[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Johnson, Slip Opinion No. 2015-Ohio-4903.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2015-OHIO-4903
            THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Johnson, Slip Opinion No. 2015-Ohio-4903.]
Criminal law―Aggravated murder―Death penalty―Appeal from retrial on
        mitigation only―Pursuant to independent evaluation of sentence under
        R.C. 2929.05(A), death sentence vacated and cause remanded for
        resentencing consistent with R.C. 2929.06―Aggravating circumstances do
        not outweigh mitigating factors beyond reasonable doubt―Death penalty
        inappropriate.
    (No. 2012-0405—Submitted June 10, 2015—Decided December 1, 2015.)
           APPEAL from the Court of Common Pleas of Hamilton County,
                                       No. B9708745.
                                    _________________
        PFEIFER, J.
        {¶ 1} In 1998, defendant-appellant, Rayshawn Johnson, was convicted of
the 1997 aggravated murder of Shanon Marks and was sentenced to death. Finding
                                 SUPREME COURT OF OHIO




no success on direct appeal or through the postconviction process in state court,
Johnson sought habeas corpus relief in federal court and was granted relief there on
the grounds that he had received ineffective assistance of trial counsel during the
mitigation phase of his trial.
        {¶ 2} In 2011, the state conducted a new mitigation hearing. A new judge
presided over the hearing, and 12 new jurors recommended a sentence of death.
The trial court again imposed a death sentence, and we now review Johnson’s direct
appeal as of right from that sentence. We find that there were no significant
procedural defects in the new mitigation hearing, but, pursuant to our independent
evaluation of the sentence under R.C. 2929.05(A), we determine that the
aggravating circumstances in this case do not outweigh beyond a reasonable doubt
the mitigating factors. We accordingly vacate the sentence of death and remand
the cause to the trial court for resentencing consistent with R.C. 2929.06.
             I. FACTUAL AND PROCEDURAL BACKGROUND
               A. Johnson’s 1998 Trial, Conviction, and Sentence
        {¶ 3} In 1998, a jury convicted Johnson of aggravated felony murder, R.C.
2903.01(B), with two accompanying death specifications: Johnson committed
murder during the course of an aggravated burglary and aggravated robbery, and
he acted with prior calculation and design or was the principal offender in the crime,
R.C. 2929.04(A)(7). State v. Johnson, 88 Ohio St.3d 95, 101, 723 N.E.2d 1054
(2000). Johnson was sentenced to death. Id.
        {¶ 4} Johnson challenged his conviction and sentence on the grounds that
he had received ineffective assistance of counsel during the mitigation phase of his
trial. The Ohio courts rejected this argument. See id. at 120, 130 (direct appeal);
State v. Johnson, 1st Dist. Hamilton No. C-000090, 2000 WL 1760225, at *3-9
(Dec. 1, 2000) (appeal from denial of petition for postconviction relief), appeal not
accepted, 91 Ohio St.3d 1481, 744 N.E.2d 1194 (2001). In April 2002, Johnson
filed a habeas corpus petition in the United States District Court for the Southern




                                           2
                                January Term, 2015




District of Ohio.     Johnson v. Bagley, S.D.Ohio No. 1:02-cv-220, 2006 WL
5388021, *6 (Apr. 24, 2006). After conducting an evidentiary hearing, id. at *47,
the district court granted habeas relief on Johnson’s claim of ineffective assistance
of counsel at mitigation. Id. at *72-73. On April 24, 2006, the court directed the
state to commute Johnson’s death sentence or grant him a new mitigation hearing.
Id. The Sixth Circuit Court of Appeals affirmed. Johnson v. Bagley, 544 F.3d 592,
594 (6th Cir.2008).
          B. Johnson’s 2011 Mitigation Hearing and 2012 Sentence
       {¶ 5} Johnson’s second mitigation hearing began on November 30, 2011.
The common pleas court assigned a new presiding judge, who in turn seated a new
panel of jurors. The judge instructed the jurors that they must adhere to the prior
guilty verdict as to aggravated murder and the two related death-penalty
specifications and that they could consider only those two specifications as
aggravating circumstances for sentencing purposes.
                             1. The State’s Evidence
       {¶ 6} Because the new jurors had not heard the guilt phase of Johnson’s
trial, the state presented seven witnesses during the new mitigation hearing. The
prosecutor also reintroduced all but one of the state’s exhibits from Johnson’s
original trial, including numerous photos of Shanon’s body at the crime scene and
during the autopsy. The state’s evidence established the following. See also State
v. Johnson, 88 Ohio St.3d at 96-101, 723 N.E.2d 1054.
       {¶ 7} According to Johnson’s recorded confessions, he decided to enter the
Marks residence on the morning of November 12, 1997, because he needed money.
Before leaving home, Johnson picked up a baseball bat and a pair of gloves. Then
Johnson climbed out a window in his garage and over a fence into the Markses’
backyard, which was contiguous to his own.
       {¶ 8} Johnson was familiar with the layout of the Marks residence because
he had done work there for a previous owner. He entered their unlocked back door




                                         3
                              SUPREME COURT OF OHIO




and walked up the back staircase. Johnson spotted Shanon in the upstairs bathroom,
looking out the window. He hit the back of her head and shoulder area with the
bat. He hit her again after she fell to the floor.
        {¶ 9} Johnson then found Shanon’s purse in the master bedroom and
emptied its contents on the bed. Shanon’s husband, Norman Marks, testified that
she should have had close to $50 in her purse that day, but police found no money.
        {¶ 10} After Johnson left the house, he discarded the gloves in a trash bin,
broke the bat with a brick, and threw the pieces of the bat into Eden Park. Police
did not recover the gloves or the bat. However, they did find shoe prints consistent
with Johnson’s Air Jordan sneakers both in the Markses’ bathroom and on a railroad
tie along the fence line between Johnson’s and the Markses’ homes.
        {¶ 11} Norman arrived home from work around 8:00 p.m., discovered his
wife’s body, and called 9-1-1.
        {¶ 12} Emergency responders concluded that Shanon had been dead for
hours. The coroner’s autopsy indicated that she had suffered massive head injuries,
consistent with being hit multiple times—with much force—with a baseball bat.
Shanon died of lacerations to the brain, caused by a blunt object hitting her head.
Her left forearm was broken and her hands were bruised, indicating that she had
tried to protect herself.
        {¶ 13} In the hours following Shanon’s death, Johnson watched police
investigate the murder from a window in his house. Over the next few days, he
spoke to the media on several occasions. He told reporters that his dog had been
barking around 7:30 a.m. on November 12. He also expressed concern about
having crime in the neighborhood.
        {¶ 14} Police interviewed Johnson at his home on November 14, then at the
police station on November 15. Johnson confessed in two recorded statements and
was arrested. On November 16, he provided a third recorded statement at the
county jail, in which he claimed that a man named Dante had accompanied him into




                                           4
                                 January Term, 2015




the Markses’ home and that Dante had delivered the final blows to Shanon with the
handle of a gun.
                               2. Johnson’s Evidence
       {¶ 15} During the 2011 mitigation hearing, the defense presented five
witnesses, Johnson’s unsworn statement, and eight exhibits. A detailed description
of the testimony is included in our independent sentence evaluation below.
                               3. 2012 Death Sentence
       {¶ 16} On December 7, 2011, the jury recommended a sentence of death.
       {¶ 17} The judge did not immediately sentence Johnson, because he wanted
time to review the trial transcript and exhibits from Johnson’s original trial for any
possible mitigation evidence the defense might have missed. The court also
admitted the original 11-volume trial transcript into evidence as a court exhibit. On
January 10, 2012, the trial court concluded that the aggravating circumstances
outweighed the mitigating factors and sentenced Johnson to death.
       {¶ 18} Johnson now appeals, raising seven propositions of law.
                            II. LAW AND ANALYSIS
                                   A. Jury Issues
       {¶ 19} In proposition of law No. I, Johnson, an African-American, argues
that the state violated his equal-protection rights by purposefully excluding two
African-American prospective jurors. In addition, proposition of law No. 2 asserts
that Johnson’s trial counsel were ineffective for failing to effectively present Batson
challenges during voir dire.
                               1. Batson v. Kentucky
       {¶ 20} Criminal defendants have a constitutional right to be tried by a jury
selected by nondiscriminatory criteria. Batson v. Kentucky, 476 U.S. 79, 85-86,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).          Accordingly, a prosecutor may not
“challenge potential jurors solely on account of their race or on the assumption that
black jurors as a group will be unable impartially to consider the State’s case against




                                          5
                             SUPREME COURT OF OHIO




a black defendant.” Id. at 89. “ ‘[T]he striking of a single black juror for racial
reasons violates the equal protection clause, even though other black jurors are
seated, and even when there are valid reasons for the striking of some black jurors.’
” United States v. Harris, 192 F.3d 580, 587 (6th Cir.1999), quoting United States
v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987).
       {¶ 21} In Batson, the United States Supreme Court established a three-step
inquiry for trial courts to adjudicate claims of race-based challenges to jurors.
Batson at 96. First, a defendant must make a prima facie case that the prosecutor
is engaged in racial discrimination. Id. at 96-97. Second, if the defendant satisfies
that burden, the prosecutor must provide a racially neutral explanation for the
challenge.   Id. at 97-98.     Finally, the court must decide, based on all the
circumstances, whether the defendant has proved purposeful racial discrimination.
Id. at 98. In doing so, the court must consider the circumstances of the challenge
and assess the plausibility of the prosecutor’s explanation in order to determine
whether it is merely pretextual. See Miller-El v. Cockrell, 537 U.S. 322, 339, 123
S.Ct. 1029, 154 L.Ed.2d 931 (2003); State v. Frazier, 115 Ohio St.3d 139, 2007-
Ohio-5048, 873 N.E.2d 1263, ¶ 65.
       {¶ 22} Johnson argues that a trial court must undertake its own investigation
of a prosecutor’s race-neutral explanation, even if the defense has not challenged
that explanation in any way. But neither this court nor the United States Supreme
Court has imposed “a duty on the trial court to conduct an independent inquiry into
the relevant facts and circumstances bearing on the credibility of the prosecution’s
stated reasons.” United States v. Houston, 456 F.3d 1328, 1338-1339 (11th
Cir.2006); see also Johnson v. Gibson, 169 F.3d 1239, 1248 (10th Cir.1999);
United States v. Baskerville, D.N.J. No. 03-836, 2011 WL 159782, at *5 (Jan. 18,
2011). But see United States v. Torres-Ramos, 536 F.3d 542, 560 (6th Cir.2008)
(at step three of Batson, the trial judge has “an affirmative duty * * * to examine
relevant evidence that is easily available”).




