the death
penalty, do not meet the prescribed requirements and thus are
unconstitutional, both on their face and as applied."
Wright, J., dissenting. In my view, the aggravating
circumstance, kidnapping, clearly does not outweigh the
mitigating factors beyond a reasonable doubt. I say this for
the following reasons:
(1) The appellant was fifty-eight years old at the time of
the crime. Furthermore, he has no record of previous felonious
conduct whatsoever. Appellant's only criminal conviction was
for a DWI some years ago.
(2) Appellant's history indicates a dysfuntional family
background.
(3) Although appellant has a limited educational
background, having completed only the tenth grade, he has had a
record of productive employment during most of his adult life
and notably spent eight years in the United States Army,
receving an honorable discharge after his service;
(4) There is a substantial amount of testimony in the
record with respect to the appellant's reputation and none of
the testimony credited by the three-judge panel pointed toward
violent activity in his past. The trial panel gave no
credibility to the testimony of James Simko as to previous
incidents of domestic violence.
(5) Appellant poses no threat to society in the event of a
twenty or thirty year actual incarceration.
(6) Appellant has been a model prisoner.
(7) While it is true that the murder itself was brutal in
character, it has to be noted that appellant has a history of
alcohol abuse and was intoxicated at the time of the offense,
according to expret testimony that his blood alcohol level at
the time of the offense would have been about .14 percent.
(8) Appellant was diagnosed as having avoidant personality
disorder. While this does not rise to the level of a mental
disease or defect such that it would be a mitigating factor
under R.C. 2929.04(B)(3), it does apply to appellant's mental
state and should be considered under R.C. 2929.04(B)(7).
(9) Appellant has shown remorse for his actions.
Furthermore, it would appear that the trial panel may well
have treated the nature and circumstances of the crime as a
second aggravating circumstance insofar as they made detailed
findings of fact concerning the circumstances of the crime and
used the plural several times in alluding to aggravating
circumstances.2 This court has held that it is appropriate to
consider the nature and circumstances of the offense as a
mitigating factor, but not as an additional statutory
aggravating circumstance.
In State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282,
494 N.E.2d 1061, syllabus, this court held "R.C. 2941.14(B)
limits the aggravating circumstances which may be considered in
imposing the death penalty to those specifically enumerated in
R.C. 2929.04(A)." This principle was discused in great detail
in State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744 and
State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925.
In State v. Davis, the defendant was convicted of
aggravated murder in violation of R.C. 2903.01(A). The death
penalty specification count of prior purposeful killing was
included in the indictment. The court of appeals upheld the
death sentence imposed upon the defendant. This court reversed
the judgement of the court of appeals and remanded the cause to
the trial court for resentencing because the three-judge panel
improperly weighed nonstatutory aggravating circumstances
against the mitigating factors. The panel specified what it
considered to be the mitigating factors and aggravating
circumstances. Its opinion read:
"We find the following aggravated [sic] circumstances have
been proved beyond a reasonable doubt:
"1) The manner by which the Defendant purchased the gun,
used to kill the victim in this case.
"2) The manner by which the Defendant purchased the
ammunition for the gun.
"3) The shooting of the victim, the firing at close range
and finally placing the gun almost against her skull and
discharging the weapon.
"4) The prior purposeful killing of his wife in 1970 by
multiple stab wounds.
"5) Committing the present offense while on parole for the
muder of his wife.
"After considering the mitigating factors and the
aggravating circumstances proved beyond a reasonable doubt, we
unanimously find by proof beyond a reasonable doubt that the
aggravating circumstances the Defendant was found guilty of,
outweigh the mitigating factors found by this panel." Id., 38
Ohio St.3d at 368, 528 N.E.2d at 932.
Of the five "aggravating circumstances" listed in the
opinion, only the aggravating circumstance described in R.C.
2929.04(A)(5) was a statutory aggravating circumstance. In
response, this court stated "the balance of the five
circumstances listed by the three-judge panel was outside the
statute" and it was therefore improper to consider them. Id.
at 369, 528 N.E.2d at 933.
The three-judge panel in this case apparently undertook
the same type of flawed analysis. See footnote 1. It is
permissible for a court to consider nonstatutory aggravating
circumstances if there are no mitigating factors present as
there is no danger that nonstatutory circumstances will
overcome the mitigating factors in the weighing process. Id.,
38 Ohio St.3d at 370-371, 528 N.E.2d at 934, citing Elledge v.
State (1977) 346 So.2d 998. However, as specified above, there
are numerous mitigating factors present in this case and
therefore the nature and circumstances of the offense should
not have been considered as an aggravating circumstance. See,
also, Zant v. Stephens (1983), 462 U.S. 862, 103 S.Ct. 2733, 77
L.Ed.2d 235, and Barclay v. Florida (1982), 463 U.S. 939, 103
S.Ct. 3418, 77 L.Ed.2d 1134.
In addition, I concur in the thrust of the dissent of
Justice Pfeifer as it is my belief that the sentence of death
in this case is disproportionate and inappropriate given the
previous cases decided by this court.
For all these reasons, I would affirm the conviction but
reverse the death sentence and remand the matter to the trial
panel for resentencing pursuant to State v. Davis (1988), 38
Ohio St.3d 361, 528 N.E.2d 925.
