concurring in part and dissenting in part.
{¶ 341} That Gregory McKnight killed Gregory Julious and Emily Murray was proved at trial beyond a reasonable doubt. I concur in upholding both murder convictions. I also join the Chief Justice’s separate opinion, which explains why the two murders were not part of a course of conduct. I write separately because the record does not contain proof beyond a reasonable doubt that McKnight kidnapped Murray or that he committed aggravated robbery.
{¶ 342} The majority states, “The state proved that [McKnight] kidnapped Murray by showing that Murray and [McKnight] left work at approximately the same time on the night Murray disappeared, that Murray’s car was found parked behind [McKnight’s] trailer, and that Murray’s murdered body was found rolled in a carpet inside [McKnight’s] trailer.” None of this evidence proves beyond a reasonable doubt that McKnight “by force, threat, or deception * * * remove[d Murray] from the place where [she was] found or restrained her] liberty.” R.C. 2905.01(A). The majority also states that “the evidence proved that Murray did not have her wallet, driver’s license, and credit cards when she disappeared and that Murray did not tell anyone she was leaving the area, despite her habit of informing friends of her whereabouts.” But this evidence doesn’t prove “force, threat, or deception.” Further, this evidence suggests that Murray may have voluntarily given McKnight a ride home, as his co-workers sometimes did. (The record does not indicate that McKnight’s co-workers ever gave him a ride to Vinton County.) As further proof of kidnapping, the majority states that “[McKnight] lied when Murray’s friend asked about her, and [McKnight] also told a co-worker that she was ‘probably dead.’ ” This evidence suggests nothing as to kidnapping; it is certainly damning evidence, but only as to murder. Finally, as further proof of kidnapping, the majority states, “[McKnight] also falsely told Kimberly Zimmerman that the Subaru behind his trailer belonged to his boss or a friend, ‘and they were down there probably hunting.’ ” Again, this evidence suggests nothing as to kidnapping.
{¶ 343} “Other acts” testimony was admitted into evidence to prove McKnight’s motive, opportunity, intent or purpose or plan to commit kidnapping. The evidence established that McKnight often needed a ride home from work and that he had a penchant for seeking extramarital sex. Calling these behavioral patterns a “modus operandi” is a significant stretch. This evidence should have been excluded because “its probative value is substantially outweighed by the *152danger of unfair prejudice.” Evid.R. 403(A). The evidence offers little to no probative value given the overwhelming evidence of murder and the absence of evidence of kidnapping. Further, the prejudicial effect is significant because of the opprobrium that a jury is likely to feel toward a serial adulterer, instructions to the contrary notwithstanding. That McKnight sought lovers seems a thin reed on which to base a kidnapping conviction.
David H. Bodiker, Ohio Public Defender, and Joseph E. Wilhelm, Kelly L. Culshaw, and Robert K. Lowe, Assistant Public Defenders, for appellant.{¶ 344} The majority discusses kidnapping only in the context of the sufficiency of the evidence. I agree that there is sufficient evidence to crest that low threshold. Affirming a death specification, however, requires proof beyond a reasonable doubt, which the record does not contain.
{¶ 345} While it ignores the consequences of the paucity of evidence to support a kidnapping conviction, at least the majority discusses it. The aggravated-robbery death specification was affirmed even though the majority opinion does not discuss any of the evidence on which it relies. Apparently, the mere presence of the Subaru on MeKnight’s property is sufficient evidence to prove that he stole it. In reality, the Subaru’s presence on his property proves nothing more than its presence.
{¶ 346} The majority opinion concludes, “[McKnight] kidnapped Murray, stole her car, and then brutally murdered Murray inside his trailer.” As discussed above, there is no evidence beyond a reasonable doubt that McKnight kidnapped Murray or that he stole her car. Based on the evidence in the record, it is as likely that Murray voluntarily drove McKnight home and voluntarily entered his home. Sadly, there is no doubt that McKnight committed a brutal murder. Nevertheless, because of the lack of evidence of the aggravating circumstances, McKnight should not be sentenced to death, and I dissent from the portion of the majority opinion that upholds the death sentence.