                                          6
                               January Term, 2015




       {¶ 23} We defer to a trial court’s resolution of a Batson challenge absent a
showing of clear error. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751,
23 N.E.3d 1096, ¶ 53.
                           2. Prospective Juror No. 9
       {¶ 24} Johnson challenges the exclusion of prospective juror No. 9, an
African-American woman.
       {¶ 25} Prospective juror No. 9 indicated some ambivalence toward the
death penalty. On her pretrial jury questionnaire, she stated: “Putting someone to
death is difficult for me, however sometimes it may be necessary. I do not want to
make that decision.” (Emphasis added.) Prospective juror No. 9 also indicated that
she believed that the death penalty was an inappropriate penalty for most murder
cases. During voir dire, she stated that she has “mixed feelings on the death
penalty” and opined that it might be appropriate under some circumstances.
       {¶ 26} Ultimately, prospective juror No. 9 confirmed that she would follow
the judge’s instructions and would be able to sign a death-penalty verdict. Contrary
to Johnson’s suggestions, these assurances did not refute prospective juror No. 9’s
stated reluctance to have to make a decision about whether to impose the death
penalty. Prospective juror No. 9 indicated only that she would follow the law, not
that she was any less reluctant to decide between life and death.
       {¶ 27} Prospective juror No. 9’s responses also suggested that she would
likely be sympathetic to the defense with regard to issues of addiction. She
commented that addiction affects one’s personality, can make one “abusive,
disrespectful, and dangerous,” and “[c]an eventually lead to mental health issues.”
And she explained that her husband had struggled to overcome a crack addiction.
In addition, prospective juror No. 9 said she had witnessed how addiction can lead
parents to mentally abuse their children. Notably, she specifically identified the
absence of parents—“No father—No mother. Grandparents raising children”—as
a major cause of crime.




                                         7
                              SUPREME COURT OF OHIO




         {¶ 28} The state used its third peremptory challenge to excuse prospective
juror No. 9. When the defense objected on Batson grounds, the prosecutor offered
two explanations. First, he stated that the main reason for excusing prospective
juror No. 9 was her attitude toward the death penalty. The prosecutor cited the jury
questionnaire, which indicated that prospective juror No. 9 did not want to decide
whether to sentence someone to death, as well as her belief that the death penalty
is inappropriate in most murder cases.         Second, the prosecutor opined that
prospective juror No. 9 was likely to “attribute what [Johnson] did to the fact that
he wasn’t raised by his parents” because she believes that factor is a major cause of
crime.
         {¶ 29} The trial court asked whether the defense wanted to present further
argument in response to the prosecutor’s explanations, but defense counsel
declined. Then, the judge accepted the prosecutor’s reasons as race-neutral and
rejected the Batson challenge.
         {¶ 30} Johnson now argues that the prosecutor’s concerns about
prospective juror No. 9’s views toward the death penalty were pretextual because
they also applied to juror No. 1, a Caucasian juror who was not excused; the
prosecution did not use all of its peremptory challenges and therefore could have
excused juror No. 1 as well. “If a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful discrimination to be considered
at Batson’s third step.” (Emphasis added.) Miller-El v. Dretke, 545 U.S. 231, 241,
125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).           If such disparate treatment goes
unexplained, it can establish that a prosecutor’s reason is pretextual. See United
States v. Odeneal, 517 F.3d 406, 420 (6th Cir.2008).
         {¶ 31} Like prospective juror No. 9, juror No. 1 did indicate some hesitation
about the death penalty on her jury questionnaire. Both women checked a box
indicating that the death penalty is “[a]ppropriate in some murder cases, but




                                           8
                                January Term, 2015




inappropriate in most murder cases.” Juror No. 1 also wrote, “I believe in the death
penalty once there isn’t a shadow of a doubt that the defendant is g[u]ilty. I feel
there has to be overwhelming actual proof.” But this comment was not particularly
relevant in this case, because Johnson’s guilt had already been adjudicated by a jury
in 1998.
       {¶ 32} Prospective juror No. 9 and juror No. 1 were not otherwise similar.
Miller-El at 241. In fact, they differed in significant ways. Compare id. at 247
(observing that the differences between two jurors in that case “seem[ed] far from
significant”). Unlike prospective juror No. 9, juror No. 1 never indicated that she
did not want to have to decide whether to impose the death penalty. In addition,
juror No. 1’s voir dire responses suggested that she might be more favorably
disposed to the prosecution than prospective juror No. 9. When discussing her
sister-in-law’s drug addiction, juror No. 1 commented that her sister-in-law needed
to help herself. She also implied that her husband had been able to overcome
addiction by turning to religion. These statements indicate that juror No. 1 might
be unsympathetic to Johnson’s mitigation evidence about addiction. Accordingly,
the prosecution could reasonably have been more willing to keep juror No. 1 on the
jury than prospective juror No. 9.
       {¶ 33} The prosecutor cited both explanations for excusing prospective
juror No. 9. And we are unconvinced that the trial court erred by accepting the
prosecutor’s race-neutral explanations as credible. Indeed, Johnson’s allegation of
unlawful pretext is further undermined by the presence of an African-American
juror and an African-American alternate on his panel even though the state had
peremptory challenges available to excuse both of them. See State v. Pickens, 141
Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 92 (while presence of African-
Americans on jury does not rule out discrimination, the fact may be considered
evidence of lack of intent to discriminate).




                                          9
                             SUPREME COURT OF OHIO




       {¶ 34} Johnson pressed the opposite conclusion, both in his briefs and at
oral argument. He urges us to consider only prospective juror No. 9’s views on the
death penalty, and not the other ways in which she differed from juror No. 1.
Johnson emphasizes that defendants need not “show that the excluded venire
panelist was similarly situated to a white potential juror in all respects” in order to
prevail on a Batson claim. (Emphasis added.) Torres-Ramos, 536 F.3d at 559. In
support, he cites the United States Supreme Court’s decision in Miller-El v. Dretke,
which found a Batson violation even though one of the prosecutor’s proffered
reasons for excluding an African-American juror did not apply to white prospective
jurors. 545 U.S. at 246-247, 125 S.Ct. 2317, 162 L.Ed.2d 196.
       {¶ 35} In Miller-El, the prosecutor offered two explanations for
peremptorily striking an African-American juror. First, he cited the juror’s views
on the death penalty. Id. at 244. Then, after defense counsel pointed out that the
prosecutor had mischaracterized the juror’s views, the prosecutor offered a second
reason: the juror’s brother had a prior criminal conviction. Id. at 246. The United
States Supreme Court found that the prosecutor’s reference to the criminal
conviction was pretextual; it “reek[ed] of afterthought” and was “implausible” for
numerous other reasons. Id. (“There is no good reason to doubt that the State’s
afterthought * * * was anything but makeweight”). As a result, the court concluded
that the prosecutor’s second reason was irrelevant when comparing the excluded
juror to other jurors and held that a Batson violation had occurred. Id.
       {¶ 36} This case is unlike Miller-El because the circumstances here do not
indicate that the prosecutor’s second reason was merely pretextual. The prosecutor
offered both explanations at the same time. And unlike the brother’s criminal
history in Miller-El, prospective juror No. 9’s attitudes about the causes of crime
were central to the core issue before the jury: whether the aggravating
circumstances outweighed the mitigating evidence Johnson presented (largely
about his background and addiction) beyond a reasonable doubt. As a result, we




                                          10
                                January Term, 2015




do not disregard the prosecutor’s second explanation for striking prospective juror
No. 9.
         {¶ 37} The trial court properly rejected Johnson’s Batson challenge to the
exclusion of prospective juror No. 9.
                            3. Prospective Juror No. 45
         {¶ 38} Johnson also challenges the exclusion of prospective juror No. 45,
an African-American woman, as an alternate.
         {¶ 39} On her jury questionnaire, prospective juror No. 45 indicated that
she was unsure of her views about the death penalty. She believed that it was
“[a]ppropriate in some murder cases, but inappropriate in most murder cases.”
During voir dire, prospective juror No. 45 stated that she could be fair and that she
would be able to sign either a verdict of death or a verdict for one of the life-
sentence options. Defense counsel pressed this issue, and prospective juror No. 45
confirmed that she could reserve judgment until after she heard all the evidence and
then follow the law.
         {¶ 40} Separately, prospective juror No. 45 stated that her son had been
convicted of a crime. However, she said that her son’s experiences had not affected
her views of the criminal justice system.
         {¶ 41} The prosecutor used a peremptory challenge to excuse prospective
juror No. 45 as an alternate. Defense counsel raised a Batson challenge, and the
prosecutor offered several explanations. First, he opined that prospective juror No.
45 was “very weak on the death penalty”; she “felt it was inappropriate in most
cases.” Second, he noted that prospective juror No. 45’s questionnaire was largely
incomplete. Third, prospective juror No. 45’s son had been convicted of a crime.
         {¶ 42} The trial court inquired whether the defense had any further
arguments, but defense counsel offered no response to the prosecutor’s explanation.
The trial court then concluded that the explanation was race-neutral and rejected
the Batson challenge.