FOOTNOTE:

2 The opinion of the trial panel read as follows:
"REASONS WHY THE AGGRAVATING CIRCUMSTANCES THE OFFENDER
WAS FOUND GUILTY OF COMMITTING WERE SUFFICIENT TO OUTWEIGH THE
MITIGATING FACTORS.
"1. The Panel finds beyond a reasonable doubt that the
Defendant was the principal offender in Count I, Count II and
Count III of the indictment.
"2. The kidnapping of Mary Jane Johnson was not a mere
restraint of liberty incident to the homocide. ***
"3.Defendant's purchase of a 357 Magnum gun along with
hollow point bullets four days before the shooting.
"4. Defendant's decision to go to Durling Elementary
School with a loaded 357 Magnum.
"5. Defendant's decision to take only one key to the
elementary school, the key to enter the building.
"6. The continued restraint of Mary Jane Johnson after she
called for help, by force, for the purpose of terrorizing
and/or for the purpose of inflicting serious physical harm.
"7. The circumstance that Defendant had the opportunity
and could have released her to safety on at least three
different occasions. ***
"8. The circumstance that Defendant left Mary Jane Johnson
bleeding to death by the dumpster; that Defendant sought no
medical treatment for her, but decided to flee.
"9. Even with no prior criminal history and considering
his character and background, the aggravating circumstances
clearly outweigh the mitigating factors.
 "***
"Finally, in looking at any other relevant factors, we
consider Defendant's claim of remorse and his lack of a
criminal history. Balancing the mitigating factors enumerated
above against the aggravating circumstances, we conclude that
the aggravating circumstances outwigh the mitigating factors
beyond a reasonable doubt." (Emphasis added.)
State v. Simko.
Pfeifer, J., dissenting. I concur with Justice Wright
that the aggravating circumstance in this case does not
outweigh the mitigating factors. I write further because I
would hold that the sentence of death is disproportionate,
given the particular facts of this case.
The death penalty is special. That special nature is
reflected in the types of crimes punishable by death and by
this court's role in the death penalty analysis.
By statute, not every murder is a death-penalty crime.
The state of Ohio takes very seriously the awesome
responsibility involved in taking a person's life. The death
penalty is reserved for those committing what the state views
as the most heinous of murders, such as those committed while
the murderer was committing another violent crime, e.g.,
kidnapping or rape.
This court's role is also special in death-penalty cases.
Unlike other criminal defendants, including non-death-penalty
murderers, defendants eligible for the death penalty receive an
automatic right of appeal to this court. Part of that appeal
is our mandated consideration of "whether the sentence is
excessive or disproportionate to the penalty imposed in similar
cases." R.C. 2929.05(A). Proportionality review is a key part
of this court's death-penalty review, and as the state's
highest court we are in a unique position to determine what is
proportionate in a statewide sense.
The focus in most death-penalty cases has been on issues
other than proportionality. Typically, the court locates
previous cases with similar statutory aggravating circumstances
where the death penalty has been imposed, and thus finds
proportionality to the case at issue. However, murders with
the same statutorily defined aggravating circumstance are not
necessarily crimes of the same character. In the present case,
for example, the majority cites three cases in its
proportionality review.
In State v. Fox (1994) 69 Ohio St.3d 183, 631 N.E.2d 124,
the defendant lured the victim into meeting with him by posing
as a prospective employer. He drove her to a remote country
road, and when she resisted his advances and tried to escape,
he brutally stabbed her. He then got a rope out of his trunk
and strangled her, "just to make sure she was dead." Id at
195, 631 N.E.2d at 133.
In State v. Seiber (1990), 56 Ohio St.3d 4, 564 N.E.2d
408, the defendant held a bar's patrons at gunpoint,
terrorizing them and murdering one, shooting him in the back as
he sat at the bar.
In State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d
491, the defendant kidnapped the wife of his lifelong friend,
locking her in his car's trunk for hours as he drove around.
At one point the victim was able to scrawl "HELP ME PLEASE" in
lipstick on a piece of paper and stick it through a gap in the
trunk seal. When the defendant learned that the police were
looking for him for an explanation, he drove to a remote area,
attempted to strangle the victim with his hands and a necktie,
and then stabbed her and slashed her throat with a butcher
knife.
Thus, even though these cases share the same
death-penalty-qualifying aggravating circumstance as the case
at issue, the characters of the crimes differ widely. To rely
completely on the crimes of others in determining whether the
death penalty is proportionate in a given case demeans our
responsibility to review each case individually.
In the present case, Simko technically did commit
kidnapping and thus became eligible for the death penalty. But
the death penalty is not for technicalities. The General
Assembly recognized that when it mandated that this court
employ a proportionality review. Our role is basically to
determine whether the penalty of death is appropriate in a
particular case, given the penalty's role in our overall system
of justice. Our mandate was not prescribed with precision
because the type of review involved is not truly capable of
precise measurement. Yet we have been charged with making that
call, and as the state's supreme court we ought not back down
from making it.
The death penalty is to apply to the worst of cases. This
is not one of those.
Moyer, C.J., concurs in the foregoing dissenting opinion.