                                         11
                             SUPREME COURT OF OHIO




       {¶ 43} Johnson asserts that the trial court erred because the prosecutor’s
explanation about prospective juror No. 45’s views on the death penalty was
pretextual. He says that juror No. 1’s views of the death penalty were as “weak” as
prospective juror No. 45’s on her questionnaire. Yet the prosecutor did not ask
juror No. 1 any follow-up questions on this issue during voir dire or seek to exclude
her from the jury.
       {¶ 44} Johnson cannot prevail on this claim, because he failed to challenge
the prosecutor’s explanations at trial and cannot now establish error, let alone clear
error. Indeed, even now he does not attempt to challenge two of the prosecutor’s
three explanations for excusing prospective juror No. 45. And he does not point to
additional evidence suggesting that these reasons were not credible. Moreover, the
fact that the prosecution did not excuse another African-American juror or an
African-American alternate, even though it had not used all of its peremptory
challenges, suggests that the prosecutor’s reasons were not merely pretextual. See
Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 92.
       {¶ 45} The trial court did not err by allowing the prosecutor to excuse
prospective juror No. 45.
                       4. Ineffective Assistance of Counsel
       {¶ 46} Johnson also asserts that his trial counsel provided ineffective
assistance by failing to effectively contest the state’s use of peremptory challenges
to excuse prospective juror Nos. 9 and 45. Specifically, he argues that counsel
should have presented additional evidence to persuade the trial court that the
prosecutor’s race-neutral explanations for excusing prospective juror Nos. 9 and 45
were pretextual.
       {¶ 47} We reject Johnson’s claim of ineffective assistance because there is
no evidence that counsel’s performance “fell below an objective standard of
reasonableness,” as determined by “prevailing professional norms,” in this regard.




                                         12
                                January Term, 2015




Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Johnson’s Batson claim is unsupported by the record before us.
       {¶ 48} For these reasons, we reject Johnson’s first two propositions of law.
                               B. Evidentiary Issues
       {¶ 49} In proposition of law No. 3, Johnson asserts that his constitutional
rights were violated because the state introduced irrelevant and prejudicial evidence
during his 2011 mitigation hearing.
     1. Admissibility of Evidence at the Mitigation Phase of a Capital Trial
       {¶ 50} At the mitigation phase of a capital trial, the fact-finder is charged
with a specific task: deciding whether the aggravating circumstances—the death
specifications of which the defendant was convicted at the trial phase—outweigh
mitigating factors beyond a reasonable doubt. R.C. 2929.03(D)(2). As part of this
weighing process, “the sentencer must consider the nature and circumstances of the
offense, whether they have mitigating impact or not and whether the defense raises
them or not.” (Emphasis sic.) State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-
160, 840 N.E.2d 1032, ¶ 127.
       {¶ 51} Given the nature of this balancing, “at the penalty stage of a capital
proceeding, [a prosecutor] may introduce ‘ * * * any evidence raised at trial that is
relevant to the aggravating circumstances the offender was found guilty of
committing.’ ” State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988),
paragraph one of the syllabus, quoting R.C. 2929.03(D)(1). In addition, because
the sentencer “must consider the nature and circumstances of the offense, R.C.
2929.03(D)(1) ‘permit[s] repetition of much or all that occurred during the guilt
stage.’ ”   State v. Fears, 86 Ohio St.3d 329, 345-346, 715 N.E.2d 136 (1999),
quoting DePew at 282-283.
       {¶ 52} To be admissible, evidence must be relevant. Evid.R. 402. Evidence
is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than




                                         13
                             SUPREME COURT OF OHIO




it would be without” it. Evid.R. 401. But even relevant evidence must be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. Evid.R. 403(A). In a capital case,
however, a higher standard applies to the admissibility of gruesome photographs.
Gruesome photos are admissible only if (1) their “probative value * * * outweigh[s]
the danger of unfair prejudice” to the defendant and (2) they are “neither repetitive
nor cumulative in nature.” State v. Morales, 32 Ohio St.3d 252, 258, 513 N.E.2d
267 (1987).
       {¶ 53} We will not disturb a trial court’s evidentiary rulings unless we find
“an abuse of discretion that has created material prejudice.” State v. Noling, 98
Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 43.
           2. The State’s Mitigation-Phase Evidence Against Johnson
       {¶ 54} At Johnson’s 2011 mitigation hearing, the trial court permitted the
prosecutor to readmit virtually all of the exhibits from Johnson’s original trial, over
defense objection.     The prosecutor did not reintroduce any evidence about
Johnson’s crimes against a second victim, Nicole Sroufe.
       {¶ 55} Johnson now argues that three types of evidence should have been
excluded as irrelevant and prejudicial: victim photos, Norman Marks’s 9-1-1 call,
and Johnson’s 1997 media interviews.
                                 a. Victim photos
       {¶ 56} Johnson argues that the trial court erred by admitting gruesome
crime-scene and autopsy photos of Shanon Marks, over his objection, during the
2011 mitigation hearing. According to Johnson, the photos were irrelevant, unduly
prejudicial, and repetitive and cumulative.
       {¶ 57} During both phases of Johnson’s 1998 trial, the court admitted
crime-scene photos “depict[ing] where Shanon was found and [showing] that
portions of her head and other parts of her body had been severely beaten.”
Johnson, 88 Ohio St.3d at 117, 723 N.E.2d 1054. The court also admitted autopsy




                                          14
                                January Term, 2015




photos “depict[ing] Shanon’s head and bodily injuries, with color photographs
showing her head with the scalp pulled down to illustrate the damage that occurred
to her skull.” Id. The trial court admitted the same photos, over Johnson’s
objection, during the 2011 mitigation hearing.
       {¶ 58} On his first direct appeal to this court, Johnson argued that the trial
court erred by admitting these photos during the 1998 mitigation phase. In that
case, this court held that the photos were properly admitted at the trial phase
because they were relevant, their probative value outweighed the danger of material
prejudice to Johnson, and they were not repetitive or cumulative. Id. at 117-118,
citing State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), paragraph seven
of the syllabus, and Morales, 32 Ohio St.3d at 258, 513 N.E.2d 267. In light of that
conclusion, this court summarily rejected Johnson’s claim that the trial court erred
by readmitting the photos during the mitigation phase. Johnson at 118, citing
DePew, 38 Ohio St.3d at 282-283, 528 N.E.2d 542.
       {¶ 59} Our 2000 decision rejecting Johnson’s claim remains the law of this
case. See State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031,
¶ 27. Accordingly, Johnson cannot prevail on his present claim to the extent that
the claim was or could have been pursued in his first appeal. Id.
       {¶ 60} Johnson does make one argument about the photos that could not
have been raised previously because it is specific to the prosecutor’s conduct during
the 2011 mitigation hearing. Namely, he argues that the trial court erred by
allowing the state to show “many of the same images * * * multiple times during
the sentencing phase.” The state displayed ten photos of Shanon during opening
statements.   The jury saw some of the images again during Officer Robert
Randolph’s testimony and others again during the coroner’s testimony. But the
trial court did not abuse its discretion by allowing the prosecutor to publish certain
images twice, where the prosecution was reasonably employing the images to
illustrate its argument and facilitate witness testimony. See State v. Strong, 142




                                         15
                            SUPREME COURT OF OHIO




S.W.3d 702, 720-721 (Mo.2004) (en banc) (rejecting defendant’s claim that trial
court erred by allowing prosecutor to present a slideshow including gruesome
images, most of which had already been admitted at trial phase, during penalty-
phase closing arguments).
       {¶ 61} Thus, the trial court did not err by admitting the challenged photos
or permitting the prosecutor to publish them to the jury more than once.
                             b. Norman’s 9-1-1 call
       {¶ 62} Johnson also asserts that the trial court abused its discretion by
admitting a recording of the 9-1-1 call Norman Marks made after discovering his
wife’s body.
       {¶ 63} Over defense objection, the prosecutor played the 9-1-1 call during
Officer Randolph’s testimony. On the recording, Norman related information
about the state of Shanon’s body when he found her shortly before 8:15 p.m. He
stated that Shanon was unconscious and covered with blood, lying face down in the
bathroom. Norman had great difficulty turning Shanon over to attempt CPR.
Norman also told the operator that he could not tell what had happened and did not
see a weapon.
       {¶ 64} According to Johnson, the 9-1-1 call was irrelevant to his 2011
mitigation hearing. But, as explained above, the fact-finder at a capital mitigation
hearing is obliged to consider the nature and circumstances of an offense to arrive
at a sentence.    DePew, 38 Ohio St.3d at 282-283, 528 N.E.2d 542 (R.C.
2929.03(D)(1) permits repetition of much or all that occurred during the guilt
stage). Norman’s statements on the 9-1-1 call convey the circumstances in which
Johnson left his victim.
       {¶ 65} Johnson also argues that the 9-1-1 call should have been excluded
because the state introduced it only to inflame the jury; all the information on the
recording was cumulative to Norman’s testimony at the 2011 hearing.            This




                                        16
                               January Term, 2015




amounts to an argument that the trial court should have excluded the evidence under
Evid.R. 403(A) because it had minimal probative value.
       {¶ 66} As Johnson notes, the evidence had the potential to prejudice the jury
because Norman sounded highly emotional and frantic on the recording. This no
doubt “arouse[d] the jury’s emotional sympathies” with Norman and quite possibly
“evoke[d] a sense of horror, or appeal[ed] to an instinct to punish” Johnson.
Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001).
       {¶ 67} But the recording does contain additional details about the crime
scene as Norman found it, such as the position in which he discovered Shanon’s
body. And the recording also served to corroborate Norman’s testimony, which
was important, given that he was testifying 14 years after the murder. Under the
circumstances, the trial court did not abuse its discretion by concluding that the
evidence was more probative than prejudicial.
       {¶ 68} The trial court did not err by admitting the 9-1-1 recording into
evidence.
                      c. Johnson’s 1997 media interviews
       {¶ 69} Finally, Johnson claims that the trial court erred by admitting
evidence of media interviews that he gave shortly after Shanon’s murder.
       {¶ 70} On November 13 and 14, 1997, Johnson spoke to three local
television reporters. He stated that around 7:30 a.m. on November 12, 1997, he
heard his dog barking and went to get her. Johnson said that he did not see anyone
outside. He told them that later that night, he saw cameras flashing in the Markses’
bathroom and a coroner’s vehicle outside their house. Johnson told the reporters
that he was shocked that this crime had occurred in the neighborhood and indicated
concern about staying there with his family.
       {¶ 71} Over defense objection, the prosecutor introduced a video recording
depicting the three media interviews both at Johnson’s 1998 trial and his 2011
mitigation hearing.




                                        17
                             SUPREME COURT OF OHIO




       {¶ 72} A defendant’s statements to reporters, like other conduct following
the completion of a crime, may be relevant evidence of consciousness of guilt. See
People v. Cain, 10 Cal.4th 1, 32, 40 Cal.Rptr.2d 481, 892 P.2d 1224 (1995). And
“[e]vidence of consciousness of guilt * * * [is evidence] of guilt itself.” State v.
Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997); State v. Moore, 7th Dist.
Mahoning No. 12 MA 8, 2013-Ohio-1435, 990 N.E.2d 625, ¶ 132. But Johnson
asserts that the interviews were relevant only to his guilt, and not to his sentence.
       {¶ 73} The state argues that media interviews are admissible during the
mitigation phase because, under State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,
880 N.E.2d 31, they provide evidence of the nature and circumstances of an offense.
Davis held that “a prosecutor may legitimately refer to the nature and circumstances
of the offense” for certain purposes, id. at ¶ 326, but it did not specifically address
whether a defendant’s media interviews after the completion of a crime fall under
the rubric of “nature and circumstances.”
       {¶ 74} Here, Johnson’s statements to the press revealed very little about the
nature and circumstances of the crime. However, the statements did indicate that
the crime likely occurred around 7:30 a.m., and they established that Johnson could
see into the Markses’ bathroom from a window in his own home. Thus, at least to
some minimal degree, the media interviews were relevant evidence of nature and
circumstances.
       {¶ 75} Johnson also argues that the interviews should have been excluded
as unfairly prejudicial. He reasons that the interviews had little, if any, probative
value. By contrast, he asserts that there was a high likelihood of unfair prejudice
because the interviews, which were played twice for the jury, were very likely to
appeal to the jurors’ emotions and their instincts to punish him. On the video,
Johnson (who later confessed) said that he had been shocked to learn of this crime
in his neighborhood, and he said that he had heard dogs barking on the morning of
the murder and wished he had seen the perpetrator.                     These brazen




                                          18
                                January Term, 2015




misrepresentations could impassion a jury.        However, even if the trial court
arguably should have excluded the evidence, at most Johnson can establish “a mere
error of law or judgment,” which is insufficient to prevail on abuse-of-discretion
review. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 91.
Moreover, the alleged error was harmless in light of the remaining evidence
adduced during the mitigation phase. See, e.g., DePew, 38 Ohio St.3d at 287, 528
N.E.2d 542.
       {¶ 76} For all these reasons, we reject proposition of law No. 3.
                           C. Prosecutorial Misconduct
       {¶ 77} In proposition of law No. 4, Johnson claims that prosecutorial
misconduct violated his right to due process and a fair trial.
       {¶ 78} When this court reviews a claim of prosecutorial misconduct, the
touchstone of our analysis “is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982). “The relevant question is whether the prosecutors’ comments ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’
” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40
L.Ed.2d 431 (1974). This court considers two factors in its analysis: (1) whether
the conduct was improper, and (2) if so, whether it prejudicially affected the
defendant’s substantial rights. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-
1019, 9 N.E.3d 930, ¶ 243. We analyze prejudice by determining the effect of the
misconduct “on the jury in the context of the entire trial.” State v. Keenan, 66 Ohio
St.3d 402, 410, 613 N.E.2d 203 (1993).
                         1. Misrepresentation of Evidence
       {¶ 79} Johnson claims that the prosecutor allowed a state witness, Chief
Detective McKinley Brown, to testify falsely during the 2011 hearing.




                                          19
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        {¶ 80} At the first trial and again in 2011, Brown testified that when he
questioned Johnson on November 15, 1997, he told Johnson that confessing would
prove that he was not an unfeeling sociopath. In 1998, Brown testified that, in
response, Johnson “broke down and starting crying, saying: Yes, I do care, I did
kill her, and I’m sorry for it.” But in 2011, Brown testified that Johnson responded
by “out of the blue * * * [saying], I killed the bitch.”
        {¶ 81} On cross-examination, defense counsel asked Brown why he had
“change[d]” his testimony about Johnson’s response. Brown admitted that in 1998
he had not testified about Johnson saying, “I killed the bitch.” But he objected to
the suggestion that he was “changing the testimony.” Brown said that his memory
had not changed; he was simply including additional details that he had not felt it
“appropriate to say” 14 years ago at trial. He commented that he should have
testified to Johnson’s exact words in the first trial.
        {¶ 82} Johnson argues that the prosecutor committed misconduct “by
falsely portraying Johnson’s actions.”          More specifically, he alleges that the
prosecutor knew that Brown was testifying incorrectly in 2011 and failed to correct
the false statement. To prevail on this claim, Johnson must “show that ‘(1) the
statement was actually false; (2) the statement was material; and (3) the prosecution
knew it was false.’ ” State v. Iacona, 93 Ohio St.3d 83, 97, 752 N.E.2d 937 (2001),
quoting United States v. Lochmondy, 890 F.3d 817, 822 (6th Cir.1989). Due
process is violated if there is a “reasonable likelihood that the false testimony could
have affected the judgment of the jury.” Lochmondy at 822.
        {¶ 83} Johnson cannot meet this burden. Brown’s testimony in 2011 was
somewhat inconsistent with his testimony in 1998. But the fact that a witness
changes his story is not sufficient to establish perjury. United States v. Lebon, 4
F.3d 1, 2 (1st Cir.1993). Brown explained that he was merely providing additional
information that he should have provided 14 years earlier. In addition, “mere
inconsistencies in testimony by government witnesses do not establish knowing use




                                           20
                                January Term, 2015




of false testimony” by the prosecutor. Lochmondy at 822; see also State v. Widmer,
12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 41. Thus, Johnson cannot
prove either that Brown’s statement was false or that the prosecution knew that it
was false.
                             2. Disparaging Remarks
       {¶ 84} Johnson also alleges that prosecutorial misconduct occurred when
the prosecutor made a disparaging remark about Marian Faulkner, Johnson’s
grandmother, during cross-examination.
       {¶ 85} In 2011, Faulkner testified about her problems with alcohol while
she was raising Johnson and his brother. Faulkner said that alcohol was more
important to her than the children. She carried a flask with her everywhere, drove
drunk, experienced blackouts, and beat Johnson if he bothered her during a
hangover. Faulkner testified that although she did not realize it at the time, she was
probably “a drunk” while she was raising Johnson.
       {¶ 86} On cross-examination, the prosecutor pointed out that Faulkner had
never mentioned having an alcohol problem when she testified in 1998 about
Johnson’s upbringing. According to Faulkner, she did not say anything about her
alcoholism then because no one had asked.
       {¶ 87} The prosecutor then questioned Faulkner extensively, impeaching
her with her 1998 testimony. In that context, the following exchange occurred:


               [Prosecutor]: M’am, don’t get me wrong. I think you are a
       very good lady, and I said that to you on the stand last time you
       testified. But I also believe that you will say anything to try to get
       this jury to ignore their oath.
               A: I wouldn’t just say anything.
               [Defense counsel]: I would object to that.
               A: I wouldn’t say anything. I’m going to tell the truth.




                                         21
                             SUPREME COURT OF OHIO




               The court: It’s cross-examination.


Johnson argues that the prosecutor’s remark was disparaging and amounted to
prosecutorial misconduct.
       {¶ 88} Here, the prosecutor’s comment—“I * * * believe that you will say
anything to try to get this jury to ignore their oath”—followed a lengthy
impeachment of Faulkner. The prosecutor had effectively established significant
differences between her testimony in 1998 and 2011. As a result, he was in a
position to question Faulkner about her truthfulness as a witness. See, e.g., State v.
Mason, 82 Ohio St.3d 144, 161, 694 N.E.2d 932 (1998). However, the prosecutor
should have reserved any such comment for closing argument, not injected it into
the middle of cross-examination. And the trial court could easily have cured this
impropriety by promptly instructing the jurors that they were the sole judges of
Faulkner’s credibility. Instead, the court overruled defense counsel’s objection.
       {¶ 89} Johnson claims that the comment “effectively foreclosed the jury’s
consideration of mitigating evidence proffered by Johnson.” But the prosecutor’s
statement did not prejudice Johnson when considered “in the context of the entire
trial.” Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203. The prosecutor’s remark
did undermine the defense’s new mitigation evidence that Johnson was raised by
an alcoholic. However, it did not foreclose the jury’s consideration of Faulkner’s
testimony. Indeed, Faulkner promptly denied the prosecutor’s assertion. She told
the jury, “I wouldn’t just say anything” before defense counsel could even object
to the statement. She further insisted, “I wouldn’t say anything. I’m going to tell
the truth.”    (Emphasis added.)       And when the prosecutor discussed the
inconsistencies in Faulkner’s testimony during closing arguments, he expressly
advised the jurors that they were the sole judges of witness credibility. The trial
court’s jury instructions reiterated the same point.




                                         22
                                January Term, 2015




       {¶ 90} Considered in context, it is unlikely that the prosecutor’s comment
misled the jury or significantly diminished the strength of Faulkner’s evidence
about Johnson’s childhood. The inconsistencies between Faulkner’s testimony in
1998 and 2011 would have been apparent to the jurors even without the
prosecutor’s remark. We therefore hold that this did not amount to prosecutorial
misconduct.
                               3. Closing Argument
       {¶ 91} Johnson alleged one additional instance of prosecutorial misconduct
during his oral argument before this court. He asserted that the prosecutor’s closing
argument in this case is on par with the closing argument described in State v.
Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.2d 818, ¶ 80-96, and thus
rises to the level of prejudicial misconduct.
       {¶ 92} Johnson did not raise any objection to the prosecutor’s closing
argument in his briefs, and the state did not even have an opportunity to address
Johnson’s claim at oral argument, because it was raised during rebuttal. Therefore,
this argument has been waived, and we decline to address it on the merits. See
App.R. 12(A)(1)(b) (reviewing court shall determine appeal on its merits based on
briefs, record, and oral argument) and 16(A)(7) (appellant’s brief must set forth
argument in support of assignments of error).
       {¶ 93} For these reasons, we reject proposition of law No. 4.
                                 D. Settled Issues
       {¶ 94} In proposition of law No. 6, Johnson presents constitutional
challenges to Ohio’s capital-punishment scheme and argues that the death-penalty
statutes violate international law and treaties. We summarily reject these claims,
which have been resolved in our prior decisions. See, e.g., Thompson, 141 Ohio
St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 279-280.




                                         23
                               SUPREME COURT OF OHIO




                                 E. Cumulative Error
       {¶ 95} In proposition of law No. 7, Johnson urges the court to reverse his
sentence on grounds of cumulative error and order a new trial.
       {¶ 96} The cumulative-error doctrine provides that “a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a
fair trial even though each of the numerous instances of trial-court error does not
individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d
191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
       {¶ 97} Here, Johnson cannot point to “multiple instances of harmless error.”
State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Nor does he explain
how the alleged errors collectively deprived him of a fair trial or sentence.
Accordingly, we reject proposition of law No. 7.
                      F. Independent Sentence Evaluation
       {¶ 98} In proposition of law No. 5, Johnson argues that his death sentence
was unreliable and inappropriate in light of the mitigating evidence presented. This
claim dovetails with our obligation to independently review this death sentence for
appropriateness. R.C. 2929.05(A).
       {¶ 99} In conducting this review, we must determine whether the evidence
supports the jury’s finding of aggravating circumstances, whether the aggravating
circumstances outweigh the mitigating factors, and whether death is the appropriate
sentence in this case. Id.
                             1. Aggravating Circumstances
       {¶ 100} In 1998, the jury convicted Johnson of two death-penalty
specifications, both under R.C. 2929.04(A)(7): (1) aggravated murder during the
course of an aggravated burglary and (2) aggravated murder during the course of
an aggravated robbery. Johnson was also convicted of both underlying offenses:




                                          24
                                 January Term, 2015




aggravated burglary, R.C. 2911.11(A)(1), and aggravated robbery, R.C.
2911.01(A)(3). Johnson, 88 Ohio St.3d at 101, 114-115, 723 N.E.2d 1054.
       {¶ 101} As we held in 2000, there is “sufficient and substantial evidence”
to support the jury’s finding of both aggravating circumstances.            Id. at 114
(rejecting Johnson’s sufficiency and manifest-weight challenges).
                                2. Mitigating Factors
       {¶ 102} We must weigh the above aggravating circumstances against any
mitigating evidence about “the nature and circumstances of the offense” and
Johnson’s “history, character, and background.”          R.C. 2929.04(B); State v.
Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 193. In
addition, we must consider the statutory mitigating factors under R.C. 2929.04:
(B)(1) (victim inducement), (B)(2) (duress, coercion, or strong provocation), (B)(3)
(mental disease or defect), (B)(4) (youth), (B)(5) (lack of significant criminal
history), (B)(6) (accomplice only), and (B)(7) (any other relevant factors).
                          a. Johnson’s mitigation hearing
       {¶ 103} The Sixth Circuit Court of Appeals, in affirming the district court’s
granting of a writ of habeas corpus, faulted Johnson’s 1998 trial counsel for failing
to thoroughly investigate the circumstances of Johnson’s childhood:


                 The errors of Johnson’s attorneys, particularly their lack of
       investigation, had a serious impact on the mitigation theory
       presented to the jury.      Competent counsel could have put on
       evidence that “differ[ed] in a substantial way—in strength and
       subject     matter—from     the   evidence    actually   presented    at
       sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.2005). As
       the district court found, “not one witness testified about the abuse
       that [Johnson] and his brother suffered as a way of life,” and the jury




                                          25
                             SUPREME COURT OF OHIO




        “was misled into believing that [Faulkner] had raised [Johnson]
        properly and provided for his needs.”


Johnson v. Bagley, 544 F.3d 592, 603-604 (6th Cir. 2008).
        {¶ 104} Johnson presented significantly more mitigating evidence at his
2011 mitigation hearing than he did at his initial trial in 1998, particularly with
regard to his family background and very difficult childhood.          At the 2011
mitigation hearing, the defense presented five witnesses and Johnson’s unsworn
statement.
        {¶ 105} Johnson’s    mother,   Demeatra     Johnson,   and    his   maternal
grandmother, Marian Faulkner, testified about his family background and
childhood. Demeatra did not testify at the 1998 trial.
        {¶ 106} According to Faulkner, everyone in her family drank alcohol
frequently. Her mother enjoyed going to bars and drinking on weekends. Her
father was an alcoholic and drug addict and he was periodically incarcerated. And
her adoptive father drank often, physically abused her, and beat her mother.
Faulkner’s adoptive father and another male relative tried to molest her as a child.
        {¶ 107} Faulkner began drinking at age 16, when her aunt took her to a bar.
Eventually, she drank every morning and evening, taking liquor from home.
        {¶ 108} Faulkner became pregnant with Johnson’s mother when she was 17
years old, but she tried to abort the fetus herself and continued to drink alcohol.
Demeatra was born early, weighing less than four pounds, and was incubated.
Faulkner did not visit Demeatra for four or five days, and even when she did finally
see her, she did not touch her. Faulkner relied on her mother for assistance in
raising her child.
        {¶ 109} Faulkner stated that she knows that she was a good parent to
Demeatra, but she also admitted that she did not like her and that alcohol was
always more important to her than parenting. Faulkner held a job, but she went to




                                         26
                                January Term, 2015




a nearby bar every day and “drank [her] lunch” and returned to the bar again after
work. According to Demeatra, Faulkner regularly went to bars, got drunk, and
passed out. When drunk, Faulkner beat Demeatra, and she disciplined her with
belts and cords. One night, Faulkner brought home a man who raped Demeatra.
        {¶ 110} Demeatra was taking drugs by age nine, and she later sold drugs as
well. She exchanged sex for drug money, rides in cars, and a place to stay.
Demeatra was in and out of detention facilities as a teenager and frequently ran
away.
        {¶ 111} Demeatra became pregnant with Johnson at age 16. She reportedly
consumed drugs and alcohol throughout the pregnancy, but Johnson’s birth records
do not indicate any health problems.
        {¶ 112} Demeatra lived with her mother and grandmother for several
months but then took Johnson (who was still a baby) to North Carolina with his
father. They lived in a shack with no electricity or water, and they did not always
have food or diapers. Demeatra regularly put Johnson in a closet if he cried,
sometimes for an entire day. She mashed up Percocet, Percodan, or heroin and put
it in Johnson’s bottle or applesauce so he would sleep. She also gave him beer.
Once Demeatra was angry with her boyfriend for beating her and Johnson, so she
set the bed on fire while her boyfriend was in it.
        {¶ 113} Demeatra and Johnson returned to Ohio a short time later.
Demeatra was pregnant again and soon gave birth to Ronnie. Demeatra continued
to do drugs and live a carefree life. Faulkner took care of her two grandsons, giving
them food and shelter and sending them to school. Faulkner resented having to
care for the boys, but she did not want them in foster care. She formally took
custody in 1981.
        {¶ 114} According to Faulkner, she had a “close and loving relationship”
with Rayshawn and Ronnie. She tried to be a good parent, but she also said that
alcohol was more important to her than the boys. According to Faulkner, she




                                         27
                            SUPREME COURT OF OHIO




carried a flask everywhere, regularly experienced pounding headaches, hangovers,
and blackouts, and drove drunk. She recalls whipping the boys with a leather belt
and an iron cord and hitting them with a bat when she was hung over. Faulkner
said that she stopped drinking by the time Johnson was in middle school. However,
she still has beer sometimes. Notably, Faulkner has never been convicted of driving
under the influence, and although she did receive one speeding ticket in her life,
she was not driving under the influence at the time. She also admitted that she did
not say anything about having an alcohol problem when she testified in 1998.
         {¶ 115} When Johnson was 12 or 13, Demeatra took a more active role in
his life. She taught him how to drink, smoke marijuana, and cut, cook, and deal
cocaine. They got high together. According to Faulkner, Johnson was out of
control by this point. He disobeyed, caused trouble at school, stole, drank, and ran
away. He was repeatedly in court, charged with offenses like drug abuse and
stealing money from his great-grandmother.         In November 1997, Faulkner
threatened to put Johnson, who was living with her at the time, out of her house.
         {¶ 116} After Johnson was arrested, he admitted to Faulkner that he had
murdered Shanon. He cried, apologized, and said he needed help because he is
crazy.
         {¶ 117} Demeatra and Faulkner asked the jury to spare Johnson’s life.
Demeatra said that Johnson did not have a chance with her as his mother, and she
blamed herself for his behavior. Faulkner emphasized that Johnson is a changed
man, who has been “born again.” If he is allowed to live, she believes that Johnson
can be a mentor and help raise his 14-year-old son.
         {¶ 118} Dr. Robert Smith, a forensic psychologist, obtained Johnson’s
family history, reviewed numerous records, met with Johnson twice, and
administered tests.
         {¶ 119} Smith described Johnson’s family as “very dysfunctional.” His
great-grandmother, grandmother, and mother had become single mothers at very




                                        28
                                 January Term, 2015




young ages. Each had mental-health issues, abused alcohol, and neglected and
abused her children.      And in every case, the maternal grandmother became
responsible for child-rearing, but then attempted to return the child when problems
arose.
         {¶ 120} Smith explained that this familial dysfunction likely caused a series
of problems for Johnson, contributing to his mental-health problems and addiction.
Johnson has low self-esteem and a sense of inadequacy because Demeatra
neglected him. And he likely did not learn to connect with people because his
mother and grandmother were addicts, and addicts commonly have difficulty
showing affection to their children. Johnson was not taught the difference between
right and wrong, did not learn to make good choices, and did not witness positive
social interactions. Instead, Demeatra taught her son how to sell drugs, and Johnson
observed her doing drugs and trading sexual favors for drug money. Furthermore,
according to Smith, Faulkner was no better as a caregiver to Johnson than she had
been to Demeatra. Smith conceded that there was no documented record of
physical abuse against Johnson.
         {¶ 121} Johnson has a low average IQ (83) and did not perform very well
in school. For a time he took Ritalin for attention-deficit/hyperactivity disorder.
The schools identified Johnson as developmentally handicapped and put him in a
special class. He tended to work best in structured individual or small-group
settings.
         {¶ 122} Smith diagnosed Johnson with dependencies on alcohol and
marijuana and with dysthymia, a form of depression most often found in people
with dysfunctional family backgrounds. He explained that drugs and alcohol
change the way one’s brain functions and observed that it is common to suffer from
both mental illness and addiction, each of which can affect the other. Johnson’s
past treatment for addiction was probably unsuccessful because he did not also
receive help for his mental-health problems.




                                          29
                              SUPREME COURT OF OHIO




        {¶ 123} Smith called Johnson’s use of alcohol and drugs around the time of
Shanon’s death excessive. Johnson told Smith that he had a high tolerance for
alcohol and drugs, reporting to Smith that he consumed a case of beer and smoked
15 “blunts”—described by Smith as cigars emptied of tobacco and loaded with
marijuana—per day. On the morning Shanon died, Johnson woke up, smoked a
blunt, and decided to rob the Markses’ house. But he told Smith that he did not
enter the house intending to hurt or kill anyone and that he thought Shanon was still
alive when he left.
        {¶ 124} Finally, Smith testified about Johnson’s behavior following his
conviction in 1998. While in prison, Johnson earned his GED and has held multiple
jobs. He had received only two incident reports during 14 years of incarceration,
and neither of them led to discipline.
        {¶ 125} On cross-examination, Smith admitted that he did not document a
diagnosis of depression when he first examined Johnson in 1999.             He also
acknowledged that his diagnosis differed from that of Dr. James Hawkins, the
defense psychiatrist who testified at Johnson’s first mitigation hearing. Hawkins
had diagnosed Johnson with antisocial or sociopathic personality disorder. He had
also testified that Johnson tended to exaggerate his symptoms, had an inflated
opinion of himself, and lacked remorse.
        {¶ 126} Rayshawn Johnson Jr., Johnson’s 14-year-old son, testified that he
loves his father deeply and visits him in prison. He stated that Johnson counsels
him to avoid drugs, stay in school, keep out of trouble, and be godly. He wants to
be able to continue to talk to his father. Rayshawn Jr. asked the jury not to impose
the death penalty, saying, “That’s all I got left.”
        {¶ 127} Nancy Bare testified about her work with Johnson through a prison
ministry. Bare and Johnson met 11 times, beginning in January 2011, to pray, read
scriptures, and discuss God. Bare asked the jury to spare Johnson’s life because




                                          30
                                  January Term, 2015




she believes that “God has placed a call upon his life” to counsel and minister to
others, including his son and other “young men who have turned the wrong way.”
       {¶ 128} Finally, Johnson made an unsworn statement, in which he accepted
full responsibility for his actions and offered his “deepest and most sincere
apology.” He explained that he had been a different man 14 years before, one who
relied on drugs and alcohol to escape reality. He had no father, only a drug-addicted
mother who encouraged him to use drugs and alcohol. But now Johnson is sober
and the Lord is in his life. He believes that he can mentor young men with
addictions and help them learn to change. He is also trying to be a father to his son
and has successfully counseled him against using drugs.
       {¶ 129} Johnson said that Shanon did not deserve to die and that he wishes
he could bring her back. He prays nightly for Shanon’s family and understands that
his apology is not nearly enough. Johnson asked for forgiveness and mercy and
apologized again to both Shanon’s family and his own.
                            b. Weight of mitigating factors
       {¶ 130} Johnson asks this court to assign weight to the following mitigating
factors: his history and background, R.C. 2929.04(B); his age at the time of
Shanon’s murder, R.C. 2929.04(B)(4); and other factors such as Johnson’s remorse,
adjustment to life in prison, and his transformation since 1998, R.C. 2929.04(B)(7).
Johnson does not contend, nor does the record indicate, that any other statutory
mitigating factors apply.
       {¶ 131} First, Johnson offered significant evidence of his troubling family
history and childhood. Johnson’s father was completely absent and his mother was
often absent. When Demeatra was around, she was far from a positive role model.
Demeatra’s life apparently revolved around drugs and related activities, and she
tended to run away from problems and responsibilities. She gave Johnson alcohol
and drugs when he was a baby and she taught him to use and sell drugs as a
teenager.




                                          31
                             SUPREME COURT OF OHIO




       {¶ 132} As Johnson grew up, Demeatra both implicitly and explicitly taught
her son a lifestyle of using drugs and consuming alcohol, selling drugs, and making
questionable moral decisions.     Johnson’s mother and grandmother prioritized
alcohol and/or drugs over raising him. Further, evidence suggests that they both
had mental-health problems.      This evidence is meaningful and is entitled to
significant weight in mitigation. See State v. Raglin, 83 Ohio St.3d 253, 272, 699
N.E.2d 482 (1998).
       {¶ 133} Second, Johnson argues that his youth at the time of the offense is
mitigating. Johnson was 19 years old when he killed Shanon. We give this factor
some weight. See id. at 273.
       {¶ 134} Third, Dr. Smith testified that Johnson was impaired at the time of
Shanon’s murder as a result of his mental illness and addiction. Smith diagnosed
Johnson with an alcohol dependency, a marijuana dependency, and dysthymia, a
form of depression. And Johnson reported that he was under the influence of
marijuana on the morning of his crime. As Smith conceded, however, the accuracy
of his diagnoses turned on the veracity of the information he received from Johnson,
his mother, and his grandmother. This evidence is entitled to some weight under
R.C. 2929.04(B)(7). See State v. Tibbets, 92 Ohio St.3d 146, 174, 749 N.E.2d 226
(2001) (“Although voluntary intoxication is not a strong mitigating factor, * * * we
have accorded some weight to drug addiction in mitigation”).
       {¶ 135} Fourth, Johnson has a low average IQ and generally did not do well
in school. As a child he was diagnosed with both attention-deficit/hyperactivity
disorder and a developmental disability. Johnson’s limited intellectual abilities are
entitled to some weight in mitigation under R.C. 2929.04(B)(7). See State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 264.
       {¶ 136} Finally, Johnson argues that he is “a different person than the
teenager who committed this horrible crime.” He has behaved well during his 14
years on death row. He has also converted to Christianity and expresses a strong




                                         32
                                 January Term, 2015




desire to help other young men. Johnson has had a positive impact on his teenage
son and wants to continue to develop that relationship. Johnson also expressed
genuine remorse for killing Shanon, both at his initial trial and at the 2011
mitigation hearing. This evidence is entitled to some weight as an “other factor”
under R.C. 2929.04(B)(7).
                                    3. Weighing
       {¶ 137} We accord great cumulative weight to the mitigating factors present
in this case. Johnson’s family background is similar to that of the defendant in State
v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, in which we
reversed the death sentence based upon the presence of R.C. 2929.04(B)(7) “other
factors” that “strongly militate[d] against imposing the death sentence.” Id. at
¶ 105-106.    Like Tenace, Johnson was “doomed from the start” due to his
upbringing. Id. at ¶101. Both Johnson’s mother and his grandmother had mental-
health issues and were addicted to alcohol, and his mother was also addicted to
drugs. They neglected and physically abused Johnson during his childhood. The
few lessons Johnson’s mother passed on to her son concerned how to abuse drugs
and lead a criminal lifestyle.
       {¶ 138} Johnson’s age at the time of the murder, 19, means that he was not
far removed from that corrosive upbringing when he committed the crime. He
suffered from mental illness and addiction and had limited intellectual ability.
There is evidence that as Johnson has aged and been part of a structured prison
environment, he has changed. Johnson has expressed sincere remorse for his
crimes, and he has not been subject to any discipline for misbehavior while he has
been in prison.
       {¶ 139} Johnson murdered his neighbor while stealing approximately $50
from her house in the course of an aggravated robbery and an aggravated burglary;
nothing excuses the senseless killing of an innocent person. Any one of the
mitigating factors standing alone would not outweigh the aggravating




                                         33
                              SUPREME COURT OF OHIO




circumstances in this case. But when viewed cumulatively, the mitigation evidence
militates against imposing the death sentence.
       {¶ 140} Thus, based upon an independent review of the evidence, we cannot
conclude that the aggravating circumstances that Johnson was found guilty of
committing outweigh beyond a reasonable doubt the mitigating factors present in
the case. R.C. 2929.05(A). The sentence of death imposed by the trial court is not
appropriate in this case.
                                III. CONCLUSION
       {¶ 141} Accordingly, we vacate the sentence of death and remand the cause
to the trial court for resentencing consistent with R.C. 2929.06.
                                                                    Judgment vacated,
                                                               and cause remanded.
       O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., concur.
       O’DONNELL, KENNEDY, and FRENCH, JJ., dissent.
                                _________________
       O’DONNELL, J., dissenting.
       {¶ 142} Respectfully, I dissent.
       {¶ 143} The aggravating circumstances in this case outweigh the mitigating
factors beyond a reasonable doubt, and the sentence of death imposed in this case
is not excessive or disproportionate to the penalty imposed in similar cases.
Accordingly, I would affirm the judgment of the trial court.
                            Independent Sentence Review
       R.C. 2929.05(A) specifically directs that in cases involving the imposition
of capital punishment, this court


       shall review and independently weigh all of the facts and other
       evidence disclosed in the record in the case and consider the offense
       and    the offender to       determine whether      the aggravating




                                          34
                                   January Term, 2015




        circumstances the offender was found guilty of committing
        outweigh the mitigating factors in the case, and whether the sentence
        of death is appropriate.


The statute provides that, in determining whether the sentence of death is
appropriate, this court “shall consider whether the sentence is excessive or
disproportionate to the penalty imposed in similar cases.” Id. Further, it mandates
that this court


        review all of the facts and other evidence to determine if the
        evidence supports the finding of the aggravating circumstances the
        trial jury * * * found the offender guilty of committing, and shall
        determine whether the sentencing court properly weighed the
        aggravating circumstances the offender was found guilty of
        committing and the mitigating factors.


Id.
                             Aggravating Circumstances
        {¶ 144} In our review of the first appeal filed in this case in State v. Johnson,
88 Ohio St.3d 95, 723 N.E.2d 1054 (2000), we referenced the following facts:


        In order to commit a theft offense in the Markses’ home, [Johnson],
        using stealth, entered the home through the back door, wearing
        gloves and armed with a ball bat. He knew that the house was
        occupied, since he could see into the bathroom of the Markses’
        home. While in the home, he beat Shanon with a ball bat, causing
        her death.    He then proceeded to a bedroom, where he found




                                           35
                               SUPREME COURT OF OHIO




       Shanon’s purse on a bed. He emptied the contents of the purse and
       took her money.


Id. at 114. We noted that in his statements to police, Johnson confessed to entering
Shanon’s home to look for money, striking her twice in the back of the head with a
baseball bat, and hitting her again after she fell to the floor. Id. at 99-100. He also
admitted hearing Shanon cry for help as he left the scene, id. at 99, and an autopsy
revealed that she had suffered defensive wounds, a broken left forearm, and
massive head injuries, including lacerations to her brain that caused her death, id.
at 97-98. The crime scene photos, we explained, showed that Shanon had been
severely beaten and rebutted Johnson’s claim that he only struck her three times.
Id. at 117-118.
       {¶ 145} R.C. 2929.04 describes the death penalty specifications to be
included in an indictment and provides:


                  (A) Imposition of the death penalty for aggravated murder is
       precluded unless one or more of the following is specified in the
       indictment or count in the indictment pursuant to section 2941.14 of
       the Revised Code and proved beyond a reasonable doubt:
                  ***
                  (7) The offense was committed while the offender was
       committing, attempting to commit, or fleeing immediately after
       committing or attempting to commit kidnapping, rape, aggravated
       arson, aggravated robbery, or aggravated burglary, and either the
       offender was the principal offender in the commission of the
       aggravated murder or, if not the principal offender, committed the
       aggravated murder with prior calculation and design.




                                           36
                                January Term, 2015




       {¶ 146} We have previously affirmed the jury’s finding of two R.C.
2929.04(A)(7) aggravating circumstances in this case, holding that the record
“clearly supports the finding that [Johnson] was the principal and sole offender in
the commission of [the] aggravated murder [of Shanon Marks] while committing
an aggravated burglary and aggravated robbery.” Johnson, 88 Ohio St.3d at 122,
723 N.E.2d 1054.
       {¶ 147} This prior holding remains the law of the case. See State v. Davis,
139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 27 (“The law-of-the-case
doctrine provides that the ‘ “decision of a reviewing court in a case remains the law
of that case on the legal questions involved for all subsequent proceedings in the
case at both the trial and reviewing levels” ’ ”), quoting Hubbard ex rel. Creed v.
Sauline, 74 Ohio St.3d 402, 404, 659 N.E.2d 781 (1996), quoting Nolan v. Nolan,
11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).
                                Mitigating Factors
       {¶ 148} Regarding mitigating factors, R.C. 2929.05(A) and 2929.03(D)(1)
require that we review and independently weigh all facts and other evidence and
consider the offense and the offender to determine whether the aggravating
circumstances outweigh the mitigating factors in the case beyond a reasonable
doubt. R.C. 2929.04(B) catalogs mitigating factors that include the nature and
circumstances of the offense; the history, character, and background of the
offender; whether the victim induced or facilitated the offense; whether it is
unlikely that the offense would have been committed but for the offender being
under duress, coercion, or strong provocation; whether the offender, at the time of
committing the offense, because of a mental disease or defect, lacked substantial
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law; the youth of the offender; the offender’s lack of a
significant history of prior criminal convictions and delinquency adjudications; if
the offender participated in the offense but was not the principal offender, the




                                         37
                              SUPREME COURT OF OHIO




degree of his participation in the offense and acts that led to the victim’s death; and
any other factors relevant to the issue of whether the offender should be sentenced
to death.
        {¶ 149} As the majority recognizes, however, only the following statutory
factors receive weight in mitigation of punishment in this case: (1) Johnson’s
history and background, which included a lack of parental support, physical abuse,
and exposure to drugs and alcohol, (2) Johnson’s age at the time of the offense—
19, and (3) the catchall provision for other relevant factors, i.e., Johnson (a) suffered
from alcohol and marijuana dependency at the time of the offense, (b) suffered from
depression at the time of the offense, (c) has limited intellectual abilities, (d) made
an unsworn expression of remorse, (e) embraced religion, (f) desires to help young
men with addictions, (g) demonstrated good behavior on death row, and (h) has a
positive relationship with his son. R.C. 2929.04(B); State v. Kirkland, 140 Ohio
St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 158, 160 (history of drug and alcohol
abuse and unsworn expressions of remorse considered); State v. Jones, 135 Ohio
St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 261 (history of mental problems and
low average intelligence considered); State v. Smith, 89 Ohio St.3d 323, 328, 731
N.E.3d 645 (2000) (stating that religious conversion is a mitigating factor).
            Weighing of Aggravating Circumstances and Mitigating Factors
        {¶ 150} In other cases, this court has previously considered the same
mitigating factors that are present in this case and concluded that they are not
entitled to substantial, significant, or great weight. See State v. Goodwin, 84 Ohio
St.3d 331, 350, 703 N.E.2d 1251 (1999) (offender’s age of 19 entitled to “nominal
weight”), habeas corpus granted in part on other grounds sub nom. Goodwin v.
Johnson, N.D.Ohio No. 1:99CV2963, 2006 WL 753111 (Mar. 22, 2006); State v.
Davis, 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 113 (retrospective
remorse entitled to little weight); State v. Cunningham, 105 Ohio St.3d 197, 2004-
Ohio-7007, 824 N.E.2d 504, ¶ 138 (defendant’s severe depression was a weak




                                           38
                                January Term, 2015




mitigating factor); State v. Green, 66 Ohio St.3d 141, 152, 154, 609 N.E.2d 1253
(1993) (defendant’s lack of intelligence, alcohol and drug addiction, and family
upbringing, which included frequent physical abuse by an alcoholic father,
collectively “entitled to modest weight”).
       {¶ 151} This court has “ ‘seldom given decisive weight to’ a defendant’s
unstable or troubled childhood.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-
6179, 920 N.E.2d 104, ¶ 245, quoting State v. Hale, 119 Ohio St.3d 118, 2008-
Ohio-3426, 892 N.E.2d 864, ¶ 265.
       {¶ 152} There is nothing mitigating about the nature and circumstances of
the murder of Shanon Marks. Johnson prepared for the crime by wearing gloves to
avoid leaving fingerprints, armed himself with a baseball bat which he intended to
use as a weapon, entered the home by stealth, used the bat to kill Shanon, and struck
her with enough force to fracture her skull and a bone in her left forearm, rupture
her right eye, tear one of her ears, and cause lethal lacerations in her brain. He then
emptied the contents of her purse to “make it look like a robbery,” stole her money,
ignored her cries for help, and left her to die on a bathroom floor while he disposed
of the evidence to avoid being connected to the attack.
       {¶ 153} The majority errantly compares this case to an outlier case, State v.
Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, in which this court,
in a 4-3 decision, vacated a sentence of death holding that an R.C. 2929.04(A)(7)
aggravating circumstance did not outweigh the mitigating factors, emphasizing the
defendant’s history and background. Id. at ¶ 101-103, 106.
       {¶ 154} Tenace is distinguishable from this case because Johnson’s
unfortunate family history does not rise to the level of depravity experienced by
Troy Tenace, who was forced to watch the sexual abuse of his sister for
approximately 15 years and whose mother sold him as a child to adult males for
sexual purposes in addition to helping him and his siblings burglarize stores and
homes. Tenace at ¶ 70, 84, 87, 102. Tenace’s earliest memory was of his mother’s




                                          39
                             SUPREME COURT OF OHIO




face coming through a motel window. Id. at ¶ 86. His parents each kidnapped him
during a drawn out custody fight. Id. at ¶ 102. His mother, a drug addict, attempted
suicide several times and spent six weeks in a mental hospital. Id. at ¶ 101. Tenace
suffered from posttraumatic stress disorder, depression, substance dependence
disorder (in particular with cocaine), and antisocial personality disorder. Id. at
¶ 93-95.
       {¶ 155} Johnson’s history, character, and background does not rise to the
sort of family upbringing Tenace experienced. Rather, this case is more analogous
to State v. Spivey, 81 Ohio St.3d 405, 692 N.E.2d 151 (1998), and State v. Raglin,
83 Ohio St.3d 253, 272-273, 699 N.E.2d 482 (1998).
       {¶ 156} Warren Spivey broke into Veda Eileen Vesper’s residence,
attacked her with a knife or knives, inflicted multiple stab wounds, beat her to death,
robbed her of jewelry and other personal property, and fled in her automobile.
Spivey at 405. We held that the state proved one R.C. 2929.04(A)(7) aggravating
circumstance beyond a reasonable doubt. Id. at 420. The nature and circumstances
of the offense in Spivey revealed nothing of mitigating value, and the only
applicable mitigating factors were the offender’s history and background, youth
(age 19 at the time of the offense), and psychological problems (attention deficit
disorder, alcohol and marijuana abuse/possible dependency, borderline personality
disorder with schizoid and antisocial features). Id. at 422, 424, 428.
       {¶ 157} Spivey “was plagued by physical and mental problems or
deficiencies, had difficulties in school, suffered parental rejection at an early age,
was raised in an unsupportive family environment, was treated as an outcast by
certain family members, was physically and verbally abused by his parents, and
was sexually abused on at least one occasion.” Id. at 424. His mother resented his
medical and behavioral problems to the point that she stopped seeking medical
treatment for his seizures, which as he matured, began to manifest themselves in




                                          40
                                January Term, 2015




forms of rage and anger. Id. at 420. This court affirmed his sentence of death. Id.
at 429.
          {¶ 158} Walter Raglin approached Michael Bany from behind in a parking
lot, pulled out a .380 semiautomatic pistol, demanded and received Bany’s cash—
$60—inquired as to whether Bany’s vehicle had an automatic or manual
transmission, and when Bany failed to answer and turned toward Raglin, he shot
Bany in the side of the neck, killing him. Raglin at 254. We held that the state
proved one R.C. 2929.04(A)(7) aggravating circumstance beyond a reasonable
doubt. Id. at 266-267. The nature and circumstances of the offense revealed
nothing of mitigating value; the applicable mitigating factors were the offender’s
history and background, youth (age 18 at the time of the offense), expressions of
remorse and sorrow, cooperation with police, and the fact that Raglin may have,
due to a mental disease or defect, lacked the capacity to conform his conduct to the
requirements of the law. Id. at 272-273.
          {¶ 159} Raglin “lacked appropriate parental support and guidance, his
family life was chaotic, the conduct of his mother was reprehensible, and the
resulting situations [he] was subjected to during his formative years [were] nothing
short of atrocious.” Id. at 272. He lived in homes characterized by extreme filth
and inadequate facilities. Id. at 267. His father was incarcerated on several
occasions for drug-related offenses. Id. His mother often abandoned him and his
siblings for days or a week at a time and spent some nights in jail for prostitution.
Id. The major bonding between Raglin and his mother during his childhood
centered on alcohol and drug use. Id. at 269. When Raglin was around age nine,
his mother permitted him to drink alcohol and smoke cigarettes and began to have
him steal money to support her drug habit. Id. at 267. During his preteen years,
Raglin accompanied his mother to drug deals as a form of protection for her. Id. at
268.




                                         41
                              SUPREME COURT OF OHIO




        {¶ 160} Although the combined mitigating factors in Raglin were “stronger
than the mitigation we typically see in some appeals involving the death penalty,”
we affirmed the sentence of death. Id. at 274, citing Spivey.
        {¶ 161} Johnson, Raglin, and Spivey all committed their offenses before
they reached 20 years old. All three men had troubled childhoods. Like Spivey,
Johnson experienced parental rejection and physical abuse. And like Raglin,
Johnson suffered from the substance abuse by the adults in his life. The major
bonding between Johnson and his mother centered on drugs and alcohol, and his
mother encouraged him to engage in criminal behavior.
        {¶ 162} In Spivey and Raglin, the offenders’ youth, history, and other
mitigating factors did not overcome a single R.C. 2929.04(A)(7) aggravating
circumstance. Spivey at 429; Raglin at 274. Here, there are two aggravating
circumstances: Johnson committed aggravated murder during the course of an
aggravated burglary and an aggravated robbery and Johnson was the principal
offender in murdering his neighbor by beating her with a baseball bat. He left
Shanon crying for help and without medical attention, having struck her from
behind and inflicted massive head injuries. The aggravating circumstances are
entitled to significant weight.
        {¶ 163} The mitigating factors, however, are entitled to nominal, little,
weak, or modest weight according to our case law, and the combination of
mitigating factors is insufficient to overcome the great weight of the aggravating
circumstances in this case. The analysis offered by the majority is not persuasive,
and its reliance on Tenace is misplaced because that case is factually
distinguishable from the mitigation present here and it ignores that our precedent
affords little weight to the mitigating factors present in this case.
        {¶ 164} The aggravating circumstances Johnson was found guilty of
committing outweigh the mitigating factors in this case beyond a reasonable doubt.




                                           42
                                January Term, 2015




                       Appropriateness and Proportionality
       {¶ 165} The death penalty is not excessive punishment in this case and is
proportionate to death sentences imposed in other cases. Johnson, 88 Ohio St.3d
at 123, 723 N.E.2d 1054. See Spivey, 81 Ohio St.3d 405, 692 N.E.2d 151; Raglin,
83 Ohio St.3d 253, 699 N.E.2d 482.
                                     Conclusion
       {¶ 166} The evidence presented in this case supports the jury’s finding of
two aggravating circumstances, i.e., Johnson was the principal offender in the
commission of an aggravated murder while committing aggravated burglary and
aggravated robbery.     The aggravating circumstances outweigh the mitigating
factors beyond a reasonable doubt, and the sentence of death is not excessive and
is proportionate to the penalty affirmed in similar cases.
       {¶ 167} For these reasons, I would affirm the judgment of the trial court and
its imposition of sentence in this case.
       KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                                _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr., Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, Linda Prucha, Supervisor, Death-
Penalty Division, and Tyson Fleming and Daniel Jones, Assistant Public
Defenders, for appellant.
                              ___________________




                                           43
